UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

IN RE: 

NUTELLA MARKETING AND SALES 

PRACTICES LITIGATION 

Civil Action No. 11-1086(FLW)(DEA) 

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PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT 

OF MOTION TO IMPOSE AN APPEAL BOND 

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James E. Cecchi 

Lindsey H. Taylor 

Donald E. Ecklund 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Rd. 

Roseland, New Jersey 07068 

(973) 994-1700 

Joseph P. Guglielmo 

SCOTT+SCOTT LLP 

The Chrysler Building 

405 Lexington Ave., 40th Floor 

New York, NY 10174 

(212) 223-6444 

Christopher M. Burke 

SCOTT+SCOTT LLP 

707 Broadway, Suite 1000 

San Diego, CA 92101 

(619) 233-4565 

Class Counsel 

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TABLE OF CONTENTS

Page 

PRELIMINARY STATEMENT .................................................................................................... 1 

ARGUMENT .................................................................................................................................. 4 

A. Requiring the Objector-Appellants to Post an Appeal Bond as a Condition to 

Prosecuting Their Appeals is Appropriate ...........................................................................4 

B. A Bond of $42,500 is Necessary to Cover the Costs of the Appeal ..................................10 

CONCLUSION ............................................................................................................................. 14 

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TABLE OF AUTHORITIES 

Cases

Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998) .................................................................................. 5 

Bogart v. King Pharm., 493 F.3d 323 (3d Cir. 2007) ..................................................................... 9

Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000)...................................................................... 9 

Devlin v. Scardelletti, 536 U.S. 1 (2002) ...................................................................................... 11 

Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170 (3d Cir. 2012) ...................................... 10 

Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975)................................................................................. 2 

In re Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 

695 F. Supp. 2d 157 (E.D. Pa. 2010) ............................................................................ 5, 12 

In re Cardizem CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004) ................................................. 7 

In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001)................................................................ 2 

In re Checking Account Overdraft Litig., 

 No. 1.09-MD-02036 JLK, 2012 WL 456691 (S.D. Fla. Feb. 14, 2012).................... 14, 15 

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

22417252 (D.Me. Oct. 7, 2003) .................................................................................................... 15 

In re Diet Drugs Products Liab. Litig., MDL No. 1203, 

2000 WL 1665134 (E.D. Pa. Nov. 6, 2000) ........................................................... 5, 12, 13 

In re Initial Public Offering Sec. Litig., 728 F. Supp. 2d 289 (S.D.N.Y. 2010) ............................. 4 

In re Ins. Brokerage Antitrust Litig., Civ. No. 04-5184 (GEB), 

2007 WL 1963063 (D.N.J. July 2, 2007) ................................................................ 5, 12, 13 

In re MagSafe Apple Power Adapter Litig., No. C 09-01911 JW, 

2012 WL 2339721 (N.D. Cal. May 29, 2012) .................................................................. 11 

In re Pharm. Indus. Avg. Wholesale Price Litig., 520 F. Supp. 2d 274 (D. Mass. 2007)......... 6, 15 

In re Uponor, Inc., F1807 Plumbing Fittings Products Liab. Litig., No. 11-MD-2247 ADM/JJK, 

2012 WL 3984542 (D. Minn. Sept. 11, 2012) .................................................................. 14 

In re Wal-Mart Wage & Hour Employment Practices Litig., No. 2:06-CV-00225-PMP-PAL, 

2010 WL 786513 (D. Nev. Mar. 8, 2010) .............................................................. 6, 12, 14 

Miletak v. Allstate Ins. Co., No. C 06-03778 JW, 

2012 WL 3686785 (N.D. Cal. Aug. 27, 2012) ................................................................. 14 

Pedraza v. United Guar. Corp., 313 F.3d 1323 (11th Cir. 2002) ................................................... 5 

Sckolnick v. Harlow, 820 F.2d 13 (1st Cir. 1987)......................................................................... 12 

Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942 (E.D. Tex. 2000) ................................ 11 

Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) ...................................................... 7 

Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012) ............................. 10 

Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985) ................................................................................. 4 

Statutes

28 U.S.C. §1920 ............................................................................................................................ 13 

Rules

Fed. R. App. P. 39(e) .................................................................................................................... 13 

Fed. R. App. P. 7 ............................................................................................................................. 4 

Fed. R. Civ. P. 23 ............................................................................................................................ 1 

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PRELIMINARY STATEMENT 

On February 3, 2012, this Court granted preliminary approval to the Settlement1

 in this 

matter pursuant to Fed. R. Civ. P. 23. See ECF No. 67. After distribution of notice to the 

settlement class, the Court received only seven objections to the Settlement from sixteen putative 

class members.2 On July 9, 2012, this Court held a fairness hearing at which counsel for several 

objectors personally appeared and presented argument in support of their respective objections. 

