Professional Documents
Culture Documents
No. ______
In The
Indirect Purchaser Plaintiffs, Greg Beastrom, Seth Brown, Marjean Coddon, Susan
Gomez, Joseph Jasinski, Henry Johs, Joseph Lord, Kirsten Luenz, Gerald & Kathleen
Nolan, Kory Pentland, Jonathan Rizzo, Michael Schwartz, Larry Scott, Catherine
Wilkinson, Jeffrey S. Williams, Driftwood Hospitality Management as authorized
managing agent for the following entities that own/operate, or that formerly
owned/operated, hotels in various states, including: (1) Genwood Memphis I, LLC,
owner/operator of the Crowne Plaza Memphis, formerly the Wyndham Garden Hotel
Memphis, in Memphis, Tennessee; (2) GFII DVI Cardel Doral, LLC, former
owner/operator of the Hampton Inn & Suites Doral, in Miami, Florida; (3) Brad-Sum
Colorado Springs, LLC, former owner/operator of the Summerfield Suites Colorado
Springs, formerly the Bradford Homesuites Colorado Springs, in Colorado Springs,
Colorado; (4) GFII DVI Cardel Sawgrass, LLC, owner/operator of the Crowne Plaza at
Sawgrass, in Sunrise, Florida; (5) GFII DVI Cardel Colorado Springs, LLC, formerly
Brad-Sum Centennial, LLC, owner/operator of the Staybridge Suites Denver Tech
Center, formerly the Bradford Homesuites Centennial, in Centennial, Colorado; (6)
DHM Chicago Hotel LP and DHM Chicago Hotel Lessee LP, owner and operator,
respectively, of the Avenue Crowne Plaza Chicago Downtown, formerly The Avenue
Chicago, formerly Radisson Chicago, in Chicago, Illinois; (7) DVI Kauai Hotel, LLC,
owner and operator of the Radisson Kauai Beach Resort in Lihue, Hawaii; and (8) DHM
Minneapolis Hotel, LLC, owner and operator of the Crowne Plaza North in Brooklyn
Center, Minnesota and The Parker Company as authorized agent for the following: Met
2 Hotel LLC; Bachelor Gulch Properties, LLC; MPE Hotel I (Washington), LLC; and
New York Hotel Tenant Co., LLC (Indirect Purchaser Plaintiffs), individually and on
behalf of a class of all those similarly situated,
Respondents,
CHRISTOPHER ANDREWS
Petitioner,
TABLE OF CONTENTS
Page
Sealing The Records In This Case Conflicts with Four Circuits and This Courts
Precedent ....32
The Courts Clear Judicial Bias In The Bond Order Calls for Summary Deposition ...39
Reasons For Granting Petition And Conclusion 40
INDEX TO APPENDICES how to appear date or how they appear ???????
Appendix A: Appeal court en banc
Appendix B: Appeal court decision
Appendix C: Clarified Bond Order (Dkt 2068 header is missing, taken off Pacer)
Appendix D: Petitioners Appeal Filing
Appendix E: Judgment Entry 2021
Appendix F: District Courts Opinion/Order
Appendix G: Motion To Stay Bond
Appendix H: 6th Circuit Decision Shane Group vs. Blue Cross Blue Shield of Michigan
Appendix I: Objection Supplement Fee Petition Breakdown
Appendix J: Foam Fairness Hearing Transcript sections
Appendix K: Objection
Appendix L: Rule 28 j Filing
Appendix M: Reconsideration Motion 59(e)
Appendix N: Appeal Motion To Reverse
Appendix O: Opinion and Bond Order
Appendix P: Class Action Fairness Act
Appendix Q: Plan Of Allocation
TABLE OF AUTHORITIES
Carpenter Co. v. Ace Foam, Inc., 135 S. Ct. 1493 (2015) (No. 14-577). Doc 2020 pg id
95419...
In Redman v. RadioShack Corp., 768 F.3d 622, Seventh Circuit, 2014...
Shane Group, Inc. v. Blue Cross Blue Shield of Michigan , 825 F3d 299
Public Interest Research Group of N.J., Inc., v. Windall, 51 F.3d 1179, 1185 (3d Cir.
1995)
Blum v. Stenson, 465 U.S. 886, 895 n. 11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984)..
Student P.I.R.G. v. AT&T Bell Laboratories, 842 F.2d 1436 (3d Cir. 1988)..
Pennsylvania Enviromental Defense Foundation v. Canoln-McMillian School, 152 F.3d
228, 231-32 (3d Cir. 1998)..
Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir. 2007).
Lamar Adver. Co. v. Charter Twp of Van Buren, 178 F. Appx. 498, 501-02 (6th Cir.
2006).
Gratz v. Bollinger, 353 F. Supp. 2d 929, 948 (E.D. Mich.)
