Dhx

concurring.

The parties arrived at a complete financial settlement but agreed to continue to litigate. Without informing us, the parties created a facade: Allianz entered into a complete financial settlement with DHX, but Allianz also paid DHX attorney’s fees so that DHX could continue to litigate the case and play the part of an aggrieved party, even though DHX no longer had any interest in the matter.

The parties have settled their entire underlying dispute, depriving us of a live case or controversy which permits adjudication. I write separately to emphasize the fundamental principle that settlements such as the one before us deprive us of an actual case or controversy. I also emphasize the duty upon attorneys to affirmatively disclose settlements to the court and our highly circumscribed authority to vacate district court judgments after parties have reached a settlement.

I

The underlying dispute arises out of an insurance contract. The insured, Dependable Hawaiian Express, Inc. (“DHX”), filed suit, alleging that Allianz AGF MAT Ltd. (“Allianz”) 1 breached its insurance contract in bad faith. DHX’s insurance claim arose from the theft from its premises of two shipping…

ORDER

The parties have informed the court that they have settled the economic issues in this case. Because the parties have agreed in open court on appeal that there are no objections to vacating the district court’s October 17, 2002 order denying the motion to dismiss for improper venue, 1 we *1170 remand for a determination by the district court whether that order, the summary judgment order, and/or the judgment entered on February 18, 2003, should be vacated. See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 29 , 115 S.Ct. 386 , 130 L.Ed.2d 233 (1994) (holding that “mootness by reason of settlement does not justify vacatur of a judgment under review,” but stating that a court of appeals may “remand the case with instructions that the district court consider the [vacatur] request”); see also Am. Games, Inc. v. Trade Prods. Inc., 142 F.3d 1164, 1169-70 (1998) (holding that when settlement moots a case, the district court may apply an equitable balancing test in considering vacatur).

The case is REMANDED for the purpose of considering vacatur. After remand either or both of the parties may move the district court for vacatur of the order denying the motion to…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DHX, INC., a California  corporation, Plaintiff-Appellant, No. 03-55426 v.  D.C. No. ALLIANZ AGF MAT, LTD., a CV-02-06397-PA foreign corporation, doing business in the State of California, Defendant-Appellee. 

DHX, INC., a California  corporation, Plaintiff-Appellee, No. 03-55455 v.  D.C. No.

CV-02-06397-PA

ALLIANZ AGF MAT, LTD., a foreign corporation, doing business ORDER in the State of California, Defendant-Appellant.  Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted December 6, 2004—Pasadena, California

Filed September 19, 2005

Before: Stephen Reinhardt, Robert R. Beezer, and Kim McLane Wardlaw, Circuit Judges.

13391 13392 DHX, INC. v. ALLIANZ AGF MAT, LTD. Order; Concurrence by Judge Beezer

COUNSEL

David E.R. Woolley, Attorney at Law, Los Angeles, Califor- nia, for the plaintiff-appellant/appellee.

G. Geoffrey Robb, Gibson Robb & Lindh LLP, San Fran- cisco, California, for the…