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Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (1 of 27 Case No. 18-1659 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT MARIA VERGARA, SANDEEP PAL, JENNIFER REILLY, JUSTIN BARTOLET, JAMES LATHROP, and JONATHAN GRINDELL, Plaintiffs-Appellees, KERRY ANN SWEENEY, Objector-Appellant, v. UBER TECHNOLOGIES, INC., a Delaware corporation, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 15-cv-06942 The Honorable Thomas Durkin, Judge Presiding PLAINTIFFS-APPELLEES MOTION TO DISMISS OBJECTOR-APPELLANT S APPEAL Plaintiffs-Appellees, Maria Vergara, Sandeep Pal, Jennifer Reilly, Justin Bartolet, James Lathrop, and Jonathan Grindell ( Appellees, pursuant to Rule 3(a(2, Rule 3(e and Rule 27 of the Federal Rules of Appellate Procedure and Seventh Circuit R. 3(b, hereby move to dismiss the appeal of Objector-Appellant, Kerry Ann Sweeney ( Appellant, for 1

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (2 of 27 failure to pay the required appellate fees. In support of this Motion, the moving Appellees state as follows: BACKGROUND 1. Appellees brought a class action complaint in the U.S. District Court for the Northern District of Illinois, Eastern Division, alleging violations of the federal Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. The Parties subsequently reached a class settlement. On August 17, 2017, the District Court granted preliminary approval of the settlement. (Dist. Ct. Dkt. 88. 2. On December 19, 2017, Appellant filed an objection to the class action settlement. (Dist. Ct. Dkt. 98-2. 3. On February 26, 2018, the District Court entered an Order overruling Appellant s objection, finding that it was meritless, factually inaccurate, and added no value to the settlement class members. (Dist. Ct. Dkt. 111, at 4-5 (attached hereto as Exhibit A. In rejecting Appellant s objection, the District Court further noted that Appellant is a serial class action settlement objector with a substantial history of filing objections that have been criticized and overruled by courts nationwide, and who engages in a practice of objector blackmail: filing 2

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (3 of 27 serial objections in attempt to extort money from class counsel without providing value. (Id. at 5. 4. On March 1, 2018, the District Court entered an Order granting final approval of the Parties class action settlement and entering judgment. (Dist. Ct. Dkt. 112. 5. On March 22, 2018, Appellant then filed a Notice of Appeal, appealing the District Court s February 26, 2018 Order overruling her objection and its March 1, 2018 Order granting final approval and entering judgment. (Dist. Ct. Dkts. 114, 115. 6. Shortly thereafter, on March 26, 2018, the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit issued a Circuit Rule 3(b Notice informing the Parties to the appeal that Appellant had failed to pay the required $5.00 notice of appeal filing fee and $500.00 appellate docketing fee, as required by Fed. R. App. P. 3(e. (Dkt. 1-4 (attached hereto as Exhibit B. 7. The Clerk s March 26, 2018 letter advised that, pursuant to Seventh Cir. R. 3(b, the Clerk has the authority to dismiss the appeal if either the docketing and filing fees were not paid, or a motion to proceed 3

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (4 of 27 on appeal in forma pauperis was not filed, within 14 days of when the appeal was docketed on March 26, 2018 by April 9, 2018. (Dkt. 1-4. 8. On April 26, 2018, the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit issued another Order, pursuant to Circuit Rule 3(b, providing Appellant with an additional 14 days, until May 10, 2018, to pay the required filing and docketing fees in the District Court or to file a motion for leave to proceed in forma pauperis. (Dkt. 3 (attached hereto as Exhibit C. 9. Appellant did not comply with the May 10, 2018 fee deadline and, to date, Appellant has not paid the filing fee or docketing fee associated with her appeal, nor has Appellant moved for leave to proceed in forma pauperis. ARGUMENT 10. Fed. R. App. P. 3(a(2 authorizes the Court of Appeals to act as it considers appropriate, including dismissing [an] appeal in the event that an appellant [fails] to take any step other than the timely filing of a notice of appeal. Fed. R. App. P. 3(a(2. 11. Fed. R. App. P. 3(e requires an appellant to pay all required fees upon filing a notice of appeal. If an appellant fails to pay the required 4

