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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICK PEARSON, FRANCISCO 

PADILLA, CECILIA LINARES, 

AUGUSTINA BLANCO, ABEL 

GONZALEZ, and RICHARD JENNINGS, 

On Behalf of Themselves and All Others 

Similarly Situated, 

 Plaintiffs,

vs.

NBTY, INC., a Delaware corporation; 

REXALL SUNDOWN, INC., a Florida 

corporation; and TARGET 

CORPORATION, a Minnesota Corporation, 

 Defendants.

Case No. 11 CV 07972

CLASS ACTION

Judge James B. Zagel

PLAINTIFF-INTERVENOR RANDY NUNEZ’ OPPOSITION TO MOTION 

REQUIRING OBJECTORS TO POST AN APPEAL BOND

Plaintiff-Intervenor Randy Nunez opposes Plaintiffs’ motion requiring 

objectors to post an appeal bond in the amount of $200,000 for the following

reasons.

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1 Plaintiffs’ motion is procedurally deficient. Local Rule 5.3(b) requires that “every 

motion . . . be accompanied by a notice of presentment specifying the date and 

time on which, and judge before whom, the motion or objection is to be 

presented.” Plaintiffs filed their motion without identifying a hearing date or time, 

thereby failing to put Nunez on notice of his deadline to file this opposition.

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I. Introduction

Plaintiffs seek a $200,000 appeal bond which consists of $15,000 in “taxable 

costs,” and unidentified amounts of “extra administrative costs,” “delay damages,” 

and attorneys’ fees. However, this request stands in direct opposition to the confines 

of Federal Rule of Appellate Procedure (“FRAP”) 7, which allows only for “a bond 

. . . necessary to ensure payment of costs on appeal.” In seeking such an exorbitant 

amount, Plaintiffs ignore both the controlling authority of the Seventh Circuit and 

the unanimous agreement of sister circuit courts that delay damages and attorneys’ 

fees cannot be included in a Rule 7 appeal bond. See Allen v. J.P. Morgan Chase 

Bank, NA, No. 15-3425 (7th Cir. Dec. 4, 2015). Notwithstanding the egregious bond 

amount, Plaintiffs’ premature attempt to dismiss Nunez’ appeal is meritless. Nunez’ 

appeals are rooted in the parties’ negotiation of a settlement that resolved Nunez’ 

class claims in contravention of a Court order appointing Nunez’ counsel as interim 

class counsel. This procedural defect is a matter of first impression and is not to be 

confused with an average run-of-the-mill settlement objection. 

II. Argument

A. Randy Nunez’ Failure to File a Claim in Connection with the 

Settlement is Irrelevant to His Standing in the Instant Appeal

Plaintiffs would have the Court believe that Nunez lacks any interest in the 

Settlement and on that ground, his appeal should be dismissed. Plaintiffs rely on

Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 957 (7th Cir. 2012), which is 

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critically distinguishable. In Motorola, the Court found that the objector who failed 

to file a claim, and who protested the settlement on amount of attorneys’ fees alone, 

lacked any interest in the outcome because he would not receive any money from 

the fund even if counsel’s fees were reduced pursuant to the appeal. In contrast, 

Nunez’ appeal is grounded in both the procedural defect of the parties negotiating a 

settlement without consulting or including his counsel, in direct contravention of the 

Southern District of California’s order appointing Nunez’ counsel interim lead 

counsel, thereby extinguishing Nunez’ claims prejudicially, and the district court’s 

denial of Nunez’ motion to intervene. Because these grounds challenge the 

procedure in which the parties settled Nunez’ interests without the involvement of

his court-appointed interim lead counsel, any claim Nunez made to the Settlement

fund, or lack thereof, is entirely irrelevant. 

As addressed in Nunez’ Objection to Final Settlement Approval (“Objection”) 

(Dkt. No. 256), the parties in this case circumvented the Southern District Court of 

California’s order appointing Nunez’ counsel, James Patterson and Todd Carpenter, 

as interim class counsel of his proposed class of Flex-a-min purchasers.2 See Exhibit 

“A,” Randy Nunez v. NBTY, Inc., Arthritis Research Corp., and Nature’s Bounty, 

Inc., Case No. 13CV0495 (S.D. Cal. 2013), Order Appointing Interim Class 

 

2 Defendant NBTY, Inc. owns the “Nature’s Bounty” brand which distributes the 

“Flex-a-min” Glucosamine product. 

