In re Tribune Media Company, 799 F.3d 272 (3d Cir. 2015). Roughly one month ago, Judge Krause authored a powerful concurring opinion in In re One2One Communications, LLC, 805 F.3d 428 (3d Cir. 2015), that criticized the bankruptcy doctrine of equitable mootness and advocated that it be reevaluated or even discarded. That opinion is discussed here. Today, the Third Circuit issued an opinion involving Tribune Media Company that found that an appeal was equitably moot. None of the same judges who comprised the panel in One2One (Chief Judge McKee and Judges Greenaway and Krause) were on the panel in today’s case. That panel consisted of Judges Ambro, Vanaskie,and Shwartz, with Judge Ambro writing the panel’s opinion.
Judges Ambro and Vanaskie also issued a concurring opinion, however. They did so in order to address Judge Krause’s concurrence in One2One, which they rightly labeled as “well-crafted.” The concurrence in today’s opinion addressed many of Judge Krause’s arguments in detail, and stated that “[e]very Circuit Court has recognized some form of equitable mootness.” Judges Ambro and Vanaskie concluded by saying that if they were “able to revisit our Circuit’s precedent that equitable mootness is available in the right circumstance,” they would “decline to discard this tool of equity.” As they summarized:
“In a very few cases, shutting an appellant out of the courthouse does substantially less harm than locking a debtor inside. Federal courts have ample equitable authority to decide when no remedy is appropriate, and thus, though we should always presume that appeals merits be reached and act with the utmost care when we turn aside an appeal, equitable mootness remains a last-ditch discretionary device for protected the finality of an unstayed plan that has been consummated.”
Judge Shwartz joined the majority opinion but did not join the concurrence or issue her own opinion as to what Judge Krause had said. It was not, of course, strictly necessary for any member of this panel to address Judge Krause’s concurrence, so it is not clear that Judge Shwartz feels as strongly about the validity of equitable mootness as Judges Ambro and Vanaskie evidently do. But Judge Shwartz did vote in favor of equitable mootness in the case presented.
The issue of equitable mootness may be poised for consideration by the en banc Third Circuit, though en banc review is not frequently granted there. That could happen in this case or, at some point, in another one yet to come.