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (5 of 27 fees within 14 days after a proceeding is docketed, the clerk is authorized to dismiss the appeal. Seventh Cir. R. 3(b. 12. This appeal was docketed on March 26, 2018. (Dist. Ct. Dkt. 121. Since Appellant filed her notice of appeal, she has failed to pay the appellate filling and docketing fees required by the Federal Appellate and Seventh Circuit Rules, and as specifically required by this Court s April 26, 2018 Order providing an extended deadline of May 10, 2018 for Appellant to so comply. (Dkt. 3. 13. Further, Appellant has on numerous occasions failed to pay the required appellate filing and docketing fees in other appeals that she has filed, despite being notified that failure to do so would result in dismissal. See, e.g., Cody v. SoulCycle, Inc., No. 17-56608 (9th Cir. Feb. 26, 2018, ECF Nos. 4, 5 (dismissing Appellant s appeal for failure to prosecute after she failed to pay the required filing fees; Cotter v. Lyft, Inc., No. 17-15724 (9th Cir. June 5, 2017, ECF No. 10 (same. 14. Moreover, on May 7, 2018, the District Court entered an Order requiring Appellant to post a $5,000 appeal bond pursuant to Fed. R. App. P. 7, finding evidence of bad faith or vexatious conduct on the part of [Appellant] and that [Appellant s] prior failure to pay required 5

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (6 of 27 fees suggests a risk that she will not pay Appellees costs should she lose on appeal. (Dist. Ct. Dkt. 129, at 3 (attached hereto as Exhibit D. As of this filing, Appellant has not posted the required bond. 15. Given Appellant s history as a serial objector who fails to prosecute the appeals she files; Appellant s failure to comply with the Federal and Seventh Circuit Rules of Appellate Procedure by paying the required filing and docketing fees, or moving for leave to proceed in forma pauperis, within seven weeks since filing the Notice of Appeal; and Appellant s failure to comply with the Court s April 26, 2018 Order requiring her to pay the required fees by May 10, 2018, the Court should dismiss the appeal pursuant to Fed. R. App. P. 3(a(2, Fed. R. App. P. 3(e, and Seventh Cir. R. 3(b. CONCLUSION WHEREFORE, Appellees respectfully request that the Court enter an Order dismissing this appeal and for any such further relief as it deems reasonable and just. 6

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (7 of 27 Dated: May 15, 2018 Respectfully submitted, MARIA VERGARA, JAMES LATHROP, SANDEEP PAL, JENNIFER REILLY, JUSTIN BARTOLET, and JONATHAN GRINDELL, individually and on behalf of classes of similarly situated individuals By: /s/ Eugene Y. Turin One of Plaintiffs-Appellees Attorneys Myles McGuire Evan M. Meyers Paul T. Geske Eugene Y. Turin MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Floor Chicago, IL 60601 Tel: (312 893-7002 Fax: (312 275-7895 mmcguire@mcgpc.com emeyers@mcgpc.com pgeske@mcgpc.com eturin@mcgpc.com Hassan A. Zavareei Andrea R. Gold Andrew J. Silver TYCO & ZAVAREEI LLP 1828 L Street, N.W. Suite 1000 Washington, DC 20036 Tel: (202 973-0900 hzavareei@tzlegal.com agold@tzlegal.com asilver@tzlegal.com 7

