Planned Parenthood Federation of America, Inc. v. Center for Medical Progress

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PLANNED PARENTHOOD Case No. 16-cv-00236-WHO FEDERATION OF AMERICA, INC., et al., 8 Plaintiffs, ORDER GRANTING MOTION FOR 9 AN INCREASED BOND v. 10 Re: Dkt. No. 1157 CENTER FOR MEDICAL PROGRESS, et 11 al., Defendants. 12 13 In June 2020, I ordered that defendants post a supersedeas bond in the amount of $600,000 14 to stay execution of plaintiffs’ $2,425,084 judgment pending defendants’ appeal. Dkt. No. 1093. 15 In January 2021, I awarded plaintiffs $12,782,891.25 in attorney fees and $998,119.17 in non- 16 statutory costs. Dkt. Nos. 1150, 1154. Plaintiffs now move for an order requiring that defendants 17 increase the amount of the required supersedeas bond from $600,000 to $3,000,000. Dkt. No. 18 1157. 19 A subset of the defendants oppose any increase.1 They argue that the request is an 20 improper and unsupported motion for reconsideration because supersedeas bonds typically cover 21 potential or actual fee awards, the prior bond amount was set with a possible award of attorney 22 fees in mind, and the prior bond accurately reflects what the opposing-defendants can actually pay, 23 meaning that these defendants are not forced into bankruptcy while the plaintiffs’ interests are 24 secured to as great a degree as possible. Dkt. No. 1162-5. 25 When I considered the prior motion, I rejected both defendants’ and plaintiffs’ competing 26

27 1 The defendants who oppose are Daleiden, CMP, BioMax, and Lopez. As in the prior bond 1 proposed bond amounts.2 Instead, I concluded:

2 Given [defendants’] lack of resources, a substantial reduction to a bond in the full amount of the Judgment (or a higher amount to 3 include prospective attorney’s fees) is appropriate. Considering all of the equities involved, if defendants wish to stay execution of the 4 Judgment pending appeal, they must post a supersedeas bond in the amount of $600,000. This is a significant amount that covers all of the 5 compensatory damages and a portion of the other damages awarded. It reflects that collection may be complex and difficult in light of these 6 parties’ history of opposition and ongoing animosity and the demonstrated limited finances of the moving defendants, who 7 nonetheless retain significant current abilities to raise funds to cover their litigation expenses. It recognizes that the Judgment is largely 8 joint and severable as to the non-moving defendants.

9 Dkt. No. 1093 at 3-4. I could have written that passage more clearly, but I intended to recognize 10 both that the bond would have to be substantially lower than requested by plaintiffs given the 11 moving defendants’ financial circumstances and that it might yet be increased to a higher amount 12 considering the then undecided question of plaintiffs’ entitlement to attorney fees.3 I set the 13 amount of bond to cover “all of the compensatory damages and a portion of the other damages 14 awarded,” not any potential award of attorney fees or costs. Defendants were able to secure 15 sufficient contributions from funders to cover the $600,000 bond that I required. 16 Then I decided the attorney’s fees motion. Relevant here are the total amounts awarded. 17 That sets the scene for this motion. Given that the prior bond Order did not cover an 18 appeal from the award of attorney fees, a request for leave to file a motion for reconsideration 19 under Civil Local Rule 7-9(b) was not required. Contrary to defendants’ argument, the standard 20 for motions for reconsideration is irrelevant.4 21

22 2 Defendants suggested a bond of $0 or $468,361 to cover only the “compensatory amount” of the verdict, and plaintiffs suggested a bond in the full amount of the verdict and judgment, 23 $2,425,084. Neither of those amounts contemplated or addressed any specific amount to cover a potential future award of attorney fees. Dkt. No. 1093. 24

3 Defendants vigorously opposed both plaintiffs’ entitlement to and the amount of fees plaintiffs 25 sought. Dkt. No. 1146.

26 4 Brown v. Wireless Networks Inc., C-07-04301 EDI, 2007 WL 2688723, at *1 (N.D. Cal. Sept. 12, 2007) and Hynix Semiconductor Inc. v. Rambus Inc., C-00-20905 RMW, 2010 WL 3719086, 27 at *1 (N.D. Cal. Sept. 17, 2010) are procedurally and factually inapposite and do not address much 1 If defendants’ financial circumstances were different, the substantial increase in their 2 || exposure on appeal would warrant a substantially increased bond. But defendants’ financial 3 circumstances have not materially changed since the prior bond motion, except that they were able 4 || to satisfy an amount they said they could not attain. Considering the applicable standards that I 5 discussed in the June 2020 bond Order (see Dkt. No. 1093 at 2-3) and the evidence submitted on 6 || this motion (Declaration of David Daleiden, Dkt. No. 1162-6, {| 4-6), I GRANT plaintiffs’ motion 7 in part. The supersedeas bond must be increased by $100,000, requiring a total bond of $700,000 8 || to protect plaintiffs’ interests while the Judgment is on appeal. This additional amount will secure 9 || aportion of the expenses plaintiffs have incurred. Given the evidence regarding CMP’s apparent 10 || income and expenses (that, based on evidence submitted on the prior bond motion, pay for 11 Daleiden’s salary and attorney fees for Daleiden and CMP’s ongoing defensive and affirmative 12 |} litigation), the $100,000 increase is fair and will not cause undue hardship to defendants, many of 5 13 whom have not appeared to contest this motion although they are jointly and severally liable for 14 || the Judgment. 3 15 A revised bond of $700,000 (or a supplemental bond otherwise covering the $100,000 16 || increase) must be posted by defendants within fourteen days of the entry of this Order. Execution 3 17 of all portions of the Judgment is stayed until that time IT IS SO ORDERED. 19 Dated: February 19, 2021 . 20 ® Iliam H. Orrick | United States District Judge 22 23 24 25 26 27 28