NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-3745, 16-3746 & 17-1513

_____________

In re: ALLIED NEVADA GOLD CORP., et al., Debtors

 BRIAN TUTTLE, 

 Appellant

_____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Nos. 1-15-cv-00946, 1-15-cv-00949, and 1-16-cv-00058)

District Judge: Hon. Sue L. Robinson

_______________

Submitted Under Third Circuit LAR 34.1(a)

March 12, 2018

Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges

(Filed: March 27, 2018)

_______________

OPINION∗

_______________

 ∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

JORDAN, Circuit Judge.

Brian Tuttle, Jordan Darga, and Stoyan Tachev (collectively, the “Appellants”),

1

former stockholders of Allied Nevada Gold Corporation (together with its affiliated codebtors and Appellees, “Allied Nevada”), challenge the District Court’s conclusion that 

their bankruptcy appeals are equitably moot. We will affirm.

I. BACKGROUND2

A. Allied Nevada’s Bankruptcy

The Appellants hold now-cancelled stock in Appellee Allied Nevada, which, 

before it declared bankruptcy, was a publicly traded company producing gold and silver. 

On March 10, 2015 (the “Petition Date”), Allied Nevada filed a voluntary petition for 

Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of 

Delaware. As of the Petition Date, it had approximately $340 million of secured debt, 

and another $350 million of unsecured debt. According to an analysis by its financial 

advisor, Moelis & Company LLC, Allied Nevada’s estimated value as a going concern 

following reorganization was projected to be between $200 and $300 million. Moelis’s 

 1 One of the consolidated appeals to the District Court from the Bankruptcy Court 

was captioned Ad Hoc Committee of Shareholders v. Allied Nevada Gold Corp., et al., 

No. 15-946-SLR, and it did not individually name the Appellants as parties. Because 

their ad hoc committee was never officially recognized, see infra n.6 and accompanying 

text, we treat that appeal, and the one before us, as having been filed by the three 

Appellants individually. 

2 The facts are recounted in detail in the District Court’s September 15, 2016, and 

February 10, 2017, opinions dismissing Appellants’ bankruptcy appeals. Because we 

write primarily for the parties, we recite only the facts pertinent to this consolidated 

appeal. Except where indicated, those facts are undisputed.
3

valuation left stockholders out of the money by a large margin. Thus, if liquidated, 

Allied Nevada’s equity holders, as residual claimants, stood to recover nothing.

Prior to filing for bankruptcy, Allied Nevada had negotiated a restructuring and 

support agreement with certain lenders representing 100% of its funded secured debt and 

approximately 67% of its unsecured debt. During the bankruptcy, it failed to meet some 

of the covenants and milestones in that agreement, but it was able to successfully 

renegotiate an amended agreement. 

Additional stakeholders participated in the bankruptcy proceedings, including two 

statutory committees appointed under 11 U.S.C. § 1102, one to represent Allied Nevada’s

unsecured creditors (the “Creditors Committee”) and the other to represent its equity 

holders (the “Equity Committee”). Those committees took discovery, conducted

independent valuation analyses, investigated potential claims, and negotiated with Allied 

Nevada and other stakeholders to reach a consensual reorganization plan. Also 

participating, through separate counsel, was a committee of noteholders, which included 

certain hedge funds that ultimately agreed to fund an Exit Facility for Allied Nevada.

3

 

In mid-August of 2015, Allied Nevada announced an agreement in principle (the 

“Global Settlement”) with its major stakeholders, including the Creditors Committee and 

 3 “Exit Facility Commitment,” as defined in the reorganization plan, “means the 

several ... commitments from the Exit Facility Lenders ... to purchase the New Second 

Lien Convertible Notes” up to $80 million. (JA at 164.) The “Exit Facility Lenders” 

included Aristeia Capital LLC, Highbridge Capital Management, LLC, Mudrick Capital 

Management, LP, USAA Asset Management, Whitebox Advisors LLC and Wolverine 

Asset Management LP, and their respective affiliates. (JA at 164.) With the Bankruptcy 

Court’s approval, the Exit Facility Lenders, among others, also provided Allied Nevada 

with a $78 million debtor-in-possession credit facility to help it meet its financial 

obligations during the bankruptcy proceedings. 
4

the Equity Committee. On August 27, 2015, Allied Nevada filed a final proposed

reorganization plan and disclosure statement, which reflected the Global Settlement. 

