Azizian v. Wilkinson ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FATEMAH AZIZIAN; SORAYA FARRAH; 
EUNICE FEY; ROSE GONZALES;
KAZUKO Y. MORGAN; NICOLA
NELSON-TORRES; MONIQUE PATRICK;
JUDITH POGRAN; PAMELA POWELL;
SHIRLEY POWELL; ROSE SKILLMAN
on behalf of themselves and all
others similarly situated; HANNAH
FELDMAN; NIKKI HURST GIBSON,
Plaintiffs-Appellees,
KAMELA WILKINSON,
Appellant, No. 05-15847
SUSAN CASENZA; VALERIE THENG  D.C. No.
MATHERNE, CV-03-03359-SBA
Intervenors-Appellees,
v.
FEDERATED DEPARTMENT STORES,
INC.; BOUCHERON (USA) LTD.;
CHANEL, INC.; PARFUMS GIVENCHY,
INC.; GUERLAIN, INC.; CHRISTIAN
DIOR PERFUMES, INC.; CONOPCO,
INC.; L’OREAL USA, INC.; THE
ESTEE LAUDER COMPANIES, INC.;
CLARINS U.S.A. INC.; DILLARD’S
INC.; TARGET CORPORATION;

10303
10304 AZIZIAN v. WILKINSON
GOTTSCHALKS, INC.; SAKS 
INCORPORATED; THE MAY
DEPARTMENT STORES COMPANY;
NORDSTROM, INC.; THE NEIMAN- 
MARCUS GROUP, INC.,
Defendants-Appellees.

FATEMAH AZIZIAN; SORAYA FARRAH; 
EUNICE FEY; ROSE GONZALES;
KAZUKO Y. MORGAN; NICOLA
NELSON-TORRES; MONIQUE PATRICK;
JUDITH POGRAN; PAMELA POWELL;
SHIRLEY POWELL; ROSE SKILLMAN
on behalf of themselves and all
others similarly situated; HANNAH
FELDMAN; NIKKI HURST GIBSON,
Plaintiffs-Appellees,
No. 05-16600
KAMELA WILKINSON,
Appellant,
 D.C. No.
CV-03-03359-SBA
SUSAN CASENZA; VALERIE THENG
MATHERNE, OPINION
Intervenors-Appellees,
v.
FEDERATED DEPARTMENT STORES,
INC.; BOUCHERON (USA) LTD.;
CHANEL, INC.; PARFUMS GIVENCHY,
INC.; GUERLAIN, INC.; CHRISTIAN
DIOR PERFUMES, INC.; CONOPCO,
INC.; L’OREAL USA, INC.; THE
ESTEE LAUDER COMPANIES, INC.;

AZIZIAN v. WILKINSON 10305
CLARINS U.S.A. INC.; DILLARD’S 
INC.; TARGET CORPORATION;
GOTTSCHALKS, INC.; SAKS
INCORPORATED; THE MAY
DEPARTMENT STORES COMPANY; 
NORDSTROM, INC.; THE NEIMAN-
MARCUS GROUP, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
March 14, 2007—San Francisco, California
Filed August 23, 2007
Before: Procter Hug, Jr., Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
AZIZIAN v. WILKINSON 10307
COUNSEL
William F. Abbott, San Francisco, California; Kent F. Brooks,
Dallas, Texas, for appellant Kamela Wilkinson.
10308 AZIZIAN v. WILKINSON
John W. Allured, San Francisco, California; Gretchen M. Nel-
son, Los Angeles, California; W. Timothy Needham, Janssen
Malloy Needham, Eureka, California; J. Garrett Kendrick,
Kendrick & Nutley, Beverly Hills, California; John L. Burris,
Oakland, California; Francis O. Scarpulla, Craig C. Corbitt,
Zelle Hofmann Voelbel Mason & Gette, San Francisco, Cali-
fornia; Susan G. Taylor, Milberg Weiss Bershad Hynes &
Lerach, Joseph R. Saveri, Lieff Cabraser & Heimann, San
Francisco, California; John H. Boone, San Francisco, Califor-
nia; Josef D. Cooper, Cooper & Kirkham, San Francisco, Cal-
ifornia; Terry Gross, Gross & Belsky, San Francisco,
California; Guido Saveri, Saveri & Saveri, San Francisco,
California; Alan R. Plutzik, Bramson Plutzik Mahler &
Birhaeuser, Walnut Creek, California; Angelina Grace, Law
Firm of Joseph M. Alioto, San Francisco, California; Daniel
J. Mogin, Mogin Law Firm, San Diego, California; Michael
J. Flannery, David Danis Law Firm, St. Louis, Missouri; Rob-
ert Diskint, Critchlow & Diskint, San Rafael, California, Ben
Furth, Furth Firm, San Francisco, California; John J. Pentz,
Class Action Fairness Group, Maynard, Massachusetts;
Michael A. Caddell, Caddell & Chapman, Houston, Texas;
Mary L. Needham, San Francisco, California, for the
plaintiffs-appellees.
