Case4:10-cv-04937-PJH Document88 Filed10/12/12 Page1 of 27

PAGES 1 - 26 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE SKYE ASTIANA,
PLAINTIFF,

) )
) NO. C-C-10-4387 PJH

) VS. ) ) BEN & JERRY'S HOMEMADE, ) INC., ) ) ) DEFENDANT. ) ____________________________) CHANEE THURSTON, ET AL. ) ) PLAINTIFFS, ) ) VS. ) ) CONOPCO, INC., ) ) DEFENDANT. ) ____________________________) ROSS CORRIETTE, ET AL., ) ) PLAINTIFFS, ) ) VS. ) ) UNILEVER, ) ) DEFENDANT. ) ____________________________)

WEDNESDAY, SEPTEMBER 12, 2012 OAKLAND, CALIFORNIA

C-10-4937 PJH

C-11-1811 PJH

REPORTER'S TRANSCRIPT OF PROCEEDINGS (APPEARANCES ON NEXT PAGE.)

REPORTED BY:

DIANE E. SKILLMAN, CSR 4909, RPR, FCRR OFFICIAL COURT REPORTER

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

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1 2 3 4 BY: 5 6 7 BY: 8 9 10 11 BY: 12 13 14 15 BY: 16 17 18 19 20 21 22 23 24 25 FOR DEFENDANT: MORRISON & FOERSTER 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 LISA WONGCHENKO, ESQUIRE WILLIAM L. STERN, ESQUIRE FOR PLAINTIFF CORRIETTE: GARDY & NOTIS, LLP 560 SYLVAN AVENUE ENGLEWOOD CLIFFS, NEW JERSEY 07632 KELLY A. NOTO, ESQUIRE LAW OFFICES OF JANET LINDNER SPIELBERG 12400 WILSHIRE BOULEVARD, SUITE 400 LOS ANGELES, CALIFORNIA 90025 JANET LINDER SPIELBERG, ESQUIRE APPEARANCES: FOR PLAINTIFFS ASTIANA & THURSTON: BRAUN LAW GROUP, P.C. 10680 W. PICO BLVD. SUITE 280 LOS ANGELES, CALIFORNIA 90064 MICHAEL D. BRAUN, ESQUIRE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

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WEDNESDAY, SEPTEMBER 12, 2012 P R O C E E D I N G S THE CLERK:

10:40 A.M.

CALLING RELATED CIVIL CASE NUMBER 10-4387

ASTIANA VERSUS BEN & JERRY'S, 10-4937 THURSTON VERSUS CONOPCO AND 11-1811 CORRIETTE VERSUS UNILEVER. MR. BRAUN: GOOD MORNING, YOUR HONOR.

MICHAEL BRAUN ON BEHALF OF ASTIANA, THURSTON, CLARK, THE NAMED PLAINTIFFS AND THE PUTATIVE SETTLEMENT CLASS. THE COURT: GOOD MORNING. GOOD MORNING, YOUR HONOR.

MS. SPIELBERG:

JANET SPIELBERG ON BEHALF OF PLAINTIFF ASTIANA, THURSTON AND CLARK AND THE PROPOSED SETTLEMENT CLASS. THE COURT: MS. NOTO: GOOD MORNING. GOOD MORNING. KELLY NOTO ON BEHALF OF

PLAINTIFFS CORRIETTE AND WALDRON. MS. WONGCHENKO: GOOD MORNING, YOUR HONOR.

LISA WONGCHENKO ON BEHALF OF DEFENDANTS CONOPCO, UNILEVER AND BEN & JERRY'S. SAME. THE COURT: ALL RIGHT. I DON'T BELIEVE ANY OF YOU SO PLEASE BE SURE AND WITH ME IS WILL STERN ON BEHALF OF THE

WERE HERE ON TIME AND DIDN'T CHECK IN.

BEFORE YOU LEAVE THAT YOU LEAVE YOUR BUSINESS CARD WITH THE COURTROOM DEPUTY. ALL RIGHT. I DON'T EVEN KNOW WHERE TO BEGIN WITH THIS

THERE ARE SO MANY PROBLEMS AND ISSUES.

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I'D FIRST LIKE TO INQUIRE WHETHER OR NOT THERE ARE ANY OBJECTORS HERE FOR THIS CLASS SETTLEMENT? I RECEIVED ONE FORMAL OBJECTION WHICH I HAVE CONSIDERED AND I BELIEVE THAT I WAS ADVISED BY THAT OBJECTION THAT THEY INTENDED ON APPEARING, BUT I WANTED TO MAKE SURE THAT WE GIVE THEM AN OPPORTUNITY TO PARTICIPATE. ANY OBJECTORS TO THIS CLASS ACTION SETTLEMENT PRESENT? (NO RESPONSE.) DOESN'T APPEAR TO BE, ALL RIGHT. NONETHELESS, I REVIEWED THE OBJECTIONS AND HAVE QUESTIONS OF MY OWN IN ADDITION TO THOSE THAT WERE RAISED. DO EITHER OF YOU HAVE A STATEMENT YOU WOULD LIKE TO MAKE BEFORE I GET STARTED? MR. BRAUN: FROM THE PLAINTIFFS' PERSPECTIVE, YOUR

HONOR, WE WOULD JUST LIKE TO HEAR YOUR QUESTIONS AND TRY TO ADDRESS THEM AS EFFICIENTLY AS POSSIBLE. THE COURT: WELL, I HAVEN'T RECEIVED AN UPDATE. THE

DECLARATION WITH REGARD TO THE RESPONSE OF THE CLASS IS FROM THE END OF JULY. SO -- LET ME RECAP AND YOU TELL ME IF I HAVE GOT THE FACTS CORRECT. I LOOKED AT ALL YOUR PAPERS, BUT THERE ARE LOTS OF

ISSUES AND PROBLEMS THAT JUMP OUT AT ME. ALL RIGHT. SO THE SETTLEMENT THAT YOU HAVE AGREED TO WITH

REGARD TO THE ASTIANA CASE IS $5 MILLION AND WITH REGARD TO THE THURSTON, CORRIETTE CASES IT'S TWO AND A HALF MILLION

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DOLLARS, FOR A TOTAL OF SEVEN AND A HALF MILLION DOLLARS. THAT'S HOW MUCH. MR. BRAUN: THE COURT: CORRECT. YOU'VE INDICATED THAT THE NOTICE WAS

DISSEMINATED TO MILLIONS OF PEOPLE AND IN RESPONSE YOU GET 1800 CLAIMS, 1804. CORRECT? MR. BRAUN: HONOR. THE COURT: MR. BRAUN: CLAIMS TO DATE. THE COURT: OKAY. 5,466 CLAIMS. HAVE THERE BEEN MORE CLAIMS? YEAH. THERE HAVE BEEN A TOTAL OF 5,466 AND WE DO HAVE AN UPDATE FOR YOU, YOUR

NOW I HAVE QUESTIONS ABOUT THE NOTICE AND ABOUT THE STARTING FIRST WITH THE NOTICE.

