Abusive appeal bonds

(This post is by both Adam Schulman and Ted Frank.)

Over at Public Citizen's blog, Scott Michelman posts about the attempt by class attorneys in the Facebook Sponsored Stories settlement to impose $32,000 appeal bonds against each of the 15 appealing objectors in that case. (As you'll recall, CCAF represented objectors in this case, but chose not to appeal when the settlement was improved and the district court substantially cut attorneys' fees. The improvements made the settlement somewhat less objectionable, and given that we have limited resources and can only take on so many appeals each year, we'd rather devote them to a case where we can make more of a marginal difference than where there are fifteen other appellants.)

Michelman is correct that $32,000 is far beyond what the law allows under Federal Rule of Appellate Procedure 7. In multiple cases, even when the appellees violate FRAP 30 to bloat the appendix, we have yet to see a cost order greater than $3,000.  Sadly, however, this $32,000 request is not unique. In the Center's short history we have seen several attempts to abuse Rule 7, some even successful:

• Cobell v. Salazar, 816 F. Supp. 2d 10 (D.D.C. 2011) (appeal bond request of $8.3 million denied);
• Blessing v. Sirius XM Radio, Inc., No. 09-cv-10035-HB, 2011 WL 5873383 (S.D.N.Y. Nov. 22, 2011) (appeal bond request of $200,000 denied);
• In re MagSafe Apple Power Adapter Litig., No. C 09-01911 JW (N.D. Cal. 2012) (appeal bond request of $200,000 against each appealing objector; court orders illegal $15,000 bond on each of five appellants); currently on appeal at the Ninth Circuit; and
• In re EasySaver Rewards Litig., No 09-cv-2094-AJB-WVG (S.D. Cal. 2013) (appeal bond request of $60,000 before the settlement had even been approved, let alone appealed!) (court issued illegal $15,000 bond); currently on appeal at the Ninth Circuit.

Unlike a criminal bond, where one can find a bondsman to post bond in exchange for a small deposit, the cheapest way to post a $15,000 bond in a civil case is to deposit $15,000 with the district court. In both MagSafe and EasySaver, that's what we did. We posted half of a $25,000 appeal bond in Dewey v. Volkswagen after the district court decided that we had a low chance of success on appeal, and got our money back over a year later when we won at the Third Circuit.

Fortunately, most judges get it right. See, e.g., the non-CCAF case In re Navistar Diesel Engine Prod. Liab. Litig. (N.D. Ill. Aug. 12, 2013).

A particularly abusive appeal bond is pending before the 10th Circuit. Two objectors appealed an abusive settlement that the district court approved over the objection of several state attorneys general, after which the district court imposed a $1 million appeal bond. Tenille v. Western Union, 2013 U.S. Dist. LEXIS 130962 (D. Colo. Sept. 10, 2013); the Tenth Circuit will hear argument next week.

Michelman worries that "[such strong-arm tactics] play into the negative stereotype about class actions and class counsel." They certainly do—but the fact that class counsel so frequently engages in them show that the stereotypes have much truth. For all the plaintiffs' bar talks about "access to justice," many trial lawyers will not hesitate to run roughshod over a class member's right of appeal if they think it will short-circuit a meritorious appeal that would jeopardize an excessive fee award. Given that Fraley class counsel (who claims his time is worth $975/hour) will be expending more than $32,000 of lodestar to brief and argue the appeal bond motion (and any collateral litigation caused if the bond is granted), the motion is clearly a bad-faith attempt to improperly deter appeals, rather than a legitimate concern over recovering appellate costs.