Phillip Aaron Proger, Amy Anne Stathos, Jones Day, Wash-
ington, D.C., Bruce H. Jackson, Baker & McKenzie, San
Francisco, California; Peter J. Venaglia, Dornbush Mensch
Mandelstam & Schaeffer, New York, New York; Terri Gar-
land, Morrison & Foerster, San Francisco, California; Marta
Miyar, Bingham McCutchen, San Francisco, California;
George Charles Nierlich, Gibson Dunn & Crutcher, San Fran-
cisco, California; Bruce A. Colbath, Weil Gotshal and
Manges, New York, New York; Jeffrey Knowles, Coblentz
Patch Duffy & Bass, San Francisco, California; Frederic W.
Yerman, Kaye Scholer, New York, New York; Michael W.
Bien, Rosen Bien & Asaro, San Francisco, California; Charles
Berwanger, Gordon & Rees, San Diego, California; James T.
Fousekis, DLA Piper US, San Francisco, California; Anita
AZIZIAN v. WILKINSON 10309
Fern Stork, Covington & Burling, San Francisco, California;
Samuel R. Miller, Folger Levin & Kahn, San Francisco, Cali-
fornia; Marlene J. Williams, Thelen Reid Brown Raysman &
Steiner, San Francisco, California; Gregory Philip Farnham,
Townsend Townsend & Crew, San Francisco, California;
Matthew W. Hoffman, Elizabeth Runyan Geise, Goodwin
Procter, Washington, D.C.; Ronald J. Dolan, St. Louis, Mis-
souri; James L. McGinnis, Gary L. Halling, Shepherd Mullin
Richter and Hampton, San Francisco, California; Larry Ste-
ven Gangnes, Lane Powell, Seattle, Washington; J. Thomas
Rosch, Latham & Watkins, San Francisco, California, for the
defendants-appellees.
Andrew James Kopp, Oakland, California; Steven B. Witman,
Metairie, Louisiana, for the intervenors-appellees.
OPINION
W. FLETCHER, Circuit Judge:
This appeal arises from a class member/objector’s chal-
lenge to the district court’s final approval of a settlement of
the antitrust claims of a certified nationwide class of consum-
ers of department store cosmetics. We must decide two ques-
tions.
First, as a matter of first impression, we must decide
whether, or under what circumstances, appellate attorney’s
fees are “costs on appeal” that a district court may require an
appellant to secure in a bond ordered under Federal Rule of
Appellate Procedure 7 (“Rule 7”). We conclude that a district
court may require an appellant to secure appellate attorney’s
fees in a Rule 7 bond, but only if an applicable fee-shifting
statute includes them in its definition of recoverable costs, and
only if the appellee is eligible to recover such fees. The fee-
shifting provision in Section 4 of the Clayton Act, 15 U.S.C.
10310 AZIZIAN v. WILKINSON
§ 15, includes attorney’s fees in its definition of costs recover-
able by a prevailing plaintiff. However, this provision does
not authorize taxing attorney’s fees against a class member/
objector challenging a settlement in an antitrust suit. There-
fore, we hold that the district court erred by requiring security
in the Rule 7 bond for attorney’s fees as costs taxable under
Clayton Act Section 4.
We further conclude that a district court may not include in
a Rule 7 bond appellate attorney’s fees that might be awarded
by the court of appeals if that court holds that the appeal is
frivolous under Federal Rule of Appellate Procedure 38
(“Rule 38”).
Second, we must decide whether Appellant’s appeal on the
merits should be dismissed for failure to post the bond. In the
circumstances of this case, we hold that it should not.
In a separate unpublished memorandum disposition, we
reach the merits of the appeal and affirm the district court’s
approval of the settlement.
I. Background
Appellant Kamela Wilkinson is one of a large number of
consumers who bought cosmetics products manufactured and
sold by Defendants-Appellees. In July 2003, Plaintiffs-
Appellees commenced, on behalf of these consumers, a
nationwide, settlement-only antitrust class action lawsuit in
the federal district court for the Northern District of Califor-
nia. They alleged that Defendants-Appellees had violated the
Sherman Act and California’s Cartwright and Unfair Compe-
tition Acts by “enter[ing] into and engag[ing] in . . . a con-
tract, combination or conspiracy . . . to fix, raise, and stabilize
the prices of Department Store Cosmetics and to limit the sup-
ply of Department Store Cosmetics.” On March 30, 2005, the
district court approved a settlement of all class claims. Wil-
AZIZIAN v. WILKINSON 10311
kinson appealed from the final approval order on April 29,
2005.
In July 2005, Plaintiffs-Appellees sought an appeal bond of
$12,833,501.80 under Rule 7. This amount included two
times their estimate of anticipated (1) appellate costs, not
including attorney’s fees, recoverable under Federal Rule of
Appellate Procedure 39 (“Rule 39”) ($6,540.00), (2) appellate
attorney’s fees ($300,000.00), (3) interest on the settlement’s
$24 million attorney’s fees award ($178,457.68), and (4)
damages resulting from delay ($5,931,753.22). The district
court ordered Wilkinson to post a bond in the amount of
$42,000.00, representing an anticipated $2,000.00 in appellate
costs taxable under Rule 39 and $40,000.00 in appellate attor-
ney’s fees. The district court noted that a split in circuit
authority exists regarding whether attorney’s fees are “costs
on appeal” securable under Rule 7, and that this circuit had
not yet addressed this issue. It concluded that the bond could
cover appellate attorney’s fees because (1) the fee-shifting
provision in Section 4 of the Clayton Act, 15 U.S.C. § 15,
defines attorney’s fees as among the costs recoverable, and
(2) “the Court of Appeals [was] likely to find that the instant
appeal[ ] [was] frivolous.”