TYPE OF CLAIMS MADE.

YOU SAY THROUGHOUT THE PAPERS THAT THE NOTICE REACHED -WELL, IN ONE INSTANCE THE NUMBER WAS SET AT 40 MILLION PEOPLE RECEIVED NOTICE. IN OTHER REFERENCES IN THE PAPERS IT IS JUST HOW DO YOU KNOW? HOW DOES ANYONE KNOW?

MILLIONS OF PEOPLE.

AS I UNDERSTAND IT, THE NOTICES WERE MAILED -- I AM SORRY, WERE DIRECT MAIL BUT ONLY TO KNOWN CLASS MEMBERS. AND I DON'T

EVEN REMEMBER HOW YOU MADE THAT DETERMINATION, BUT I VAGUELY RECALL SOMETHING AT THE HEARING ABOUT PEOPLE MAKING CONTACT WITH UNILEVER AND YOU ALL KEEPING TRACK OF WHO THOSE PEOPLE ARE.

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AND THERE WERE -- THOSE PEOPLE RECEIVED DIRECT MAIL OR E-MAIL. THERE WERE PUBLICATION IN FOUR MAGAZINES WHERE THE DEFENDANTS' PRODUCTS ARE ADVERTISED, AND THERE WAS SOME INTERNET BROADCASTS. HOW DO YOU HAVE ANY WAY OF KNOWING HOW MANY PEOPLE RECEIVED NOTICE OF THIS CLASS ACTION SETTLEMENT? MR. BRAUN: YOUR HONOR. WHEN YOU PUT OUT PUBLICATION NOTICE, THE NUMBERS ARE BASED ON CIRCULATION RATES. FOR EXAMPLE, WHEN WE PUT OUT PR NEWS WELL, IF I MAY. YOU RAISE A GOOD POINT,

WIRE NOTICE, I DIDN'T BOTHER THE COURT WITH TELLING YOU WHAT THE CIRCULATION RATE WAS AMONG ALL THE NEWS SITES THAT PICKED UP THE STORY. IT WAS ASTRONOMICAL. BECAUSE THE TRUTH IS, WE THAT'S SO THE

DON'T KNOW WHO IS ACTUALLY READING THE STORIES OR NOT. UNFORTUNATELY JUST A PROBLEM WITH PUBLICATION NOTICE.

BEST WE CAN DO IS PROVIDE THE COURT WITH THE CIRCULATION RATES OF THE MAGAZINES AND PROVIDE THE COURT WITH EFFORTS THAT WE TAKE AT DUE PROCESS WHICH IS DISSEMINATING THAT NOTICE. HOW MANY PEOPLE ACTUALLY PICK IT UP AND READ IT? COULDN'T TELL YOU. I

AND QUITE FRANKLY, I COULDN'T TELL YOU

WHEN I MAIL NOTICE IN CASES WHETHER PEOPLE OPEN THE MAIL OR NOT; ALL I HAVE IS THE RESPONSE RATE. THE COURT: SURE. BUT MAIL NOTICE YOU AT LEAST HAD

THE IDENTITY OF PEOPLE --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CORRECT.

MR. BRAUN:

ABSOLUTELY.

(SIMULTANEOUS COLLOQUY.) MR. BRAUN: THE COURT: I JUST DON'T WANT TO BE DISINGENUOUS -EXCUSE ME, YOUR HONOR.

WITH MAIL NOTICE, YOU AT LEAST HAVE THE IDENTITY OF PEOPLE TO WHOM YOU HAVE SENT THE NOTICE. WITH REGARD TO PUBLICATION NOTICE, YOU HAVE THE BASE NUMBER OF SUBSCRIBERS, CORRECT? THE SUBSCRIBERS? MR. BRAUN: THE FIRST STATEMENT YOU MENTIONED WAS BUT YOU HAVE THE IDENTITY OF

AND THE SECOND STATEMENT WE DO NOT HAVE THE IDENTITY

OF THE SUBSCRIBERS. THE COURT: ALL RIGHT. SO YOU REALLY DON'T KNOW HOW

MANY PEOPLE RECEIVED NOTICE IN THIS CASE. MR. BRAUN: EVER FIGURE THAT OUT. THE COURT: ALL RIGHT. THERE WE DON'T KNOW AND I DON'T THINK WE COULD

THEN WITH REGARD TO THE CLAIMS, YOU TOLD ME 1804. HAVE BEEN SOME SINCE THEN, 5,466. ALL RIGHT. NOW THOSE WERE CLAIMS.

WERE THOSE CLAIMS FOR

THE $6 THAT THIS LAWSUIT IS GOING TO GIVE EACH OF THESE PEOPLE? MR. BRAUN: THE COURT: THAT'S CORRECT, YOUR HONOR. WERE THERE ANY CLAIMS FOR THE $20 THAT IS

PERMISSIBLE IF THEY HAVE SAVED OLD CARTONS OF ICE CREAM OR

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RECEIPTS? MR. BRAUN: I AM UNAWARE OF ANY CLAIMS THAT WERE MADE

WITH PROOFS OF PURCHASE. THE COURT: ONE IS GETTING $20. MR. BRAUN: SO THERE ARE NO PROOFS OF PURCHASE, SO NO THE 5,466 PEOPLE ARE ALL GETTING $6 EACH. AND JUST TO BE CLEAR, YOUR HONOR, AS OF

THAT JULY 13TH, I WAS UNAWARE OF ANYBODY THAT PUT IN A PROOF OF PURCHASE. I WOULD HAVE TO VERIFY WITH RUST TO MAKE SURE

THAT THAT HASN'T CHANGED. AND WITH RESPECT TO THE 500 -- 5,466, THERE MAY BE SOME ISSUES REMAINING WITH PROPER ADMINISTRATIVE PROCEDURE THAT THEY FOLLOW. IN OTHER WORDS, IF YOU DON'T SIGN THE CLAIM FORM

OR SOMETHING LIKE THAT, THERE MIGHT BE A FEW CLAIMS THAT THE ADMINISTRATOR WOULD HAVE TO FOLLOW UP ON. SO I JUST WANTED TO BE PERFECTLY CLEAR ABOUT THAT NUMBER. THE COURT: THERE ARE 5,466 CLAIMS OF WHICH YOU DON'T

REALLY KNOW WHAT NUMBER ARE GOING TO BE PAID? MR. BRAUN: THAT'S NOT CORRECT, YOUR HONOR. THERE IS

A VERY SMALL HANDFUL, LESS THAN 50, THAT HAVE POTENTIALLY A DEFECT IN THE CLAIM. I AM ASSUMING THAT DEFECT CAN BE CURED.