After thoroughly addressing the parties’ and objectors’ arguments, see generally July 9, 2012 

Final Approval Hearing Transcript (“Hearing Tr.”), the Court granted the Settlement final 

approval, but drastically reduced the amount of requested attorneys’ fees, and entered final 

judgment on July 31, 2012. See ECF No. 105. Now, the Bochenek Objectors (who appeared 

through their counsel at the fairness hearing), the Sibley Objectors and Objector Hampe (who did 

not appear at the hearing) (collectively, the “Objector-Appellants”) have filed three separate 

notices of appeal, despite that the Court effectively mooted their objections relating to the 

Settlement and the amount of the attorneys’ fees requested. See ECF Nos. 105-07. 

In order to prevail on appeal, the Objector-Appellants will have to demonstrate that this 

Court’s approval of the Settlement amounted to an abuse of discretion. See In re Cendant Corp. 

 

1

 All capitalized terms not otherwise defined are defined in the Class Action Settlement 

Agreement (“Settlement”). ECF No. 62-3. 

2

 See Objection of Robert Falkner and Kristen Streeter (“Falkner Objectors”), ECF No. 72; 

Objection of Agatha Bochenek, Brandon Goodman and Edward Hagele (“Bochenek Objectors”), 

ECF No. 76 (“Bochenek Obj.”); Objection of Daniel Greenberg and Sylvie Bader, ECF No. 77; 

Objection of Chris Andrews, ECF No. 78; Objection of Clark Hampe (“Objector Hampe”), ECF 

No. 79 (“Hampe Obj.”); Objection of Amy Ades, ECF No. 84; Objection of Gary W. Sibley, 

ECF No. 86 (“Sibley Obj.”); and Objection of Katie Sibley, ECF No. 80; Objection of Jenny 

Iriarte, ECF No. 81; Objection of Daniel Sibley, ECF No. 82; Objection of Janis Johnson, ECF 

No. 83; Objection of Sherri Johnson, ECF No. 85 (“Sibley Form Obj.) (collectively with Gary 

Sibley, the “Sibley Objectors”). Further, one state official who received notice under 28 U.S.C. 

§1715 objected to the Settlement. See May 30, 2012 Ltr. of Jim B. Cloudt, Asst. Attorney 

General of the State of Texas.

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Litig., 264 F.3d 201, 231 (3d Cir. 2001). In a lengthy opinion on the record, the Court certified 

the class for settlement purposes, undertaking a detailed analysis of the factors under Rules 23(a) 

and (b)(3), and found the Settlement to be fair, reasonable and adequate under Rule 23(e), taking 

into consideration each of the factors enumerated in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 

1975). See Hearing Tr. at 73:18-99:8. The Court also found notice of the Settlement to be 

adequate. See id. at 99:9-101:11; 127:17-128:9. 

Although ancillary objections were made, the Objector-Appellants’ principal objection 

was not to the fairness of the Settlement itself but that the injunctive relief obtained was 

overvalued such that the attorneys’ fees requested were excessive. See Hampe Obj. at 1; Sibley 

Form Obj. at 2; Sibley Obj. at 7; Bochenek Obj. at 1, 9. The Court, after evaluating the papers 

submitted by all parties and hearing oral argument, lowered Plaintiffs’ requested cash settlement 

fee award from 30% to 25% of the settlement fund (or from $750,000 to $625,000) and reduced 

the requested injunctive relief fee award from $3 million to $500,000 for the injunctive relief 

obtained. See Hearing Tr. at 110:13-123:6. Given this Court’s meticulous scrutiny of both the 

Settlement and the amount of the requested attorneys’ fees, it is inconceivable upon what basis 

the Objector-Appellants have to appeal. In short, it is highly unlikely that the ObjectorAppellants will be able to meet their burden on appeal to demonstrate that this Court abused its 

discretion in approving the Settlement or in granting the attorneys’ fees awarded. 

