Tuesday, May 10, 2011

Concerning the en banc decision in Tivo v. Echostar

The punchline in Tivo v. Echostar (May 10, 2011):

However, consistent with our sister circuits, we conclude that
we should not dismiss the appeal after it has been de-

The motion to dismiss is denied. The mandate will isue in due course.

The CAFC noted:

This court issued its en banc decision and opinion in
this case on April 20, 2011. The judgment affirmed in
part, vacated in part, and remanded for additional pro-
ceedings. In part, we affirmed the district court’s exercise
of its discretion to impose sanctions against the appel-
On May 2, 2011, prior to this court’s issuance of the
mandate, the parties informed us that they had settled
the case on April 29, 2011, and asked us to dismiss the
appeal. The parties did not inform us that they had
settled the matter before issuance of our decision nor do
they inform us that they had agreed to a disposition of the
matter dependent upon our decision. It is clear that if the
parties had entered into such an agreement before issu-
ance of our decision, it was counsel’s duty to inform this
court of the agreement. Board of License Comm’rs of
Tiverton v. Pastore, 469 U.S. 238, 240 (1985); see also
Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.23 (1997) (citing Pastore) (“It is the duty of counsel to
bring to the federal tribunal's attention, ‘without delay,’
facts that may raise a question of mootness.”) (emphasis
in original). Clearly, they did not settle before our deci-


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