In re: Superior Offshore International, Inc. Securities Litigation

Filing 231

MEMORANDUM AND ORDER GRANTED 228 MOTION for Bond.Lead Plaintiffs Motion for Imposition of Bond For Costs onAppeal [Doc. # 228] is GRANTED to the extent that, on or before August 31, 2011,Appellant Gordon is required to post a bond pursuant to Rule 7 of the Federal Rulesof Appellate Procedure in the amount of $10,000.00.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

IN RE SUPERIOR OFFSHORE
INTERNATIONAL, INC.
SECURITIES LITIGATION

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CIVIL ACTION NO. H-08-0687

MEMORANDUM AND ORDER
This case is before the Court on Lead Plaintiff Charles Ognar’s Motion for
Imposition of Bond for Costs on Appeal (“Motion”) [Doc. # 228], to which Appellant
Don Gordon filed a Response [Doc. # 229], and Lead Plaintiff filed a Reply [Doc.
# 230]. Having reviewed the record and applied governing legal authorities, the Court
grants the Motion.
“In 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.” FED. R. APP. P. 7. “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 v. Miller, 139 F.3d 67, 79 (2d Cir. 1998) (citing
Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir. 1987)).
In this case, the Court finds that Gordon’s appeal is frivolous and that a bond
pursuant to Rule 7 is appropriate. The two issues Gordon identifies for appeal are (1)

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that this Court awarded reimbursement of expenses “without careful scrutiny of the
expenses” and (2) that the legal fee was calculated based on the gross settlement
amount and not on the net settlement amount. See Response, p. 1. Had Gordon or his
attorney either attended the settlement hearing or obtained and reviewed the transcript
of that hearing, he would realize that the Court addressed Gordon’s objections to the
amount of expenses claimed by class counsel. The second issue, regarding the
calculation of attorneys’ fees based on the gross settlement amount, was not raised in
Gordon’s objections to the settlement. As a result, that issue has been waived. See
Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009) (noting that
“arguments not raised before the district court are waived and cannot be raised for the
first time on appeal”).
Having exercised its discretion to require a bond pursuant to Rule 7, the Court
must determine the appropriate amount. Appellee Lead Plaintiff asserts that the costs
on appeal in this case could easily approach $25,000.00 based on the costs for copying
and binding the briefs and documents Lead Plaintiff wants included in the appendix.
The Court finds this amount to be excessive. While Appellee will be required to
provide at his expense seven bound copies of his Appellee’s brief and copies of the
documents he wants included in the appendix for the appeal, see FED. R. APP. P.

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30(b)(2), Appellee’s costs on appeal are unlikely to exceed $10,000.00. As a result,
the Court imposes a bond pursuant to Rule 7 in that amount. It is, therefore, hereby
ORDERED that Lead Plaintiff’s Motion for Imposition of Bond For Costs on
Appeal [Doc. # 228] is GRANTED to the extent that, on or before August 31, 2011,
Appellant Gordon is required to post a bond pursuant to Rule 7 of the Federal Rules
of Appellate Procedure in the amount of $10,000.00.
SIGNED at Houston, Texas, this 11th day of August, 2011.

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