Opinion
No. 29, 2001
Submitted: June 21, 2002
Decided: July 8, 2002
Court Below — Court of Chancery of the State of Delaware, in and for New Castle County C.A. No. 17843.
Appeal dismissed.
Unpublished opinion is below.
ADVANCED RADIO TELECOM CORP. and ART LICENSING CORP., Defendants Below-Appellants, v. CL INVESTMENTS, L.P., Plaintiff Below-Appellee. No. 29, 2001 In the Supreme Court of the State of Delaware. Submitted: June 21, 2002 Decided: July 8, 2002
Before WALSH, HOLLAND, and BERGER, Justices.
JOSEPH T. WALSH, Justice:
ORDER
This 8th day of July 2002, it appears to the Court that:
(1) The defendants-appellants, Advanced Radio Telecom Corp. and ART Licensing Corp., filed this interlocutory appeal in January 2001. After filing the opening brief on appeal, Advanced Radio Telecom Corp. filed a voluntary bankruptcy petition in April 2001, which stayed the continuation of this proceeding.
(2) On May 31, 2002, appellants' counsel informed the Court that the United States Bankruptcy Court for the District of Delaware had confirmed a plan of reorganization for the appellants. Counsel's letter further states that this appeal "concerns the interpretation of the appellants' contractual duties to issue, transfer or sell common stock under a common stock purchase warrant dated March 8, 1996. Under the [bankruptcy plan of reorganization], any obligations of the appellants to transfer any equity interest under that warrant have been cancelled, discharging the alleged contractual obligation and rendering the issues on this appeal moot."
(3) The appellants request the Court to dismiss the appeal as moot, vacate the Court of Chancery's decision, and remand the case to the Court of Chancery with directions to dismiss the case. The appellee agrees that the appeal should be dismissed as moot but contends there is no basis to vacate the Court of Chancery's decision.
(4) We agree that there is no basis on this record to vacate the Court of Chancery's December 15, 2000 decision. The rule of vacatur exists "for the protection of a party whose desire for appellate review has been thwarted" and is usually invoked when there is companion litigation pending between the same parties "to eliminate what would otherwise be the procedural bar of res judicata." The issues in this appeal have become moot as a result of the appellants' own voluntary bankruptcy petition. Thus, the appellants' desire for appellate review has not been thwarted by circumstances "beyond their control." Moreover, the appellants have cited no other circumstances that would compel us to vacate the Court of Chancery's decision in the interests of justice. If circumstances exist that warrant vacatur of the Court of Chancery's decision, the appellants may seek such relief from the Court of Chancery in the first instance.
Stearn v. Koch, 628 A.2d 44, 46-47 (Del. 1993).
Id. at 47.
NOW, THEREFORE, IT IS ORDERED that the within appeal is hereby DISMISSED as moot.