September 15, 2021

James Millar Speaks With National Law Journal About ‘Equitable Mootness’

The National Law Journal published an article, “Pressure Grows for Justices to Review Judge-Made Bankruptcy Rule,” that addresses how some professionals say “equitable mootness” is constitutionally questionable because it denies appellants the right to an appeal on the merits.

The story highlights a recent cert petition that asks the Supreme Court to review equitable mootness after the U.S. Court of Appeals for the Third Circuit, in Hargreaves v. Nuverra Environmental Solutions, invoked it to dismiss noteholder David Hargreaves’ appeal to an approved Chapter 11 plan. Corporate restructuring team co-leader James Millar is representing the petitioner in the case and spoke with the legal industry publication about the issues involving equitable mootness.

Millar highlighted that a Supreme Court review of equitable mootness would bring “much-needed certainty to the bench and bar alike.”

“Equitable mootness overshadows countless facets of the Chapter 11 process—from the initial structure of reorganization plans, to stakeholders’ strategy in seeking or opposing plan approval, to the balance of power between bankruptcy judges and the Article III courts that are supposed to supervise them,” Millar said. “Granting review would provide certainty regarding how, if at all, equitable mootness should factor into that process—a result that would bring much-needed certainty to the bench and bar alike.”

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