In re Polyurethane Foam Antitrust Litigation

178 F. Supp. 3d 635, 94 Fed. R. Serv. 3d 658, 2016 U.S. Dist. LEXIS 49592, 2016 WL 1452005
District Court, N.D. Ohio·Decided April 13, 2016·No. Case No. 1:10 MD 2196·Published·Cited by 3 cases

Opinion

[637]*637MEMORANDUM OPINION AND ORDER RE: APPEAL BOND

JACK ZOUHARY, UNITED STATES DISTRICT JUDGE

Introduction

This Court previously granted preliminary approval to nine separate settlement agreements between the Class of Indirect Purchaser Plaintiffs (“IPPs”) and various Defendants (Doc. 1861). This Court received objections to the settlements, or to the related attorney fee application, from the following class members: (1) Chris Andrews (Docs. 1920 & 1928); (2) Jill Cannata (Doc. 1950); (3) Melissa Holyoak and John Tabin, of the Center for Class Action Fairness (“CCAF”) (Doc. 1960); (4) Sean Cochran (Doc. 1964); (5) Michael Narkin (Doc. 1965); (6) Jennifer Hinojosa (Doc. 1967); and (7) Patrick Swéenéy (Doc. 1968).

This Court concluded none of the objections were well-taken and the settlement agreements were fair, reasonable, and adequate. Accordingly, this Court approved all nine agreements (Doc. 2020). Five appeals have been filed by: (1) Andrews (Doc. 2035); (2) Cochran (Doc. 2037); (3) Cannata (Doc. 2038); (4) Sweeney (Doc. 2039); and (5) Hinojosa (Doc. 2048) (together, the “Objectors”). Hinojosa filed her notice of appeal 42 days after entry of the Final Approval Order, so it appears her appeal is untimely. See Federal Appellate Rule 4(a)(1)(A) (“[T]he notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.”), IPP Class Counsel now moves for an Order [638]*638requiring Objectors to file an appeal bond (Doc. 2042). Specifically, Class Counsel request the “bond be set in the amount of $305,463, to be posted jointly and severally by the Appealing Objectors” (id. at 1). Only Andrews, Cochran, and Cannata filed briefs in opposition (Docs 2046, 2051 & 2054). (It is not clear that Andrews and Hinojosa are actually class members (Doc. 2020 at 2). This Court chooses to address the appeal-bond issue without passing on the question of whether they have standing to file an appeal.)

Standard op Review

Federal Appellate Rule 7 states that, “[i]n a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal.” Under this Rule, “the decision[s] as to the need for a bond and the amount thereof are left to the discretion of the district court.” In re Munn, 891 F.2d 291, 1989 WL 149417 at *1 (6th Cir.1989); see also In re Cardizem CD Antitrust Litig., 391 F.3d 812, 818 (6th Cir.2004). The purpose of an appeal bond is “to protect the rights of appellees brought into appeals courts by [the] appellants.” Adsani v. Miller, 139 F.3d 67, 75 (2nd Cir.1998); see also Ryan v. Endo Pharm., Inc., 2014 WL 4209219, at *2 (E.D.Pa.2014) (“The purpose of appellate bonds is to protect the appellee against the risk of non-payment by an unsuccessful appellant”). Appeal bonds also serve to discourage frivolous appeals. See Pedraza v. United Guar. Corp., 313 F.3d 1323, 1333 (11th Cir.2002) (“[A]n appellant is less likely to bring a frivolous appeal if he is required to post a sizable bond — ”).

When faced with a motion requesting an appeal bond, a district court must determine (a) whether a bond is appropriate, and (b) if so, how much the bond should be. Gemelas v. Dannon Co., 2010 WL 3703811, at *1 (ND.Ohio 2010). Regarding the first question, “courts typically consider (1) the appellant’s financial ability to post a bond; (2) the risk that the appellant would not pay appellee’s costs if the appeal is unsuccessful, (3) the merits of the appeal, and (4) whether the appellant has shown any bad faith or vexatious conduct.” Id. at *1 (citing Tri-Star Pictures, Inc. v. Unger, 32 F.Supp.2d 144, 147-150 (S.D.N.Y.1999)).

Regarding the bond amount, Rule 7 directs this Court to set an “amount necessary to ensure payment of costs on appeal.” Appellate courts have reached different conclusions regarding what qualifies as “costs on appeal.” The D.C. and Third Circuits, for example, take a limited view, restricting an appeal bond “to only costs listed in [Federal Appellate Rule] 39.” Tennille v. Western Union Co., 774 F.3d 1249, 1255 (10th Cir.2014) (citing In re Am. Presidential Lines, Inc., 779 F.2d 714, 716 (D.C.Cir.1985)). “The Sixth Circuit goes further, permitting an appeal bond to cover appellate attofneys’ fees recoverable under the substantive statute underlying the litigation, even if that statute does not expressly state that those fees can be recovered ‘as costs.’” Id. (citing In re Cardizem, 391 F.3d at 815-18, 817 n. 4). Some circuits also hold that, if the district court believes there is “a real possibility” the appellate court will deem the appeal frivolous, the bond can also include attorney fees recoverable under Federal Appellate Rule 38. See, e.g., Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir.1987).

Discussion

Whether to Impose an Appeal Bond

To determine whether imposition of an appeal bond is appropriate in this case, this Court examines (in reverse order) the four factors outlined in Gemelas.

[639]*639Bad Faith & Vexatious Conduct, To at least some degree, each Objector has acted vexatiously, pursued his or her objections in bad faith, or both.

To begin, each Objector (or Objector’s counsel) has a known history of acting as a “professional, or serial objector.” Roberts v. Electrolux Home Prods., Inc., 2014 WL 4568632, at *10 (C.D.Cal. 2014). A serial objector’s “sole purpose is to obtain a fee by objecting to whatever aspects of the [settlement they can latch onto.” In re Checking Account Overdraft Litig., 830 F.Supp.2d 1330, 1362 n. 30 (S.D.Fla.2011); see also In re Wal-Mart Wage & Hour Employment Practices Litig., 2010 WL 786513, at *1 (D.Nev.2010) (serial objectors’ attorneys (including Cochran) have “a documented history of filing notices of appeal from orders approving other class action settlements, and thereafter dismissing said appeals when they and their clients were compensated by the settling class or counsel for the settling class” in exchange for dismissing the appeal); Gemelas, 2010 WL 3703811, at *2 (finding a serial objector is “making a business of objecting to, and appealing, class action settlements in order to obtain some financial reward”). The serial objector’s ultimate goal is extortion. See In re Initial Pub. Offering Sec. Litig., 728 F.Supp.2d 289, 295 (S.D.N.Y.2010) (“[professional objectors undermine the administration of justice by disrupting settlement in the hopes of extorting a greater share of the settlement for themselves and their clients.”).

Class Counsel set out at length the history of each Objector, or his counsel, as a serial objector (see Doc. 2042 at 4-11).

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In re Polyurethane Foam Antitrust Litigation, 178 F. Supp. 3d 635, 94 Fed. R. Serv. 3d 658, 2016 U.S. Dist. LEXIS 49592, 2016 WL 1452005 (N.D. Ohio 2016).

178 F. Supp. 3d 635 (In re Polyurethane Foam Antitrust Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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