That plan proposed the following recovery: (1) secured creditors would receive a 

distribution of new secured debt in Allied Nevada; (2) unsecured creditors would receive 

options, with the right to receive a cash distribution or new common stock in Allied 

Nevada; and (3) equity security holders would receive new warrants that would allow

them to purchase, as a class, up to 17.5% of Allied Nevada’s outstanding new common 

stock. 

Meanwhile, a few days prior to the Global Settlement, Tuttle, proceeding pro se,

filed a motion to appoint an independent examiner to investigate potential claims against 

Allied Nevada. He also sought discovery. Allied Nevada, the Creditors Committee, and 

the committee of noteholders all objected to Tuttle’s motion for appointment of an 

examiner. 

The Equity Committee also submitted a response, stating that it had considered the 

allegations in Tuttle’s motion but found no colorable claims giving rise to the equitable 

disallowance for any creditor’s claim. The Committee thus advised individual 

stockholders, including Tuttle, that they should consult an attorney to advise them on 

claims allegedly owned only by those stockholders, as individuals. It also represented 

that it had “weighed [Moelis’s] valuation analysis, operational analysis, and analysis of 

certain potential claims in negotiating the terms of the settlement that is embodied in the 

Consensual Plan of reorganization” before the Court, and concluded that the proposed 

settlement “provide[d] existing equity holders with the best opportunity for a recovery 
5

given [Allied Nevada’s] current circumstances.” (JA at 364.) The Bankruptcy Court 

held a hearing on Tuttle’s motion and denied it. 

The Bankruptcy Court ultimately approved Allied Nevada’s disclosure statement, 

and a confirmation hearing was set for October 6, 2015.4

 The Court also granted Tuttle 

access to the discovery materials that had been made available to the Creditors 

Committee and the Equity Committee, on condition that he sign the same confidentiality 

agreement executed by the representatives of those committees. Tuttle did not return an

executed confidentiality agreement until five days prior to the confirmation hearing. 

Tuttle objected to Allied Nevada’s proposed reorganization plan, arguing that it 

undervalued Allied Nevada and that equity holders were entitled to a greater recovery. 

Tachev filed a brief in support of Tuttle’s objection. Darga also filed an objection. 

Importantly, none of the Appellants filed a motion to stay.

During the October 6, 2015, confirmation hearing, Allied Nevada presented its 

proposed reorganization plan. Tuttle and Darga participated in the hearing, and the 

Bankruptcy Court permitted them to cross-examine witnesses and argue their objections. 

They took issue with various aspects of Allied Nevada’s financial statements and 

Moelis’s valuation analysis, and also raised allegations of fraud and mismanagement; but 

 4 Tuttle, holding himself to be the chairman of an ad hoc committee of equity 

security holders, had filed an objection to Allied Nevada’s notice of hearing on its 

proposed disclosure statement. See supra n.1, and infra n.6. At a hearing on the 

disclosure statement, Tuttle argued that Allied Nevada had not negotiated with an ad hoc 

committee, and that the stockholders’ proposed recovery under the plan was inadequate. 

The Court overruled the objection but informed Tuttle of his right to object to the 

substance of the plan at confirmation. 
6

neither proposed an alternative enterprise valuation analysis or proffered any new 

evidence or witnesses to substantiate their objections. During argument, Tuttle asked the 

Court to stay the confirmation hearing, which the Court denied as an untimely motion. 

In an order dated October 8, 2015, the Bankruptcy Court confirmed the 

reorganization plan over the Appellants’ objections. It found “no evidence that the plan 

itself was not proposed in good faith”; instead, it found that the plan was the product of

“negotiation[s] among numerous parties, all of whom had different interest[s],” including 

Allied Nevada itself, the secured lenders, the Creditors Committee, and the Equity 

Committee “as a fiduciary representative for all shareholders.” (JA at 635.) The Court

accepted Moelis’s valuation analysis, which it found to be “reasonable, persuasive, 

credible and accurate” and “not ... controverted by other persuasive evidence[.]” (JA at 

699-700.) Finally, although a majority of Allied Nevada’s stockholders had voted to 

reject the plan, the Equity Committee’s conclusion favoring the plan remained. The 

Court concluded that the reorganization plan was fair to the stockholders – the most 

junior class receiving a recovery – and that it provided more than they would have 

received in a liquidation. Two weeks later, the plan was consummated and Allied 

Nevada emerged from Chapter 11 as a privately-held company. 

