Despite warnings about the future of the equitable mootness doctrine, courts continue to deny review of challenges to Chapter 11 plans that are confirmed and consummated. Two recent circuit-level decisions, from the First and Third Circuits, determined that appeals of confirmed plans of reorganization were equitably moot despite criticizing the doctrine. Perhaps the case with the right facts has not reached the Courts of Appeals yet. These two decisions suggest that sooner or later reconsideration of the doctrine and meaningful review of bankruptcy court decisions should occur.

The Third Circuit in In re Nuverra Envtl. Sols. determined that an appeal was equitably moot notwithstanding that the limited relief the creditor sought would not have “fatally scrambled” the confirmed plan. No. 18-3084, (3d Cir. Jan. 6, 2021), as amended (Feb. 2, 2021). The panel’s decision included a concurring opinion that challenged the underpinnings of the equitable mootness doctrine, but nevertheless agreed with the result. The First Circuit, in López-Muñoz v. López-Muñoz, took the doctrine one step further by holding that an appeal was equitably moot because the plan had been substantially consummated some 16 months before and relied on a presumption that, after such a long period of time, granting the relief the creditor sought would cause harm to innocent third parties. 983 F.3d 69 (2020). While the holdings of these cases point to continuing vitality of the equitable mootness doctrine, there is still considerable uncertainty about its future given the calls for its reconsideration and the questions regarding the evolution of the doctrine.