The Objector-Appellants3

 and/or their counsel4 are serial objectors. These appeals, which 

lack any legitimate bases, can only be viewed as yet another attempt to delay payment to the 

 

3

 Katie and Daniel Sibley jointly objected to the settlement in Kardonick v. JPMorgan, No. 

10-cv-23235-WMH (S.D. Fla.), ECF No. 339. Although Daniel had to withdraw his objection 

because the credit card account was only signed by Katie, id., ECF No. 370, Katie appealed the 

decision approving the settlement only to later voluntarily dismiss that appeal when she “settled” 

with the parties. Id., ECF No. 450. Daniel Sibley, with Gary Sibley as his attorney, appealed the 

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thousands of class members who will obtain a recovery and to hijack a settlement in an effort to 

extract a fee from class counsel in exchange for dismissing their appeals. As the court in Barnes 

v. Fleetboston Fin. Corp., remarked: 

Repeat objectors to class action settlements can make a living simply by filing 

frivolous appeals and thereby slowing down the execution of settlements. The 

larger the settlement, the more cost-effective it is to pay the objectors rather than 

suffer the delay of waiting for an appeal to be resolved (even an expedited 

appeal). Because of these economic realities, professional objectors can levy 

what is effectively a tax on class action settlements, a tax that has no benefit to 

anyone other than to the objectors. 

 

decision approving the settlement in Dewey v. Volkswagen AG, 07-cv-2249-FSH-PS (D.N.J.), 

ECF No. 268. Although the Third Circuit reversed and remanded, it was not on the basis of the 

Sibley objections. See Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181, 190 (3d Cir. 

2012). Janis Johnson previously objected in In re: Fossil, Inc. Deriv. Litig., No. 06-cv-01672-F 

(N.D. Tex.), ECF No. 201, with Gary Sibley as her attorney. This objection later had to be 

withdrawn because she could not offer proof of beneficial ownership during the relevant time 

period. Id., ECF No. 208. Gary Sibley also objected on behalf of himself to no effect in Shabaz 

v. Polo Ralph Lauren Corp., No. 07-cv-1349 (C.D. Cal.), ECF No. 121. Lastly, Gary Sibley also 

represented objector George Sibley in Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 

632, 645 (5th Cir. 2012), where the Fifth Circuit affirmed the district court’s approval of the 

settlement. 

Clark Hampe previously has objected in Kardonick, No. 10-cv-23235-WMH (S.D. Fla.), 

ECF No. 341, along with Katie and Daniel Sibley, and in Baby Products Antitrust Litigation, No. 

06-cv-00242 (E.D. Pa.), ECF No. 752, with Daniel Greenberg. In both cases, Hampe appealed 

the district court’s approval of the respective settlements. Kardonick, No. 10-cv-23235-WMH 

(S.D. Fla.), ECF No. 401; McDonough v. Toys “R” Us, Inc., No. 06-242-AB (E.D. Pa.), ECF 

No. 796. While the Baby Products appeal is still pending, see In re Baby Products, No. 12-

01165 (3d Cir.), Hampe voluntarily dismissed the Kardonick appeal. Kardonick, No. 10-cv23235-WMH (S.D. Fla.), ECF No. 450. 

4

 The Bochenek Objectors’ counsel, Christopher V. Langone, is a professional objector 

who has litigated consumer protection cases and objected on behalf of himself and other class 

members in at least five other actions, including one in this District. See Hall v. AT&T Mobility, 

No. 07-cv-05325-JLL-ES (D.N.J.), ECF No. 532 at 3-4. The same objections Langone makes 

here, he made in Hall. Compare Bochenek Obj. with Hall, CIV.A. 07-5325 JLL, 2010 WL 

4053547, at *17 (D.N.J. Oct. 13, 2010). In Hall, the Court methodically, and emphatically, 

disposed of each of Langone’s objections. Id., at *12, *17-*18. After the district court approved 

the settlement, Langone took an appeal, which he subsequently voluntarily withdrew. See

Larson v. AT&T Mobility LLC, No. 10-4349 (3d Cir. Sept. 14, 2011), ECF No. 003110649682.

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Id., No. 01-10395-NG (D. Mass. Aug. 22, 2006), slip op. at 2 (attached as Exhibit A hereto). See 

also In re Initial Public Offering Sec. Litig., 728 F. Supp. 2d 289, 295 n. 37 (S.D.N.Y. 2010) 

(“Federal courts are increasingly weary of professional objectors . . . [with] objections [that] 

were obviously canned objections filed by professional objectors who seek out class actions to 

simply extract a fee by lodging generic, unhelpful protests.” (internal quotation marks omitted)). 