On August 19, 2005, Wilkinson tendered $2,000.00 to the
district court clerk, which was rejected. Wilkinson then
moved the district court to reduce the bond amount. After the
district court denied her motion, she appealed from that order.
On September 19, 2005, Plaintiffs-Appellees filed a motion
asking us to dismiss Wilkinson’s appeal of final approval of
the settlement, based on her failure to pay the Rule 7 bond.
A motions panel of this court denied the motion on December
12, 2005, with leave to Plaintiffs-Appellees to renew their
request for dismissal in their answering brief, which they have
done.
II. Discussion
[1] Federal Rule of Appellate Procedure 7, derived from
former Federal Rule of Civil Procedure 73(c), provides that
10312 AZIZIAN v. WILKINSON
“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. Wil-
kinson argues that the phrase “costs on appeal” does not
include attorney’s fees. Plaintiffs-Appellees contend that
“costs on appeal” includes attorney’s fees if they are
described as “costs” by an applicable fee-shifting statute or if
the appeal is likely to be found frivolous by the court of
appeals.
Ordinarily, “[w]e review objections to the amount of a
bond for abuse of discretion.” A&M Records, Inc. v. Napster,
Inc., 239 F.3d 1004, 1028 (9th Cir. 2001) (as amended). How-
ever, the meaning of the phrase “costs on appeal” is a ques-
tion of law that we review de novo. See Adsani v. Miller, 139
F.3d 67, 71 (2d Cir. 1998). Similarly, we ordinarily review a
district court’s attorney’s fees decision for an abuse of discre-
tion. See Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th
Cir. 2005). However, “any elements of legal analysis and stat-
utory interpretation underlying the district court’s attorney’s
fees decision are reviewed de novo.” V.S. ex rel. A.O. v. Los
Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d 1230,
1232 (9th Cir. 2007) (quoting P.N. v. Seattle Sch. Dist., No.
1, 458 F.3d 983, 985 (9th Cir. 2006), amended by 474 F.3d
1165 (9th Cir. 2007)) (internal quotation marks omitted).
A. “Costs on Appeal” Under Rule 7 May Include
Attorney’s Fees
[2] Whether attorney’s fees are part of “costs on appeal”
under Rule 7 is a question of first impression in this circuit.
Six other circuits are split on the question. An older, minority
rule, used by the D.C. and Third Circuits and endorsed by the
Wright, Miller & Cooper treatise, holds that the “costs
referred to” in Rule 7 “are simply those that may be taxed
against an unsuccessful litigant under Federal Appellate Rule
39, and do not include attorney’s fees that may be assessed on
appeal.” In re Am. President Lines, Inc., 779 F.2d 714, 716
AZIZIAN v. WILKINSON 10313
(D.C. Cir. 1985) (per curiam) (footnote omitted); see also
16A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 3953 (3d ed. 2006).
The more recent, majority rule, adopted by the Second, Sixth,
and Eleventh Circuits, holds that a district court may order
security for appellate attorney’s fees in a Rule 7 bond if they
would be treated as recoverable costs under an applicable fee-
shifting statute. See In re Cardizem CD Antitrust Litigation,
391 F.3d 812, 817-18 (6th Cir. 2004); Pedraza v. United
Guaranty Corp., 313 F.3d 1323, 1329-30 (11th Cir. 2002);
Adsani, 139 F.3d at 71. Finally, the First Circuit has held that
a district court may require a Rule 7 bond covering appellate
attorney’s fees if it concludes that the court of appeals might
award attorney’s fees as costs under Rule 38 because the
appeal is frivolous. Sckolnick v. Harlow, 820 F.2d 13, 15 (1st
Cir. 1987) (per curiam).
The D.C. Circuit appears to have been the first court of
appeals to address the question. In In re American President
Lines, the district court ordered a $10,000 Rule 7 bond includ-
ing security for appellate attorney’s fees. 779 F.2d at 715-16.