THAT'S VERY TYPICAL FOR ANY ADMINISTRATION PROCESS. PEOPLE FORGET TO SIGN THEIR NAME. ADDRESS, SOMETHING LIKE THAT. THE COURT: PEOPLE DON'T LIST AN

THAT CAN HAPPEN.

SO, IS THE ADMINISTRATOR GOING TO FOLLOW

UP TO OBTAIN SIGNATURES OR WHAT HAVE YOU IN ORDER TO PERFECT

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THE 50 OR SO DEFECTIVE CLAIMS? MR. BRAUN: THE COURT: YES. ALL RIGHT. SO LET'S ASSUME THEN THAT

THERE ARE 5,466 CLAIMS, AND EACH OF THESE PEOPLE GET $6, HOW MUCH DOES THAT ADD UP TO BE? MR. BRAUN: MATH. MAYBE -THE COURT: DOES ANYONE HAVE AN IPHONE WITH A YOU KNOW, YOUR HONOR, I HAVEN'T DONE THE

CALCULATOR IN THE COURT? PLEASE MULTIPLY 5,466 BY $6. MR. BRAUN: WAY. YOUR HONOR IS DOING IT THE OLD FASHION

I DON'T TRUST MY ABILITY. MS. SPIELBERG: MR. BRAUN: I'M TURNING ON MY PHONE.

I WOULDN'T EVEN ATTEMPT TO TRY, YOUR

HONOR.

I APOLOGIZE I DIDN'T HAVE THAT NUMBER IN ADVANCE. UNIDENTIFIED SPEAKER: ALTHOUGH I AM NOT INVOLVED IN

THIS, I JUST DID THE MATH AND I COME UP WITH $32,796. THE COURT: THAT'S EXACTLY WHAT I CAME UP WITH. DID

YOU HAVE A CALCULATOR? UNIDENTIFIED SPEAKER: THE COURT: NO. THAT'S THE

I DID IT MANUALLY AS WELL. ALL RIGHT.

NUMBER I CAME UP WITH, $32,796.

SO THERE'S A SETTLEMENT OF $7,000,500 (SIC), AND OF THAT $7,500,000, THE CLASS RECEIVES $32,796; IS THAT CORRECT? MR. BRAUN: THOSE ARE THE CLAIMS TO DATE, YES.

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THE COURT:

DO WE EXPECT MORE OR HASN'T THE DEADLINE

PASSED FOR SUBMITTING CLAIMS? MR. BRAUN: THE COURT: THE DEADLINE HAS PASSED. SO THOSE ARE THE CLAIMS THAT WE HAVE AND

ALL THAT WE WILL HAVE. OKAY. NOW, THE PROBLEM RAISED BY THE OBJECTORS, AND I

AGREE THAT YOU HAVE RESPONDED ADEQUATELY TO SOME OF THEM, BUT I AM A LITTLE CONCERNED ABOUT THE LACK OF CLARITY IN THE SETTLEMENT NOTICE AS TO WHAT'S GOING TO HAPPEN. BECAUSE THIS IS A CASE IN WHICH THE TAIL IS WAGGING THE DOG. IN MOST CASES, AND I HAVE SEVERAL CLASS ACTION

SETTLEMENTS ON MY DOCKET EVERY MONTH, AND IN MOST CASES THE BULK OF THE MONEY GOES TO THE PLAINTIFFS, TO THE CLASS, AND THEN TO THE LAWYERS. AND SOMETIMES THE LAWYERS GET MORE THAN

THE CLASS, BUT THE CY-PRES FUND THAT IS TO HANDLE THE RESIDUAL OR RESERVES IS TYPICALLY A SMALL PART OF THE OVERALL SETTLEMENT FUND. TYPICALLY.

IN THIS CASE, WITH A SEVEN AND A HALF MILLION DOLLAR FUND AND A PAYOUT OF $32,000, THE OVERWHELMING MAJORITY OF THIS SETTLEMENT GOES TO THE CY-PRES. I HAVE NEVER HEARD OF

ANYTHING QUITE SO IMBALANCED AS THIS APPEARS TO BE TO ME. SO WITH REGARD TO WHAT IS HAPPENING WITH THE CY-PRES FUND, IT IS REALLY, REALLY IMPORTANT. AGREEMENT AGAIN. I PICKED UP THE SETTLEMENT

OBVIOUSLY WHEN I GAVE PRELIMINARY APPROVAL, I WASN'T

I READ IT, I ASKED YOU ALL QUESTIONS AT THE HEARING.

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SATISFIED WITH THE ANSWERS THAT I GOT, BUT I APPROVED -- GAVE PRELIMINARY APPROVAL ANYWAY AND I THOUGHT IT WOULD ALL COME OUT IN THE WASH AS IT USUALLY DOES. SURE ENOUGH, LOOKING AT THE SETTLEMENT AGREEMENT AGAIN IN CONJUNCTION WITH YOUR PAPERS, I DON'T REALLY EVEN UNDERSTAND WHAT IT IS THAT I AGREED TO, FRANKLY, WHEN I LOOK AT IT AGAIN. WE LOOK AT THE MONETARY RELIEF PORTION. I WOULD LIKE YOU

ALL TO PUT THE SETTLEMENT AGREEMENT BEFORE YOU SO YOU CAN REFER TO THE SAME PROVISIONS THAT I AM. AND JUST FOR EASE OF REFERENCE, WE WILL LOOK AT THE ASTIANA SETTLEMENT SEPARATELY FROM THE OTHER. VIRTUALLY IDENTICAL EXCEPT FOR THE AMOUNTS. THEY ARE

AND WE LOOK AT

SUBSECTION, I THINK IT'S 3C, SETTLEMENT CONSIDERATION MONETARY RELIEF. OKAY. UNILEVER, THE DEFENDANT -- ONE DEFENDANT IN ONE OF

THE CASES AND THE PARENT CORPORATION OF THE OTHER TWO DEFENDANTS, CORRECT? MS. WONGCHENKO: THE COURT: FUND OF $5 MILLION. THAT'S CORRECT.

