UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

IN RE: 

THE PROGRESSIVE CORPORATION ) MDL Docket No.: 1519 

INSURANCE UNDERWRITING & ) Consolidated Cases: 

RATING PRACTICES LITIGATION ) (No. 1:00-210; No. 5:02-2384) 

 (No. 3:01-1465; No. 3:02-2552) 

MOTION FOR ORDER SETTING APPELLATE BOND FOR COSTS 

Class Plaintiffs request that pursuant to FED. R. APP. P. 7, this Court set a cost bond in 

connection with the Notice of Appeal filed by Objectors Dunmore and Fetcher (collectively 

referred to herein as “Objectors”) on October 29, 2008. (Docket No. 517). It is requested that the 

Objectors be required to post an appellate bond for costs of $500,000.00 in order to prosecute 

their frivolous appeal. In support of this Motion, the following Memorandum of Law is 

submitted. 

MEMORANDUM OF LAW

A. BACKGROUND

On October 1, 2008, in accordance with the Eleventh Circuit mandate, this Court entered 

an Order setting forth detailed findings of fact and conclusions of law to support its award of 

$3,000,000.00 in fees and costs to Class Plaintiffs’ attorneys. (Docket No. 506). This award of 

fees and costs was fully consistent with the Settlement Agreement executed in 2006, and fully 

consistent with the Class Notice sent to all Class Members. (Docket No. 204). A final hearing 

had been held on the class settlement on August 23 and 24, 2006. This Court approved the 

Settlement Agreement on January 3, 2007. (Docket No. 359). The order approving the 

settlement as fair and reasonable was affirmed by the Eleventh Circuit on March 25, 2008. The 

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matter was remanded to this Court only for entry of a further order detailing the grounds for the 

setting of fees and costs. 

On September 19, 2008, Dunmore and Fetcher filed a motion seeking the setting of a 

further fairness hearing on the issue of fees. (Docket No. 504). This Court denied the motion, 

noting that a fairness hearing had already been held on all matters relating to the settlement, 

including the value of the settlement and the reasonableness of the fee award. (Docket No. 506). 

The Notice of Appeal filed now by Dunmore and Fetcher appeals the October 1, 2008 Order, 

including its setting of fees and costs and its denial of the motion for a further fairness hearing. 

(Docket No. 517). 

Dunmore and Fetcher never filed any motion, objection or request with the District Court 

seeking the setting of Class counsel fees in any amount other than that set forth in the approved 

Settlement Agreement. The only portion of the Court’s October 1, 2008 Order which had 

previously been addressed by them was their nonsensical request for a second “fairness hearing.” 

On October 14, 2008, counsel for Dunmore and Fetcher demanded $500,000.00 in fees from 

undersigned lead Class Counsel (for himself and four other “co-counsel”). Mr. Bacharach 

specifically stated to undersigned counsel that he was not seeking these fees as an “objector” to 

the settlement, but rather as counsel for two class members (Dunmore and Fetcher) to be paid 

from the $3,000,000.00 award.1 It is crystal clear that what counsel wants is an apportionment of 

the total fees awarded to, and to be received by, Class Counsel. That is in fact the modus 

operandi of these objectors, and this appeal is simply a further stage in their unending attempt to 

obtain fees for themselves out of the Class Settlement which they so strenuously and 

unsuccessfully attempted to derail for so many years. Although these objectors never once asked 

 

1 See Declaration of Terry Smiljanich attached hereto as Exhibit A. 

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the District Court for any apportionment of the total fees awarded, they now are appealing the 

setting of the total class fees and thus jeopardizing the timely payment of those long due fees. 

Their motives are transparent. 

B. ARGUMENT

1. THE COURT HAS THE POWER TO REQUIRE OBJECTORS TO POST A BOND AS A 

CONDITION TO PROSECUTING AN APPEAL

In order “to protect the rights of appellees brought into appeals courts,” FED. R. APP. P. 7 

empowers the District Court 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.” FED. R. APP. P. 7; 

Pedraza v. United Guaranty Corporation, 313 F.3d 1323, 1332 (11th Cir. 2002) (quoting Adsani 

v. Miller, 139 F.3d 67, 75 (2d Cir. 1998)). An appellate bond for costs is prospective in nature in 

that it protects appellees from “the potential expenses of litigating an appeal.” Adsani, 139 F.3d 

at 70, n.2. 

Specific to the class action context, “[f]ederal courts have required an appeal bond from 

appellants...as a condition of maintaining objector appeals of class action settlements or 

attorneys’ fee awards.” In re Heritage Bond Litig., No. 02-382, WL 2401111, at *4 (C.D. Cal. 