City of Pontiac Gen. Empls. Ret. Sys. v. Lockheed Martin Corp., 954 F. Supp. 2d 276, 280
(S.D.N.Y. 2013)
Beacon Assocs. Litig., 2013 WL 2450960, at *18 (S.D.N.Y. 2013)..
Cardizem CD Antitrust Litig., 218 F.R.D. 508, 53233 (E.D. Mich. 2003).
Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2 nd
570 (1978)
Kamakana v. City and Cntry of Honolulu, 447 F. 3rd 1172, 1178 (9th Cir 2006).
Foltz v. State Farm Mut Auto. Ins. Co., 331 F. 3d 1122, 1135 (9th Cir 2003)...
Hagestad v. Tragesser, 49 F. 3d 1430, 1434 (9th Circuit. 1995)
Baxter Intl, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002..
Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982).
10
11
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR CERTIORARI
Christopher Andrews petitions to review the judgment of the U.S. Court of Appeals for
the Sixth Circuit and/or the judgment of the district court as well.
OPINIONS BELOW
The opinion of the United States Sixth Circuit Court of Appeals appears at Appendix A
PROVISIONS INVOLVED
12
Rule 23(g)(4) provides that Class counsel must fairly and adequately represent the
interests of the class.
The right to have an impartial court is unquestioned part of due process of law. The
court has a verbalized agenda driven bias on the record so the bond order should be set
aside via summary deposition.
INTRODUCTION
This case squarely presents the Court with an opportunity to resolve conflicts on
important and recurring issues involving class action settlements and to provide
valuable guidance to all lower courts that will ensure that absent class members
protections under due process and Rule 23(e)(2)that are routinely violated in the rush to
settle are properly protected. This Court has never seen such a debacle of material,
reversible, structural errors made in a federal class action settlement that are contrary
to the way proper legal procedures are performed that violate this Courts precedent,
cause intra-conflict within our own 6th Circuit, inter-conflict with the 2nd, 3rd, 7th, 9th
Circuits and violate Rule 23(e)(2). Ordering an appeal bond for this petitioner in this
case and allowing this approval to stand based on the evidence and the issues described
above and throughout this Writ has so far departed from the accepted and usual course
of judicial proceedings, and/or this circuit has also sanctioned such a departure by the
lower court, as to call for an exercise of this Court's supervisory power. The circuit court
apparently decided the important question of federal law above that has not been, but
should be, settled by this Court.
13
In this case like many of the other 125 class action settlements he has reviewd over the
years, plaintiffs bar routinely inflate their hourly rates in their fee petitions by using
an incorrect historical billing rates argument vs. and this Courts prevailing market
rates precedent which also conflicts with all circuits. The result is an inflated direct fee
award or an inflated percentage of the gross settlement fund award fee because the
award would fail the lodestar crosscheck if the rates were not unlawfully and artificially
inflated to begin with.
The validity and appropriateness of an appeal bond is always predicated on the
Settlement Agreement, Approval/Opinion and Judgment Entry all being legally valid
and binding when approved. In this case they absolutely are not, making the
appropriateness and validity of the appeal bond order legally defective, its abuse of
discretion, unbinding and moot as a matter of law. The circuit took the district courts
word the settlements were all legal and binding on the parties when it upheld the bond
order. The nine Settlement Agreements, the nine Amendments to the Settlement
Agreements, Opinion/Order and Judgment Entry, all contain a mirayd of material,
reversible, structural, procedural errors, are unclear, ambiguous, ill defined and/or
missing applicable information, exhibits, terms, explanations and justifications. Many
critical documents and terms have not been incorporated into each other, making this
entire settlement and approval process legally defective, fails basic contract law and is
contrary as to how proper legal procedures are followed in circuits throughout the
country. Clearly this is an egregious miscarriage of justice when all the evidence on its
face proves beyond a reasonable doubt that the very foundation of the settlement and
14
approval is legally defective to begin with making everything that comes after that, like
the appeal bond order, legally defective as well.
The following issues conflict with standard operating procedures, 23(e)(2) and (g), when
approving class action settlements in 2nd, 3rd, 6th, ,7th 9th Circuits and this Courts own
precedent:
First, it is abuse of discretion to approve nine settlements that contains twenty two
material contract law errors in the Opinion/Approval document making the approval
and Judgment Entry to be per se invalid.
Second, it is abuse of discretion for a court to approve a settlement that contains an
artificially inflated lodestar calculation which egregiously violates fiduciary obligations
owed to the class, is bad faith, violated Rules of Professional Conduct and duty of candor
because class counsel falsely swore under oath, 28 U.S.C. Code 1746, that their
petition was true knowing it was not so the fee award contains elements of fraud and
violates Rule23(e)(2). The lodestar claimed by class counsel in their fee petition is now
$16.2 million or 207% over this 6th Circuits and this Courts own precedent because
class counsel used a fake historical billing rates argument vs. the lawful prevailing
market rates standard. The inflated lodestar calculation, which the Court used as a
crosscheck to ensure the reasonableness of the gross percentage it awarded, was
unlawful to start with and as a result the fee awarded is unreasonable and cheated the
class. Class counsel also incredibly argued at the Fairness Hearing that local market
15
rates should not apply because it was not fair and the court brought that argument
hook, line and sinker.
