I really enjoyed reading this case. The issue before the en banc court was whether the Ninth Circuit still had jurisdiction to resolve the appeal (e.g., whether there was still a valid Article III case or controversy) after the parties settled the underlying dispute. The general rule, of course, is that a settlement moots the case, but the parties here had simultaneously made a $10,000 bet on the outcome of the appeal: Gator would have to pay L.L. Bean that amount if the case was affirmed (in addition to the other static payments required by the settlement agreement), whereas no additional money would be exchanged if the case was not affirmed. So the issue was whether that side bet continued the case or controversy that existed when the case was filed.
The majority held that it did not, and accordingly dismissed the appeal. The majority opinion, the concurring opinion, and the dissent each made important and persuasive points, and I enjoyed reading all of them. I did not approach the case thinking that the proper resolution of the matter was at all clear, even though this is an issue that somewhat interests me. Indeed, as I progressed through the various opinions, I was persuaded by each of them, seriatim. My initial reaction was that side bets shouldn't create jurisdiction, consistent with the majority opinion. Thereafter, upon reading Judge Tashima's concurrence, I thought that side bets at least should not create jurisdiction when the bets concerns (as here) merely whether or not personal jurisdiction exists. But then I found Judge Willie Fletcher's dissent perhaps the most persuasive of them all; that the side bet here could well be related to the merits -- e.g., could easily be viewed as the equivalent of a cost award on appeal to which L.L. Bean would otherwise be entitled -- and that a live case or controversy accordingly still existed.
My ultimate take on this dispute ends up being a melange of each of these views, albeit one that none of the judges have themselves expressed. I think that Judge Fletcher is right -- indeed, fairly clearly right -- that the side bet here entails a legitimate case or controversy. The more I thought about it, the more I disbelieved Judge O'Scannlain's conclusion that Article III standing fails to exist in cases like this. That can't be right. For example, imagine that Congress passed a statute that granted federal jurisdiction over side bets. I can't fathom that the judiciary would strike the statute down as a violation of Article III. Moreover, I would think that Article III jurisdiction exists over such disputes in the same way that ancillary jurisdiction exists over fee, cost and sanction awards. As long as the dispute is concrete, as long as the parties still care, and as long as (as here) the dispute is at least marginally related to the original controversy, I don't see that Article III really prevents adjudication. It's still a live case or controversy.
So I actually think that Article III isn't the problem. Rather, I think that the proper resolution may arise instead from something that none of the judges discuss: prudential standing concerns. Even if there's Article III jurisdiction, the court can clearly bounce cases on nonconstitutional standing grounds. And both the majority and Judge Tashima (in his concurrence) do a pretty tolerable job of explaining why we might well want to bounce cases like this one -- where the concrete interests of the parties, as a result of the side bet, is fairly low. My reaction as I initially read the case is that I'm loathe, as a general matter, to allow parties to craft their settlement agreements (e.g., by including side bets) as a means of manipulating standing requirements, since this would allow (as here) the parties to engage in strategic behavior in order to obtain favorable precedent. So I might well dismiss the appeal on such prudential grounds, in part for the reasons explored by Judge Tashima. Especially, again, when the side bet only concerns issues like whether or not there was personal jurisdiction in the underlying matter below.
This is especially true, as here, when the underlying case is a declaratory relief action. I don't mean to say by this that I buy Judge O'Scannlain's incredibly lame attempt to distinguish the various Supreme Court cases on the standing issue by claiming that this case is distinguishable from those because it's a claim for declaratory relief. Judge Fletcher entirely crushes the majority on this issue: it's not even close. But in declaratory relief cases, it seems to me that we already have a wide variety of bases for discretionary dismissal, and that recognizing another one for cases like this would be entirely appropriate.
I don't like the thought that parties can create jurisdiction through manipulative side bets. So usually I might dismiss such claims on either prudential standing grounds or, as here, as a common law limitation on claims for declaratory relief. But sometimes, the side bet is somewhat -- perhaps very closely -- related to either the merits or the underlying controversy. In such cases, both in order to encourage creative ways of narrowing the appellate issues or to ensure the resolution of an existing dispute, I'd let the appeal go forward. I'm fairly confident that Article III allows such an approach, and think that this view of the standing issue -- as a matter to be resolved on a pragmatic, case-by-case basis -- is preferable to the position advanced by any of the views expressed by the Ninth Circuit. It'll let legitimate side bets be resolved while dismissing the remainder.