For the reasons set forth below, Plaintiffs request that this Court require the Objector-Appellants 

to post a bond in order to continue prosecuting their appeals of this Court’s final judgment 

approving the Settlement. Plaintiffs respectfully request that the bond be set at $42,500, and that 

the Court also order that each person maintaining an appeal is jointly and severally liable for 

posting the ordered bond. 

ARGUMENT 

A. Requiring the Objector-Appellants to Post an Appeal Bond as a Condition to 

Prosecuting Their Appeals is Appropriate 

The Federal Rules of Appellate Procedure empower 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.” Fed. R. App. P. 7. The Court therefore retains jurisdiction “during 

the pendency of an appeal” to order Rule 7 bonds. See Venen v. Sweet, 758 F.2d 117, 120-21, 

n.2 (3d Cir. 1985). The purpose of Rule 7 is to protect an appellee against the risk of nonpayment by an unsuccessful appellant. See Adsani v. Miller, 139 F.3d 67, 75 (2d Cir. 1998); 

Pedraza v. United Guar. Corp., 313 F.3d 1323, 1333 (11th Cir. 2002) (citation omitted). The 

questions of the need for a bond as well as its amount are left to the discretion of the trial court. 

See Fed. R. App. P. 7, 1979 advisory committee notes. “A district court, familiar with the 

contours of the case appealed, has the discretion to impose a bond which reflects its 

determination of the likely outcome of the appeal.” Adsani, 139 F.3d at 79 (citation omitted). 

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District courts in this Circuit addressing the necessity of an appeal bond in class action 

cases have focused not on whether a bond should be required, but rather on the amount of the 

bond. See In re Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 695 F. Supp. 

2d 157, 164-67 (E.D. Pa. 2010) (ordering $25,000 cost bond for appeal of class action 

settlement); In re Ins. Brokerage Antitrust Litig., Civ. No. 04-5184 (GEB), 2007 WL 1963063 

(D.N.J. July 2, 2007) (same); In re Diet Drugs Products Liab. Litig., MDL No. 1203, 2000 WL 

1665134 (E.D. Pa. Nov. 6, 2000) (same). The court in In re Insurance Brokerage recognized 

that in the class action context an appeal bond is “necessary to provide some level of security to 

Lead Plaintiffs who have no assurances that Appellants have the ability to pay the costs and fees 

associated with opposing their appeals.” In re Ins. Brokerage, 2007 WL 1963063, at *2 (citation 

omitted); see also Allapattah Servs., Inc. v. Exxon Corp., No. 91-0986 CIV, 2006 WL 1132371, 

at *18 (S.D. Fla. Apr. 7, 2006) (imposing appeal bond on class member appealing settlement on 

behalf of entire class when impact of appeal would be “highly detrimental” as it would stay 

“both the entry of final judgment on all claims [] and payment to all Class members.”). 

Courts have imposed bonding requirements on appealing objectors when it is clear from 

the outset that the proposed appeal lacks merit in recognition of the fact that plaintiffs will incur 

significant expense in opposing these frivolous objections. See, e.g., In re Wal-Mart Wage & 

Hour Employment Practices Litig., No. 2:06-CV-00225-PMP-PAL, 2010 WL 786513, at *2 (D. 

Nev. Mar. 8, 2010) (“The Court further finds that the four Objectors should be required to file an 

appeal bond sufficient to secure and ensure payment of costs on appeals which in the judgment 

of this Court are without merit and will almost certainly be rejected by the Ninth Circuit Court of 

Appeal.”); In re Pharm. Indus. Avg. Wholesale Price Litig., 520 F. Supp. 2d 274, 279 (D. Mass. 

2007) (“[T]he class is likely to be damaged if the appeal is rejected and there are public policy 

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reasons to prevent frivolous objectors from threatening to hold up class distributions.”); Barnes, 

No. 01-10395-NG, slip op. at 3 (attached as Exhibit A) (“[T]he burden of litigating frivolous 

appeals [should] shift[] to [the objectors] instead of to the class.”); Allapattah Servs., 2006 WL 

1132371, at *16 (“The inconsistency of [the objector’s] arguments renders them irretrievably 

flawed and reveals that the Objections filed by [the objector] are both frivolous and unhelpful to 

the resolutions of the issues in this case.”); In re Cardizem CD Antitrust Litig., 391 F.3d 812, 818 

(6th Cir. 2004) (“[W]hile the district court may have overstated the weakness of the substantive 

objections raised by the [appealing objector] when it assessed them as ‘bordering on the 

frivolous,’ we agree they lack merit.”). 

