In re Cardizem Cd Antitrust Litigation, 03-2514.

• Decision Date: 14 December 2004
• Docket Number: No. 03-2514.,No. 03-2635.,03-2514.,03-2635.
• Citation: 391 F.3d 812
• Parties: In re: CARDIZEM CD ANTITRUST LITIGATION. Eugenia Wynne Sams, Plaintiff-Appellant, v. Hoechst AKTIENGESELLSCHAFT; Andrx Pharmaceuticals, Inc.; Aventis Pharmaceuticals, Inc., Defendants-Appellees, Fifty States; District of Columbia and Puerto Rico; State Law Plaintiffs, Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

391 F.3d 812

In re: CARDIZEM CD ANTITRUST LITIGATION.

Eugenia Wynne Sams, Plaintiff-Appellant, v. Hoechst AKTIENGESELLSCHAFT; Andrx Pharmaceuticals, Inc.; Aventis Pharmaceuticals, Inc., Defendants-Appellees, Fifty States; District of Columbia and Puerto Rico; State Law Plaintiffs, Appellees.

No. 03-2514.

No. 03-2635.

United States Court of Appeals, Sixth Circuit.

Argued: September 15, 2004.

Decided and Filed: December 14, 2004.

Gordon Ball, Knoxville, Tennessee, for Appellant.

Paul F. Novak, Office of the Attorney General, Lansing, Michigan, Robert L. Hubbard, Director of Litigation, Antitrust Bureau, New York, New York, Albert L. Partee III, Office of the Attorney General, Nashville, Tennessee, Richard W. Cohen, Lowey, Dannenberg, Bemporad & Selinger, White Plains, New York, for Appellees.

Paul F. Novak, Office of the Attorney General, Lansing, Michigan, Robert L. Hubbard, Director of Litigation, Antitrust Bureau, New York, New York, Albert L. Partee III, Office of the Attorney General, Nashville, Tennessee, Richard W. Cohen, Peter D. St. Phillip, Jr., Lowey, Dannenberg, Bemporad & Selinger, White Plains, New York, Joseph J. Tabacco, Jr., Berman, DeValerio, Pease, Tabacco, Burt & Pucillo, San Francisco, California, for Appellees.

Before: NORRIS and DAUGHTREY, Circuit Judges; OLIVER, District Judge.^*

OPINION

NORRIS, Circuit Judge.

In case number 03-2514, plaintiff Eugenia Wynne Sams appeals from the district court's denial of her objections to the proposed settlement in this nationwide antitrust class action suit. In case number 03-2635, she appeals from a district court order imposing an appeal bond in the amount of $174,429.00. Because the district court properly calculated the amount of the appeal bond and Sams failed to either comply with the district court's order or request reconsideration of the amount by coming forward with evidence of hardship or impossibility, we affirm the order imposing the appeal bond in case number 03-2635 and dismiss plaintiff's appeal in case number 03-2514 for failure to post the bond.

I.

A detailed discussion of the facts giving rise to this litigation are found in a previous opinion by this court and will not be repeated here. See In re Cardizem CD Antitrust Litigation, 332 F.3d 896 (6th Cir.2003). In the course of the proceedings below, a lawsuit was brought in the Eastern District of Michigan by several state attorneys general, asserting claims for monopolization, attempted monopolization, and agreements in restraint of trade in the market for Cardizem CD and its generic bioequivalents, in violation of federal and state antitrust and unfair competition or consumer protection laws. The attorneys general sought injunctive relief, civil penalties, damages, disgorgement, restitution, and other equitable relief. The attorneys general filed their action "in their proprietary capacities on behalf of departments, bureaus, and agencies of state government as injured purchasers or reimbursers; and as parens patriae on behalf of natural persons in their collective States, and their respective States' quasi-sovereign interests in fair competition and the health of their citizenry, and/or in their sovereign capacities." Order No. 76, Oct. 10, 2003 at 9. Their suit was consolidated with the others already before the district court.

Sams was one of the "State Law Class Plaintiffs." She originally brought suit under Tennessee antitrust law in state court, and her lawsuit was removed to the United States District Court for the Eastern District of Tennessee by defendants. Soon thereafter, the Judicial Panel on Multidistrict Litigation ("JPML") transferred her action to the Eastern District of Michigan. During the pendency of Sams' case, she made two motions requesting remand from the district court because pretrial proceedings had ended, both of which the district court denied on the ground that "[d]iscovery is incomplete, motions for class certification, as well as motions to dismiss are pending, summary judgment motions have yet to be filed and settlement negotiations are proceeding." Order No. 45, Oct. 29, 2002 at 2; see also Order No. 55, Jan. 29, 2003. Sams moved for a remand from the JPML as well, which also denied her motion. Order Denying Remand, June 20, 2003.