WILL ESTABLISH A UNILEVER RESTITUTION I ASSUME THE RESTITUTION FUND IS THE

SETTLEMENT FUND, CORRECT? MS. WONGCHENKO: THE COURT: CORRECT. AND THIS -- EXCEPT IT DOESN'T THERE WILL BE NO

ALL RIGHT.

INCLUDE ATTORNEYS' FEES AND COSTS. REVERSION.

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MS. WONGCHENKO: THE COURT:

NONE --

TO THE DEFENDANT SPECIFICALLY. TO THE DEFENDANTS.

MS. WONGCHENKO: THE COURT:

BUT THE AMOUNT NOT PAID AS RESTITUTION THROUGH THE UNILEVER

WILL BE DONATED TO CHARITY AS FOLLOWS:

FOUNDATION, WHICH IS THE DEFENDANTS' OWN FOUNDATION TO WHICH IT GIVES MONEY, I ASSUME, ON A REGULAR BASIS. MS. WONGCHENKO: IT'S A FOUNDATION IN WHICH THE

DEFENDANT WORKS WITH CHARITIES TO GIVE DONATIONS. THE COURT: BUT IT'S PART OF THE UNILEVER -- UNILEVER

IS THE PARENT CORPORATION OF ALL OF THE DEFENDANTS. MS. WONGCHENKO: THE COURT: RIGHT.

AND ITS -- THE FOUNDATION IS UNDER THE

UMBRELLA OF UNILEVER CORPORATION, CORRECT? MS. WONGCHENKO: THE COURT: OKAY. CORRECT. AND THE BEN & JERRY'S FOUNDATION,

WHICH IS PROBABLY UNDER THE SAME UMBRELLA? MS. WONGCHENKO: THE COURT: OKAY. CORRECT. SO THE MONEY IS GOING TO BE THROUGH UNILEVER OR BEN &

DONATED TO CHARITY AS FOLLOWS:

JERRY'S, OR ANY OTHER AFFILIATED UNILEVER CHARITABLE FOUNDATION. UNILEVER SHALL COMMIT TO DONATING TO THE

NOT-FOR-PROFIT CHARITY AND/OR CAUSES OF ITS CHOICE RELATED TO FOOD OR NUTRITION IN THE UNITED STATES. WHAT DOES THAT MEAN, THAT UNILEVER SHALL COMMIT TO

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DONATING?

ISN'T THE $5 MILLION SUPPOSED TO BE SPENT?

WHAT

DOES "COMMIT TO DONATING IT" MEAN? MS. WONGCHENKO: THAT SIMPLY MEANS THAT UNILEVER WILL ANY AMOUNT THAT IS NOT

SPEND THAT ENTIRE AMOUNT OF MONEY.

GIVEN DIRECTLY TO THE CLASS MEMBERS THROUGH CLAIMS WILL BE DONATED THROUGH THE CY-PRES PROVISION. THE COURT: THEN IT HAS SEVERAL CHARITIES LISTED, NOT

AN EXCLUSIVE LIST, CORRECT? MS. WONGCHENKO: THE COURT: THAT'S CORRECT.

A SUM OF UP TO $5 MILLION OVER A

THREE-YEAR PERIOD COMMENCING THE EFFECTIVE DATE -- COMMENCING ON THE EFFECTIVE DATE. WHAT IS THE EFFECTIVE DATE? MS. WONGCHENKO: THAT WOULD BE AFTER THE, I BELIEVE

IT'S 30 DAYS AFTER THE SETTLEMENT IS APPROVED. THE COURT: OKAY. AND WHEN YOU SAY "UP TO

$5 MILLION", DOES THAT JUST ACCOUNT FOR THE AMOUNT THAT'S GOING TO BE TAKEN FROM THE SETTLEMENT FUND IN THE FIRST INSTANCE TO PAY THE CLAIMS? MS. WONGCHENKO: THE COURT: EXACTLY, YOUR HONOR.

SO IN THIS CASE IT WOULD BE -- WELL, JUST

LOOKING AT THE ASTIANA SETTLEMENT, $5 MILLION MINUS WHATEVER THE RATIO OF THE $32,000 PAYOUT, CORRECT? MS. WONGCHENKO: THE COURT: OKAY. THAT IS CORRECT.

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NOW TURNING TO PAGE 13, SUBPARAGRAPH 3, RESIDUAL RESTITUTION DONATION AMOUNT. IT SAYS: "ONCE ALL PROPER SETTLEMENT CLASS MEMBER

CLAIMS ARE PAID AND ANY DISPUTES CONCERNING THE VALIDITY OF CLAIMS HAVE BEEN RESOLVED, ANY RESIDUAL RESTITUTION WILL BE CONSIDERED CY-PRES WHICH UNILEVER WILL DONATE TO NONINTERESTED THIRD-PARTY NONPROFIT ORGANIZATIONS OR FOOD BANKS IN THE FORM OF FOOD PRODUCTS AS DESCRIBED ABOVE." OKAY. NOW I ASKED AT THE HEARING ON PRELIMINARY APPROVAL

AND DIDN'T GET A SATISFACTORY ANSWER, AND I AM NOT EVEN SURE, BUT HAVING READ THE PAPERS AND HAVING REVIEWED THE PRIOR HEARING, I HAVE GOTTEN THREE DIFFERENT ANSWERS. AT ONE POINT I AM TOLD THAT THERE WILL BE A SUM OF MONEY UP TO $5 MILLION PAID TO -- THROUGH A CY-PRES FUND TO VARIOUS CHARITIES SELECTED BY THE DEFENDANT. AND, SECONDLY, I HAVE BEEN TOLD THAT THERE WILL BE FOOD DONATED TO VARIOUS CHARITIES. AND THEN SOMEWHERE, I DON'T KNOW IF IT WAS IN YOUR SUPPLEMENTAL BRIEF OR SOMEWHERE, I AM TOLD THAT THERE COULD BE FOOD AND/OR OTHER PRODUCTS, BECAUSE UNILEVER HAS CORPORATIONS THAT MAKES SOAP AND ALL KINDS OF OTHER THINGS. SO, I DON'T -- AS I SIT HERE TODAY, I HAVE NO IDEA WHETHER OR NOT THIS ALMOST SEVEN AND A HALF MILLION DOLLARS THAT'S GOING TO BE DONATED TO CHARITIES BECAUSE THERE AREN'T ENOUGH