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (8 of 27 CERTIFICATE OF SERVICE I hereby certify that on May 15, 2018, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit using the CM/ECF system. A copy of said document will be electronically transmitted to all counsel of record: Adam J. Hunt David J. Fioccola Tiffani B. Figueroa MORRISON & FOERSTER, LLP 250 West 55th Street New York, NY 10019 adamhunt@mofo.com dfioccola@mofo.com tfigueroa@mofo.com John C. Ellis ELLIS LEGAL P.C. 250 South Wacker Drive Suite 600 Chicago, IL 60606 jellis@ellislegal.com Austin V. Schwing GIBSON DUNN & CRUTCHER LLP 555 Mission Street San Francisco, CA 94105 aschwing@gibsondunn.com 8

Case: 18-1659 Document: 10-1 Filed: 05/15/2018 Pages: 9 (9 of 27 A copy of said document will also be sent via first-class mail and electronic mail to the following: Kerry Ann Sweeney 1223 20th Street Santa Monica, CA 90404 kerryannsweeney@gmail.com /s/ Eugene Y. Turin 9

Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (10 of 27 Exhibit A

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 1 of 6 PageID #:1573 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (11 of 27 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MARIA VERGARA, et al. Plaintiffs, No. 15 C 6942 v. UBER TECHNOLOGIES, INC., Judge Thomas M. Durkin Defendant. ORDER Before the Court are: (1 plaintiffs motion for approval of attorneys fees, expenses, and incentive awards [93]; (2 plaintiffs corresponding motion for leave to file a memorandum in excess of fifteen pages [91]; (3 plaintiffs motion for final approval of class action settlement [101]; and (4 plaintiffs motion to strike the objection of Kerry Ann Sweeney to the award of attorneys fees [104]. For the reasons set forth below and at the January 23, 2018 final approval hearing [103], the Court grants plaintiffs motion for final approval of the class action settlement [101], grants plaintiffs motion for leave to file excess pages [91], and grants in part and denies in part plaintiffs motion for approval of attorneys fees, expenses, and incentive awards [93]. The Court denies plaintiffs motion to strike the objection of Kerry Ann Sweeney [104], but nevertheless overrules Sweeney s objection. The Court directs plaintiffs on or before March 9, 2018 to prepare a proposed order incorporating and consistent with this Court s rulings on

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 2 of 6 PageID #:1574 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (12 of 27 their motions for final approval of class action settlement [101] and for approval of attorneys fees, expenses, and incentive awards [104]. Discussion At a hearing on January 23, 2018, this Court granted plaintiffs motion for approval of the $20 million class action settlement in this case [101]. The Court incorporates herein its reasons stated orally for approving the settlement based on the factors outlined by the Seventh Circuit in Synfuel Techs., Inc. v. DHL Express (USA, Inc., 463 F.3d 646, 652 (7th Cir. 2006. The Court further explained at the January 23, 2018 hearing that it planned to grant plaintiffs requested expenses and incentive awards, and to grant at least in part plaintiffs requested attorneys fees [93]. As discussed at the hearing, the Court adopts what appears to have become the standard model in this circuit for awarding fee awards in TCPA cases like this one involving a common fund settlement: a sliding-scale percentage approach. See, e.g., Aranda v. Caribbean Cruise Line, Inc., 2017 WL 1369741, at *5 (N.D. Ill. Apr. 10, 2017; In re Capital One Tel. Consumer Prot. Act Litig., 80 F. Supp. 3d 781 (N.D. Ill. 2015 (examining data from TCPA common fund settlements to adopt approach. Under this approach, the common fund is separated into bands, and class counsel is awarded a percentage of each band, with the percentage awarded decreasing as the size of the common fund increases. Id. at 804; see also In re Synthroid Mktg. Litig., 325 F.3d 974, 979 (7th Cir. 2003. 2