A few months later, the Bankruptcy Court held a hearing to address outstanding 

motions. Tuttle and Darga both participated and argued various motions related to 

requests for standing to prosecute and to appoint an independent examiner, additional 

discovery motions, expense reimbursement, and a written motion to stay, filed the day 
7

before the plan’s effective date.

5

 In a January 22, 2016, omnibus order (the “Omnibus 

Order”), the Court denied those motions. 

B. The Consolidated Appeals

The Appellants filed multiple appeals, which were consolidated into two cases 

before the United States District Court for the District of Delaware. In the first, Tuttle 

sought, among other things, reversal of the Bankruptcy Court’s Omnibus Order. In the 

second, the Appellants, as a self-styled ad hoc committee of equity security holders,

6 and 

Tuttle individually appealed various Bankruptcy Court orders, including the August 28, 

2015, disclosure order, the October 8, 2015, confirmation order, an order denying 

Tuttle’s first motion to appoint an examiner, and an order approving Allied Nevada’s sale 

of certain non-core assets during bankruptcy. 

In two separate opinions, issued on September 15, 2016, and February 10, 2017, 

the District Court dismissed the Appellants’ claims as equitably moot. In each, it rejected 

their argument that equitable mootness is unconstitutional.7

 It then applied our equitable 

mootness test, and concluded that each factor weighed in favor of dismissal. 

 5 Those motions are more fully described in the District Court’s opinions. 

6 At the hearing and in its Omnibus Order, the Bankruptcy Court denied Tuttle’s 

request for recognition of the ad hoc committee of equity security holders as an official 

committee. 

7 The District Court’s reasoning for the equitable mootness dismissal is 

substantially the same in both opinions. For purposes of this appeal, references to the 

dismissal are to both opinions, unless otherwise indicated.
8

Appellants challenge those dismissal orders, which have been consolidated in the 

appeal before us now.

8

II. DISCUSSION9

The Appellants devote much of their briefing to the argument that equitable 

mootness is unconstitutional. But as the District Court succinctly stated, equitable 

mootness is a valid doctrine in this Circuit:

The constitutionality of the equitable mootness doctrine was raised in In re 

One2One [Communications], LLC, 805 F.3d 428 (3d Cir. 2015). As stated 

by the Third Circuit, “[b]ecause we have already approved the doctrine of 

equitable mootness in [In re Continental Airlines, 91 F.3d 553 (3d Cir. 

1996) (en banc)], only the court sitting en banc would have the authority to 

reevaluate our prior holding. This court may only decline to follow a prior 

decision of our court without the necessity of an en banc decision when the 

prior decision conflicts with a Supreme Court decision.” [One2One

Commc’ns, 805 F.3d at 432-33 (citations omitted).]

(JA at 20 n.10); see also In re Tribune Media Co., 799 F.3d 272, 277-80 (3d Cir. 2015)

(discussing equitable mootness). Continental controls here and will continue to control 

unless and until we reconsider it en banc, see One2One Commc’ns, 805 F.3d at 438 

(Krause, J., concurring), or the Supreme Court takes up the issue, which it has declined to 

do despite recent entreaties, see, e.g., Quinn v. City of Detroit, 137 S. Ct. 2270 (2017); 

Aurelius Capital Mgmt., L.P. v. Tribune Media Co., 136 S. Ct. 1459 (2016).

 8 In the consolidation order (Order, Apr. 19, 2017), Tuttle was granted leave to file 

separate briefing in Case No. 17-1513 “raising only those issues which have not been 

addressed in the brief previously filed” in the other appeals, Case Nos. 16-3745 and 16-

3746. Tuttle now has retained counsel who have filed briefing on his behalf.

9 The District Court had jurisdiction to hear the appeals from the Bankruptcy 

Court under 28 U.S.C. § 158(a). We have appellate jurisdiction pursuant to 28 U.S.C. 

