     United States Court of
                      Appeals
              For the Seventh Circuit
               Chicago, Illinois 60604
                       May 27, 2005

                          Before

           Hon. JOHN L. COFFEY, Circuit Judge
           Hon. FRANK H. EASTERBROOK, Circuit Judge
           Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-1871
UNITED AIRLINES, INC., and THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS,
                       Plaintiffs-Respondents-Appellees,
                             v.


U.S. BANK N.A. and THE BANK OF
NEW YORK, as Indenture Trustee,
                     Defendants-Petitioners-Appellants.
                       ____________
          Petition for a Writ of Mandamus to, and Appeal
            from the United States District Court for the
           Northern District of Illinois, Eastern Division.
 Nos. 04 C 8304 & 05 C 289 (04 A 4149)—John W. Darrah, Judge.
                       ____________
                           Order
                       ____________
2                                                 No. 05-1871

  Our opinion in this case, issued on May 6, 2005, held that
11 U.S.C. §1110 entitles aircraft lessors to immediate pos-
session of their aircraft unless United pays the full rental or
the lessors agree to accept less. We issued our mandate the
same day, so that the unwarranted judicial interference
with this statutory entitlement would end without further
delay.
   Yet the “Trustees’ Motion to Enforce Opinion” reveals that
the district court has failed to comply with our mandate. It
has done nothing except schedule a status hearing for June
8, 2005. Inaction, for which the district judge has not offered
any explanation, is unjustifiable. We treat the Motion as a
request for mandamus to enforce our mandate. The request
is granted. The district judge and bankruptcy judge are
directed to vacate the injunction immediately. Just in case
there is any further delay, we stay the injunction pending
the formal orders of vacatur. As of this instant, the lessors
are at liberty to exercise their statutory and contractual
entitlements.
  The principal aim of the Motion is to enforce a second
conclusion of our opinion: that United’s adversary action,
accusing the lessors of violating the antitrust laws by
engaging in joint negotiation, is legally untenable. This was
an alternative holding, and not dicta as the Creditors’
Committee and the bankruptcy judge have characterized it.
Our view of §1110 and our view of the antitrust laws are
independent (and independently sufficient) grounds of de-
cision with respect to the preliminary injunction, and our
resolution of the antitrust claim is the principal reason why,
as our opinion remarked, the parties’ dispute about the
crime-fraud exception to the attorney-client privilege is no
longer relevant. If as the Creditors’ Committee submits the
discussion of antitrust can be ignored, then the dispute
about the surrender of privileged documents remains live.
That would contradict our opinion.
No. 05-1871                                                   3

  After our opinion issued, United moved to dismiss the
adversary action. The Creditors’ Committee opposed that
motion, contending that dismissal would amount to the
“abandonment” of a valuable asset, and on May 20 the
bankruptcy judge denied United’s motion on the theory that
our analysis is dictum, mistaken, or both, so that the claim
retains financial value. The bankruptcy judge has put
United to a choice: prosecute the action unwillingly, or hand
it over to the Creditors’ Committee. Neither option is
palatable. United fears that prosecution of the action may
complicate its negotiations with the aircraft lessors, and
having the action in the hands of the Creditors’ Committee
would make matters worse by wrecking all possibility of a
global bargain with the lessors.
  As we have said, our disposition was an alternative hold-
ing, not dictum. Disagreement with its substance may
furnish a basis for a petition for rehearing (or certiorari); it
does not license defiance by a litigant or an inferior court.
We therefore direct the bankruptcy judge immediately to
grant United’s motion to dismiss the adversary proceeding.
  Our opinion reserved, as a potentially viable antitrust
theory, a claim that potential lenders and lessors have
engaged in joint action with respect to aircraft other than
those now in United’s inventory. Nothing in this order
affects that reservation. Any claim based on such a theory
should be the subject of a new adversary action, however, if
an appropriate investigation supplies a factual basis.

A true Copy:
       Teste:
                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit



                     USCA-02-C-0072—6-8-05
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