IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

GERARDO ARANDA, GRANT 

BIRCHMEIER, STEPHEN PARKES, and 

REGINA STONE, on behalf of themselves and 

a class of others similarly situated,

Plaintiffs, 

v.

CARIBBEAN CRUISE LINE, INC., 

ECONOMIC STRATEGY GROUP, 

ECONOMIC STRATEGY GROUP, INC., 

ECONOMIC STRATEGY, LLC, THE 

BERKLEY GROUP, INC., and VACATION 

OWNERSHIP MARKETING TOURS, INC., 

Defendants. 

Case No. 1:12-cv-04069 

Honorable Matthew F. Kennelly

 

PLAINTIFFS’ MOTION FOR APPEAL BOND 

 Pursuant to Federal Rule of Appellate Procedure 7, Plaintiffs Gerardo Aranda, Grant 

Birchmeier, Stephen Parkes, and Regina Stone (“Plaintiffs”) respectfully request that the Court 

order Objector Kevin McCabe to post a $5,000 bond to ensure payment of costs on appeal. In 

support of their motion, Plaintiffs state as follows: 

1. On January 20, 2017, Kevin McCabe filed an objection to the class action 

settlement in the above-captioned action. McCabe argued that that the Court should deny 

approval of the settlement because of the scope of the release granted to Defendants and because 

of purported deficiencies in the cy pres provisions. 

2. At the Final Fairness Hearing on February 23, 2017, McCabe appeared through 

his attorney Todd C. Bank in support of his objection. During that hearing, Bank indicated that 

he had not read Plaintiffs’ response to McCabe’s objection. (Dkt. 594 at 4:20-25, 5:1-9.) 
2 

3. On March 2, 2017, the Court entered an order finding that “because McCabe is 

not a member of the class or has no live claims against defendants that could be released by the 

settlement agreement, he lacks standing to object.” Aranda v. Caribbean Cruise Line, Inc., No. 

12 C 4069, 2017 WL 818854, at *5 (N.D. Ill. Mar. 2, 2017). 

4. Despite McCabe’s lack of standing, the Court considered his objections, finding 

that his reading of the release language was “mistaken” and that his “contention that a cy pres

award is likely to involve a significant sum borders on the frivolous.” Id. Nevertheless, the Court 

“guard[ed] against this extremely remote possibility by modifying the agreement to make the 

size of the cy pres award and the identity of the recipient subject to this Court's approval.” Id.

5. Although a judgment has not yet been entered, McCabe filed a Notice of Appeal 

on March 23, 2017. 

6. Federal Rule of Appellate Procedure 7 authorizes district courts to “require an 

appellant to file a bond or provide other security in any form and amount necessary to ensure 

payment of costs on appeal.” 

7. McCabe’s counsel’s lack of familiarity with the terms of the settlement in this 

case, combined with his unpreparedness at the Final Fairness Hearing, the Court’s determination 

that McCabe lacks standing, and the weakness of the merits of McCabe’s objections all strongly 

indicate that McCabe will lose on appeal and be required to pay Plaintiffs’ costs. 

8. McCabe is or should be well aware that his appeal is unlikely to succeed, 

especially given that his attorney was recently reminded of the doctrine of res judicata by the 

Ninth Circuit, see Amalfitano v. Google Inc., No. 15-15288, 2017 WL 943933, at *1 (9th Cir. 
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Mar. 10, 2017),1 an issue in this case given McCabe’s previous TCPA litigation against 

Defendants, see Aranda, 2017 WL 818854, at *5, (“any claim McCabe might assert in this case 

would be barred by the doctrine of claim preclusion because he already sued defendants in the 

Eastern District of New York for the same alleged TCPA violation in a case that reached final 

judgment”). 

9. A bond of $5,000 is the appropriate amount to ensure that McCabe will pay 

Plaintiffs’ costs in the likely event that he loses on appeal. See Allen v. J.P. Morgan Chase Bank, 

NA, No. 15-3425, 2015 WL 12714382, at *1 (7th Cir. Dec. 4, 2015) (modifying appeal bond to 

$5,000); In re Navistar Diesel Engine Prod. Liab. Litig., No. 11 C 2496, 2013 WL 4052673, at 

*3 (N.D. Ill. Aug. 12, 2013) (Kennelly, J.) (“The Court will require plaintiffs to post a bond in 

the amount of $5,000, which is a much more reasonable estimate of the likely costs on appeal.”). 

WHEREFORE, Plaintiffs respectfully request that the Court enter an order 1) directing 

Objector Kevin McCabe to post a bond in the amount of $5,000 to cover Plaintiffs’ taxable costs 

on appeal; and 2) granting any such further relief as it deems reasonable and just. 

Respectfully submitted by: 

Dated: March 31, 2017 /s/ Alexander G. Tievsky 

Jay Edelson 

Alexander G. Tievsky 

EDELSON PC

350 North LaSalle Street, 13th Floor 

Chicago, Illinois 60654 

Telephone: (312) 589-6370 

Email: jedelson@edelson.com 

atievsky@edelson.com 

 

1

 While the matter of whether McCabe’s appeal is frivolous is one for the Seventh Circuit, 

it is worth noting that his counsel has a checkered history in appellate courts. See, e.g., Dkt. 590 

Ex. B § 3.12 (listing a portion of Bank’s litigation history); Doyle v. John G. Roberts, Jr., et al., 

463 F. App’x 50 (2d Cir. 2012) (affirming dismissal of Bank’s client’s petition for a writ of 

mandamus directing the United States Supreme Court to hear an appeal). 
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Rafey S. Balabanian 

Eve-Lynn J. Rapp 

EDELSON PC

123 Townsend Street, Suite 100 

San Francisco, California 94107 

Telephone: (415) 212-9300 

Email: rbalabanian@edelson.com 

erapp@edelson.com 

Scott R. Rauscher 

Michael I. Kanovitz 

Jonathan I. Loevy 

LOEVY & LOEVY

311 North Aberdeen Street, Third Floor 

Chicago, Illinois 60607 

Telephone: (312) 243-5900 

Email: scott@loevy.com 

jon@loevy.com 

mike@loevy.com 

Class Counsel 
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CERTIFICATE OF SERVICE 

 I, Alexander G. Tievsky, an attorney, hereby certify that on March 31, 2017, I served the 

above and foregoing Plaintiffs’ Motion for Appeal Bond by causing a true and accurate copy of 

such paper to be filed with the Court and transmitted to all counsel of record via the Court’s 

CM/ECF electronic filing system. 

 /s/ Alexander G. Tievsky