When "happenstance" — rather than the parties’ actions — moots a case during an appeal, should the appeals court vacate the district court’s opinion?  Yes, the Ninth Circuit held today.  The court distinguished between mootness that occurs as a result of settlement, on the one hand, and mootness that happens by, well, happenstance, on the other.  The first kind doesn’t usually justify vacatur, but the second type does.  NASD Dispute Resolution, Inc. v. Judicial Council of the State of Calif., No. 02-17413 (9th Cir. May 30, 2007).

The appellees in the case wanted to hold onto a decision that declared their immunity from suit.  The Ninth Circuit sympathized but pointed out that vacatur wouldn’t rip the opinion from the pages of the Federal Supplement 3d and wouldn’t eliminate its preclusive effect on parties and their privies.

Barry Barnett

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