dissenting:
I understand the majority’s reluctance to render an opinion on the merits of the instant controversy, when the appellant appears to retain an alternative to accepting the rulings of this Court. But upon close analysis, I think the trial court’s ruling is not subject to the infirmities that have led courts to decline review on grounds that the order was not final or that an appellate disposition would constitute an advisory opinion.
McKinney initially sought damages for breach of contract and fraud as well as restoration of his ownership of the newspaper. After the evidence had been presented in the liability phase of the trial and the jury had been instructed, McKinney elected rescission, but he also claimed the right to ancillary damages for the diminution in value he alleged the newspaper suffered under Gannett’s management.1 The option granted by the trial court’s judgment has its genesis in two rulings: first, the court’s determination that McKinney was not entitled to damages for any diminution in value of the newspaper traceable to Gannett’s management policies, a ruling McKinney contests in this appeal; and second, McKinney’s expressed concern about what appellees might do to the newspaper between the time of the court’s order of rescission and the execution of that order. The trial court, exercising equity jurisdiction, sought to assure appellees’ responsible action toward the newspaper by granting McKinney an option to elect rescission after the accounting. The accounting phase of the trial took another year to complete, and after the colloquy described in the majority opinion, the court extended the option until sixty days after the appellate judgment, if there was an appeal.
It is significant that McKinney has dropped all claims for relief except his right to rescission. The option the trial court has given him is simply to take back his stock in the newspaper corporation and surrender *1250the shares of Gannett stock he acquired in the exchange, with accounting adjustments from both sides,2 or, alternatively, he can in effect drop his lawsuit and keep the Gannett stock he originally received, without compensation for the breaches of contract or any monetary exchanges. Although I have never seen an equitable judgment framed in the terms now before us, its novelty does not render it invalid. Courts exercising equity jurisdiction are given broad discretion to frame their decrees to do equity. The trial court found that the appellees had acted in bad faith toward McKinney, that they would remain in control of the newspaper until the litigation was completed, and that the option would be an effective mechanism to assure that they would act responsibly toward the property to be returned to McKinney under the court’s order. In effect the court determined that considerations of equity justified the alternative nature of the relief. This order seems to me to be within the. trial court’s powers.
As the majority notes, a judgment is final if it leaves nothing for the court to do except execute judgment and if it informs the losing party of the extent of the remedy afforded against him. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); Glass v. Pfeffer, 657 F.2d 252, 254 (10th Cir.1981).
“[I]f nothing more than a ministerial act remains to be done, such as the entry of a judgment on a mandate, the decree is regarded as final and is immediately reviewable.”
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68, 68 S.Ct. 972, 976, 92 L.Ed. 1212 (1948).
Here, unless we reverse or modify the trial court’s decision, nothing is left for that court to do except the ministerial acts of recording McKinney’s exercise of his option, and, if he chooses rescission, supervising the asset transfers it has already determined and ordered. The losing parties are informed of the remedy afforded against them.
The trial court’s order in this case is very similar to the order issued by the district court in Irwin v. West End Development Co., 342 F.Supp. 687 (D.Colo.1972), aff’d, 481 F.2d 34 (10th Cir.1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 915, 39 L.Ed.2d 110 (1974). In Irwin, the plaintiffs sued to enforce a stock purchase option granted them in the articles of incorporation. The district court held that the defendant was obligated to offer the stock to the plaintiffs. The court’s judgment gave the plaintiffs thirty days from the date the judgment became final to tender the money for the shares. The defendant appealed the decision and urged that the right to tender payment had expired because the thirty days had lapsed. This Court rejected the defendant’s argument and held that the plaintiff had thirty days from the date the appellate judgment became final because the appeal had suspended the running of the thirty days. Id. at 39^40. In its disposition of Irwin, the Court did not focus on finality. This is not surprising, however, because the order was not significantly different from orders routinely entered in constructive trust cases and judgments granting optional relief to members of a class.
The majority apparently assumes that in Irwin the plaintiffs were required to tender their payment as soon as the appellate judgment was final. That is not so. The district court, in impressing the trust on the shares, stated:
“[T]he trust so impressed being conditioned upon the tender by plaintiffs Irwin and Lease of $4,662.75 each, and by plaintiffs Crowley and McCaleb of $3,496.00 each, all tenders to be plus interest at the rate of 6% per annum from September 9, 1965, to the date of tender. Such tender shall be made within thirty days from the date this judgment becomes final, and, if such tender be not made, the trust hereby impressed shall be released.”
