Sometimes you amend an opinion to respond to an argument in a petition for rehearing. Sometimes you amend to correct a factual error. And sometimes you amend to get your colleagues off your back.
Back in July, Judge Trott wrote an opinion in an otherwise fairly routine bankruptcy case involving default interest. The district court had applied -- and extended a bit -- the Ninth Circuit's holding back in 1988 in a case called Entz-White. But Judge Trott, as well as the rest of the panel, found that case distinguishable. Which, of course, is totally fine.
But in the midst of the opinion, in so holding, Judge Trott also inserted the following footnote (footnote two): "With the addition of the 1994 amendments, including § 1123(d), the continued validity of our holding Entz-White is questionable. We, however, do not reach that issue today as the facts presented in this appeal—grounded in a § 363 sale—are distinguishable from those in Entz-White."
Now, I'm admittedly just speculating, but my sense is that the claim that "the validity of our holding in Entz-White is questionable" didn't exactly go unnoticed. By either the parties or, more critically, the other members of the Ninth Circuit.
Whatever the reason -- and I don't think anywould be surprised if the words en banc were part of the threatened utterances -- here's the entirety of the Order that the panel issued earlier today: "The Opinion filed on July 3, 2008, is hereby amended as follows: on slip Opinion page 8112, delete footnote #2."
Controversy over. For now, anyway.
