OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

On October 5, 2009, this Court granted final approval of a $586 million Stipulation and Agreement of Settlement, providing closure to almost ten years of litigation involving 309 consolidated actions, fiftyfive investment banks, thousands of individual defendants, and more than seven million potential class members ("October 5 Opinion and Order").1 Out of the seven million potential class members, less than two ten-thousandths of one percent (0.0002%)—approximately 140 class members—submitted objections to the proposed settlement. This Court considered each in turn, but, nevertheless determined that the proposed settlement was fair, reasonable, and adequate.

Several objectors appealed that decision, contending that this Court made a variety of errors in reaching its conclusion. Those objectors, grouped according to their counsel, are: (1) three objectors represented by attorney Leland Greene (the "Greene Objectors");2 (2) two objectors represented by attorney John Pentz (the "Pentz Objectors");3 (3) eight objectors represented by attorney Edward Siegel (the "Siegel Objectors");4 (4) two objectors represented by attorneys Robert Marguiles and Jeffrey Weinstein (the "Weinstein Objectors");5 (5) forty-two objectors represented by attorney Theodore Bechtold (the "Bechtold Objectors");6 and (6) James Hayes, objecting pro se7 (collectively, the "Objectors"). Plaintiffs argue that the Objectors' appeals are frivolous and request that each Objector group be compelled to post an appeal bond of $500,000 pursuant to Rule 7 of the Federal Rules of Appellate Procedure. Unsurprisingly, the Objectors oppose.8 For the reasons discussed below, plaintiffs' motion is granted.

II. APPLICABLE LAW

A. Rule 7 Bond

Pursuant to Rule 7, "[i]n a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal." The purpose of Rule 7 is to protect an appellee against the risk of nonpayment by an unsuccessful appellant.9 When deciding whether to require an appellant to post an appeal bond, district courts consider several factors including: "`(1) the appellant's financial ability to post a bond, (2) the risk that the appellant would not pay appellee's costs if the appeal loses, (3) the merits of the appeal, and (4) whether the appellant has shown any bad faith or vexatious conduct.'"10

B. Costs

"It is within the district court's discretion to determine the amount and nature of the bond."11 Fixing the amount of a Rule 7 bond may include taxable costs enumerated in Rule 39(e) of the Federal Rules of Appellate Procedure, such as photocopying, printing, binding, filing, and service as well as the cost of the preparation and transmission of the record.12 Damages resulting from delay of settlement administration and attorneys' fees also may be included in a Rule 7 bond if the substantive statute underlying the action includes a fee-shifting provision that allows such costs to be awarded to the prevailing party.13 For example, the Copyright Act has been found to be a fee-shifting statute that includes attorneys' fees in its definition of costs.14 By comparison, section 4 of the Clayton Act, which provides for attorneys' fees "only to plaintiffs who prove an antitrust injury," has been rejected as a statute under which additional costs may be assessed for a Rule 7 bond.15

III. DISCUSSION

A. Rule 7 Bond

First, the Objectors have not presented any evidence demonstrating that they lack the financial ability to post a bond. Accordingly, the Objectors' ability to do so is presumed.16

Second, the Objectors are dispersed around the country and none has offered to guarantee payment of costs that might be assessed against them. In the event the Objectors are unsuccessful on appeal, plaintiffs would need to institute collection actions in numerous jurisdictions to recover their costs. As a result, there is a significant risk of non-payment.17

Third, the Objectors contend as an initial matter that it is not for the district court to decide whether an appeal has merit.18 However, in upholding a district court's order for a Rule 7 bond, the Second Circuit unequivocally rejected the argument that a district court may not forecast the merits of the appeal.19

Having considered the Objectors' arguments on appeal, I predict that the October 5 Opinion and Order will be affirmed. Class action settlements are reviewed on appeal for abuse of discretion20 and there is nothing to suggest that this Court will be reversed on appellate review. While the Objectors' claims are not entirely without merit,21 I do not believe the Objectors will be successful in overturning this Court's October 5 Opinion and Order.

Finally, there is evidence of bad faith or vexatious conduct by the Objectors. Other courts have found that counsel for the Pentz, Siegel, and Weinstein Objectors are serial objectors and have required them to post bonds in other actions.22 Not only is Bechtold also a serial objector,23 he holds personal, documented, animus toward the IPO Executive Committee.24

Similarly, Hayes has objected in at least six class action settlements.25 Hayes acknowledges that he objected in each of these six cases, but provides that he prosecuted three of them through the appeal and filed a petition for a writ of certiorari in the Supreme Court.26 In an unrelated action, Hayes created a nonprofit organization and entered into a stipulation pursuant to which he withdrew his objection to a $3.2 billion class settlement in exchange for a $300,000 donation to his organization, plus an additional $40,000 payment to himself and his then-counsel.27 Hayes does not deny that he has received a donation in exchange for withdrawing a motion for reconsideration and agreeing not to appeal, but quarrels with the circumstances under which the agreement was reached.28 Hayes also admits that he has been ordered to post a bond in a different action and notes that he is a class member in three other, currently pending, actions.29 Hayes's version of the facts does not diminish this Court's conclusion that he is a serial objector and should also be required to post a Rule 7 bond.