*1251Judgment and Decree 1-2, Irwin v. West End Development Co., 342 F.Supp. 687 (D.Colo.1972). It is clear then, that the plaintiffs had the option to purchase or to not purchase the shares. Here McKinney has the option to tender the shares, plus other items, or not to make the tender. In Irwin the option to tender was to expire thirty days after the appellate judgment became final; here, McKinney’s option is to expire after sixty days.
A characterization of the judgment as final furthers the policies underlying the finality requirement. These policies are: (1) to avoid interference with trial proceedings, (2) to avoid cost and burden to litigants caused by piecemeal appeals, and (3) to promote efficient judicial administration. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). These policies militate in favor of characterizing the lower court’s judgment as final. Entertaining the appeal will not interrupt the proceedings below. Refusing to take the appeal will not reduce litigant cost, but rather will likely increase it, particularly if McKinney seeks a 28 U.S.C. § 1292(b) certification with respect to the availability of ancillary damages and the accounting questions that constitute its appeal before us.3 Taking the appeal now will save time and avoid complications; it will promote judicial efficiency.
Furthermore, the Supreme Court has repeatedly stated that finality is to be given a practical rather than a technical construction. Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974); Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In view of the policies underlying the finality requirement, I think the instant order qualifies as a final judgment.
Because McKinney retains the option to forgo rescission, the majority concludes that a disposition by this Court on the merits would be tantamount to issuing an advisory opinion. I do not agree. The term “advisory opinion” is generally used to describe an action that is not constitutionally justiciable because the parties are not adverse or do not have a significant stake in the controversy, 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 3529-30 (1975), because the issues are not ripe for determination, Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-2326, 33 L.Ed.2d 154 (1972), or because the controversy has become moot, North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). Here the parties are clearly adverse to each other and have a significant stake in the controversy. The majority’s conclusion that a disposition on the merits would constitute an advisory opinion seems to derive from a view that the legal issues are not yet ripe for review because McKinney is not irrevocably committed to rescission.4 However, the equivocal nature of the judgment below does not implicate ripeness concerns.
The determination whether an issue is ripe for review involves weighing “the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief *1252sought.” Poe v. Ullman, 367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961). Accord Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In private litigation, whether an issue is appropriate for decision turns on whether the factual background has been adequately developed and the legal issues sufficiently crystalized. See Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 78, 81 S.Ct. 1357, 1400, 6 L.Ed.2d 625 (1961); 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532, at 239-42 (1975). Here, the legal issues were fully developed and decided by the trial court; they have been briefed and argued in this Court on appeal. The trial record comprises 71 volumes. Furthermore, delaying review imposes considerable hardship upon the parties. Under Poe and Abbott Laboratories, this case is ripe for review.
The Court’s reluctance to proceed to the merits is caused by the existence of a contingency — the possibility that McKinney may elect to forgo rescission. This contingency was created by the trial court’s exercise of equity powers for the purpose of forcing the appellees to act responsibly toward the newspaper they control during the pendency of the litigation. The appeal will resolve several issues that may affect whether the contingency is exercised, but the contingency does not call for an exercise of the lower court’s discretion at any future date.
If we hold that an opinion by us would be advisory because McKinney may choose to forgo rescission after we have ruled on the merits of the appeal, then by the same reasoning McKinney could not seek review of the questions before us under 28 U.S.C. § 1292(b); that determination likewise would be advisory. All section 1292(b) dispositions would suffer from the same infirmity — the disposition, may cause one or both parties to abandon the litigation. I cannot accept the view that because litigants may abandon rights reduced to judgment the judgment is advisory.
I would find that the judgment below is final and that our decision on the merits would not constitute an advisory opinion. I would proceed to determine the merits of the issues raised by the parties to the appeal.
. McKinney also claims on appeal that the trial court made additional errors in the accounting phase of the trial.
. The accounting adjustments, disputed in these appeals, involve large amounts of money; but I do not believe that affects the finality of the trial court’s judgment or bears on whether it is an advisory opinion.
. Such a certification is likely to be sought because resolution of the questions now before us may vary the value of rescission by millions of dollars. Therefore, the logical step in the current posture of the case is for McKinney to seek an order under 28 U.S.C. § 1292(b) to have us review the controlling questions of law raised in his appeal before making the final choice to drop his suit as an alternative to taking back the newspaper with whatever cash adjustments or damage entitlements we determine accompany rescission.
. If McKinney should opt to forgo rescission, arguably the opinion we render would have no impact on the rights of the parties, thus “mooting” the case. The possibility that rulings will become “moot” in this sense always exists, because the parties may settle the dispute after judgment. This possibility does not render the case moot in the jurisdictional sense. Cf. Robinson v. California, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962) (Supreme Court refused to vacate its decision reversing a criminal conviction despite learning that the defendant had died prior to the Court’s disposition of his appeal).