Mootness

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7^th Circuit Court of Appeals

Case Name: Builders NAB LLC v. Federal Deposit Insurance Corporation

Case No.: 18-2799; 18-2804

Officials: FLAUM, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Mootness

After an examination in 2015, the Federal Deposit Insurance Corporation assigned Builders Bank a CAMELS rating of 4, near the bottom of the scale. The acronym, which stands for capital adequacy, asset quality, management, earnings, liquidity, and sensitivity to market risk, reflects a bank’s ability to withstand financial challenges, and a rating of 4 exposes a bank to extra oversight. Builders Bank sued, and we concluded that some components of a CAMELS rating are open to judicial review. Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017). Before the case could be resolved on remand, however, Builders Bank merged into a non-bank enterprise, Builders NAB LLC, and left the banking business. This led the district court to dismiss the suit as moot. 2018 U.S. Dist. LEXIS 53678 (N.D. Ill. Mar. 30, 2018).

This suit was litigated on remand as a financial claim under the APA. So cast, it fails. We hold Builders to its litigation strategy and do not permit it to change on appeal both its substantive theory and its asserted waiver of sovereign immunity. We modify the district court’s judgment to be one on the merits rather than a dismissal for mootness.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.