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CLASS MEMBERS WHO ARE INTERESTED ENOUGH TO SUBMIT CLAIMS TO AMOUNT TO MORE THAN $32,000, I HAVE NO IDEA IF IT'S GOING IN THE FORM OF MONEY, IN THE FORM OF FOOD, IN THE FORM OF OTHER PRODUCTS. I AM VERY, VERY CONCERNED ABOUT HOW THIS SETTLEMENT LOOKS TO ANYONE WHO MIGHT BE INTERESTED IN LOOKING AT THE SETTLEMENT CLOSELY. IT LOOKS AS THOUGH THE ONLY, THE ONLY ONES PROFITING

FROM THE SETTLEMENT ARE THE PLAINTIFFS' LAWYERS AND THE DEFENDANTS' PRIVATE FOUNDATION. NOW, IN ADDITION, I RAISED QUESTIONS AT THE LAST HEARING ABOUT THE -- HOW THIS IN KIND SORT OF DONATION WOULD WORK AS WELL AS THE MONETARY COMPONENT. AND YOU ALL HAVE READ THE

DENNIS VERSUS KELLOGG DECISION OF THE NINTH CIRCUIT WHICH RECENTLY CALLED UPON DISTRICT JUDGES TO PERFORM THEIR DUTY IN REVIEWING THE CY-PRES AWARDS WITH A LOT MORE CARE THAN SOME OF US HAD BEEN DOING PREVIOUSLY, AND THEY RAISE SOME OF THE SAME QUESTIONS THAT I RAISE. I THINK I ASKED YOU, ARE THE -- YOU OR WHOEVER WAS YOU, MAYBE IT WAS YOU, OKAY, ARE THESE DONATIONS TO CHARITY IN LIEU OF OTHER DONATIONS THAT THE CORPORATION WOULD NORMALLY BE PROVIDING ANYWAY? WHAT THE TAX CONSEQUENCES? HAVE THOSE BEEN

FACTORED IN TO THE VALUE OF WHAT THIS SETTLEMENT ACTUALLY AMOUNTS TO? I DON'T UNDERSTAND WHAT'S CONTEMPLATED HERE. SO I NEED

SOME, I NEED SOME WAY OF RECONCILING ALL THESE VARIOUS

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DIFFERENT THINGS THAT HAVE BEEN SAID ABOUT THE CY-PRES FUND. WE NOW KNOW HOW MUCH WILL BE GOING TO IT. AND IT'S GOING

TO BE MORE THAN 74 -- $7.4 MILLION OVER A PERIOD OF THREE YEARS. IS THAT GOING TO BE MONEY? IS IT GOING TO BE FOOD?

IS IT GOING TO BE PRODUCTS? EVALUATED?

HOW ARE THOSE THINGS GOING TO BE

AND TO WHOM ARE THEY GOING?

I THINK THAT THE DENNIS DECISION MAKES IT PRETTY CLEAR THAT I GET TO DECIDE. DISAPPROVE. BLANK CHECK. AT LEAST I GET TO APPROVE OR

IT'S -- YOU'VE ESSENTIALLY WRITTEN SORT OF THIS WE ARE GOING TO GIVE PRODUCTS, FOOD, MONEY TO WE THINK THEY

WHOEVER -- WHATEVER CHARITIES WE DECIDE ON.

SHOULD BE FOOD RELATED AS OPPOSED TO RELATED TO CONSUMER PROTECTION, FALSE ADVERTISING. AND CLEARLY THE NEXUS IS WRONG, AND I THINK THAT I CANNOT APPROVE THIS WITHOUT MORE INFORMATION. CAN APPROVE IT AT ALL. AND I AM NOT SURE I

BUT IN ANY EVENT I WANT TO KNOW WHAT I HAVE NOT BEEN GIVEN

IS CONTEMPLATED BY THE DEFENSE.

SUFFICIENT INFORMATION TO EVEN BEGIN TO UNDERSTAND THIS. MS. WONGCHENKO: THIS GOES AGAINST KELLOGG. YOUR HONOR, WE DON'T BELIEVE THAT AND THE FACTS OF THIS CASE ARE

VERY DIFFERENT THAN THAT ONE. THERE, THE COURT RULED THAT A CLAIM ABOUT SCHOOL PERFORMANCE ON A CEREAL BOX WAS NOT RELATED TO FUNDING FOOD BANKS. AND IN THIS CASE, WE BELIEVE THAT WE HAVE LISTED

CHARITIES, WE HAVE GIVEN THE CLASS MEMBERS NOTICE OF THE

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ORGANIZATIONS THAT WILL OVERSEE THE CHARITABLE DONATIONS, AND THERE IS A PROPER NEXUS. THE COURT: THIS IS A CASE ABOUT THE -HOW DO I

THEY HAVEN'T BEEN IDENTIFIED.

KNOW THERE IS A PROPER NEXUS? MS. WONGCHENKO: WE HAVE IDENTIFIED THE TWO AND WHILE THEY ARE NOT

FOUNDATIONS AND FIVE CHARITIES.

EXCLUSIVE AND WE ARE NOT BOUND TO USE THOSE CHARITIES, THEY STILL SHOW THE PURPOSES OF THE CHARITABLE DONATIONS THAT WE HAVE IN MIND. THE COURT: WHY IS IT THAT YOU THINK THAT YOU DON'T IT'S NOT AN

HAVE TO IDENTIFY THE SPECIFIC CHARITIES? EXCLUSIVE LIST.

YOU CAN GIVE THEM TO ANY NUMBER OF OTHER

CHARITIES WITHOUT COURT APPROVAL. MS. WONGCHENKO: MAINTAIN FLEXIBILITY. FUND DISASTER RELIEF. THE REASON, YOUR HONOR, IS SIMPLY TO

CAUSES, CHANGE, SOME OF THESE CHARITIES THESE INSTANCES CAN CHANGE OVER TIME

AND THERE WILL BE THREE YEARS TO ADMINISTER THE FUNDS. BECAUSE OF THAT, IT MAKES SENSE THAT DEFENDANTS WOULD WANT SOME TYPE OF FLEXIBILITY TO MAKE SURE THAT THE CHARITIES DO, IN FACT, FIT THE PURPOSE OF THE SETTLEMENT AGREEMENT, WHICH IS FOOD- AND NUTRITION-RELATED CHARITIES IN THE UNITED STATES. THE COURT: I DON'T UNDERSTAND. HOW DO YOU COME UP

WITH THAT AS A NEXUS, FOOD- AND NUTRITION-RELATED CHARITIES AS OPPOSED TO THE CLAIMS IN THIS CASE WHICH ARE FORE MISLABELING AND FALSE ADVERTISING?