§§ 158(d) and 1291.
9

The Appellants argue that, even if the concept of equitable mootness is legally 

sound, the District Court abused its discretion by applying it to dismiss their claims. We 

review an application of equitable mootness for abuse of discretion, In re SemCrude, 

L.P., 728 F.3d 314, 320 (3d Cir. 2013), accepting the “findings of fact unless they are 

completely devoid of a credible evidentiary basis or bear no rational relationship to the 

supporting data.” Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258 F.3d 180, 182 (3d Cir. 

2001).

As an initial matter, we have said that “‘[e]quitable mootness’ is a narrow doctrine 

by which an appellate court deems it prudent for practical reasons to forbear deciding an 

appeal when to grant the relief requested will undermine the finality and reliability of 

consummated plans of reorganization.” Tribune, 799 F.3d at 277. Allied Nevada, as the 

proponent of an equitable mootness dismissal, “bears the burden of overcoming the 

strong presumption that appeals from confirmation orders of reorganization plans—even 

those not only approved by confirmation but implemented thereafter (called ‘substantial 

consummation’ or simply ‘consummation’)—need to be decided.” Id. at 278 (citation 

omitted). 

Our recent decisions have synthesized the test for equitable mootness as 

“proceed[ing] in two analytical steps: (1) whether a confirmed plan has been 

substantially consummated; and (2) if so, whether granting the relief requested in the 

appeal will (a) fatally scramble the plan and/or (b) significantly harm third parties who 
10

have justifiably relied on plan confirmation.”10 Tribune, 799 F.3d at 278 (quoting 

SemCrude, 728 F.3d at 321). 

As to the first step, the Appellants do not meaningfully dispute the District Court’s 

conclusion that Allied Nevada’s reorganization plan has been substantially consummated. 

The Bankruptcy Code defines “substantial consummation” to mean:

(A) transfer of all or substantially all of the property proposed by the plan 

to be transferred;

(B) assumption by the debtor or by the successor to the debtor under the 

plan of the business or of the management of all or substantially all of the 

property dealt with by the plan; and

(C) commencement of distribution under the plan.

11 U.S.C. § 1101(2).

After reviewing the record before it, which included an affidavit by Allied 

Nevada’s chief financial officer, the Court concluded that Allied Nevada had transferred 

substantially all of its property by satisfying certain debt obligations, eliminating all thenexisting liens, and dissolving certain business entities; it had emerged from Chapter 11 

bankruptcy and had been legally reorganized; and it had commenced distributions under 

the plan. The District Court then listed numerous transactions and events triggered by the 

plan, including that Allied Nevada had entered into new contractual agreements with its 

investors and creditors, had incurred $126.7 million of new first lien term loans (some of 

 10 To the extent Tuttle suggests that the District Court erred because it applied 

Continental’s factors instead of the test laid out in our more recent equitable mootness 

decisions, we think that concern is unwarranted. Although its opinion addresses the 

factors in the order listed in Continental, the District Court effectively set forth the 

equitable mootness test as provided in our recent opinions. And, as we explain herein, it 

fairly considered additional factors set forth in Continental.
11

which it has already repaid), had issued $95 million of new second lien convertible notes, 

had issued new warrants, and had distributed new common stock to entitled holders of 

general unsecured claims. The Court also credited Allied Nevada’s representation that it 

had approved the sale of some common stock to a third party, and that it had distributed 

approximately $1.8 million in cash to satisfy allowed claims and to make payments on

certain outstanding contracts and leases. 

The Appellants’ sole argument in rebuttal is that Allied Nevada’s reorganization 

plan has not been substantially consummated because it has not completed a strategic 

transaction it had hoped to finance following reorganization. That alone, however, fails 

to negate the cascade of transactions and distributions that have followed since the plan’s 

consummation.

Moreover, and of high significance, the Appellants did not timely seek or obtain a 

stay. In Continental, we noted that “[a] stay not sought, and a stay sought and denied, 

lead equally to the implementation of the plan of reorganization.” 91 F.3d at 562 

(citation omitted); see also Nordhoff, 258 F.3d at 186-87 (noting that appellants are 

required to “pursue with diligence all available remedies to obtain a stay” where failure to 

do so would render it inequitable to reverse the challenged Bankruptcy Court order

(citation omitted)). That factor remains an important consideration. See Tribune, 799 

F.3d at 282 (listing, as a second and related reason supporting an equitable mootness 

dismissal, that the appellants failed to obtain a stay of the confirmation order pending 

appeal); One2One Commc’ns, 805 F.3d at 452 (Krause, J., concurring) (highlighting the 

importance of this factor and observing that “every time we have affirmed a finding of 
12

equitable mootness after Continental..., the appellant failed to file a motion for a stay.”). 