While it is unclear whether Greene is a serial objector, he has engaged in bad faith and vexatious conduct in this action. Greene admitted that he sought to extort an exorbitant fee from Class Counsel in exchange for withdrawing his appeal.30 In addition, by Greene's own admission it is likely that his clients are serial objectors.31

Lending further support to the conclusion that, at least, Greene, Siegel, Pentz, and Weinstein are appealing the October 5 Opinion and Order in bad faith is their outright refusal to comply with this Court's Orders. In connection with plaintiffs' motion, this Court ordered the Objectors' attorneys—over their objection-to provide responses to four specific questions.32 These questions sought to determine if any of the Objectors' counsel have a pattern or practice of objecting to class action settlements for the purpose of securing a settlement from class counsel.33 Only Bechtold and Hayes responded.34 Greene, Siegel, Pentz, and Weinstein argued that the requests are "not proper" and "did not merit a response."35 Such conduct is sanctionable under Rule 37 of the Federal Rules of Civil Procedure.36 Therefore, an adverse inference may be drawn against Greene, Siegel, Pentz, and Weinstein.37 I note, however, that there is sufficient evidence to conclude that these four Objectors groups are represented by serial objectors even without drawing a negative inference.

Based on the factors considered above, a Rule 7 bond is warranted. I concur with the numerous courts that have recognized that professional objectors undermine the administration of justice by disrupting settlement in the hopes of extorting a greater share of the settlement for themselves and their clients.38 Thus, the Objectors are required to file an appeal bond sufficient to secure payment of costs on appeal.

B. Costs Covered by the Appeal Bond

Plaintiffs argue that the appeal bond should include (1) the taxable costs specified by Rule 39(e), (2) the cost of delay and disruption of the settlement administration, and (3) attorneys' fees that plaintiffs will incur on appeal. With regard to taxable costs, plaintiffs rightfully assert that the appeal will entail significant costs, including copying costs for briefs and compilation of the voluminous record. The appendix would necessarily include the several thousand pages included in the expert reports and exhibits. Taxed at the Second Circuit rate of $0.20 per page, plaintiffs assert that copying costs will amount to at least tens of thousands of dollars. 1 conclude that $25,000 is likely sufficient to cover these taxable costs.39

Costs for delay and attorneys' fees, on the other hand, are not appropriate. Plaintiffs cite Section 11(e) of the Securities Act of 1933—one statute underlying these cases—as a fee-shifting statute that would permit costs outside the scope of Rule 39(e). Section 11(e) provides that where a judgment is "rendered against a party litigant" on a suit under the Act,

"This section was designed to provide a deterrent against blackmail suits and against baseless defenses to meritorious claims."41

Aside from the fact that section 11(e) does not provide for delay costs, section 11(e) does not apply here because the Objectors are not bringing a "suit" under this statute. They are objecting to this Court's decision to grant final approval of a settlement for the class. In addition, unlike the Copyright Act, section 11(e) is not a fee-shifting statute. Rather, section 11(e) permits a court to order sanctions where a litigant brings a suit or raises a defense that is frivolous. It does not fall within the scope of those fee-shifting statutes contemplated by the Second Circuit for purposes of assessing costs for a Rule 7 bond.42 Accordingly, neither delay costs nor attorneys' fees are appropriate.

Plaintiffs contend that delay costs and attorneys' fees should be included in the Rule 7 bond even if section 11(e) is excluded from this Court's consideration. With regard to delay costs, plaintiffs cite In re NASDAQ Market-Makers Antitrust Litigation for the proposition that delay costs can be included in a Rule 7 bond even in the absence of an applicable statute.43 In re NASDAQ appears to be the only case in this circuit that supports plaintiffs' position and its reasoning may be flawed.44 The court in In re NASDAQ permitted a Rule 7 bond to include damages stemming from delay under the rationale used to justify supersedeas bonds under Rule 8 of the Federal Rules of Appellate Procedure.45 As noted by other courts, the rationale underlying Rule 7 bonds is distinct from the rationale underlying Rule 8 bonds, which "serve a different purpose and are governed by a separate Federal Rule of Appellate Procedure."46 Indeed, the Second Circuit has expressly cautioned that a Rule 7 bond and a Rule 8 bond "should not be confused."47 I concur with those courts that have concluded that damages for delay cannot be included in Rule 7 bonds where no underlying statute provides for the inclusion of such costs. Thus, there are no grounds for awarding delay costs here.

Plaintiffs also assert that attorneys' fees can be separately justified under Rule 38 of the Federal Rules of Appellate Procedure.48 Rule 38 provides that "[i]f 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."49 As recognized by a number of other courts, to include attorneys' fees in the costs for a Rule 7 bond "would infringe on the authority that the Rule explicitly grants to the Court of Appeals."50 Accordingly, including attorneys' fees in this Rule 7 bond would be improper.

Without delay costs and attorneys' fees, the Objectors are required to post a Rule 7 bond for taxable costs of $25,000. I conclude that such a bond is reasonable and sufficient to protect plaintiffs for their costs on appeal.51 Plaintiffs requested that each Objector group separately be required to post the full bond amount, but have provided no basis for doing so. Therefore, the request is denied.

IV. CONCLUSION

For the foregoing reasons, plaintiffs' motion for a Rule 7 bond is granted. The Objectors are ordered to post a $25,000 bond for which all Objectors are jointly and severally liable. The Clerk of the Court is directed to close this motion (Docket No. 6199 in action 21 MC 92).

SO ORDERED.