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 3 of 6 PageID #:1575 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (13 of 27 The $20 million settlement in this case implicates only the first two bands (of $10 million each. The base percentage applied to the first $10 million band is 30%, and the base percentage applied to the second $10 million band is 25%. Capital One, 80 F. Supp. 3d at 804. In high risk cases, courts apply an upward risk adjustment to the base percentages of each band. See, e.g., Aranda, 2017 WL 1369741, at *8-9. In the course of determining what risk factors to apply, the Aranda court reasoned that at the same time that counsel s success at each stage of the litigation may increase the expected value for his clients, counsel s own risk of nonpayment also decreases as another obstacle to recovery is removed. Id. at *8. Plaintiffs in a hypothetical negotiation might, therefore, agree to pay a risk premium at each band in a highrisk case like this but insist that the size of the premium decrease at each band, as the risk of non-recovery decreases. Id. The court applied this logic by awarding a decreasing risk premium to the standard sliding-scale structure specifically, a six-point premium to the first band, a five-point premium to the second band, a four-point premium to the third band, and a three-point premium to the fourth band. Id. at *9. The Aranda court therefore awarded class counsel 36% of the first $10 million ($3.6 million, 30% of the second $10 million ($3 million, 24% of the band from $20 million to $56 million ($8.64 million, and 18% of the remainder. Id. As discussed at the January 23, 2018 hearing, this case, like Aranda, involved real and significant risk by plaintiffs counsel, id. at *6, including litigating against a defendant with substantial resources, strong legal defenses, and 3

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 4 of 6 PageID #:1576 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (14 of 27 a willingness to litigate. This Court therefore agreed with plaintiffs that a six-point risk premium should be applied to the first $10 million band. The Court explained that the only remaining issue was the risk premium to apply to the second band (which totals $9,043,000 after subtracting costs and incentive awards. Plaintiffs ask the Court to apply the same, six-point risk premium to the first $10 million band and the second $9,043,000 million band. But, as the Aranda court explained, plaintiffs counsel s incentives change as the risk of non-recovery decreases. Plaintiffs counsel articulated no reason and the Court sees no reason to distinguish the risk assessment in this case from that in Aranda, where the court applied a lower, five-point premium to the second band. Indeed, plaintiffs counsel acknowledged during the January 23, 2018 hearing that it would be in this Court s discretion to apply either a five-point risk premium or a six-point risk premium to the second band. The Court therefore awards plaintiffs counsel 36% of the first $10 million band ($3.6 million and 30% of the second $9,043,000 band ($2,712,900, for a total award of $6,312,900. This corresponds to a $37,100 reduction of the $6,350,000 fee award requested by plaintiffs. R. 93 at 17. Finally, the Court turns to the only remaining objection in this case 1 : a pro se objection by Kerry Ann Sweeney pertaining to the award of attorneys fees. As plaintiffs explain in their motion to strike Sweeney s objection [104] (to which Sweeney responded [106], Sweeney and her family members are serial class action 1 This Court granted objector Marie Krikava s motion to withdraw her objection [97] the only other objection filed. 4

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 5 of 6 PageID #:1577 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (15 of 27 settlement objectors with a substantial history of filing objections that have been criticized and overruled by courts nationwide. See R. 101 at 19-23 (collecting cases. Although the Court does not find that the grounds identified by plaintiffs warrant striking Sweeney s objection outright, the Court nevertheless overrules Sweeney s objection. Sweeney argues that the attorneys fees sought by plaintiffs counsel are excessive, and that the award should follow the sliding-scale model set forth in Aranda. But plaintiffs cited and applied the sliding-scale approach and base percentages set forth in Aranda in their fee request. R. 93 at 15-17. The only problem with plaintiffs application of this approach, as explained above, was their failure to decrease the risk factor applied to the second band. The Court identified and addressed this issue independently of Sweeney s objection. Sweeney has therefore added no value to the process. Like other courts across the country, this Court declines to reward Sweeney for what is effectively a practice of objector blackmail: filing serial objections in attempt to extort money from class counsel without providing value. See, e.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1361 n.30 (S.D. Fla. 2011 ( professional objectors can levy what is effectively a tax on class action settlement, a tax that has no benefit to anyone other than to the objectors. Literally nothing is gained from the cost: Settlements are not restructured and the class... gains nothing. ; In re Polyurethane Foam Antitrust Litig., 178 F. Supp. 3d 635, 639 (N.D. Ohio 2016 ( The serial objector s ultimate goal is extortion.. For these reasons, the 5