On this record, we discern no error in the District Court’s conclusion that the plan was 

substantially consummated.

As to the second step, the Court considered whether granting the Appellants’ 

requested relief would “require undoing the plan as opposed to modify[ing] it in a manner 

that does not cause its collapse.” (JA at 22 (citing One2One Commc’ns, 805 F.3d at 

435).) Tuttle argues that, instead of applying equitable mootness and dismissing his

claims, the District Court should have exercised its remedial powers and fashioned relief 

in a way that would not upset the plan. 

Although we have said that courts “may fashion whatever relief is practicable 

instead of declining review simply because full relief is not available[,]” we have also 

said that the “starting point is the relief an appellant specifically asks for.” Tribune, 799 

F.3d at 278 (citation omitted). Indeed, we have affirmed dismissal on equitable mootness 

grounds because appellants “propose[d] no relief that would not involve reopening 

[claims settled by the reorganization plan,]” reasoning that “[a]llowing those suits would 

knock the props out from under the authorization for every transaction that ha[d] taken 

place.” Id. at 281 (internal quotation marks and citation omitted).

Here, the Appellants asked the District Court to vacate the confirmation order, 

unwind completed transactions, and revalue Allied Nevada so as to increase the 

distribution to stockholders. In other words, they sought to do the whole thing over, 

which is not much of an alternative in the face of a substantially consummated plan. The 

Court reasonably rejected that. It concluded that Allied Nevada had shown “a 
13

sufficiently complex reorganization” based on “compromises and agreements that took 

place over many months” among competing stakeholders, culminating in the Global 

Settlement and a release of claims embodied in the final plan, which “would be difficult

to unravel[.]” (JA at 24.) It did not abuse its discretion by not sua sponte fashioning

alternative relief. Rather, it reasonably concluded that to grant the Appellants’ requested

relief would be inequitable.

The Appellants also contest the District Court’s conclusion that the requested 

relief would harm third parties not before the Court. They argue that granting relief 

would actually benefit certain third parties, including other holders of cancelled stock

who held impaired claims. Tuttle adds that the Court erred by extending equitable 

mootness to protect the interests of sophisticated entities, like Allied Nevada’s Exit 

Facility Lenders. He believes that the reorganization plan “was not adopted in good faith, 

but was instead designed to unfairly favor” those lenders, and he characterizes his efforts

as seeking to recover a “shortfall” that left Allied Nevada’s stockholders with only

warrants. (Tuttle’s Reply at 18.) None of that speaks to the question of whether, in 

undoing the plan, substantial harm would be done to third parties, including Allied 

Nevada’s creditors and other debtholders, and more generally, stakeholders who held 

superior claims.

The short of it is that there was no error in the District Court’s conclusion, at step 

one, that the reorganization plan has been substantially consummated, and no abuse of 

discretion at step two in deciding that granting relief “would likely topple the delicate

balances and compromises struck by the [p]lan.” (JA at 25 (internal quotation marks and 
14

citation omitted).) Although it should be cautiously applied, the equitable mootness 

doctrine sometimes is warranted to prevent a court from unscrambling “complex 

bankruptcy reorganizations when the appealing party should have acted before the plan 

became extremely difficult to retract.” In re Phila. Newspapers LLC, 690 F.3d 161, 169

(3d Cir. 2012) (quoting Nordhoff, 258 F.3d at 185). That is the case here.11

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s orders dismissing the 

Appellants’ claims as equitably moot.

 11 In light of our holding, we need not address the District Court’s alternative 

conclusion that, even if equitable mootness did not apply, Tuttle failed to show that the 

Bankruptcy Court “abuse[d] its discretion or err[ed] in denying Tuttle’s motions for 

reconsideration and [the] other motions that are the subject of [his] appeal.” (JA at 20 

n.11.)