Olympia Equipment Leasing Company, Alfco Telecommunications Company, and Abraham Feldman v. Western Union Telegraph Company

786 F.2d 794
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 25, 1986
Docket85-3154
StatusPublished
Cited by106 cases

This text of 786 F.2d 794 (Olympia Equipment Leasing Company, Alfco Telecommunications Company, and Abraham Feldman v. Western Union Telegraph Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olympia Equipment Leasing Company, Alfco Telecommunications Company, and Abraham Feldman v. Western Union Telegraph Company, 786 F.2d 794 (7th Cir. 1986).

Opinions

POSNER, Circuit Judge.

The plaintiffs (“Olympia” for short) obtained a $36 million antitrust judgment [796]*796(after trebling) against Western Union Telegraph Company, the principal subsidiary of Western Union Company. Western Union Telegraph wanted a stay of execution of judgment pending appeal to this court, and ordinarily to get a stay it would have had to post a supersedeas bond for the full amount of the judgment. Fed.R. Civ.P. 62(d). It urged the district judge to allow alternative security, on the ground that it could not post a $36 million bond. Although Western Union Telegraph is a large company, with total assets nominally worth $2 billion, it is financially distressed and illiquid. It could get a bond only by persuading a bank to issue a letter of credit to the bonding company, and it contended that no bank would do this. The district judge allowed alternative security to be posted, consisting of a pledge of $10 million in cash, $10 million in accounts receivables, and a security interest, which Western Union Telegraph represented to be worth about $70 million, in some of the company’s physical assets. Olympia has appealed the judge’s order (a classic “collateral order,” appealable separately from the final judgment on the merits, see, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Redding & Co. v. Russwine Construction Corp., 417 F.2d 721, 724-26 (D.C.Cir.1969)), contending that the posting of a supersedeas bond is mandatory and in the alternative that the alternative security required by the district judge is inadequate.

Although a textual argument can be made that Rule 62(d) makes the posting of a supersedeas bond mandatory, so that if a bond is not posted the judgment creditor can begin to execute the judgment immediately even though an appeal is pending, we agree with the contrary conclusion in Federal Prescription Service, Inc. v. American Pharmaceutical Ass’n, 636 F.2d 755, 757-60 (D.C.Cir.1980). (The dictum in Donovan v. Fall River Foundry Co., 696 F.2d 524, 526 (7th Cir.1982), on which the plaintiffs rely, is not inconsistent with Federal Prescription Service. We merely said that posting a bond entitles the appellant to a stay of execution pending appeal; that is of course what Rule 62(d) says; if he does not post a bond, he risks the district judge’s deciding to deny a stay.) To the technical reasons which that court advanced for rejecting a literal reading of Rule 62(d) we add that an inflexible requirement of a bond would be inappropriate in two sorts of case: where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money; and — the opposite case, one of increasing importance in an age of titanic damage judgments— where the requirement would put the defendant’s other creditors in undue jeopardy. Federal Prescription Service was the former sort of case; this case, as we shall see, is the latter sort. Either is a candidate for alternative security, as recognized in Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979).

The hard questions raised by this appeal are whether a supersedeas bond was in fact unobtainable and whether the alternative security approved by the district judge is adequate. It is reasonably clear that a bond could not have been obtained without a letter of credit, but as to whether any bank would have issued such a letter we have only the evidence that no member of Western Union Telegraph’s 31-bank lending consortium would do so. Maybe another bank would have done so. Since, however, the members of the consortium are the banks that know the company best, their refusal may be probative of how other banks would act. Sometimes, it is true, a bank will make a loan that the borrower’s established lenders consider too risky. The bank hopes to get into the borrower’s good graces and perhaps win his future business. But Olympia does not argue that this was a realistic possibility here. Public regulation makes banks behave as if risk averse and perhaps Western Union Telegraph is too shaky to make banks that are unfamiliar with its business eager to lend to it.

A more serious problem is that Western Union Telegraph based its inquiry about obtaining a letter of credit on the premise [797]*797that it would not have to pay more than the standard fee, which (we surmise) is 1 percent of the face amount of the letter of credit; if it had offered a higher fee it might have generated greater interest on the part of prospective issuers. But as Olympia makes nothing of this point, neither shall we; and maybe if Western Union Telegraph had offered a higher fee this would have been taken as an acknowledgment of unusual hazards, and have frightened away potential issuers. At some level of course the fee would break the company.

If as we shall assume Western Union Telegraph could not have obtained a letter of credit on reasonable terms, the alternatives facing the district judge were either to allow Olympia to execute the judgment by seizing and selling unencumbered assets of Western Union Telegraph, or to allow the posting of alternative security. The propriety of the second course is implicit in our conclusion that Rule 62(d) does not impose an ironclad requirement of a supersedeas bond, and makes the issue one of the adequacy of the alternative security that the district judge allowed the defendant to post. On that issue we note first that the parties and the district judge made little effort to explore the possibility of a bond that would secure a part of Olympia’s judgment — perhaps the $12 million in compensatory damages. The punitive damages in the award are a windfall to Olympia, their purpose (their principal purpose, anyway) being to punish and deter antitrust violators rather than to compensate the victims. The element of windfall mitigates our concern that if Western Union Telegraph declared bankruptcy, Olympia might never collect a penny of the punitive damages, even if there were some money for other creditors. And well it might not, for there is authority for disallowing claims of punitive damages in bankruptcy where necessary to allow other creditors to be paid in full (a qualification stressed in In re American Federation of Television & Radio Artists, 32 B.R. 672, 674 (Bankr.S.D.N.Y.1983)). The idea is that to allow a claim for punitive damages in these circumstances would make innocent creditors bear the burden of the debt- or’s wrongdoing. See In re GAC Corp., 681 F.2d 1295, 1301 (11th Cir.1982); In re Colin, 44 B.R. 806, 810 (Bankr.S.D.N.Y.1984).

We need not decide whether this is a sound analysis.

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786 F.2d 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olympia-equipment-leasing-company-alfco-telecommunications-company-and-ca7-1986.