Case: 1:15-cv-06942 Document #: 111 Filed: 02/26/18 Page 6 of 6 PageID #:1578 Case: 18-1659 Document: 10-2 Filed: 05/15/2018 Pages: 7 (16 of 27 Court denies plaintiffs motion to strike Sweeney s objection [104], but overrules that objection. ENTERED: Honorable Thomas M. Durkin United States District Judge Dated: February 26, 2018 6

Case: 18-1659 Document: 10-3 Filed: 05/15/2018 Pages: 3 (17 of 27 Exhibit B

Case: 18-1659 Document: 10-3 1-4 Filed: 03/26/2018 05/15/2018 Pages: 23 (18 of 27 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Everett McKinley Dirksen United States Courthouse Room 2722-219 S. Dearborn Street Chicago, Illinois 60604 Office of the Clerk Phone: (312 435-5850 www.ca7.uscourts.gov CIRCUIT RULE 3(b NOTICE March 26, 2018 No. 18-1659 MARIA VERGARA, individually and on behalf of a class of similarly situated individuals, et al., Plaintiffs - Appellees v. UBER TECHNOLOGIES, INC., a Delaware Corporation, Defendant Originating Case Information: District Court No: 1:15-cv-06942 Northern District of Illinois, Eastern Division Clerk/Agency Rep Thomas G. Bruton District Judge Thomas M. Durkin APPEAL OF: KERRY A. SWEENEY, Objector Circuit Rule 3(b empowers the clerk to dismiss an appeal if the docket fee is not paid within fourteen (14 days of the docketing of the appeal. This appeal was docketed on March 26, 2018. The District Court has indicated that as of March 26, 2018, the docket fee has not been paid. Depending on your situation, you should: 1. Pay the required $500.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, if you have not already done so. The Court of Appeals cannot accept this fee. You should keep a copy of the receipt for your records. 2. File a motion to proceed on appeal in forma pauperis with the District Court, if you have not already done so. An original and three (3 copies of that motion, with proof of service on your opponent, is required. This motion must be supported by a sworn affidavit in the form prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure (as amended 12/01/2013, listing the assets and income of the appellant(s.

Case: 18-1659 Document: 10-3 1-4 Filed: 03/26/2018 05/15/2018 Pages: 23 (19 of 27 3. If the motion to proceed on appeal in forma pauperis is denied by the district court, you must either pay the required $500.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, within fourteen (14 days after service of notice of the action to the district court, or within thirty (30 days of that date, renew your motion to proceed on appeal in forma pauperis with this court. If the motion is renewed in this court, it must comply with the terms of Fed.R.App.P. 24(a. If one of the above stated actions is not taken, the appeal will be dismissed. form name: c7_dc_fee_notice_sent(form ID: 158