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MS. WONGCHENKO: TO THE CASE.

WELL, YOUR HONOR, BOTH ARE IMPORTANT

PLAINTIFF ASTIANA BROUGHT THIS LAWSUIT BECAUSE THAT'S ABOUT

SHE WAS CONCERNED ABOUT EATING UNNATURAL FOODS. NUTRITION. FOOD. THE COURT:

SHE'S CONCERNED ABOUT THE NUTRITIONAL VALUE OF

THE CLASS DEFINITION DOESN'T INCLUDE THAT THE DEFINITION IS FOR ANYONE WHO PERIOD. THERE

ASPECT IN THE DEFINITION.

BOUGHT BEN & JERRY'S DURING THE CLASS PERIOD.

IS NO REQUIREMENT IN THE CLASS DEFINITION THAT THE PERSON BOUGHT IT IN RELIANCE UPON THE NATURAL LABEL OR BECAUSE THEY ONLY WANTED NATURAL PRODUCTS EVEN THOUGH THEY ARE BUYING SOMETHING LIKE ICE CREAM. MS. WONGCHENKO: THAT'S TRUE, YOUR HONOR.

IN ABLE TO REACH AS MANY CLASS MEMBERS AS POSSIBLE, IT WOULDN'T BE FEASIBLE TO LIMIT THE CLASS IN SUCH A WAY, BUT THE UNDERLYING LAWSUIT STILL HAD THOSE CONCERNS IN MIND. IT

WASN'T -- SHE WASN'T SIMPLY CONCERNED WITH FALSE ADVERTISING WHEN SHE BROUGHT THE CASE, SHE WAS CONCERNED WITH WHAT WAS IN THE ICE CREAM THAT SHE'S EATING. WE DON'T THINK THAT KELLOGG

MANDATES A CERTAIN CY-PRES CHARITY FOR EVERY SINGLE TYPE OF CASE. THE COURT: DOESN'T KELLOGG HAVE A VERY SIMILAR

KELLOGG WAS ALSO A FALSE ADVERTISING MISLABELING KIND

OF CASE BECAUSE THEY WERE SUGGESTING THAT THEIR FROSTED MINI-FLAKES WERE NUTRITIOUS.

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MS. WONGCHENKO: SCHOOL PERFORMANCE.

IT WASN'T NUTRITIOUS, IT WAS ABOUT

AND THEY WERE SUGGESTING THAT EATING

CEREAL SOMEHOW INCREASED SCHOOL PERFORMANCE. THE COURT: PRETTY MUCH THE SAME THING. THAT'S THE

GIST OF WHAT THEY WERE TRYING TO DO. MS. WONGCHENKO: WE BELIEVE THERE IS A DIFFERENCE IN

A CLAIM ABOUT SCHOOL PERFORMANCE AND SIMPLY DONATING FOOD TO FOOD BANKS. IN THIS CASE WE HAVE INTEREST IN NUTRITION FROM OUR PLAINTIFFS, AND THE CHARITIES ARE NOT SIMPLY FOOD BANKS, THEY SERVE THE PURPOSE OF FOOD AND NUTRITION. FOR INSTANCE, ONE OF OUR CHARITIES SAY THE CHILDREN HAS A PROGRAM THAT EDUCATES CHILDREN ABOUT THE NUTRITIONAL VALUE OF FOOD AND GIVES THEM NUTRITIONAL SNACKS. WE BELIEVE THAT THAT

DOES FIT THE PURPOSE OF THIS LAWSUIT AND PROVIDES A MUCH BETTER NEXUS THAN WAS PRESENT IN KELLOGG. THE COURT: WHAT ABOUT THE OTHER QUESTIONS THAT WERE

RAISED IN THE KELLOGG? FIRST OF ALL, YOU HAVEN'T ANSWERED MY QUESTION YET ABOUT HOW IS THE CY-PRES FUND GOING TO BE FUNDED? OR PRODUCTS? MS. WONGCHENKO: DIRECTLY. THE SETTLEMENT DOESN'T SPECIFY WITH MONEY, FOOD,

AS WE DISCUSSED AT THE PRELIMINARY HEARING,

TYPICALLY IT IS CASH, AND WE BELIEVE THAT MOST OF THE DONATIONS WILL BE CASH. IN --

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THE COURT:

SHOULDN'T -- DON'T I NEED TO KNOW THAT? WELL, WE BELIEVE AS LONG AS THERE IS

MS. WONGCHENKO:

A PROPER WAY OF VALUING THE PRODUCT DONATIONS THAT IT SHOULDN'T BE A PROBLEM. I BELIEVE THAT THE COURT IN KELLOGG

WAS CONCERNED AS A WHOLE WITH THE LACK OF INFORMATION, NOT SPECIFIC INSTANCES ON THEIR OWN OF NOT BEING ENOUGH FOR THE COURT TO EVALUATE IT. THE COURT: I DON'T HAVE ENOUGH IN ORDER TO BE ABLE

TO EVALUATE THE SETTLEMENT. IF YOU TAKE A LOOK AT THE LANGUAGE IN KELLOGG, THE SETTLEMENT NOTES THAT: "KELLOGG WILL DONATE FIVE AND A HALF MILLION DOLLARS WORTH OF FOOD. THE SETTLEMENT DOCUMENT GIVES NO HINT IS AT

AS TO HOW THE FIVE POINT MILLION WILL BE VALUED. IT VALUED AT KELLOGG'S COST? RETAIL VALUE? "THE EXACT ANSWER TO THIS QUESTION HAS IMPORTANT AT WHOLESALE VALUE?