The court of appeals remanded to the district court for a
“statement of its reasons for setting the bond at $10,000.” Id.
at 716. On remand, the district court gave four reasons: first,
a portion of the bond was proper under Rule 7; second, the
district court had acted within its “ ‘inherent or rule-based
power to require a plaintiff with no assets in the court’s juris-
diction to post a bond before proceeding with what appears to
be a frivolous suit’ ”; third, the appeal “likely would be found
to be frivolous” under Rule 38; and fourth, the appellant’s
failure to pay attorney’s fees assessed against him in the
underlying bankruptcy proceeding increased the need for
security on appeal. Id.The D.C. Circuit rejected each of these reasons and reduced
the amount of the bond to the amount of costs recoverable
under Rule 39. First, the court concluded, without discussion,
that the definition of the term “costs on appeal” in Rule 7 is
10314 AZIZIAN v. WILKINSON
synonymous with the “costs” listed in Rule 39. Id. Therefore,
“[t]he costs referred to [in Rule 7] . . . are simply those that
may be taxed against an unsuccessful litigant under [Rule] 39,
and do not include attorneys’ fees that may be assessed on
appeal.” Id. Second, the court rejected the argument that a dis-
trict court may order payment of attorney’s fees in an appeal
bond under its “inherent power,” see Fed. R. Civ. P. 83,
observing that such power “really adds nothing to the author-
ity already conferred by Rule 7.” In re Am. President Lines,
779 F.2d at 717. Third, the court wrote that a bond for attor-
ney’s fees is not “a legitimate means of protecting . . . against
the possibility that [an] appeal might turn out to be frivolous.”
Id. According to the court, this function would be better
served by “[t]he traditional countermeasure for an appeal
thought to be frivolous” — a motion to dismiss, “which is
available at the outset of the appeal and before expenses
thereon begin to mount” — or by a motion for sanctions
under Rule 38. Id. When a district court requires a bond order
that includes attorney’s fees on the ground of frivolousness,
it “effectively preempts [the circuit] court’s prerogative to
determine . . . whether [the appellee] is entitled to a Rule 38
recovery” and may “impermissibly encumber” the right to
seek appellate review. Id. at 717-18. Fourth, the court indi-
cated that any concerns about the appellant’s ability to pay
should have been addressed by a supersedeas bond (a bond
imposed as a condition of staying the execution of a judg-
ment) rather than by a Rule 7 bond. Id. at 717.
Two years later, the First Circuit, without discussing In re
American President Lines or examining the language, pur-
pose, or history of Rule 7, upheld a bond including attorney’s
fees on the ground that the district court “implied a view” that
there was “a real possibility” the appeal would be found frivo-
lous and sanctions would be ordered under Rule 38. Sckol-
nick, 820 F.2d at 15.
Ten years passed before the meaning of “costs on appeal”
again received substantial appellate attention. Then, the Third
AZIZIAN v. WILKINSON 10315
Circuit, in Hirschensohn v. Lawyers Title Insurance Corp.,
No. 96-7312, 1997 WL 307777 (3d Cir. June 10, 1997), an
unpublished opinion, approved of the holding of In re Ameri-
can President Lines. The court held that the district court
erred in requiring security for anticipated appellate attorney’s
fees that might be awarded under a fee-shifting provision in
a Virgin Islands statute. Id. at *1-3. Like the D.C. Circuit, the
court concluded that “ ‘[c]osts’ referred to in Rule 7 are those
that may be taxed against an unsuccessful litigant under
[Rule] 39,” and that “attorneys’ fees are distinct from the
‘costs’ defined by Rule 39.” Id. at *1-2. According to the
court, this approach is consistent with “the prevailing ‘Ameri-
can rule’ ” under which attorney’s fees are not recoverable
costs. Id. at *2 (citing Roadway Express, Inc. v. Piper, 447
U.S. 752, 759 (1980)).
The court briefly noted Marek v. Chesny, 473 U.S. 1(1985), but did not regard it as controlling. 1997 WL 307777,
at *2. Marek had not been discussed or cited by either the
D.C. Circuit in In re American President Lines or the First
Circuit in Sckolnick.
In Marek, the Supreme Court held that the term “costs” in
Federal Rule of Civil Procedure 68 — which shifts to the
offeree all “costs” incurred subsequent to an offer of judg-
ment if the judgment finally obtained is not more favorable
than the offer — includes attorney’s fees awardable under 42
U.S.C. § 1988, which authorizes the district court to “allow
the prevailing party . . . a reasonable attorney’s fee as part of
the costs.” 42 U.S.C. § 1988(b); Marek, 473 U.S. at 9. The
Court observed that, notwithstanding the American rule, “[b]y
the time [Rule 68] [was] adopted . . . , federal statutes had
authorized and defined awards of costs” to include attorney’s
fees “for more than 85 years.” Id. at 7-8. It concluded that by
not defining the term “costs,” the drafters of Rule 68 likely
“intended to refer to all costs properly awardable under the
relevant substantive statute or other authority.” Id. at 9.
“Thus, absent congressional expressions to the contrary,
10316 AZIZIAN v. WILKINSON
where the underlying statute defines ‘costs’ to include attor-
ney’s fees,” the Court was “satisfied such fees are to be
included as costs for purposes of Rule 68.” Id.One year after the Third Circuit’s decision in Hirschen-
sohn, the Second Circuit reached the opposite result from the
D.C. and Third Circuits, holding that a district court may
include security for attorney’s fees in a Rule 7 bond so long
as an applicable fee-shifting statute “explicitly authorizes
attorney’s fees ‘as part of the costs’ . . . upon appeal.” Adsani,
139 F.3d at 74. The district court had ordered the plaintiff-
appellant, whose copyright infringement and state law claims
had been dismissed, to post a $35,000 bond under Rule 7 that
included security for appellate attorney’s fees that might be
awarded under the Copyright Act, 17 U.S.C. § 505. Id. at 69-
70. Relying on Marek, the court affirmed, holding that “Rule
39 does not exhaustively define ‘costs’ ” on appeal. Id. at 74.
