EAST PALESTINE — The question of a requirement bond for residents appealing the $600 million settlement between those impacted by the 2023 train derailment and Norfolk Southern is still up the air, as attorneys for those appealing (the appellants) and the rest of the class (the appellees) traded a motion and an answer in the Sixth District Court of Appeals to stay the $850,000 bond.

Judge Benita Pearson ordered Rev. Joseph Sheely, Zsuzsa Troyan, Tamara Freeze, Sharon Lynch and Carly Tunno post the bond on Jan. 16, with each appellant responsible for one-fifth or $170,000. Pearson, who gave the final approval of the class action settlement being appealed, ruled the bond must be paid within 14 days — this Thursday.

Tennessee-based attorney David Graham filed a motion with the Sixth District Court of Appeals to stay that order, again arguing on behalf of the five appealing residents (the appellants) that a bond of nearly $1 million would force his clients to abandon their appeal as they were in no position to afford such a sum before the derailment much less after suffering financial hardships as a direct cause of it. Pearson ruled the bond did not constitute a barrier.

Graham’s motion asks the Sixth District Court of Appeals to eliminate or reduce the appeal bond, calling the “bond imposed by the district court is contrary to law, unsupported by fact, and an abuse of discretion.”

In her order requiring an appeal bond, Pearson called the bond a “a guardrail, not a barrier” and said that the appellants proceeded with the appeal with the knowledge a bond may be required. Despite having been made aware of the possibility of an appeal bond, appellants proceeded.

Graham questioned that logic, calling it “grandiloquent sophistry.”

“Appellants’ filing timely appellate briefs in no way demonstrates their financial ability to post an $850,000 bond,” he wrote. “The filing fee for two appeals is $1,210, less than 1 /700th of $850,000. Despite acknowledging all five appellants filed declarations of inability, singly or in combination, to post bond of $850,000, Judge Pearson, without evidentiary hearing, ‘finds’ the contrary using specious ‘reasoning'”.

The bulk of the appeal bond — $825,000 — is the amount Kroll Settlement Administration maintains an appeal would generate for the New York firm processing the 55,000 claims made against the settlement. According to final approval documents, without any appeal, Kroll stands to pocket up to $20 million for doing so. The other $25,000 is what class co-counsel estimated they would spend in docket fees and printing and copying costs during the appeal writing and oral argument stages during the appeal.

Graham took issue with both amounts and brought up those issues with the Sixth District Court.

“Again, no attempt was made to itemize or to identify why costs would increase due to appeal,” wrote Graham, referring to Kroll’s additional fees.

As for the $25,000, Graham asked the court of appeals to consider a breakdown of printing costs.

“In terms of prognosticating a dollar cost for any incidental use of paper, commercial services, FedEx Office, a national chain, charges 20 cents per page for bulk orders , so $25,000 represents almost 100,000 pages,” he argued. “Upon entry of final judgment, the electronic record consisted of only 14,586 pages, so copying every page at FedEx Office (to no useful purpose) would only cost $2,917.20. And there is no valid reason for expecting plaintiffs’ appellate counsel — who neither claim to be Luddites or to lack computers — to print or copy a single page.”

Graham also wrote that no statute cited by class counsel or Judge Pearson — whether federal or Ohio — authorizes class plaintiffs, as appellees, to recover anything like administrative costs relating to appeal.

The appellees council fired back in an answer filed on Tuesday.

“There is no entitlement to pursue a frivolous appeal and leave the other side holding the bag on costs,” they countered. “To the contrary, the district court’s discretion to order an appeal bond exists to prevent that scenario.”

Class co-counsel said appellants did not prove the bond to be a barrier which was up to them alone to do so.

“It is the appellants’ burden to demonstrate that a bond would constitute a barrier to appeal,” they asserted. “The district court found that appellants failed to meet this burden. There is no basis for overturning that finding.”

The Court of Appeals will make the final decision concerning the appeal bond.