RAMIFICATIONS RELATING TO THE ACCURATE VALUATION OF THE CONSTRUCTIVE COMMON FUND AND, THEREBY, THE REASONABLENESS OF ATTORNEYS' FEE. "KELLOGG STATED AT ORAL ARGUMENT AND IN ITS BRIEFS THAT IT WILL VALUE THE FOOD DONATION AT WHOLESALE, BUT THE ONLY LEGALLY ENFORCEABLE DOCUMENT, THE SETTLEMENT, SAYS NOTHING OF THE SORT." YOURS. NEITHER DOES

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"ADDITIONALLY, THE SETTLEMENT FAILS TO INCLUDE ANY RESTRICTIONS ON HOW KELLOGG ACCOUNTS FOR THE CY-PRES DISTRIBUTION. CAN KELLOGG USE THE VALUE OF THE

DISTRIBUTIONS AS TAX DEDUCTIONS BECAUSE THEY WILL GO TO CHARITY? AND GIVEN THAT KELLOGG ALREADY DONATES

BOTH FOOD AND MONEY TO CHARITIES EVERY YEAR, WHICH IS UNQUESTIONABLY AN ADMIRABLE ACT, WILL THE CY-PRES DISTRIBUTIONS BE IN ADDITION TO THAT WHICH KELLOGG HAS ALREADY OBLIGATED ITSELF TO DONATE OR CAN KELLOGG USE PREVIOUSLY BUDGETED FUNDS OR SURPLUS PRODUCTION TO OFFSET ITS SETTLEMENT OBLIGATIONS? "AGAIN, THE SETTLEMENT IS SILENT. WE HAVE ONLY

KELLOGG'S STATEMENTS AS TO ITS FUTURE INTENTIONS. ALL OF THIS VAGUENESS DETRACTS FROM OUR ABILITY TO DETERMINE THE TRUE VALUE OF THE CONSTRUCTIVE COMMON FUND." WE HAVE THE SAME PROBLEMS HERE. I WILL SIMPLY TELL YOU

THAT I WILL NOT APPROVE A SETTLEMENT THAT ALLOWS FOR SUCH AN ENORMOUS AMOUNT OF MONEY TO BE DISTRIBUTED TO A CY-PRES FUND THAT HAS NOT BEEN CLEARLY IDENTIFIED TO THE COURT AND ONE IN WHICH THESE QUESTIONS ARE NOT ANSWERED. I RAISED SOME OF THESE QUESTIONS WITH YOU, NOT REALLY COMPREHENDING WHAT YOU WERE INTENDING AT THE TIME OF THE MOTION FOR PRELIMINARY APPROVAL, AND I DIDN'T GET SATISFACTORY ANSWERS AT THAT TIME. AND I CERTAINLY EXPECTED TO GET MORE

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SPECIFICITY NOW.

BUT NOW YOU CAN'T EVEN TELL ME IF IT'S GOING I HAVE NO WAY TO EVALUATE

TO BE MONEY, FOOD, OR PRODUCTS. THIS SETTLEMENT.

NONE WHATSOEVER. AND THERE HAVE

I AM NOT PREPARED TO APPROVE THIS AT ALL.

BEEN ARGUMENTS MADE AS TO THE SEVERABILITY OF THE CY-PRES FUND. WELL, I THINK THE KELLOGG DECISION MAKES IT PRETTY MOREOVER, IN YOUR SUPPLEMENTAL BRIEF,

CLEAR WE CAN'T DO THAT.

YOU INDICATED THAT YOU WOULD OBJECT TO SEVERING THE CY-PRES PROVISION OF THE SETTLEMENT AND APPROVING THE REST. FRANKLY, WHAT'S THERE TO APPROVE? IF THE CY-PRES

PROVISION CANNOT BE APPROVED TODAY, WHAT IS THERE TO APPROVE OTHER THAN THAT THE 5,466 PEOPLE WILL GET $6 EACH? MS. WONGCHENKO: YOUR HONOR, WE DON'T BELIEVE THAT

KELLOGG MANDATES THAT EACH OF THOSE THINGS IS ACTUALLY PRESENT IN THE SETTLEMENT AGREEMENT. IF READING THE OPINION AS A WHOLE, THE PRIMARY CONCERN WAS THAT NO CHARITIES AT ALL WERE IDENTIFIED. SAID THAT IT COULDN'T TAKE ANY -THE COURT: WHETHER OR NOT, IN YOUR VIEW, IT MANDATES AND WITHOUT THAT IT

IT OR NOT, I TOLD YOU THAT I AM NOT PREPARED TO APPROVE THIS SETTLEMENT WITHOUT THAT KIND OF INFORMATION. MS. WONGCHENKO: THE COURT: YES.

I MEAN, EVEN BEFORE KELLOGG, I ASKED YOU DIDN'T PROVIDE

SIMILAR QUESTIONS AND DID NOT GET ANSWERS.

THE ANSWERS IN YOUR BRIEFING, AND I AM NOT GOING TO APPROVE.

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I AM NOT GOING TO APPROVE THE SETTLEMENT WITHOUT A LOT MORE SPECIFICITY, PARTICULARLY GIVEN HOW LOPSIDED IT IS. I MEAN, I UNDERSTAND THAT YOU ALL WANT IT OVER. ENGAGED IN YOUR MEDIATION. EVERYONE IS HAPPY WITH. YOU'VE

YOU'VE ARRIVED AT A NUMBER THAT

YOU'VE ARRIVED AT A PROCEDURE.

THERE'S NO BENEFIT TO THE CLASS AT ALL. AND BEFORE I AM GOING TO APPROVE SOMETHING THAT ALLOWS THE DEFENDANT TO ESSENTIALLY FUNNEL THIS HUGE AMOUNT OF MONEY BACK INTO ITS OWN CHOSEN CHARITIES AND ITS OWN FOUNDATION, EVEN THOUGH AGREEING TO PAY THE DEFENDANTS' (SIC) ATTORNEYS A HUGE AMOUNT OF MONEY OVER AND ABOVE THE 7.5 MILLION, I JUST -- I FIND IT UNCONSCIONABLE AT THIS JUNCTURE. I NEED TO KNOW A LOT

MORE ABOUT THIS BEFORE I AM GOING TO BE WILLING TO APPROVE IT. MR. BRAUN: YOUR HONOR, IF I MAY.

YOUR SENTIMENTS ARE VERY CLEAR TO US, BUT WHAT I WOULD LIKE TO FIND OUT FROM THE COURT IS IN ADDITION TO WHAT YOU'VE DISCUSSED WITH US, THE OTHER ISSUES THAT YOU MIGHT HAVE SO THAT IF WE GO BACK AND TRY TO DO SOMETHING THAT IS MORE ADEQUATE IN THE COURT'S EYES, THAT WE DO A PROPER AND THOROUGH JOB AND NOT FACE A NEW LIST OF ISSUES IF IT'S POSSIBLE TO AVOID IT. THE COURT: WELL, THERE ARE TWO MAIN PROBLEMS. THE

MAIN ONE BEING WITH THE CY-PRES FUND. THERE IS SOME QUESTION AS TO THE NOTICE ISSUE. I MEAN,

THE OBJECTORS RAISED THE OBJECTION THAT THE NOTICE WAS

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INADEQUATE AND THE CLAIMS PROCEDURE WAS DIFFICULT. THAT IS WHY THERE ARE SO FEW CLAIMS MADE HERE.

