The work in question is described as an analysis of sanctions under title 28 of the United States Code. The Respondent maintains that this time is noncompensable because the Second Circuit ultimately awarded damages under Appellate Rule 38, not sanctions under title 28 of the United States Code.

IV – OBJECTORS' CONTENTION THAT THE BOND - AND THEREFORE THE SANCTIONS FOR FAILING TO POST THE BOND - ARE ‘ULTRA VIRES’ MISSTATES THE LAW AND RECORD IN THIS CASE The authority of a District Court to impose a bond pending appeal is well-settled, and is 9 Neither decision supports the Objectors' interpretation that the Motion Judge based his decision on his belief that the FRAP 7 Order represented a ‘supersedeas bond’ - and was therefore proper only under FRAP 8 - not FRAP 7. 10 An award of attorney fees for a frivolous appeal is under the exclusive jurisdiction of the Appeals Court and exclusively awardable under FRAP 38. Case 2:06-cv-00225-PMP-PAL Document 654 Filed 06/15/10 Page 7 of 12 8 Response of Settlement Class to Objectors Joint Request for Reconsideration of Bond Order, Opposition to Objectors Request for Relief, and Request for Sanctions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained in the plain language of FRAP 7.

Litig., MDL No. 1203, 2000 WL 1665134, at *3 (E.D. Pa. Nov. 6, 2000) (citing Fed. R. App. P. 39 and 28 U.S.C. § 1920); see also Marek v. Chesny, 473 U.S. 1, 9 (1985). Case 1:09-cv-10035-HB-RLE Document 183 Filed 10/05/11 Page 10 of 21 6 assessed under Fed. R. App. P. 38”).4 The Court is well aware that the attorneys’ fees to oppose the appeal can be quite substantial. To justify a bond for a potential award of attorneys’ fees, the party seeking the bond need not demonstrate with certainty that the appeal is frivolous and that, therefore, it will be awarded attorneys’ fees on appeal.

MDL 1361, 2003 WL 22417252 (D.Me. Oct.7, 2003) (imposing an appeal bond to cover a portion of fees of bank administering the class settlement fund and other costs as well as projected attorneys' fees); In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 124, 128-29 (S.D.N.Y.1999) (requiring appellant to provide security for disruption costs from a shut-down of the settlement administration). 6 The court also recognized that in the First Circuit, a Rule 7 bond can include not just administrative costs but attorneys' fees and any other costs that might be considered damages under Fed.R.App.P. 38: "Because Sckolnick makes clear that in the First Circuit a Rule 7 bond can cover damages assessed under Fed. R.App. P. 38, I agree with In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 124, 128 (S.D.N.Y.1999), that damages resulting from delay or disruption of settlement administration caused by a frivolous appeal may be included in a Rule 7 bond." In re Compact Disc Minimum Advertised Price Antitrust Litigation, 2003 WL 22417252, at *1 (D.Me.,2003).

Also, the parties may move to dismiss or expedite the appeal or move the First Circuit to impose monetary sanctions, if the appeal is found to be frivolous. See Fed. R. App. P. 38 (2008); 28 U.S.C. § 1912. In the final analysis, the parties cannot point to any direct evidence of ill will or dishonest purpose on the part of either Ms. Cain or her counsel.

See Fed. R. App. P. 38 (“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee”). In addition, the Ninth Circuit has expressly held that “a district court may not include in a Rule 7 bond appellate attorney's fees that might be awarded by the court of appeals if that court holds that the appeal is frivolous under Federal Rule of Appellate Procedure 38.” Fleury v. Richemont N. Am., Inc., C-05-4525 EMC, 2008 WL 4680033 at *7 (N.D. Cal. Oct. 21, 2008), citing Azizian, 499 F.3d at 954.

George v. City of Morro Bay (In re George), 322 F.3d 586, 586 (9th Cir. 2003), United States v. Nelson (In re Becraft), 885 F.2d 547, 550 (9th Cir. 1989). 22 FRAP 38(c) provides that “[i]f a court of appeals determines than an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Case 2:13-cv-01586-APG-NJK Document 49 Filed 11/08/13 Page 12 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DOCS_LA:272760.5 93837/001 P A C H U L S K I S T A N G Z IE H L & J O N E S L L P A T T O R N E Y S A T L A W L O S A N G E L E S , C A L IF O R N IA A.

Case: 1:10-cv-06994 Document #: 187 Filed: 06/28/12 Page 12 of 15 PageID #:2843 13   Costs securable by a Rule 7 appeal bond can also include the “damages and single or double costs to the appellee” awardable under Rule 38 where it is determined that an appeal is frivolous. Fed. R. App. P. 38; see Barnes, 2006 U.S. Dist. LEXIS 71072, at *2 (costs secured by appeal bond “include…attorneys’ fees, as well as double costs under Fed. R. App. P. 38, and other costs delineated in Fed. R. App. P. 39”); In re Compact Disc Minimum Advertised Price Antitrust Litig., 2003 U.S. Dist. LEXIS 2578, at *5 (appeal bond “can cover damages assessed under Fed. R. App. P. 38”). This Circuit has not ruled on whether attorneys’ fees are included in “costs,” but has fully acknowledged that many circuits allow for the inclusion of attorneys’ fees in the “costs.”

Br. at 7 n.5), and thus, the statement in Martin’s brief that plaintiffs do not cite any case in this Circuit “permitting a Fed. R. App. P. 7 appeal bond to include anticipated Fed. R. App. 38 fees” (Martin Br. at 3) is simply untrue.

In re Emergency Beacon Corp., 790 F.2d 285, 288 (2d Cir. 1986). “Appellate courts have Case 6:04-cv-00892-GAP-UAM Document 117 Filed 06/27/06 Page 4 of 17 -5- more than ample authority to sanction both parties and their attorneys for frivolous appeals, see e.g., Fed.R.Civ.P. 11, Fed.R.App.P. 38. Should an appellate court want to make use of the trial court's extensive knowledge of the events that transpired before review was sought, it can always impose the sanction of fees but allow the trial court to fix the amount in the first instance.”