Sept. 12, 2005) (citing In re Cardizem CD Antitrust Litig., 391 F.3d 812, 814 (6th Cir.2004); See 

also In re Compact Disc Minimum Advertised Price Antitrust Litig., MDL No. 1361, 2003 WL 

22417252, at *1 (D. Me. Oct. 7, 2003)). An appeal bond is appropriate and necessary in this 

case to protect the Class Plaintiffs from the primary effect of Dunmore and Fetcher’s frivolous 

and vexatious appeal – the hijacking of the settlement process solely for the Objectors’ pecuniary 

gain. See Allapattah Services, Inc., v. Exxon Corporation, Case No. 91-0986, 2006 WL 

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1132371, at *18 (S.D. Fla. April 7, 2006) (Recognizing “the highly detrimental impact of an 

appeal of the settlement agreement as to the entire class”). 

2. THE OBJECTORS’ APPEAL IS FRIVOLOUS AND WILL RESULT IN SANCTIONS

The Court should use its discretionary power to set an appellate cost bond due to the 

complete frivolousness of the appeal filed by Dunmore and Fetcher. The appeal is totally 

without merit and filed only for the purpose of extracting from Class Counsel a portion of the 

fees to be paid by Defendant Progressive. The defense of this frivolous appeal will cost Class 

Plaintiffs additional fees and costs, as well as lost interest on the money at issue. The Notice of 

Appeal is nothing more or less than a veiled attempt at forcing weary counsel to give up and pay 

a portion of the fees they have already earned herein, filed by counsel who is known for such 

tactics. As such, the setting of an appeal bond is consistent with case law and with the equities 

involved in this matter. 

 As to that portion of the October 1, 2008 Order setting Class Counsel’s attorneys’ fees 

and costs, the Objectors completely lack standing to appeal. Dunmore and Fetcher have never 

once addressed any objection, motion or request to this Court seeking any reduction in the full 

amount of fees and costs as authorized by the approved Settlement Agreement. Their objection 

to the settlement, filed on August 11, 2006, did not object in any way to the setting of fees and 

costs under the Settlement Agreement. (Docket No. 286). Rather, Dunmore and Fetcher only 

addressed the alleged unfairness and unreasonableness of the class relief. Importantly, in open 

court at the oral argument before the Eleventh Circuit on March 13, 2008, counsel for Dunmore 

and Fetcher specifically conceded that they were not objecting to the setting of fees and costs. 

Having never objected to the setting of fees in accordance with the Settlement Agreement, and 

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having never filed a single motion with the District Court seeking to have fees set in any other 

amount, Dunmore and Fetcher have waived their fee objections and thus cannot suddenly seek to 

reverse the Court’s order in that regard. Per the terms of the Class Notice, the time for objecting 

to the attorneys’ fee passed once the fairness hearing was completed – thus, Objectors attempt to 

do so now is utterly frivolous. 

 Even if Dunmore and Fetcher had not waived their fee arguments, at least one Eleventh 

Circuit District Court, recognizing United States Supreme Court precedent, has held that an 

objector “will only be allowed to appeal that aspect of the District Court’s order that affects 

him.” Allapattah Services, 2006 WL 1132371, at *17 (quoting Devlin v. Scardelletti, 536 U.S. 1, 

6, 122 S. Ct. 2005, 2009 (2002)). Further, the Eleventh Circuit has noted that an objectors’ 

appeal is not warranted where the “Objectors do not seek to protect their own property, their 

allotment from an award or settlement, or any other cognizable legal right or interest.” AAL 

High Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1311 (11th Cir. 2004). Here, 

Dunmore and Fetcher have already lost their appeals as to the settlement’s fairness – thus, their 

challenge to their allotment from the settlement has been unsuccessfully concluded. Now, 

Dunmore and Fetcher seek to challenge the setting of attorneys’ fee and costs – a matter 

completely separate from their allotment of the settlement. Under Eleventh Circuit case law, 

they lack standing to prosecute the appeal in question. 

Notably, it is rather ironic that Dunmore and Fetcher are demanding $500,000.00 in fees 

for their unsuccessful work in this case while, at the same time, suddenly claiming that 

$3,000,000.00 is excessive for Class Plaintiffs’ almost eight years of complex litigation. Having 

waived their objection to the attorneys’ fees, the Eleventh Circuit may well find Dunmore and 

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Fetcher’s appeal frivolous and sanction their attorneys in turn. See Taubenfeld v. AON Corp. 415 

F.3d 597, 599 (7th Cir. 2005) (Noting that objector waived his argument as to attorneys’ fees by 

not raising it at the settlement’s fairness hearing). In light of these facts, it is quite necessary that 

Dunmore and Fetcher be made to post an appeal bond. 

