Virtus Capital LP v. Allied Holding, Inc. (In Re Allied Holding, Inc.)

291 F. App'x 257

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 27, 2008
• Docket: 07-14974
• Status: Unpublished

Opinion

PER CURIAM:

Allied Holding filed for voluntary bankruptcy pursuant to Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 301, on July 31, 2005. Virtus Capital and Hawk Opportunity Fund are shareholders of Allied, whose shares were deemed worthless by Allied’s Plan of Reorganization (the “Plan”).

The bankruptcy court confirmed the Plan on May 18, 2007. Three days later, Virtus and Hawk appealed the bankruptcy court’s order to the district court. They did not seek a stay with the bankruptcy court until June 25, 2007. The stay was denied, and Virtus and Hawk failed to request a stay with the district court. On September 29, 2007, the district court dismissed their appeal as equitably moot, finding that the Plan had been “substantially consummated” and that third parties had acted in substantial reliance on it. Upon careful review of the record and the parties’ briefs, and after hearing oral argument, we affirm.

Considering all the circumstances, we agree with the district court that the Plan has been so substantially consummated that effective relief is no longer available. Several major transactions have already been executed pursuant to the Plan. If Virtus and Hawk were granted cash or shares in the reorganized Allied, or if the Plan’s release provision were invalidated, such relief would undermine the reasonable expectations of the stockholders and creditors who carefully negotiated and relied on the deal struck by the Plan. Accordingly, Virtus and Hawk’s appeal is equitably moot. See In re Club Assocs., 956 F.2d 1065, 1069 (11th Cir.1992).

AFFIRMED.