Case: 18-1659 Document: 10-4 Filed: 05/15/2018 Pages: 3 (20 of 27 Exhibit C

Case: 18-1659 Document: 10-4 3 Filed: 04/26/2018 05/15/2018 Pages: 2 3 (21 of 27 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Everett McKinley Dirksen United States Courthouse Room 2722 219 S. Dearborn Street Chicago, Illinois 60604 Office of the Clerk Phone: (312 435 5850 www.ca7.uscourts.gov CIRCUIT RULE 3(b NOTICE April 26, 2018 No. 18 1659 MARIA VERGARA, individually and on behalf of a class of similarly situated individuals, et al., Plaintiffs Appellees v. UBER TECHNOLOGIES, INC., a Delaware Corporation, Defendant Originating Case Information: District Court No: 1:15 cv 06942 Northern District of Illinois, Eastern Division Clerk/Agency Rep Thomas G. Bruton District Judge Thomas M. Durkin APPEAL OF: KERRY A. SWEENEY, Objector Circuit Rule 3(b empowers the clerk to dismiss an appeal if the docket fee is not paid within fourteen (14 days of the docketing of the appeal. This appeal was docketed on March 26, 2018. The District Court has indicated that as of March 26, 2018, the docket fee has not been paid. Depending on your situation, you should: 1. Pay the required $500.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, if you have not already done so. The Court of Appeals cannot accept this fee. You should keep a copy of the receipt for your records. 2. File a motion to proceed on appeal in forma pauperis with the District Court, if you have not already done so. An original and three (3 copies of that motion, with proof of service on your opponent, is required. This motion must be supported by a sworn affidavit in the form prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure (as amended

Case: 18-1659 Document: 10-4 3 Filed: 04/26/2018 05/15/2018 Pages: 2 3 (22 of 27 12/01/2013, listing the assets and income of the appellant(s. 3. If the motion to proceed on appeal in forma pauperis is denied by the district court, you must either pay the required $500.00 docketing fee PLUS the $5.00 notice of appeal filing fee to the District Court Clerk, within fourteen (14 days after service of notice of the action to the district court, or within thirty (30 days of that date, renew your motion to proceed on appeal in forma pauperis with this court. If the motion is renewed in this court, it must comply with the terms of Fed.R.App.P. 24(a. If one of the above stated actions is not taken, the appeal will be dismissed. form name: c7_dc_fee_notice_sent(form ID: 158

Case: 18-1659 Document: 10-5 Filed: 05/15/2018 Pages: 5 (23 of 27 Exhibit D

Case: 1:15-cv-06942 Document #: 129 Filed: 05/07/18 Page 1 of 4 PageID #:1786 Case: 18-1659 Document: 10-5 Filed: 05/15/2018 Pages: 5 (24 of 27 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MARIA VERGARA, et al. Plaintiffs, No. 15 C 6942 v. UBER TECHNOLOGIES, INC., Judge Thomas M. Durkin Defendant. ORDER In March 2018, objector Kerry Ann Sweeney appealed this Court s orders granting final approval of the class action settlement in this case and granting in part and denying in part plaintiffs motion for approval of attorneys fees, expenses, and incentive awards [111, 112]. Before the Court is plaintiffs motion for a $5,000 appeal bond [122]. For the reasons set forth below, the Court grants plaintiffs motion. Discussion As this Court explained in its February 26, 2018 order overruling Sweeney s objection to the Court s award of attorneys fees, Sweeney and her family members are serial class action settlement objectors with a substantial history of filing objections that have been criticized and overruled by courts nationwide. R. 111 at 4-5. Because the Court found that Sweeney... added no value to the [settlement] process, the Court overruled Sweeney s objection. Id. Sweeney appealed. R. 114. On

Case: 1:15-cv-06942 Document #: 129 Filed: 05/07/18 Page 2 of 4 PageID #:1787 Case: 18-1659 Document: 10-5 Filed: 05/15/2018 Pages: 5 (25 of 27 April 26, 2018, the Seventh Circuit issued a Circuit Rule 3(b Notice requiring Sweeney to either (a pay the filing and docketing fees for her appeal or (b file a motion to appeal in forma pauperis, or her appeal will be dismissed for lack of jurisdiction. R. 126. As of the date of this order, Sweeney has taken neither of these actions. Currently before the Court is plaintiffs motion for an appeal bond to ensure payment of costs on appeal. R. 122. Federal Rule of Appellate Procedure 7 authorizes district courts to require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. While the Seventh Circuit has not enumerated a test for when an appeal bond is appropriate, courts generally consider the following factors in determining whether an appeal bond is appropriate: (1 the appellant s financial ability to post a bond, (2 the risk of nonpayment of appellee s costs if the appeal is unsuccessful, (3 the merits of the appeal, and (4 bad faith or vexatious conduct on the part of the appellants. Heekin v. Anthem, Inc., 2013 WL 752637, at *2 (S.D. Ind. Feb. 27, 2013. Plaintiffs motion cites and attaches a number of court orders requiring Sweeney to post appeal bonds, including in larger amounts than the $5,000 requested by plaintiffs here. See R. 127 at 6; R. 122-1; R. 122-2. As the courts in those cases found, there is no reason to question Sweeney s ability to pay the requested bond for purposes of the first factor of the analysis. E.g., R. 122-1 at 3 (Cody v. SoulCycle, No. 15 C 6457 (C.D. Cal. Dec. 7, 2017. Sweeney has not moved 2