Similarly here, it is clear that each of the Objector-Appellants’ arguments are completely 

devoid of any merit and that it is likely that the Third Circuit will affirm this Court’s approval of 

the Settlement. First, the Court thoroughly addressed each factor under Rule 23(a) and (b)(3), 

finding each satisfied. See Hearing Tr. at 73:18-86:2. Objector Hampe objected that “[t]he 

different state groups and claims are too disparate and involve too many individualized issues to 

be maintained as a class,” obliquely invoking the Rule 23(b)(3) predominance requirement. 

Hampe Obj. at 2. The Third Circuit, however, has rejected the very argument Hampe makes, 

concluding “state law variations are largely ‘irrelevant to certification of a settlement class[.]’” 

Sullivan v. DB Investments, Inc., 667 F.3d 273, 303-04 (3d Cir. 2011) (footnotes omitted). Here, 

the Court found “class members and plaintiffs challenge the same alleged improper consumer 

practices by defendant. As such, there are no significant individual fact issues. Rather, the 

determination of the legal issues raised involve a ‘common nucleus’ of operative facts that 

underlies all of the claims asserted in this case.” Hearing Tr. at 85:14-85:20. 

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The Court then found the Settlement was “fair, reasonable and adequate” pursuant to 

Rule 23(e), considering each Girsh factor. See id. at 87:1-99:8. The Sibley Objectors challenged 

the Settlement’s cy pres award provision for any unclaimed funds as inappropriate. See Sibley 

Obj. at 2-5; Sibley Form Obj. at 1-2 (money should go to the class instead of “unnamed 

charities”); see also Hampe Obj. at 1 (“there are too many loose ends concerning what happens 

to overflow settlement funds.”). The Court found this objection moot because the class fund will 

be exhausted. See Hearing Tr. at 71:24-72:5; id. at 126:21-22. The Bochenek Objectors also 

complained that there was collusion among the parties and the mediator. See Bochenek Obj. at 

9. The Court adamantly rejected that there was any evidence of collusion. See Hearing Tr. at 

32:1-23; 127:24-128:4. The Court also considered the objectors’ arguments that notice was 

insufficient (see Hampe Obj. at 1; Sibley Obj. at 1-2, 5; Sibley Form Obj. at 1, 2; Bochenek Obj. 

at 2-6) and found that the notice was reasonable and adequate. See Hearing Tr. at 99:9-101:11; 

127:17-128:9. 

Next, the Court undertook a painstaking analysis of the attorneys’ fee request. See id. at 

101:12-123:6. The Objector-Appellants’ principal objection was that the injunctive relief 

obtained was overvalued and that the attorneys’ fees requested were excessive. See Hampe Obj. 

at 1 (“attorneys’ fee award is grossly excessive ... for injunctive relief that is illusory”); Sibley 

Form Obj. at 2 (the “injunctive relief is really worthless” and the “attorney fees are outrageous”); 

Sibley Obj. at 5 (the “[injunctive] changes are of little to no value”); id. at 7 (“the attorney fee 

petition in this Settlement is unreasonable because the Settlement is over-valued”); Bochenek 

Obj. at 1 (“Class Counsel seeks to take 70% of the cash paid for itself”); id. at 9 (“the injunction 

is of questionable value and effect”). Christopher Langone, counsel for the Bochenek Objectors 

presented oral argument. See Hearing Tr. at 38:2-41:4; 54:13-56:25. Even though the Sibley 

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Objectors and Objector Hampe did not personally appear, their objections were taken up by other 

objectors’ counsel. See Hearing Tr. at 33:10-37:5 (Objector Daniel Greenberg argued as to the 

lack of value of the injunctive relief); id. at 41:9-42:4 (Counsel Lester Levy argued on behalf of 

Objector Amy Ades as to the lack of value of the injunctive relief). 

