Zucker

concurring:

I join fully in Judge Wiggins’ careful opinion and write separately only to emphasize the rule that parties cannot confer jurisdiction upon this court. Despite ample opportunity, the parties to this appeal never have satisfied the explicit conditions for finality in the district court’s order. We lack the authority to review that order until the parties comply with these conditions. Although the parties nevertheless may find it mutually convenient to proceed with this appeal, we are not free to disregard our lack of jurisdiction for the sake of expediency.

FACTS

Plaintiffs in May 1988 filed this class action in the district court against Maxicare Health Plans, Inc. .(“Maxicare”) and others. The complaint alleged violations of federal securities laws in connection with the sale of Maxi-care securities, for which Salomon Brothers Inc., Montgomery Securities, and Ernst & Young (or its predecessor in interest, Ernst & Whinney) (collectively “Appellants”) had served as underwriters and accountants. No Appellant was named as a defendant in the district court.

On or about July 15, 1988, plaintiffs filed three similar cases in L.A. County Superior Court (the “State Court.Actions”). ■ Appellants were named as defendants in these State Court Actions. The State Court Actions were premised on a theory of fraud not yet accepted by the California courts. The state trial court rejected this theory, and therefore sustained demurrers to plaintiffs’ state court complaints. The California Court of Appeal affirmed the state trial court. On June 5, 1991, the California Supreme Court accepted the California Court of Appeal’s decision for review.

In the meantime, plaintiffs had in federal court obtained without opposition the certification of a class…