S.D.N.Y. Notes Circuit Split Re Whether Risk an Appeal Might Become Moot Satisfies Irreparable Injury Requirement for Stay Pending Appeal

Per In re Adelphia Comm. Corp., --- F. Supp. 2d ----, 2007 WL 186796 (S.D.N.Y. Jan 24, 2007):

Courts are divided, and the Second Circuit has not yet spoken, on the issue of whether the risk that an appeal may become moot in the absence of a stay pending appeal satisfies the irreparable injury requirement. A majority of courts have held that a risk of mootness, standing alone, does not constitute irreparable harm. However, several courts, including ones within this Circuit, have held to the contrary. While Appellees have strained to distinguish each of these cases, the fact is that loss of appellate rights is a “quintessential form of prejudice.” Thus, where the denial of a stay pending appeal risks mooting any appeal of significant claims of error, the irreparable harm requirement is satisfied.