You’re gonna’ love this one! In an en banc opinion the Ninth U.S. Circuit Court of Appeals [only in California!], in Gator.com, Inc. v. L. L. Bean, 2005 U.S. App. LEXIS 2521 [9th Cir. 2005] held that the appeal was rendered moot notwithstanding a “side bet” in a confidential settlement agreement and that the “side bet” was not enough to preserve a justiciable controversy. Also, even though the parties agreed that the agreement was confidential and to be filed under seal, the appellate court instructed the parties to submit a copy of sealing order and when the appellate court reviewed the submission it determined no sealing order was actually entered. The court concluded that since the issue of mootness hinged on the specifics of the “confidential” agreement, it was appropriate to disclose the agreement’s content.
Nice try, folks – remember, no more side bets – that won’t confer jurisdiction!
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