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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ECOFACTOR, INC.,

Plaintiff,

v.

GOOGLE LLC,

Defendant.

Civil Action No. 6:20-cv-00075 (ADA)

ORDER DENYING-IN-PART DEFENDANT’S MOTION TO STAY EXECUTION OF 

JUDGMENT PURSUANT TO RULE 62(B) AND FOR WAIVER OF BOND

Came on for consideration Defendant Google LLC’s (“Google”) Motion to Stay Execution 

of Judgment Pursuant to Rule 62(B) and for Waiver of Bond, filed on November 9, 2022. ECF 

No. 284. Plaintiff EcoFactor, Inc. (“EcoFactor”) filed a response on November 23, 2022, ECF No. 

285, and Google filed a reply on November 30, 2022, ECF No. 286. After considering the parties’ 

briefing and the applicable law, the Court DENIES Google’s Motion for Waiver of Bond. The 

Court GRANTS Google’s alternative request for a limited stay of 28 days to allow time for Google 

to make arrangements to post the bond.

I. BACKGROUND

On May 26, 2022, the Court entered final judgment based on the jury verdict against 

Google. ECF No. 244. The jury awarded EcoFactor $20,019,300.00 in damages for Google’s 

infringement of the ’327 Patent. Id. After final judgment, EcoFactor filed a Motion for New Trial

on issues of infringement and damages of the ’382 Patent. ECF No. 249. Google filed a Motion 

for Judgment as a Matter of Law, ECF No. 254, and a Motion for New Trial, ECF No. 255. At a 

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hearing, the Court denied EcoFactor’s Motion for a New Trial and Google’s Motions for Judgment 

as a Matter of Law and New Trial. ECF No. 278. Both parties have filed notices of appeal. ECF 

Nos. 244, 281. 

II. LEGAL STANDARD

Under Rule 62(b), “[a]t any time after judgment is entered, a party may obtain a stay by 

providing a bond or other security.” The bond “preserve[s] the status quo” and “secures the 

prevailing party against any loss sustained as a result of being forced to forgo execution on a 

judgment.” Popular Grove Planting & Refin. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 

1190−91 (5th Cir. 1979). However, courts can depart from the bond requirement. Id. at 1191. The 

burden is on the moving party to show the reasons for departing from the bond requirement. Id.

The moving party must “objectively demonstrate[] a present financial ability to facilely respond 

to a money judgment” and “a financially secure plan for maintaining that same degree of solvency 

during the period of appeal.” Id.

Other courts have considered the following factors when determining whether to waive the 

bond requirement: “(1) the complexity of the collection process; (2) the amount of time required 

to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence the district court 

has in the ability of funds to pay the judgment; (4) whether the defendant’s ability to pay the bond 

is so plain that the cost of the bond would be a waste of money; (5) whether the defendant is in 

such a precarious financial situation that the requirement to post a bond would place other creditors 

of the defendant in an insecure position.” Halliburton Energy Servs., Inc. v. NL Indus., No. H-05-

4160, 2008 WL 2787247, at * 1 (S.D. Tex. July 16, 2008).

When a prevailing party also appeals the final judgment, the Court may also stay execution 

of judgment without bond. Bronson v. La Crosse & M.R. Co., 68 U.S. 405, 410 (1863). However,

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where the prevailing party is seeking increased damages, not the reversal of the district court’s 

final judgment, waiver of bond is not appropriate. Enserch Corp. v. Shand Morahan & Co., Inc., 

918 F.2d 462, 464 (5th Cir. 1990). 

III. ANALYSIS

Google argues that it is entitled to a stay because it is a “large, well-established, financially 

strong company.” ECF No. 284, at 4. Further, Google argues that, because Google is publicly 

traded, Google’s finances are publicly available. Id. at 6. Therefore, EcoFactor can monitor 

Google’s financial condition during the stay. Id. In response, EcoFactor argues that Google has 

failed to meet its burden under Popular Grove. ECF No. 285 at 2. In particular, EcoFactor argues 

that Google has failed to show that it has a financially secure plan for maintaining solvency during 

appeal. Id. EcoFactor argues that the only plan Google has presented requires EcoFactor and the 

Court to monitor Google’s public records to ensure that Google remains solvent. Id. 

The Court agrees with EcoFactor that Google has failed to meet its burden here. Google has 

likely shown that it has “a present financial ability to facilely respond to a money judgment.” 

Popular Grove, 600 F.2d at 1191. Google has shown that it currently has “cash and cash 

equivalent” in excess of the judgment in this case. ECF No. 284, at 5. However, Google has failed 

to show that it has “a financially secure plan for maintaining that same degree of solvency during 

the period of appeal.” Popular Grove, 600 F.2d at 1191. For this requirement, Google merely 

stresses that it is a publicly traded company. ECF No. 284, at 6. Google argues that EcoFactor and 

the Court can monitor Google’s financial position regularly. Id. However, this improperly shifts

the burden to EcoFactor and the Court to ensure that Google is remaining financially secure. Under 

Popular Grove, it is the burden of the moving party to provide a plan for it to remain financially 

secure. Popular Grove, 600 F.2d at 1190−91. The Court concludes that the fact that Google is 

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publicly traded is not enough to show that it has “a financially secure plan for maintaining the 

same degree of solvency during the period of appeal.” Popular Grove, 600 F.2d at 1191. Thus, the 

Court concludes that Google does not qualify for a waiver of bond on these grounds.

Google also argues that it should not be required to post a bond to secure a stay of execution 

because EcoFactor itself is also appealing the judgment. ECF No. 284 at 6. Google points to 

Bronson v. La Cross & M.R. Co., which held that the district court’s judgment should be stayed if 

the prevailing party was also appealing the judgment. 68 U.S. 405, 410 (1863). But EcoFactor 

points out that the Fifth Circuit has held that Bronson does not apply when the prevailing party 

does not seek reversal of the final judgment, but only increased damages. ECF No. 285 at 8 (citing 

Enserch Corp., 918 F.2d at 464).

The Court agrees with EcoFactor. Because EcoFactor is only seeking additional damages, a 

bond is still appropriate. As the Fifth Circuit has explained, a bond is appropriate where, if the 

prevailing party succeeds on appeal, “the judgment [on appeal] would not conflict with the 

enforcement of the original judgment of the district court.” Enserch Corp., 918 F.2d at 464. That 

is the case here. If EcoFactor succeeds on appeal on its Motion for New Trial on issues of 

infringement of the ’382 Patent, that determination is not inconsistent with the Court’s final 

judgment on damages. EcoFactor will still be entitled to the damages awarded with respect to the 

’327 Patent, amounting to $20,019,300.00. Thus, the Court finds that Google does not qualify for 

a waiver of bond.

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IV. CONCLUSION

For the foregoing reasons, the Court DENIES Google’s motion for waiver of bond. But

the Court GRANTS a limited stay of twenty-eight (28) days to allow Google time to make 

arrangements to post the bond. The case is hereby stayed for twenty-eight days. To stay execution 

of judgment, Google must post the bond by the end of the limited stay.

SIGNED this 5th day of December, 2022.

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