Starr International Company, Inc., on Its Behalf and on Behalf of a Class of Others Similarly Situated v. United States, 112 Fed. Cl. 601

Background

Starr International (shareholder of AIG) sued the United States alleging Fifth Amendment takings and illegal exaction claims arising from the government’s 2008–09 AIG bailout, asserting both direct and derivative shareholder claims.
The Court previously issued lengthy opinions in 2012 rejecting the Government’s motions to dismiss Starr’s direct shareholder claims and denied reconsideration.
In March–June 2013 the Court dismissed AIG and the derivative claims, leaving the direct shareholder claims as the central focus.
On June 26, 2013 the Court issued an order again rejecting the Government’s challenges to Starr’s direct claims; the Government moved on August 16, 2013 to certify that order for interlocutory appeal under 28 U.S.C. § 1292(d)(2).
The Government sought certification on whether Delaware law (and the Constitution) allows Starr and class members to assert direct shareholder claims against the United States rather than only derivative claims.
The Court denied certification, finding the Government’s motion untimely and that the criteria for interlocutory review were not met (not a controlling novel legal question suitable for piecemeal review and requiring a fuller factual record).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of §1292(d)(2) certification motion	Government unduly delayed; prior rulings foreclosed such a late request	Certification timely after June 26, 2013 order (post-derivative-dismissal)	Denied — motion untimely given prior rulings and delay in seeking certification
Whether Starr may pursue direct (not only derivative) shareholder claims under Delaware law	Starr: Delaware law permits direct corporate-overpayment claims where shareholders individually suffered harms and relief would go to them	Government: Claims are derivative and must be brought by the corporation; direct claims inappropriate	Denied certification — Court previously addressed and allowed direct claims; characterization depends on facts, not pure law
Whether the legal question is a controlling, novel issue fit for interlocutory appeal	Starr: Issue is fact-intensive under Delaware tests and not novel; appellate review should wait for full record	Government: Federal Circuit guidance now would materially advance litigation and conserve resources	Denied — not sufficiently novel or purely legal; factual record required; interlocutory review not appropriate
Whether an immediate appeal would materially advance termination of litigation	Starr: Delay harms plaintiff and appellate review without record would be unhelpful	Government: Immediate ruling would conserve resources and resolve controlling legal question	Denied — appellate review without factual record unlikely to terminate or meaningfully advance the case

Key Cases Cited

Tooley v. Donaldson, 845 A.2d 1031 (Del. 2004) (formulates test to distinguish direct vs. derivative shareholder claims)
Gatz v. Ponsoldt, 925 A.2d 1265 (Del. 2007) (corporate-overpayment claims may be direct or derivative depending on facts)
Gentile v. Rosette, 906 A.2d 91 (Del. 2006) (describes direct-shareholder remedy where controlling party issues excessive shares to itself)
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) (interlocutory appeals under §1292 reserved for exceptional cases)
Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (takings analysis requires ad hoc, factual inquiry)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (takings determinations require factual inquiry)
Casa de Cambio Comdiv S.A. de C.V. v. United States, 291 F.3d 1356 (Fed. Cir. 2002) (illegal exaction test identical to takings test)
Nebraska Pub. Power Dist. v. United States, 74 Fed. Cl. 762 (2006) (example of certifying novel interlocutory issue)
Nebraska Pub. Power Dist. v. United States, 590 F.3d 1357 (Fed. Cir. 2010) (Federal Circuit review of certified interlocutory issue)