According to the court, “Rule 7 does not have a pre-existing
definition of costs any more than Fed. R. Civ. P. 68, the rule
interpreted in Marek, had its own definition.” Id. The court
noted that the Supreme Court in Marek had mentioned the
Copyright Act as among the federal statutes that “provide[ ]
for attorney’s fees ‘as part of the costs.’ ” Id. at 73.
In Pedraza, the Eleventh Circuit followed Adsani in hold-
ing that a Rule 7 bond may include appellate attorney’s fees
if they could be recoverable to the appellee under the govern-
ing statute. 313 F.3d at 1329-30. The district court had
ordered six objectors to a class settlement under the Real
Estate Settlement Procedures Act (“RESPA”) to pay a
$180,000 Rule 7 bond, comprised mostly of security for antic-
ipated appellate attorney’s fees. Pedraza, 313 F.3d at 1325,
1327-28. The court of appeals agreed with the Second Cir-
cuit’s analysis in Adsani, but concluded that the district court
had erred insofar as its bond order rested on RESPA. Id. at
1333-35. In contrast to the civil rights and copyright fee-
shifting provisions at issue in Marek and Adsani, RESPA’s
fee-shifting provision does not provide for recovery of attor-
AZIZIAN v. WILKINSON 10317
ney’s fees “as part of the costs” but instead authorizes award
of “costs of the action together with reasonable attorneys
fees.” Id. at 1333-34 (emphasis in original) (comparing 42
U.S.C. § 1988(b) and 17 U.S.C. § 505 with 12 U.S.C.
§ 2607(d)(5)). The court pointed to the Supreme Court’s state-
ment in Marek that “where the underlying statute defines
‘costs’ to include attorney’s fees” they could “be included as
costs for purposes of Rule 68.” Id. at 1334 (quoting Marek,
473 U.S. at 9) (emphasis added in Pedraza).
In Young v. New Process Steel, LP, 419 F.3d 1201 (11th
Cir. 2005), the Eleventh Circuit followed Pedraza but
reversed a Rule 7 bond securing appellate attorney’s fees
ordered against plaintiffs-appellants in a civil rights case
under 42 U.S.C. § 1988(b). Id. at 1202. Although § 1988(b)
“expressly allows the court to award the prevailing party ‘a
reasonable attorney’s fee as part of the costs,’ ” id. at 1204
(quoting 42 U.S.C. § 1988(b)) (emphasis added in Young), the
court held that the bond was improper. Id. at 1207-08. It
explained that courts must look beyond the mere fact that a
fee-shifting provision defines attorney’s fees as part of costs,
to whether the statute could actually support an award of fees
to the appellees. Id. at 1204. The court noted that while “the
language of § 1988 is itself party-neutral,” the Supreme Court
has restricted the award of attorney’s fees to defendants under
the statute to exceptional cases where “ ‘the plaintiff’s action
was frivolous, unreasonable, or without foundation.’ ” Id. at
1205 (quoting Christiansburg Garment Co. v. Equal Employ-
ment Opportunity Comm’n, 434 U.S. 412, 421 (1978)).
Because the district court had not made a determination that
the defendant-appellee was actually likely to be able to collect
attorney’s fees on appeal under § 1988(b), the court con-
cluded that the bond order was improper. Id. at 1207-08.
The Sixth Circuit has recently adopted the reasoning of
Adsani and Pedraza in Cardizem, holding that a Tennessee
statute shifting fees to prevailing defendants supported includ-
ing attorney’s fees in a Rule 7 bond. 391 F.3d at 817-18.
10318 AZIZIAN v. WILKINSON
[3] We agree with the Second, Sixth, and Eleventh Circuits
and hold that the term “costs on appeal” in Rule 7 includes all
expenses defined as “costs” by an applicable fee-shifting stat-
ute, including attorney’s fees. We do so for a number of rea-
sons. First, Rule 7 does not define “costs on appeal.” At the
time of its adoption in 1968, however, a number of federal
statutes — including the Clayton Act — had departed from
the American rule by defining “costs” to include attorney’s
fees. Marek, 473 U.S. at 8-9. Courts had long awarded appel-
late attorney’s fees to prevailing parties under these statutes.
See, e.g., Am. Can Co. v. Ladoga Canning Co., 44 F.2d 763,
772 (7th Cir. 1930) (Clayton Act Section 4); Louisville &
N.R. Co. v. Dickerson, 191 F. 705, 712 (6th Cir. 1911) (Inter-
state Commerce Act § 16). Because “[a]gainst this back-
ground of varying definitions of ‘costs,’ [Rule 7’s] drafters
. . . did not define the term,” we conclude that they likely “in-
tended [it] to refer to all costs properly awardable” at the con-
clusion of the appeal, including attorney’s fees authorized by
relevant statutory authority. Marek, 473 U.S. at 8-9.