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Counsel. The role of interim class counsel is well defined: “[D]esignation of interim 

counsel clarifies responsibility for protecting the interests of the class during 

precertification activities, such as making and responding to motions, conducting 

any necessary discovery, moving for class certification, and negotiating settlement.” 

Walker v. Discover Fin. Servs., No. 10-cv-6994, 2011 U.S. Dist. LEXIS 58803 (N.D. 

Ill. May 26, 2011) (quoting Manual for Complex Litigation (Fourth) § 21.11 (2004)) 

(emphasis added); see also Fed. R. Civ. P. 23(g)(2)(A)3committee note (noting that 

the appointment of interim class counsel is appropriate where it is “necessary to 

protect the interests of the putative class” or where there may be rivalry or 

uncertainty”). By negotiating a settlement that attempts to extinguish or prejudice 

Nunez’ class claims without including his counsel in the settlement discussions, the 

parties defied the Nunez’ court’s order and completely obstructed Nunez’ counsel’s 

ability to uphold the undisputed duties and responsibilities present in serving as 

interim class counsel. It is based upon this procedural flaw that Nunez believes an 

appeal is not only appropriate, but necessary. 

Additionally, Plaintiffs’ contention that Nunez’ Objection somehow lacks 

merit because it primarily challenges the procedural defects addressed above, as 

opposed to the substantive terms of the Settlement, is illogical because it ignores the 

threshold issue—that the parties exiled Nunez’ counsel from participating in the 

 

3 Federal Rule of Civil Procedure 23(g)(3) is former 23(g)(2)(A). 

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settlement discussions in the first place. Thus, examining the grounds on which

Nunez has challenged the substance of the Settlement is a premature discussion. 

Regardless, Nunez has sufficiently set forth a valid basis to be concerned that the 

new Settlement does not protect his putative class’ interests in light of the Seventh 

Circuit’s previous ruling that impugned Pearson’s counsel’s credibility. See 

Pearson v. NBTY, Inc., Case Nos. 14-1198, -1227, -1245, -1389, at 18 (7th Cir. Nov. 

19, 2014) (rejecting the 2013 Settlement between proposed Class Counsel and the 

Defendants and criticizing proposed class counsel’s “arms-length” process that led 

to the settlement). 

Lastly, Plaintiffs’ reliance on Gascho v. Global Fitness Holdings, LLC, No. 

2:11-cv-436, 2014 WL 1350509 (S.D. Ohio Apr. 4, 2014), non-binding authority 

arising out of the Southern District of Ohio, should be disregarded entirely as it does 

not reflect the law of the Seventh Circuit. What’s more, the Gascho case is 

detrimentally distinguishable from our case because it is missing one key 

component—the appointment of the objector’s counsel as interim class counsel. In 

Gascho, plaintiffs in a competing lawsuit filed an objection to the settlement 

agreement in the cited case on the basis of procedural unfairness, specifically that 

they were not given an opportunity to participate in the settlement negotiations and 

because plaintiffs denied their motion to intervene. However, what is absent from 

their argument is that objectors’ counsel was first appointed interim class counsel 

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and therefore subjected to the district court’s order to stay abreast of any impending 

actions that may prejudice or extinguish the objectors’ putative class claims. It is 

this distinction on which Nunez’ counsel relies. 

B. Class Counsel’s Request to Impose an Appeal Bond in the 

Amount of $200,000 is Excessive and Impermissible in the 

Seventh Circuit

Plaintiffs’ request for an appeal bond in the amount of $200,000 is premised 

under the wrong legal principles. FRAP 7 “refers specifically and only to ‘a bond . 

. . necessary to ensure payment of costs on appeal.’” Allen v. J.P. Morgan Chase 

Bank, N.A., No. 15-3425 (7th Cir. Dec. 4, 2015). In Allen, the Seventh Circuit made 

clear that neither delay damages, nor attorneys’ fees are recoverable costs under 

FRAP 7; rather, “[s]pecial problems related to abuse by class action objectors must 

be handled in other ways, primarily through a FRAP 38 motion for sanctions.” Id. 

