On February 1, 2017, in In re: Target Corporation Customer Data Security Breach Litigation, the US Court of Appeals for the Eighth Circuit held that "cost on appeal" for purposes of an appeal bond under Federal Rule of Appellate Procedure (FRAP) 7 only includes costs that the prevailing appellate litigant can recover under an applicable rule or statute ( (8th Cir. Feb. 1, 2017)).

In 2013, Target suffered a security breach by third-party intruders that compromised the payment card data and personal information of up to 110 million customers. In a class action lawsuit against Target, the parties agreed to settle and the district court entered preliminary and final orders certifying the class and approving settlement. Class members appealed, challenging the class for lack of adequate representation. At filing, the district court imposed a $49,156 appeal bond to cover the costs of the appeal, which the class members also challenged.

The Eighth Circuit reversed and remanded. The parties agreed that only $2,284 of the bond reflected the direct costs of the appeal while the remaining $46,872 was included, according to the district court, to cover the financial harm the class would suffer as a result of the delay caused by the appeal. The appellants argued that the delay costs should not be included in the bond because there was no applicable statute or federal rule permitting the appellees to recover those costs if the appellants lost. In looking at whether the delay costs should be included in an appeal bond under FRAP 7, the Eighth Circuit, using a de novo standard, found that the costs on appeal include only those costs that the prevailing appellate litigant can expressly recover under a specific rule or statute applicable to the case at hand to avoid an overly burdensome barrier to appeal. As a result, the court remanded the case to the district court to reduce the appeal bond to reflect only those costs.

The court noted that the US Courts of Appeals for the Sixth and Tenth Circuits also followed this approach.