Second, Rule 39 does not contain any “expression[ ] to the
contrary.” See id. at 9. There is no indication that the rule’s
drafters intended Rule 39 to define costs for purposes of Rule
7 or for any other appellate rule. The 1967 Rules Advisory
Committee note to Rule 39(e) states that “[t]he costs
described in this subdivision are costs of the appeal and, as
such, are within the undertaking of the appeal bond.” Fed. R.
App. P. 39(e) advisory committee’s note (1967 adoption). We
read this language to mean that the costs identified in Rule
39(e) are among, but not necessarily the only, costs available
on appeal. Further, Rule 38 provides that the court of appeals
may award “damages and . . . costs,” which include, accord-
ing to that rule’s advisory committee note, “damages, attor-
ney’s fees and other expenses incurred by an appellee.” Fed.
R. App. P. 38; id. advisory committee’s note (1967 adoption).
The discrepancy between the use of the term “costs” in Rule
39 and its use in Rule 38 strongly suggests that the rules’
drafters did not intend for Rule 39 to create a uniform defini-
AZIZIAN v. WILKINSON 10319
tion of “costs,” exclusive of attorney’s fees. See Singer v.
Shannon & Luchs Co., 868 F.2d 1306, 1307 (D.C. Cir. 1989)
(per curiam) (“Other circuit courts [including the Ninth Cir-
cuit] have held that while the term ‘costs’ in Rule 39 excludes
attorneys’ fees, the reference in Rule 38 to ‘just damages and
single or double costs’ comprises them.”).
Third, while some commentators have criticized Adsani
and Pedraza for “attach[ing] significant consequences to
minor and quite possibly unintentional differences in the
wording of fee-shifting statutes,” 16A Wright, Miller & Coo-
per, supra, § 3953, Marek counsels that we must take fee-
shifting statutes at their word. 473 U.S. at 9. This approach is
consistent with the “ancient and sound rule of construction
that each word in a statute should, if possible, be given
effect.” Crandon v. United States, 494 U.S. 152, 171 (1990)
(Scalia, J., concurring in the judgment).
Fourth, allowing district courts to include appellate attor-
ney’s fees in estimating and ordering security for statutorily
authorized costs under Rule 7 comports with their role in tax-
ing the full range of costs of appeal. In practice, district courts
are usually responsible at the conclusion of an appeal for tax-
ing all appellate costs, including attorney’s fees, available to
the prevailing party under a relevant fee-shifting statute. See
Perkins v. Standard Oil Co. of Cal., 399 U.S. 222, 223 (1970)
(“The amount of the award for [appellate] services should, as
a general rule, be fixed in the first instance by the District
Court, after hearing evidence as to the extent and nature of the
services rendered.”).
B. Attorney’s Fees Under Section 4 of the Clayton Act
Plaintiffs-Appellees contend that the portion of the district
court’s Rule 7 bond that included security for appellate attor-
ney’s fees was proper because the fee-shifting provision in
Section 4 of the Clayton Act, 15 U.S.C. § 15(a), includes
attorney’s fees as recoverable costs. We agree that Section 4
10320 AZIZIAN v. WILKINSON
includes attorney’s fees as costs, but conclude that attorney’s
fees would not be recoverable under Section 4 against Appel-
lant Wilkinson. We therefore hold that the district court erred
when it included anticipated appellate attorney’s fees in its
calculation of the amount of the Rule 7 bond.
Section 4 provides that “any person who shall be injured in
his business or property by reason of anything forbidden in
the antitrust laws . . . shall recover threefold the damages by
him sustained, and the cost of suit, including a reasonable
attorney’s fee.” Id.; see Marek, 473 U.S. at 8 (noting that
Clayton Act Section 4 “include[s] attorney’s fees as part of
awardable ‘costs’ ”); Perkins, 399 U.S. at 223 (holding that
Section 4 of the Clayton Act covers costs on appeal). Inclu-
sion of security for appellate attorney’s fees in a Rule 7 bond
may thus be appropriate in cases where the appellee is eligible
to collect costs on appeal under Section 4.
[4] However, unlike some other fee-shifting provisions,
Section 4 is asymmetrical. Compare, 15 U.S.C. § 15(a), with
17 U.S.C. § 505, and 42 U.S.C. § 1988(b); see also Aetna
Cas. & Sur. Co. v. Liebowitz, 730 F.2d 905, 908 (2d Cir.
1984). Clayton Act attorney’s fees awards are “available only
to plaintiffs who prove an antitrust injury.” Gulfstream III
Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414,
418 (3d Cir. 1993); see also In re Multidistrict Vehicle Air
Pollution M.D.L. No. 31, 481 F.2d 122, 130 n.12 (9th Cir.
1973); MCA Television Ltd. v. Pub. Interest Corp., 171 F.3d
1265, 1281 n.21 (11th Cir. 1999); Sciambra v. Graham News,
892 F.2d 411, 415-16 & n.1 (5th Cir. 1990). Section 4 is
intended not only “to encourage private enforcement of the
antitrust laws” and “to insulate the treble damages award from
the costs of obtaining recovery,” but also “to deter violations
of the antitrust laws by requiring the payment of that fee by
a losing defendant.” Image Tech. Serv., Inc. v. Eastman
Kodak Co., 136 F.3d 1354, 1357 (9th Cir. 1998). We have
gone so far as to describe a Section 4 fee award as “a part of
the penalty for violating the antitrust laws.” Id. at 1358.