The Court specifically recognized “the presence of some meaningful objections is 

probative in determining the appropriate fee.” Id. at 113:17-19. The Court reduced attorneys’ 

fees from 30% of the gross settlement fund to 25% (or from $750,000 to $625,000). See id. at 

110:13-116:18. The Court also critiqued the value of the injunctive relief at length and reduced 

the injunctive fee award from $3 million to $500,000. See id. at 116:19-123:6. This is a 70% 

reduction in the requested attorneys’ fee award. The Court specifically heard argument from the 

Bochenek Objectors regarding the applicability of Bogart v. King Pharm., 493 F.3d 323 (3d Cir. 

2007), and Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000), and rejected the applicability of 

those cases since the Court did not intend to grant the full amount of attorneys’ fees requested. 

See Hearing Tr. at 54:13-25. In light of the Court’s thorough review of the attorneys’ fees and 

Settlement, it is unlikely that the Objector-Appellants will be able to demonstrate on appeal that 

the Court has abused its discretion. 

Aside from the fact that there are no legitimate bases for these appeals, the bona fides of 

these particular Objector-Appellants is suspect because they or their counsel routinely appeal the 

decisions granting final approval to class action settlements, which are then either withdrawn, 

presumably in exchange for cash, see Larson v. AT&T Mobility, LLC, No. 10-4349 (3d Cir.), 

ECF No. 003110649682 (voluntary withdrawal of appeal by Christopher Langone (the Bochenek 

Objectors’ counsel)); Kardonick v. JPMorgan, No. 10-cv-23235-WMH (S.D. Fla.), ECF No. 450 

(Katie Sibley and Clark Hampe voluntary withdrawal of appeal), or are unsuccessful. See Dewey 

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v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181, 190 (3d Cir. 2012) (Third Circuit reversed 

final approval of the settlement, but not on the basis of the objection by Daniel Sibley 

orchestrated by his attorney Gary Sibley); Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 

F.3d 632, 645 (5th Cir. 2012) (Fifth Circuit affirmed the district court’s approval of the 

settlement over objection of George Sibley represented by Gary Sibley). 

Defending an appeal, even a frivolous one, is both time-consuming and expensive. 

Indeed, the pendency of this appeal will obligate Plaintiffs and Defendant to spend considerable 

additional time and money. What is most important, distribution of the settlement proceeds to 

Class members will be delayed for months, if not years, by this appeal, resulting in substantial 

monthly expenses incurred by the Settlement and claims administrator. Consequently, it is 

appropriate to require the Objector-Appellants to post an appeal bond to secure at least a portion 

of the costs of the appeals. Moreover, the reasonableness of Plaintiffs’ request is further 

underscored by the fact that the Objector-Appellants include professional objectors and are 

disbursed throughout the United States, making the risk of non-payment significant. As such, 

because appellants are dispersed around the country, Class Counsel would be required to institute 

numerous collection actions to recover the costs incurred during appeal. Accordingly, there is a 

real risk of non-payment. See In re MagSafe Apple Power Adapter Litig., No. C 09-01911 JW, 

2012 WL 2339721, at *2 (N.D. Cal. May 29, 2012) (“because Objectors are highly unlikely to 

prevail in their appeals, and because there is a significant risk of non-payment following appeal 

[where the objectors were outside the jurisdiction of the court of appeals], the Court finds that a 

bond is warranted.”). 

In light of this Court’s thorough consideration of the objections and the deferential abuse 

of discretion standard governing these appeals, it is clear here that the Objector-Appellants are 

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engaged in an unabashed attempt to disrupt the Settlement, and “to simply extract a fee by 

lodging generic, unhelpful protests.” Devlin v. Scardelletti, 536 U.S. 1, 23, n.5, (2002) (Scalia, 

J., dissenting) (citing Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 973-74 and n.18 

(E.D. Tex. 2000)). By pursuing their intended appeals, the Objector-Appellants through their 

“professional objector” counsel (in the case of the Bochenek Objectors and the Sibley Objectors) 

seek to hold hostage the significant settlement proceeds to be distributed to the Settlement Class. 

Accordingly, it is appropriate for the Court to impose an appeal bond.5

B. A Bond of $42,500 is Necessary to Cover the Costs of the Appeal 

“The nature and amount of the bond is a matter left to the sound discretion of the district 

court.” Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir. 1987). Importantly, however, the appeal 

bond should be sufficient to cover and secure the costs of the appeal. See In re Wal-Mart Wage 

& Hour Employment Practices Litig., 2010 WL 786513, at *2. The Supreme Court defines 

“costs” to “refer to all costs properly awardable under the relevant substantive statute or other 

authority.” Marek v. Chesny, 473 U.S. 1, 9 (1985). District courts in the Third Circuit have 

imposed substantial appeal bonds on appealing objectors in class action cases without any 

showing as to the actual costs to be incurred. See, e.g., In re Am. Investors Life Ins. Co., 695 F. 

