The Supreme Court has ruled in a variety of contexts since it rendered Liner in 1964.46 As a result, the Court has developed a strong precedent that governs when a case should (or should not) be dismissed as contentious and what procedures a federal court should follow after a case has been challenged. In contrast, the judicial remedy of a „fair dispute” precludes the decision on an appeal if there is a material change in circumstances, so it would be unfair for a reviewing court to rule on the merits of the appeal. In bankruptcy cases, appellants often invoke fairness as a ground to prevent the appeal from reviewing a decision approving a Chapter 11 plan. See for example: In re LCI Holding Company, Inc., 802 F.3d 547, 554 (3d Cir. 2015) (stating that the doctrine „comes into play in the event of bankruptcy (to our knowledge, its only playing field) after the approval of a reorganization plan” and deciding that just litigation would not cut off the power to hear an appeal outside the context of planning). The voluntary cessation of a practice challenged by a defendant does not deprive a federal court of its power to determine the legality of the practice. In the present case, the applicant`s repeal of the offending wording would not prevent him from reinstating the same provision if the District Court`s judgment were set aside. The Supreme Court has developed several doctrines that govern how courts should decide cases that become contentious while an appeal is pending.73 When reviewing a lower court`s decision, an appellate court has several options for resolving the case: it can confirm – i.e. approve – 74; it may set aside the judgment, i.e. set it aside;75 it may set aside the judgment, i.e.
set aside the judgment76 and thus „deprive the subsequent decision of its binding effect”; 77 or it may refer the case back to the lower court for further proceedings.78 As the Court of Justice stated in its 1950 opinion in United States v. For example, an environmental group filed a citizen lawsuit under the Clean Water Act against Laidlaw, a company that operated a wastewater treatment plant, claiming the plant was releasing far more toxic pollutants into a river than allowed by a government-issued permit. However, after litigation began, Laidlaw began to comply with the release limit. The Supreme Court ruled that the case was not controversial because it was a „disputed question of fact” as to whether the company`s substantial compliance with licensing requirements or the closure of the plant in question (which had occurred following the Court of Appeal`s decision) „would make it absolutely clear that Laidlaw`s licence violations cannot reasonably be expected.” 28 The Eleventh Judicial District rejected the debtor`s argument that the appeal was constitutionally invalid because the plan had already been largely implemented and it would be cumbersome to process every transaction – mortgages would have to be changed, liens discharged and money repaid. According to the Court: The doctrine of regulatory dispute is often applied in cases where the Federal Court refuses to grant the plaintiff`s application for a declaration or injunction because the defendant „has already changed or is in the process of changing its policies, or where it appears that a repetition of the acts in question is otherwise highly unlikely.” 18 The Oberster Gerichtshof stated that the burden on the party to whom the court seeks the dismissal of an appeal on prudential grounds is `severe` because the plaintiff (usually the defendant) `must prove that there is no reasonable expectation that the injustice will recur`. 19 Essentially similar fairness criteria were adopted by the Second, Third, Fifth, Sixth, Ninth and Eleventh Judicial Districts. See Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.
1993); Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258 F.3d 180 (3d Cir. 2001); TNB Fin., Inc. v. James F. Parker Interests (In re Grimland, Inc.), 243 F.3d 228 (5th Cir.
2001); Ochadleus v. City of Detroit (In re City of Detroit), 838 F.3d 792 (6th Cir. 2016) (application of doctrine in a Chapter 9 case); JPMCC 2007-C1 Grasslawn Lodging, LLC v. Transwest Resort Props. Inc. (In re Transwest Resort Props., Inc.), 801 F.3d 1161 (9th Cir.