Sams also objected to the Tennessee Attorney General's assertion of parens patriae authority to represent all natural persons in Tennessee. The district court overruled that objection as well, finding that "the Tennessee courts have recognized that Tennessee's Attorney General has broad common law and statutory powers[.]" Order No. 68, Apr. 29, 2003 at 2.

On October 1, 2001, the district court issued an order grouping the cases before it into three categories for the purpose of case management. Case Mgmt. Order No. 7, Oct. 1, 2001. In so doing, the district court named lead counsel for the different groupings and required all other counsel to work through those attorneys.

On January 3, 2003, the district court preliminarily approved a class action settlement reached between lead counsel and the defendants after long negotiations facilitated through mediation. That settlement involved the certification of a nationwide class of plaintiffs and the creation of a fund to be divided between members of the class. The class to be certified consisted of the following:

All consumers and Third Party Payers (including any assignees of such consumers or Third Party Payers) who purchased and/or paid all or part of the purchase price of Cardizem CD Products dispensed pursuant to prescriptions in the United States (including Puerto Rico) during the period January 1, 1998, through the date of this Preliminary Approval Order and all Designated Governmental Agencies. Excluded from the Settlement Class are Defendants and any of their officers and directors. Included in the Settlement Class are any and all members of any class or classes asserted in any State Action.

Order No. 59, Jan. 29, 2003 at 2-3.

The court heard objections to the proposed settlement at a fairness hearing on October 1, 2003, at which Sams renewed her request for a remand and her objection to the Tennessee Attorney General's assertion of parens patriae authority, and at which she argued that the definition of the class was insufficient to take into account differences in state antitrust laws; in particular, she claimed that Tennessee was among a group of states which permitted indirect purchasers to obtain relief under state antitrust law while another group of states did not, and that Tennessee offered a more generous measure of damages in antitrust than did other states. The district court dismissed Sams' objections and concluded that the proposed settlement was fair, issuing its final approval of the settlement. Order No. 76, Oct. 10, 2003. Final judgment was entered on October 21, 2003, and Sams filed a notice of appeal on November 5, 2003.

After Sams filed her notice of appeal, the district court imposed an appeal bond requiring that Sams post $174,429.00 by January 5, 2004. Corrected Order No. 82, Dec. 18, 2003. Sams filed a notice of appeal to the order imposing the bond; however, she has not posted the appeal bond.

II.

Sams challenges the propriety of the district court's imposition of an appeal bond under Fed. R.App. P. 7¹ in the amount of $174,429.00, consisting of $1,000.00 in filing and brief preparation costs, $123,429.00 in incremental administration costs, and $50,000 in projected attorneys' fees.² Corrected Order No. 82 at 12. Specifically, Sams challenges the propriety of including prospective administrative costs and attorneys' fees as part of the appeal bond. She does not challenge the inclusion of the $1,000.00 in filing and brief preparation costs.

The States and State Law Plaintiffs argue that Sams' appeal should be dismissed for failure to pay the bond in the absence of any stay. They cite to this court's decision in Powers v. Citizens Union Nat'l Bank and Trust Co., 329 F.2d 507 (6th Cir.1964), in which we determined that "[a]lthough failure to execute a bond for costs on appeal has been generally considered as not being jurisdictional ... failure to execute such a bond unless exempted by law, is grounds for dismissal of the appeal." Id. at 508-09.

Sams never attempted to move for a stay, nor did she object to the entirety of the bond amount. On appeal, however, Sams challenges the amount of the bond not only for its reasonableness but because she claims that attorney's fees and administrative costs cannot by law be included in it. We therefore must determine what impediments can be placed in the path of a litigant seeking to appeal.

We review questions of law de novo. Adsani v. Miller, 139 F.3d 67, 71 (2d Cir.1998). Sams argues that the district court erred in not limiting the scope of the "costs" to be included in the appeal bond amount to those listed in Fed. R.App. P. 39 and 28 U.S.C. § 1920.³

Under the Supreme Court's decision in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), "costs" within the meaning of Fed.R.Civ.P. 68 were to be defined by reference to the statute that underlay the lawsuit:

[G]iven the importance of "costs" to the Rule, it is very unlikely that th[e] omission [of a definition] was mere oversight; on the contrary, the most reasonable inference is that the term "costs" in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority.

Id., 473 U.S. at 9, 105 S.Ct. 3012. The Court went on to conclude that, because the underlying statute in Marek, 42 U.S.C. § 1988, expressly included attorney's fees as "costs," attorney's fees were awardable under Rule 68 as "costs" as well. Id.

Two courts of appeals have expressly applied the logic of Marek in interpreting the meaning of "costs" under Fed. R.App. P. 7, and found that attorney's fees could be included. In Adsani v. Miller, supra, the Second Circuit determined that "where ... ...