 As to that portion of the October 1, 2008 Order denying Objectors’ motion to set another 

fairness hearing, any appeal there from is equally devoid of merit. As the Court noted, a full 

fairness hearing was held after millions of class notices were sent out – informing all class 

members of the settlement details together with the amount of fees and costs which Class 

Counsel were seeking to be paid by Defendant Progressive. This Court’s order of January 3, 

2007 approving the settlement and the Court’s Order of October 1, 2008 setting forth findings 

and conclusions regarding the fees and costs were each fully consistent with the Settlement 

Agreement and the Class Notice received by each Class Member. Dunmore and Fetcher can 

point to no case even remotely supporting their unique contention that in spite of all of this a 

further notice to millions of Class Members, setting forth the same attorneys’ fees provisions, is 

somehow required. They cite no support in law for so frivolous a contention. 

 Given the demand by counsel for Dunmore and Fetcher that he be paid $500,000.00 out 

of the $3,000,000.00 already awarded to Class Counsel, any appeal of the $3,000,000.00 award 

is exposed for what it is, an attempt by a professional objector2

 to delay even further the payment 

of fees and costs in a case that has been pending for eight years, in the hopes that weary and 

frustrated Class Counsel will simply give up and pay the objector to go away. Such motives will 

 

2

 As discussed in Docket No. 505, N. Albert Bacharach (and , indeed, his client Dunmore) is a professional objector 

to class action settlements with a long history of delaying negotiated settlement agreements in order to extract 

attorneys’ fees from the settling parties. 

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not be countenanced in the Court of Appeals and should be deemed frivolous and vexatious by 

this District Court. 

3. THE AMOUNT OF THE APPELLATE BOND FOR COSTS

The amount of fees and costs to be paid to Class Counsel by Defendant will not be 

increased as a result of the further work necessitated by the filing of the Notice of Appeal by 

Dunmore and Fetcher. Thus, any and all work and costs associated with this appeal will come 

out of the pockets of all Class Counsel. 

The Eleventh Circuit has held that a cost bond can include an amount for anticipated 

attorneys’ fees if the underlying statute provides for fee-shifting and defines “costs” to include 

attorneys’ fees. Pedraza, 313 F.3d at 1333. The underlying statute in this case was the Fair 

Credit Reporting Act which contains fee-shifting provisions. Of particular relevance, 15 U.S.C. 

§ 1681o(b) and 1681n(c) provide that: 

[On a] finding by the court that an unsuccessful pleading, motion, or other paper 

filed in connection with an action under this section was filed in bad faith or for 

purposes of harassment, the court shall award to the prevailing party attorney's 

fees reasonable in relation to the work expended in responding to the pleading, 

motion, or other paper 

Id. Thus, per the terms of the Fair Credit Reporting Act, if the court finds that Objectors’ appeal 

was filed in bad faith or for purposes of harassment due to the reasons explored in Section (B)(2) 

above, then Class Counsel should be awarded reasonable attorneys’ fees for defending the 

frivolous appeal – making the anticipated fees a valid portion of the appeal bond. 

Secondly, the Eleventh Circuit has held that a District Court can use its inherent power to 

“assess attorney’s fees [in an appeal bond] when a party has acted in bad faith, vexatiously, 

wantonly or for oppressive reasons.” Pedraza, 313 F.3d at 1335. In light of the arguments laid 

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out in Section (B)(2), it would be well within this Court’s discretion to find that the Objectors’ 

appeal is being taken in bad faith, vexatiously, wantonly, or for oppressive reasons. Thus, Class 

Plaintiffs urge this court to draw upon its inherent power to manage its affairs, to make the 

necessary findings of fact in this case that would permit the inclusion of attorneys’ fees in the 

appeal bond. See Pedraza, 313 F.3d at 1336. 

Also, Class Plaintiffs will be losing out on the interest that could have been accruing on 

their payment of fees each day that the fees are kept from them by Objectors. As of the filing of 

this motion, the remaining amounts of fees and costs to be paid to Class Counsel was 

$2,000,000.00. The current statutory interest rate in Florida for 2008, as set by the Department 

of Financial Services, is 11% per annum. Thus, an appeal that may incur yet further delay in 

payment for up to a year, at 11% costs Class Counsel $220,000.00. Together with the attorneys’ 

fees and costs associated with the appeal, a cost bond is more than reasonable. 

Finally, based on their demand made to Class Counsel, objectors Dunmore and Fetcher 

believe that they are entitled to as much as $500,000.00 out of the total fees and costs paid to 

Class counsel. If they truly believe that they are entitled to such, and that they stand a fair chance 

of recovering as much, a $500,000 bond should be of no consequence to them. 