AZIZIAN v. WILKINSON 10321
[5] Thus, a district court can order only a losing defendant
— the party that has violated antitrust laws — to pay attor-
ney’s fees under Section 4. See Byram Concretanks, Inc. v.
Warren Concrete Prods. Co., 374 F.2d 649, 651 (3d Cir.
1967) (as amended); see also J.T. Gibbons, Inc. v. Crawford
Fitting Co., 790 F.2d 1193, 1194-95 (5th Cir. 1986); cf. Olym-
pia Co. v. Celotex Corp., 771 F.2d 888, 892-93 (5th Cir.
1985) (awarding fees to prevailing defendants based not on
Section 4 but rather to sanction plaintiff and his attorney).
[6] The asymmetry of Section 4 is consistent with the pur-
pose of the Clayton Act as well as settled precedent. While
the interests of an antitrust settlement class member who chal-
lenges the settlement on appeal may well be adverse to the
interests of a class member who supports it, both remain the
alleged victims, rather than perpetrators, of the claimed anti-
trust injury. Ordering one class member to pay other class
members’ appellate attorney’s fees because of a disagreement
about the propriety of settlement would not serve the purpose
of Section 4 to penalize and deter those who have violated the
antitrust laws. Thus, even assuming, arguendo, that Plaintiffs-
Appellees are otherwise eligible to collect fees under Section
4, they could not collect them from Wilkinson. Cf. City of
Detroit v. Grinnell Corp., 495 F.2d 448, 468-69 (2d Cir.
1974) (holding that Section 4 does not authorize award of
attorney’s fees to a plaintiff who settles his claim with the
defendant), overruled on other grounds, as recognized by
Chambless v. Masters, Mates & Pilots Pension Plan, 885
F.2d 1053, 1058 (2d Cir. 1989).
C. Attorney’s Fees Based on Frivolous Appeal
[7] As an alternate basis for including security for appellate
attorney’s fees in its Rule 7 bond, the district court concluded
that we were likely to find Wilkinson’s appeal on the merits
frivolous and to award attorney’s fees as a sanction under
Rule 38. While we affirm the district court’s decision on the
merits, we do not conclude that Wilkinson’s appeal is frivo-
10322 AZIZIAN v. WILKINSON
lous. Even if we were to conclude that her appeal was frivo-
lous, however, we would reverse the district court’s inclusion
of appellate attorney’s fees on that basis.
Award of appellate attorney’s fees for frivolousness under
Rule 38 is highly exceptional, making it difficult to gauge
prospectively, and without the benefit of a fully developed
appellate record, whether such an award is likely. Cf. Primus
Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648-49 (9th
Cir. 1997) (discussing the “high threshold” for sanctions in
district court under Fed. R. Civ. P. 11). Moreover, a Rule 7
bond including the potentially large and indeterminate
amounts awardable under Rule 38 is more likely to chill an
appeal than a bond covering the other smaller, and more pre-
dictable, costs on appeal. Finally, in contrast to ordinary fee-
shifting and cost provisions, Rule 38 authorizes an award of
appellate attorney’s fees not simply as incident to a party’s
successful appellate defense or challenge of a judgment
below, but rather as a sanction for improper conduct on
appeal. While Rule 39 expressly authorizes the district court
to tax certain costs on appeal, and while it is usually the dis-
trict court that ultimately determines entitlement to expenses
including attorney’s fees on appeal under fee-shifting statutes,
only the court of appeals may order the sanction of appellate
attorney’s fees under Rule 38. See Fed. R. App. P. 38.
[8] We agree with the D.C. Circuit that the question of
whether, or how, to deter frivolous appeals is best left to the
courts of appeals, which may dispose of the appeal at the out-
set through a screening process, grant an appellee’s motion to
dismiss, or impose sanctions including attorney’s fees under
Rule 38. In re Am. President Lines, 779 F.2d at 717. Allowing
districts court to impose high Rule 7 bonds on where the
appeals might be found frivolous risks “impermissibly encum-
ber[ing]” appellants’ right to appeal and “effectively preemp-
t[ing] this court’s prerogative” to make its own frivolousness
determination. Id. at 717, 718; see also Adsani, 139 F.3d at 79(“[A]ny attempt by a court at preventing an appeal is unwar-
AZIZIAN v. WILKINSON 10323
ranted and cannot be tolerated.”) (quoting Clark v. Universal
Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974)).
D. Security for Attorney’s Fees Under Rule 7 Not
Mandatory
Although we hold that security for appellate attorney’s fees
may be included in a Rule 7 bond, we emphasize that the rule
states that a district court “may,” rather than “shall,” impose
a bond for costs on appeal. Fed. R. App. P. 7. A district court
need not order that appellate attorney’s fees be secured in a
Rule 7 bond merely because an applicable fee-shifting provi-
sion includes them as part of its definition of costs. Requiring
security for anticipated appellate attorney’s fees under Rule 7
may be improper, notwithstanding an applicable fee-shifting
provision, where other factors, such as financial hardship,
indicate that the bond would unduly burden a party’s right to
appeal. See 139 F.3d at 76-78.