Supp. 2d at 167 (ordering $25,000 cost bond for appeal of class action settlement); In re Ins. 

Brokerage, 2007 WL 1963063, at *3 (same); In re Diet Drugs, 2000 WL 1665134, at *6-*7 

(finding $25,000 as a reasonable estimate and ordering that “Objectors shall be jointly and 

severally responsible for posting a $25,000.00 bond to ensure payment of costs incurred by the 

class on appeal should the class prevail”). Plaintiffs seek two categories of allowable costs: (1) 

 

5

 To the extent the Court has any question as to the frivolous nature of the ObjectorAppellants’ respective appeals, Plaintiffs request that the Court either: 1) issue an order to show 

cause requiring each and every Objector-Appellant to appear before the Court and be examined 

by the Court and/or Class Counsel; or 2) allow Plaintiffs to depose each and every ObjectorAppellant on the topic of the merits of his/her appeal. 

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the direct costs related to the appeal; and (2) the additional costs associated with administration 

of the Settlement caused by the delay in disbursement of the settlement fund to the Class. As 

demonstrated below, $42,500 is a more than reasonable estimate of such costs. 

Pursuant to 28 U.S.C. §1920 and Fed. R. App. P. 39(e), an appeal bond should provide 

for, inter alia, “the costs of preparation of and transmission of the record, the costs of obtaining 

any necessary transcripts, printing costs and other copying costs.” In re Ins. Brokerage, 2007 

WL 1963063, at *2. In the present case, Plaintiffs (and Defendant) are certain to incur hundreds, 

if not thousands, of dollars in costs associated with filing briefs to be prepared in multiple copies 

by a professional appellate printer. See Fed. R. App. P. 39(c) (taxation of reproduction costs). 

The court in In re Diet Drugs recognized the difficulty in estimating the costs in a multi-objector 

appeal: 

Presumably, some of the objectors will utilize parts of the record and reproduce 

exhibits that others will not. Also, some objectors will likely raise different issues 

in their appeals than others, causing the class to incur either more or less expense 

than incurred defending the appeals of other objectors. Accordingly, the Objectors 

will be jointly and severally responsible for posting the $25,000.00 bond. The 

court believes that this arrangement will adequately secure recovery of costs 

should the class prevail but will not work a financial hardship on the exercise of 

the Objectors' rights to appeal. 

See In re Diet Drugs, 2000 WL 1665134, at *6. Plaintiffs estimate that it will cost nearly $2,500 

to prepare 15 copies of their brief in opposition in each of the three appeals.6

 

6

 3d Cir. L.A.R. 39.3(a) provides costs may be taxed on 10 copies of the brief to the Court, 

two copies to the prevailing party and one copy to each of the three sets of objectors, which 

amounts to 15 copies of the brief in opposition in each appeal, for a total of 45 copies. Plaintiffs 

estimate that the brief with all tables and certifications would be approximately 65 pages. 3d Cir. 

L.A.R. 39.3(c)(2) also provides the rate for copying at $0.10 per page, $4.00 for binding each 

copy and $40.00 for each cover plus applicable sales tax (which is 8% in Philadelphia). At these 

rates, production of Plaintiffs’ brief in opposition would cost $2,454.30 for the three appeals. 

Even if Plaintiffs were to submit an omnibus brief, which would lower costs, this cost estimate 

does not include the cost of any additional appendix with materials the Objector-Appellants 

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Costs securable by a Rule 7 appeal bond can also include “the costs attendant to the delay 

associated with an appeal,” i.e., the ongoing costs of settlement administration while an appeal is 

pending. Barnes, slip op. at 1; see also In re Uponor, Inc., F1807 Plumbing Fittings Products 

Liab. Litig., No. 11-MD-2247 ADM/JJK, 2012 WL 3984542, at *5 (D. Minn. Sept. 11, 2012) 

(“The $20,000 bond requested by the Settlement Class for costs incurred by delay are reasonable 

and necessary. The costs of additional administration should be shouldered by the Objectors, 

particularly given the tenuous nature of their arguments.”); Miletak v. Allstate Ins. Co., No. C 06-

