Tennille v. Western Union (Nelson)
774 F.3d 1249
10th Cir.2014Background
- Objectors Sikora Nelson and Paul Dorsey challenge a district court order requiring them to post a Rule 7 appeal bond of $1,007,294 to pursue appeals challenging a class settlement.
- Settlement funds: Western Union holds approximately $180 million for customers whose wire transfers failed; funds escheat to states if unclaimed.
- Settlement terms: Western Union will notify failed transfers, assist reclaiming funds, pay interest, and contribute the held funds (minus fees) to a settlement fund.
- Class action posture: district court preliminarily certified a class of over one million and approved the settlement; objectors appealed.
- This court stayed the district court’s bond order at the outset; the appeals challenge the bond and the district court’s ruling on the settlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 7 bond may cover non-appeal costs | Nelson/Pls argue bond can cover notifying class members and maintenance costs. | Western Union contends bond may cover only costs expressly recoverable as costs on appeal. | Bond cannot cover those non-statutory costs. |
| Whether $25,000 for printing/record prep was properly included | Plaintiffs say routine, no detailed justification needed. | They must justify costs; $25,000 unsupported by specifics. | The district court abused its discretion; reduce to $5,000. |
| Whether a $5,000 bond unduly burdens Nelson's due process/equal protection | Bond burden may violate due process/equal protection if unaffordable. | Bond amount must be posted if feasible; not per se unconstitutional. | $5,000 bond does not deprive due process or equal protection. |
Key Cases Cited
- Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998) (costs on appeal defined by rule or statute)
- In re Am. President Lines, Inc., 779 F.2d 714 (D.C. Cir. 1985) (costs on appeal limited to Rule 39 items)
- Vaughn v. Am. Honda Motor Co., 507 F.3d 295 (5th Cir. 2007) (appeal bond cannot substitute for delay damages absent proper basis)
- Cardizem CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004) (bond may cover appellate costs recoverable under underlying statute)
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (collateral finality – important collateral ruling under §1291)
- Harbert v. Healthcare Servs. Grp., Inc., 391 F.3d 1140 (10th Cir. 2004) (finality of bond decision despite potential ministerial actions)
- United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013) (collateral finality test for appeal bonds)