Opinion
MDL No. 1403, No. 01 C 1181, and all other related cases.
July 23, 2002
MEMORANDUM OPINION AND ORDER
Plaintiffs ask us to revisit the amount of bond on appeal. On June 10, 2002, we reduced the bond to $2500 to cover the cost of appeal Plaintiffs seek to increase it substantially because of delay damages and the fees that will be incurred during the course of the appeal But the objectors have not moved for a stay. Unlike Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998), and In re Nasdag Market-Makers Antitrust Litigation, 187 F.R.D. 124 (S.D.N.Y. 1999), plaintiffs have not cited any statute that permits them to recover fees as costs.
There is support in Sckolnick v. Harlow, 820 F.2d 13 (Pt Cir. 1987), for including fees in a cost bond when the appeal might be frivolous and an award of sanctions on appeal is a real possibility. And we do believe any appeal is frivolous or borders on being frivolous. But we are reluctant to Impose bond conditions based upon a prediction of what the Court of Appeals might do. Plaintiffs can ask for further protection there, See United States for Use of Terry Investment Co. v. United Funding and Investors. Inc., 800 F. Supp. 879 (E, D.Calif. 1992). Plaintiffs' Rule 59(e) Motion to Amend Judgment is denied.