Case: 1:15-cv-06942 Document #: 129 Filed: 05/07/18 Page 3 of 4 PageID #:1788 Case: 18-1659 Document: 10-5 Filed: 05/15/2018 Pages: 5 (26 of 27 to appeal in forma pauperis or taken any other action indicating that she is unable to pay. Turning to the second factor, Sweeney s prior failure to pay required fees suggests a risk that she will not pay Appellee s costs should she lose on appeal. Id. (collecting cases; see also R. 122-3 (Ninth Circuit order dismissing Sweeney s appeal for failure to pay filing fees; R. 122-4 (same. With respect to the third factor, this Court has already considered Sweeney s objection and determined that it was without merit. R. 111 at 4-5. And with respect to the fourth factor, this Court has already found evidence of bad faith or vexatious conduct on the part of Sweeney. See id. In response (R. 128, Sweeney does not dispute any of these facts or argue that she should not be required to pay a bond. Instead, she requests that the bond amount be set at $500, explaining that plaintiffs failed to present to the Court a detailed summary of what costs make up their request for a $5,000.00 bond. R. 128 at 1. But plaintiffs provide such a summary in their reply. Plaintiffs explain, and the Court agrees, that it is likely plaintiffs will incur significant expenses compiling and submitting the complete record on appeal given that Sweeney has declined to order or submit copies of transcripts from any other hearings associated with the orders she is appealing. See Vergara v. Sweeney, 18-1659 (7th Cir. May 2, 2018, Dkt. 8 (Transcript Information Sheet stating that Sweeney is not ordering any transcripts; see also Fed. R. App. P. 39(e (costs of preparation and transmission of relevant transcripts recoverable for a party entitled to costs. 3

Case: 1:15-cv-06942 Document #: 129 Filed: 05/07/18 Page 4 of 4 PageID #:1789 Case: 18-1659 Document: 10-5 Filed: 05/15/2018 Pages: 5 (27 of 27 The Seventh Circuit has instructed that a bond should not be used as a sanction for abusive class action objectors. Allen v. J.P. Morgan Chase Bank, NA, 2015 WL 12714382, at *1 (7th Cir. Dec. 4, 2015. But a bond is appropriately used to ensure payment of costs on appeal by such an objector. Id. In this case, plaintiffs have set forth the costs they seek to ensure payment of on appeal. And this Court finds that $5,000 is an appropriate estimate of the amount required to cover those costs. Indeed, the Seventh Circuit in Allen modified the appeal bond from $121,886 down to $5,000, finding that $5,000 would cover appellate costs. See id. And other courts in this district have likewise found $5,000 to be a reasonable estimate of the likely costs on appeal. E.g., In re Navistar Diesel Engine Prod. Liab. Litig., 2013 WL 4052673, at *3 (N.D. Ill. Aug. 12, 2013. For these reasons, the Court grants plaintiffs motion for an appeal bond in the amount of $5,000. R. 122. ENTERED: Honorable Thomas M. Durkin United States District Judge Dated: May 7, 2018 4