For all of the above reasons, Class Plaintiffs request an appellate bond for costs of 

$500,000.00 to test the mettle of Dunmore and Fetcher’s motives. It is Class Plaintiffs’ belief 

that a significant appeal bond will compel the Objectors to drop their frivolous claims so as to 

avoid the inevitable sanctions awaiting them in the Court of Appeals. As such, Class Plaintiffs 

respectfully move this Court to set an appeal bond of $500,000.00 to be jointly and severally 

imposed on Dunmore and Fetcher before they prosecute their appeal. 

 

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 JAMES, HOYER, NEWCOMER & 

 SMILJANICH, P.A. 

 /s/ Terry A. Smiljanich 

 Terry A. Smiljanich 

 Florida Bar No. 145359 

 One Urban Centre 

 4830 W. Kennedy Blvd., Suite 550 

 Tampa, FL 33609 

 Telephone: (813) 286-4100 

 Facsimile: (813) 286-4174 

Earl Underwood Darby, Peele, Bowdoin, Payne 

Earl Underwood, Attorney at Law & Kennon 

21 So. Section Street Rod Bowdoin Florida Bar No. 172237 

Fairhope, AL 36532 P.O. Drawer 1707 

 Lake City, FL 32056 

David A. Szwak, Finkelstein & Krinsk 

Bodenheimer, Jones, & Szwak Howard Finkelstein 

509 Market Street, 7th Floor 501 W. Broadway, Suite 1250 

United Mercantile Bank Building San Diego, CA 92101 

Shreveport, LA 71101 

Douglas Bowdin, PA Parry Deering Futscher & Sparks 

Douglas Bowdoin Ron Parry 

Suite 800, Citrus Center 128 East Second Street 

255 South Orange Avenue PO Box 2618 

Orlando, FL 32801 Covington, KY 41012-2618 

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that the foregoing was filed using the Court CM/ECF System 

which will send a Notice of E Filing to all counsel of record this 4th day of November, 2008. 

 

Barry Richard 

Glenn T. Burhans 

M. Hope Keating

GREENBERG TRAURIG, P.A. 

101 East College Avenue 

Tallahassee, FL 32301

Counsel for Progressive

Dawn Adams Wheelahan 

650 Poydras Street, Suite 2150 

New Orleans, LA 70130 

Phone: (512) 689- 1153 

Facsimile: (512) 628-3149 

Counsel for Ruby Johnson

Case 1:03-cv-01519-MP-AK Document 519 Filed 11/04/08 Page 9 of 10
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John M. Lusk, Jr. 

1842 St. Mary Street 

Jackson, MS 39202 

Counsel for Alice Lusk 

GwanJun Kim 

360 East Tuttle Road, Lot 54 

Ionia, MI 48846 

Appearing Pro Per 

John J. Pentz 

Class Action Fairness Group 

2 Clock Tower Place, Suite 260G 

Maynard, MA 01754 

Phone: (978) 461-1548 

Facsimile: (707) 276-2925 

Counsel for Thomas and Marilyn Bell 

William Kenneth C. Dippel 

Dippel & Davis 

12201 Merit Drive, Suite 230 

Dallas, TX 7525 1 

Phone: (972) 866-9900 

Facsimile: (972) 866-9902 

Counsel for Kelly Gambello 

Gregory S. Coleman 

Richard B. F'arrer 

Weil Gotshal & Manges 

8911 Capital of Texas Highway Suite 1350 

Austin, TX 78759 

Phone: (512) 349-1930 

Facsimile: (512) 527-0798 

Counsel for Michael A. Caddell and 

Caddell & Chapman 

 

N. Albert Bacharach, Jr. 

N. Albert Bacharach, Jr. P.A. 

115 Northeast 6th Avenue 

Gainesville, FL 32601 

Phone: (352) 378-9859 

Facsimile: (352) 338-1 858 

Counsel for Dunmore and Fetcher 

 

Michael A. Caddell 

Caddell & Chapman 

1331 Laniar, Suite 1070 

Houston, TX 77071 

Phone: (713) 75 1-0400 

Facsimile: (7 13) 75 1-0906 

Counsel for Anna Barbosa

Christine L. Beatty-Walters 

Steve D. Larson

Scott A. Shorr 

Stoll Stoll Berne Lokting & Shlachter 

209 SW Oak Street, Suite 400 

Portland, OR 97204 

Phone: (503) 227-1600 

Facsimile: (503) 227-6840 

Counsel for Sharele Dikeman, 

Richard Lulow 

 

 s/Terry A. Smiljanich

 TERRY A. SMILJANICH 

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