Opinion for the Court filed by Circuit Judge MacKINNON
MacKINNON, Circuit Judge.
After extensive pretrial proceedings in a suit by the Federal Prescription Service, Inc. (hereafter Federal) and several individual plaintiffs, charging violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, the case was tried to the district court without a jury. Thereafter the court entered extensive findings of fact and conclusions of law denying any damages to the individual plaintiffs and awarding trebled damages of $102,000 in favor of Federal and against the American Pharmaceutical Association (hereafter American). Judgment accordingly was entered on February 14, 1980. On April 18 the district court granted American's motion for stay pending appeal, stating:
Federal has now moved this court:
These contentions are discussed in turn.
I. THE AUTHORITY OF THE DISTRICT COURT TO ORDER UNSECURED STAY OF MONEY JUDGMENT
Federal contends that a supersedeas bond is an indispensable prerequisite to a stay on appeal from a money judgment by virtue of Fed.R.Civ.P. 62(d). This rule provides:
Although some authorities tend to support Federal's position that a supersedeas bond is required,
Our only explicit guidance on the matter of supersedeas bonds appeared in former Fed.R.Civ.P. 73(d), 383 U.S. 1061-62 (1966), which provided that when an appellant entitled thereto desired a stay on appeal he could present to the court for its approval a supersedeas bond, fixed in an amount to satisfy the judgment in full, together with costs, interest, and damages for delay, in the event the appeal was dismissed or the judgment affirmed. The district court could, however, "fix a different amount or order security other than the bond" "after notice and hearing and for good cause shown." Id. at 1062.
We find in both former Rule 73(d) and in its successor, Fed.R.App.P. 8, a recognition of the district court's discretionary power to stay execution of a money judgment without requiring bond. First, former Rule 73(d)'s recognition that the district court has power to reduce the amount of bond or accept substitute security logically includes a power to dispense with formal security altogether, upon a showing of sufficient cause. This reading of former Rule 73(d) is suggested by the analogous practice under Fed.R.Civ.P. 65(c) ("Injunctions"), which provides in pertinent part:
Courts interpreting this language have concluded the district court has power not only to set the amount of security but to dispense with any security requirement whatsoever where the restraint will do the defendant "no material damage," Urbain v. Knapp Brothers Manufacturing Co., 217 F.2d 810, 816 (6th Cir. 1954), cert. denied, 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260 (1955), where there "has been no proof of likelihood of harm," International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir. 1974) (citing Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961)), and where the applicant for equitable relief has "considerable assets and [is] ... able to respond in damages if [defendant] does suffer damages by reason of [a wrongful] injunction," Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782-83 (10th Cir. 1964). Given the similarity between former Rule 73(d) and Rule 65(c), these holdings compel the conclusion that the district court, in staying execution of a money judgment, has a discretion with respect to requiring the posting of security that is analogous to the widely recognized discretion that a district court granting temporary injunctive relief has with respect to the security requirement of Rule 65(c). See 9 Moore's Federal Practice ¶ 208.06 at 8-18.
Federal argues that such a discretion is at odds with Rule 62(d) provision that "the appellant by giving a supersedeas bond may obtain a stay." We disagree. Beyond question, Rule 62(d) entitles the appellant who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right. American Manufacturers Mutual Insurance Co. v. American Broadcasting Paramount Theatres, Inc., 385 U.S. 931, 87 S.Ct. 1, 17 L.Ed.2d 37 (1966) (Harlan, J., Circuit Justice). But the Rule in no way necessarily implies that filing a bond is the only way to obtain a stay. It speaks only to stays granted as a matter of right, it does not speak to stays granted by the court in accordance with its discretion.
A second reason to confine Rule 62(d) to stays obtained as a matter of right appears
And Rule 8(a) provides:
Reading Rule 62(d) to make filing a supersedeas bond an indispensable prerequisite to a stay on appeal creates a potential conflict with the language of Rule 8(b), which implicitly recognizes the discretion of the appellate courts to issue stays not conditioned on bond. It would make little sense to require an appellant who could qualify for an unsecured stay from the appellate court to apply for it first in the district court, as Rule 8(a) requires, if Rule 62(d) made such an application an exercise in futility in every case by denying the district court the power to approve such a stay. That is, if the appellate court has power to issue an unsecured stay, as Rule 8(b) clearly implies, then the district court must have that power also, if Rule 8(a) is to make sense. Fed.R.Civ.P. 62(g) removes any doubt on this matter in favor of an interpretation that confines Rule 62(d)'s bond requirement to stays obtained as a matter of right. Rule 62(g) provides:
Even apart from the guidance provided by the language of former Rule 73(d) and by judicial interpretations of Rule 65(c), then, a reading of Rule 62(d) with other rules in pari materia convinces us that Rule 62(d) makes filing a supersedeas bond a condition precedent only if appellant seeks to obtain a stay as a matter of right; the Rule does not limit the district court's power to issue unsecured stays through an exercise of its sound discretion. Having concluded that the district court is authorized to issue an unsecured stay, we now consider whether the court abused its discretion in doing so here.
II. PROPER EXERCISE OF DISCRETION
The purpose of the supersedeas bond is to secure the appellee from loss resulting from the stay of execution. Because the stay operates for the appellant's benefit and deprives the appellee of the immediate benefits of his judgment, a full supersedeas bond should be the requirement in normal circumstances,
The elements of the situation here were as follows: (1) the damage award was $102,000, with action on the request for attorneys' fees and costs being deferred pending appeal because both parties had appealed on questions going to the merits (see note 1 supra); (2) the documented net worth of the judgment debtor was $4.8 million, about 47 times the amount of the damage award; (3) the judgment debtor was a long-time resident of the District of Columbia, and there was no indication it had any intent to leave. In light of these factors, we cannot say the district court abused its discretion in granting a stay on appeal without requiring a supersedeas bond.
The motion is denied.
383 U.S. 1061-62 (emphasis added).