E. Motion to Dismiss for Failure to Post the Bond
[9] Finally, we address Plaintiffs-Appellees’ motion to dis-
miss Wilkinson’s merits appeal for failure to post the Rule 7
bond. Where an appellant has failed to pay an appeal bond,
it is within our sound discretion to dismiss the appeal. Hagan
v. Whitman, 356 F.2d 742, 745 (9th Cir. 1966) (per curiam).
However, Federal Rule of Appellate Procedure 3(a)(2) pro-
vides that “[a]n appellant’s failure to take any step other than
the timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for the court of
appeals to act as it considers appropriate, including dismissing
the appeal.” Thus, an appellant is not required to post a Rule
7 bond to perfect its appeal. See also Fed. R. App. P. 3(a)
advisory committee’s note (1967 adoption).
Our case law offers little guidance on how we should exer-
cise our discretion when an appellant has failed to post a Rule
7 bond. Hagan, our most recent published opinion on this
10324 AZIZIAN v. WILKINSON
question, is more than forty years old. In that case, we dis-
missed an appeal where appellants failed to post a bond for
appellate costs ordered under former Federal Rule of Civil
Procedure 73(e), on which the later-adopted Rule 7 was mod-
eled. Hagan, 356 F.2d at 745. We did not offer specific rea-
sons for our conclusion that dismissal was proper, other than
noting that the bond default was part of a “pattern of many
small or large careless or calculated errors made by appellants
throughout this litigation[ ] both below and on appeal,” and
that the appeal “seem[ed] suspiciously like a frivolous
appeal.” Id. at 744-45.
More helpful than our decision in Hagan is a recent deci-
sion by the Sixth Circuit, In re Cardizem CD Antitrust Litiga-
tion, in which the court dismissed the appeal of a named
plaintiff who objected to a proposed settlement in a nation-
wide antitrust class action based on the plaintiff-appellant’s
failure to post a Rule 7 bond of $174,429 covering security
for “filing and brief preparation costs,” “incremental adminis-
tration costs,” and “projected attorneys’ fees.” 391 F.3d at
814-15. The court first noted that the appellant had not made
a “good faith proffer of a lesser [undisputed] amount” or
sought a stay in the district court. Id. at 818. It then consid-
ered as relevant factors, “prejudice to the other parties, the
demonstrated justification for the failure to post the bond, and
the merits of the underlying appeal.” Id. Concluding that none
of these other factors weighed in the appellant’s favor, the
court elected to dismiss the appeal. Id.[10] We conclude, on the facts of this case, that the factors
discussed in Cardizem do not support dismissal of Wilkin-
son’s appeal. First, in contrast to the appellant in Cardizem,
Wilkinson did proffer payment of the undisputed portion of
the bond, $2,000.00, to the district court clerk, which was
refused. Wilkinson then moved in the district court to reduce
the bond amount. When her motion was denied, she appealed
the bond order. Although Wilkinson did not move to stay the
bond, she did not simply “ignore [the] order,” id., but rather
AZIZIAN v. WILKINSON 10325
made legitimate efforts to reduce its amount. Her diligence in
this respect weighs against dismissal of her appeal.
[11] Second, in contrast to Cardizem, where the appellant
“made no effort in the district court to justify her failure to
post the bond,” id., Wilkinson has consistently argued that the
amount of the bond was legally erroneous because neither
Rule 7 nor Section 4 of the Clayton Act supports the district
court’s order requiring security for appellate attorney’s fees.
Although we have rejected Wilkinson’s argument concerning
Rule 7, we conclude that her reading of Clayton Act Section
4 is correct. While a meritorious legal argument for reducing
the amount of a Rule 7 bond might not excuse its nonpayment
in all circumstances, this factor weighs against dismissal here.
[12] Third, in contrast to Cardizem where the court con-
cluded that the appellant’s appeal lacked merit, Wilkinson’s
appeal raises legitimate questions about class certification,
notice, and the settlement’s fairness, reasonableness, and ade-
quacy.
[13] Finally, we reject Plaintiffs-Appellees’ argument that
Wilkinson’s failure to pay the bond has caused them undue
prejudice by delaying completion of the settlement. Any delay
in completion of the settlement stems from Wilkinson’s
appeal itself, not from her failure to pay the bond.
We therefore decline to dismiss Wilkinson’s appeal on the
merits.
Conclusion
[14] For the foregoing reasons, we hold that the district
court erred in including $40,000.00 in security for appellate
attorney’s fees in the $42,000.00 bond Wilkinson was ordered
to pay under Rule 7. We accordingly vacate that portion of the
bond. We decline to dismiss Wilkinson’s appeal based on her
10326 AZIZIAN v. WILKINSON
nonpayment of the bond and have decided the merits of the
appeal in a concurrently filed memorandum disposition.
Appeal Bond Order VACATED in part; Motion to Dismiss
Appeal on the Merits DENIED.