AND MAYBE

I THINK IT IS

JUST AS LIKELY PEOPLE JUST AREN'T INTERESTED IN SPENDING THE TIME TO PUT A STAMP AND SENDING IN A CLAIM WHEN THE MOST THEY ARE ABLE TO GET IS $6. I DON'T, FRANKLY, KNOW WHY THERE IS A REQUIREMENT FOR PROOF OF CLAIM FOR THE $20 AS OPPOSED TO THE $6, PARTICULARLY GIVEN THE AMOUNT, THIS PIDDLING AMOUNT OF MONEY THAT'S GOING TO THE CLASS COMPARED TO THE ATTORNEYS AND BACK TO THE DEFENDANTS' CORPORATION OR FOUNDATION. THAT. I AM NOT SURE WHAT BETTER NOTICE YOU COULD GIVE SINCE MOST PEOPLE BUY A PINT OF BEN & JERRY'S, EAT IT AND THROW AWAY THE CONTAINER. I CAN'T IMAGINE ANYBODY SAVES THEIR RECEIPTS OR I DON'T UNDERSTAND

THE EMPTY CONTAINERS WITHOUT KNOWING THAT THERE'S A LAWSUIT. I, FRANKLY, DON'T UNDERSTAND WHY YOU LIMITED IT. IF YOU

ARE GOING TO LIMIT IT TO $2, IT MAKES SENSE THAT THAT'S THE PAYOUT BECAUSE THAT'S MORE THAN A HUNDRED PERCENT OF THE WHOLESALE COST AND 60 PERCENT OF THE RETAIL COST. SENSE, BUT WHY DO YOU LIMIT IT TO THREE CONTAINERS? THE CLASS PERIOD WAS WHAT, FOUR, FIVE YEARS, CORRECT? I THAT MAKES

MEAN, IF PEOPLE ARE GOING TO BUY BEN & JERRY'S, YOU THINK -- I DON'T EVEN EAT ICE CREAM VERY MUCH, BUT I HAVE CERTAINLY BOUGHT MORE THAN THREE CONTAINERS IN FIVE YEARS. BUT YOU ARE

LIMITING THE CLASS TO THREE CONTAINERS OVER THIS SUBSTANTIAL

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PERIOD OF TIME? EXTENT?

WHY?

WHY IS IT LIMITED TO THAT, TO THAT

THE NUMBERS ARE ARBITRARY.

YOU ARGUE THAT -- IN YOUR PAPERS, PLAINTIFFS ARGUE THAT THIS IS SUCH A GOOD SETTLEMENT AND IT SHOULD BE APPROVED BECAUSE THE CLASS IS GETTING A HUNDRED PERCENT, CLOSE TO A HUNDRED PERCENT OF WHAT IT COULD GET IF IT PROCEEDED TO TRIAL. I DON'T UNDERSTAND HOW YOU COME UP WITH THAT. LIKE I

SAID, I THINK THAT PEOPLE ARE JUST AS LIKELY TO HAVE BOUGHT MORE THAN THREE CONTAINERS OVER A FIVE-YEAR PERIOD. CLIENT DID. YOUR

YOUR CLIENT, THE NAMED PLAINTIFFS BOUGHT MORE WHY AREN'T THE

THAN THREE CONTAINERS OVER THE CLASS PERIOD. ABSENT CLASS MEMBERS SIMILARLY SITUATED? SO, I HAVE A LOT OF PROBLEMS WITH IT. PROBLEMS WITH THE SETTLEMENT.

I HAVE A LOT OF

SO, I DO HAVE A PROBLEM WITH YOUR PLAN OF ALLOCATION, PARTICULARLY NOW THAT I HAVE SEEN HOW MANY PEOPLE ARE LIKELY TO RESPOND. THE NOTICE PROVISION I DON'T, FRANKLY, KNOW HOW YOU CAN IMPROVE ON THE NOTICE UNLESS -- I DON'T KNOW HOW YOU CAN IMPROVE ON THAT. YOU PUBLISHED IT. I AM NOT IN THE CLASS

ACTION PLAINTIFFS' LAWYERS' BUSINESS, SO I DON'T REALLY KNOW WHAT OTHER OPTIONS YOU THINK ARE APPROPRIATE FOR THIS KIND OF A CONSUMER CLASS ACTION. ALLOCATION. AND I WON'T APPROVE A SITUATION WHERE THE DEFENDANT BUT I DON'T LIKE THE PLAN OF

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ESSENTIALLY HAS CARTE BLANCHE TO PAY IN WHATEVER WAY IT WISHES TO WHOMEVER IT WISHES WITHOUT PRIOR COURT APPROVAL. AND WITH REGARD TO THE REQUEST FOR ATTORNEYS' FEES AND COSTS, EVEN THOUGH IT IS PAID NOT FROM THE FUND, IT DOESN'T DILUTE THE FUND, I STILL NEED TO KNOW WHY IT WOULD BE APPROPRIATE TO APPLY A MULTIPLIER IN THIS CASE. FOR THE

CLASS -- PAYING PLAINTIFFS' ATTORNEYS 1.6 MULTIPLIER IN A CASE WHERE THE CLASS IS GETTING $32,000 OUT OF A $7.5 MILLION SETTLEMENT JUST SMACKS ME AS BEING TOTALLY INAPPROPRIATE. I HAVE ONLY GENERALLY APPROVED MULTIPLIERS IN SITUATIONS WHERE THE CLASS RECEIVED A SUBSTANTIAL, IF NOT ALL OF THEIR LOSSES. I AM NOT PERSUADED THAT $6 REPRESENTS ANYTHING CLOSE

TO SUBSTANTIALLY ALL OF THE LOSSES OF THESE ABSENT CLASS MEMBERS. SO, THOSE ARE MY PROBLEMS. OKAY? THE MOTION IS DENIED.

YOU CAN GO AWAY AND RENEGOTIATE OR WE CAN PROCEED TO TRIAL. BUT UNLESS YOU ADDRESS THESE CONCERNS, I AM NOT GOING TO APPROVE THIS. MS. WONGCHENKO: MR. BRAUN: THE COURT: THANK YOU, YOUR HONOR.

THANK YOU FOR YOUR TIME, YOUR HONOR. OKAY.

(PROCEEDINGS CONCLUDED AT 11:15 A.M.)

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CERTIFICATE OF REPORTER I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

_____________________________ DIANE E. SKILLMAN, CSR 4909, RPR, FCRR FRIDAY, SEPTEMBER 21, 2012

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930