In Honeywell Int'l, Inc. v. Purculator Products Co.
, the court entered an order, granting summary judgment on the issue of liablity under the Employee Retirement Income Security Act. The case then settled. The defendant made an application to compel the plaintiff to pay attorneys' fees and costs. The plaintiff sought to appeal from the order granting summary judgment on liability, which was the predicate for the request for fees. The Second Circuit dismissed the appeal. The order was moot in that the case was settled and could not be appealed, and, to the extent that it was the predicate for the application for fees, an appeal could not be taken until the Court had decided that fees would be granted and the amount of such fees. Until that determination was made, the decision was not final and not appealable.
The decision can be found here