Moreover, this District Court followed Allen and its proposition that only out-ofpocket costs necessarily incurred on appeal are permissible under FRAP 7. See 

Gehrich v. Chase Bank USA N.A., No. 12-cv-5510 (N.D. Ill. July 14, 2016) (denying 

the initial motion for an appeal bond in the amount of $285,000 and later granting 

the renewed motion in the amount of $5,000 after the moving party acknowledged 

and reconciled Allen). 

Similarly, other circuit courts are unanimously in accord with the Seventh 

Circuit. The Tenth Circuit resolved the issue of what costs are properly 

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encompassed in an appeal bond under FRAP 7 and identified the other circuit courts 

that resolved the issue. See Tennille v. Western Union Co., 774 F.3d 1249 (10th Cir. 

2014). The Court observed that: 

[a]lthough Plaintiffs can point to several unreported district court cases 

imposing appeal bonds that cover delay damages or increased 

administrative costs to maintain a class settlement pending appeal, we 

do not find the reasoning of those cases persuasive in light of the 

unanimous circuit authority restricting an appeal bond to costs 

expressly permitted by rule or statute.

Id. at 1256 (referring to the First, Second, Third, Fifth, Sixth, Ninth, Eleventh and 

D.C. circuit courts of appeal). Thus, allowing Plaintiffs to incorporate delay 

damages, attorneys’ fees, and excess administrative costs impermissibly into the 

objector’s appeal bond represents an unfair tax that would have a deterrent effect on 

the ability to appeal final settlement approvals in the future. 

III. Conclusion

For the foregoing reasons, Nunez respectfully requests that the Court deny 

Plaintiffs’ motion requiring objectors to post an appeal bond in the amount of 

$200,000. 

Dated: October 31, 2016 CARLSON LYNCH SWEET

KILPELA & CARPENTER, LLP

By: /s/ Todd D. Carpenter

Todd D. Carpenter (CA 211102)

402 West Broadway, 29th Floor

San Diego, California 92101

Telephone: (619) 756-6994

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Facsimile: (619) 756-6991

tcarpenter@carlsonlynch.com

PATTERSON LAW GROUP

James R. Patterson (CA 211102) 

402 West Broadway, 29th Floor

San Diego, California 92101

Telephone: (619) 756-6990

Facsimile: (619) 756-6991

jim@pattersonlawgroup.com

Attorneys for Plaintiff-Intervenor 

Randy Nunez

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CERTIFICATE OF SERVICE

The undersigned, an attorney of record for the plaintiff, hereby certifies that 

on October 31, 2016, he served a copy of the above opposition to Plaintiffs’ 

motion requiring objectors to post an appeal bond and this certificate of service on: 

Stewart M. Weltman

Charles C. Sweedler

Dana Marie Pesha

Elaine Ryan

Howard J. Sedran

Attorneys for Plaintiff Nick Pearson

Carol V Gilden

Jeffrey Ian Carton

Peter Newton Friberg

Attorneys for Plaintiff Richard 

Jennings

Stewart M. Weltman

David Andrew Golanty

Elaine Ryan

Max A. Stein

Attorneys for Plaintiffs Francisco 

Padilla, Cecilia Linares, Augustina 

Blanco, and Officer Abel Gonzalez

Bradley Joseph Andreozzi

Benjamin Todd Vinson

Christopher Matthew Gaul

David B. Sudzus

Justin O’Neill Kay

Kara L McCall

Michael W. Davis

Shelby Kay Feurbach

Theodore R. Scarborough, Jr.

Attorneys for Defendant Target 

Corporation 

Christopher Matthew Gaul 

Kara L McCall

Michael W. Davis

Theodore R. Scarborough, Jr.

Attorneys for Defendant NBTY, Inc. 

and Rexall Sundown, Inc. 

by electronic means pursuant to Electronic Case Filing (ECF). Pursuant to FRCP 

5, the undersigned certifies that, to his best information and belief, there are no 

non-CM/ECF participants in this matter. 

/s/ Todd D. Carpenter

Todd D. Carpenter

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