As the attorney who argued the (unsuccessful) appeal on Continental Airlines (the Third Circuit's seminal decision on equitable mootness), I wish to call to your attention that the 2-1 panel decision in 75 F.3d was withdrawn when reargument en banc was granted. Judge Alito wrote the dissent in the 7-6 en banc affirmance of the district court’s dismissal of our appeal on the grounds of equitable mootness.

I think there are some implications to Judge Alito’s views and role in the Continental case that transcend the bankruptcy issue. Even the majority recognized that the merits of the appeal raised serious issues for review.

The equitable mootness doctrine, I suggest, is fundamentally majoritarian—a particular party is denied an otherwise valid (not constitutionally or statutorily moot) right to appeal because the “greater good” of the treatment of other creditors and proponents of the reorganization plan should not be disturbed. What is particularly interesting in the en banc decision is that Judge Alito assembled what I believe were the three most conservative and three most liberal members of the Circuit to join the dissent. I suspect that the underlying reason for that may have been that the three most conservative members were disturbed by what the Delaware bankruptcy court was doing to creditor rights, while the three most liberal members were disturbed by court-created doctrines that narrow a party’s right to appeal. Nevertheless, it was the most ideological judges on the court who supported the right to appeal, and the centrists who took the pragmatic and majoritarian approach of countenancing possible injustice because it might inconvenience the majority of the parties in interest. And I think it was significant that the future Justice Alito was able to cobble together a coalition of judges who rarely agreed on other issues on this matter of fairness.

Continental was my sole foray before Judge Alito, and I never had dealings with him in practice. However, his fairness is highly respected in New Jersey by many liberal and Democratic lawyers who have worked with him and appeared before him.

—Gary S. Jacobson
Herold & Haines, P.A.