03778 JW, 2012 WL 3686785, at *2 (N.D. Cal. Aug. 27, 2012) (“the Court finds good cause to 

impose an appeal bond in the amount of $60,000, which represents solely the appellate costs and 

administrative costs requested by Plaintiff”); In re Checking Account Overdraft Litig., No. 1.09-

MD-02036 JLK, 2012 WL 456691, at *2 (S.D. Fla. Feb. 14, 2012) (ordering a bond in excess of 

$616,000 because the appeal “prevent[ed] distribution of the Settlement proceeds as ordered by 

this Court’s Final Judgment”); In re Wal-Mart, 2010 WL 786513, at *1-*2 (each of four 

objectors appealing from final approval of class action settlement required to post $500,000 bond 

in light of administrative costs and interest the class would lose as a result of the delay in 

compensation and injunctive relief due under the settlement agreement); In re Pharm. Indus., 

520 F. Supp. 2d at 279 (appealing objector required to post $61,000 bond for administrative costs 

that class will suffer as a result of delay in distribution from class action settlement); In re 

Cardizem, 391 F.3d at 815 (affirming imposition of bond that include $123,429 in the appeal 

bond amount for “incremental administration costs” due to a projected six-month delay); In re 

Compact Disc Minimum Advertised Price Antitrust Litig., No. MDL 1361, 2003 WL 22417252, 

at *1-*2 (D.Me. Oct. 7, 2003) (concluding that costs of delay or disruption of settlement may be 

 

failed to supply, motion practice for summary action under 3d Cir. L.A.R. 27.4 or any 

supplemental briefing that the Third Circuit might require. 

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13

included in a Rule 7 bond and granting $35,000 appeal bond). Courts treat with particular 

disapproval the objections and appeals of “professional objectors,” whose objections amount to a 

“tax that has no benefit to anyone other than to the objectors” but serves to “tie up the execution 

of [a] Settlement and further delay payment to the members of the Settlement Class....” In re 

Checking Account Overdraft Litig., 2012 WL 456691, at *2. 

Plaintiffs also will incur increased administrative expenses from the delay caused by the 

Objector-Appellants’ appeals, which would include, among other expenses, additional costs 

necessary to extend website maintenance and to process and respond to written and verbal 

inquiries about the status of claims processing during the appeal. Plaintiffs estimate the appeal 

could take up to 24 months to resolve based on the length of time from the filing of the notice of 

appeal and the final disposition in two recent class action cases where objectors appealed to the 

Third Circuit. In Dewey v. Volkswagen Aktiengesellschaft, decided May 31, 2012, see 681 F.3d 

170 (3d Cir. 2012), the objectors filed their notices of appeal 21 months earlier on August 20, 

2010. See Dewey v. Volkswagen AG, No. 07-cv-2249-FSH-PS (D.N.J.), ECF No. 268. And, in 

Larson v. AT & T Mobility LLC, decided June 29, 2012, see 687 F.3d 109 (3d Cir. 2012), the 

objectors filed their notices of appeal more than 19 months earlier on February 12, 2010. See 

Sampang v. AT & T Mobility LLC, No. 07cv5325-JLL (D.N.J.), ECF No. 461. The Claims 

Administrator estimates the cost of a 24-month delay in increased settlement administration costs 

at approximately $40,000. See Affidavit of Charlene Young Regarding Additional Claims 

Administration Costs Resulting From Appeal, at ¶3 and Ex. A. 

Thus, Plaintiffs believe that $42,500 is a more than reasonable estimate of the costs to 

be incurred during the pendency of the appeals and for which Plaintiffs are entitled to security in 

the present circumstances. 

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CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court issue an Order, 

pursuant to Rule 7 of the Federal Rules of Appellate Procedure, requiring the ObjectorAppellants to collectively post a bond of $42,500 within 10 business days. 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO, P.C. 

Attorneys for Plaintiff Kaczmarek and the Class 

By: /s/ James E. Cecchi 

 JAMES E. CECCHI 

Dated: October 1, 2012 

Joseph P. Guglielmo 

SCOTT+SCOTT LLP 

The Chrysler Building 

405 Lexington Ave., 40th Floor 

New York, NY 10174 

(212) 223-6444 

Christopher M. Burke 

SCOTT+SCOTT LLP 

707 Broadway, Suite 1000 

San Diego, CA 92101 

(619) 233-4565 

Counsel for Plaintiff Glover and Class Counsel 

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