Third, it is abuse of discretion and reversible error where a court(s) so conflates Federal
Rule of Civil Procedure 26 regarding protective orders and sealing court records where
the court orders vast swaths of virtually all records in this anti-trust case to be sealed
which prohibits up to 175 million unnamed class members and the general public from
reviewing the entire scheme, the basis of the nine settlements, especially the experts
damage report, which shows the damage amount, the range of maximum damages
achievable at trail and how the damages were calculated. This sealing of the records in
this case and damage report which are the cornerstone of the deals, violates this 6th,, 2nd
,3rd,
9th Circuits case law, this Courts precedent and Rule 23(e).
Fourth, it is abuse of discretion for an appeals court to ignore and not address a change
in intervening controlling legal decision made two weeks before the circuit affirmed the
appeal bond order that parallels the same mistakes in both cases. A different panel in
the same circuit reversed the approval of a class action settlement for three reasons that
this petitioner raised in that case, which happen to be the same three reasons the
petitioner raises in this case as well. The petitioner alerted the Circuit in a Rule 28j
filing of the new intervening controlling legal decision change but the panel still
affirmed the bond order thirteen days later without ever addressing the intervening
controlling legal decision change in its order. The panels decision upholding the appeal
bond order under the new case law, as referenced by both courts in the orders, was
missed and/or is wrong. By the circuit panel not addressing its own new case law with
16
the same exact issues in both cases in the bond order, the change in intervening
controlling legal decision was not acknowledged and apparently did not and does apply
in this case, or this circuit. That silence now conflicts with how intervening controlling
legal decisions should be followed after a case is approved but while an appeal of an
appeal bond order is pending. Apparently the appeals court decided an important
question of federal law that has not been, but should be, settled by this Court.
Fifth, the district court used prejudicial and biased terms when assessing the appeal
bond to describe the reasons why the objectors allegedly appealed without a shred of
evidence backing up those assertions, there is absolutely nothing in the record. The
court described the appellants who appealed as serial objectors .file frivolous
appeals in pursuit of a payoff and scrambling to extort money from the approved
settlements This is clearly unconscionable, biased behavior and is evidence that the
bond order and amount were retaliatory for questioning the judgment of the court.
This petitioner on behalf of himself and 175 million unnamed class members spanning
twenty nine states, the District of Columbia and a minimum of five circuits requires this
Courts assistance to fix this intra and inter circuit splits along with the uncertainty
that has now been created because of the egregious errors and bias in this case.
.
17
The documents below were not attached or incorporated into the nine Settlement
Agreements by class counsel or the court and they were not expressly made a part of the
Approval/Opinion making the approval legally defective and unbinding on any Plaintiff,
nine defendants, or class member, including this petitioner, so this appeal bond order
and any orders that come after are invalid, cant be justified or be enforceable in conflict
with how all other circuits approve a legally binding class action settlement and when
issuing an appeal bond order in this country. There is nothing for an appeals court or
even this Court to review in the Approval/Opinion document causing certain conflict
and uncertainty. Some of the material critical exhibits and documents that are either
missing and/or not incorporated into the Settlement Agreements and Opinion/Approval
document thus making it unbinding which also causes conflict with 2nd, 3rd, 6th ,7th and
9th Circuits are: Appen. R and F
The Nine Settlement Agreements are missing and/or are not incorporated into the
Approval/Opinion document. Under Definitions the word Claims that is used
eighteen times throughout all nine agreements is missing and undefined resulting in no
claims of any kind being released against the defendants, the settlements are all legally
defective and unbinding on any party and unenforceable. Appen. R the term should be
on page 6 under Claims.
Nine Amendments to the Settlements are missing and/or are not incorporated into the
approval. Appen. S.
Notice Plan is missing and/or not incorporated into the Settlements and Approval.
18
Publication Notice is missing and/or not incorporated into the Settlements and
Approval.
Long Notice is missing and/or not incorporated into the Settlements and Approval.
Claim Form is missing and/or not incorporated into the Settlements and Approval.
Plan of Allocation is missing and/or not incorporated into the Settlements and Approval.
19
6. The Carpenter Amendment representing the balance of the all nine Settlement
Agreements which contain the revised class periods, were not incorporated into the
Approval/Opinion so six out of nine settlement agreements have different class period
ending dates making those agreements and the approval legally invalid, unenforceable
and not final.
7. Capitalized terms used in the Approval/Opinion document are not defined and do not
have the same meaning assigned to them in the nine Settlement Agreements and
Amendments to the Settlement Agreements Appendix aDDDD IN @^ PAGES ??? Docs
1859 and 1860) making the deals invalid. In addition only two of the nine Settlement
Amendments have dates next to the signatures making it unclear and ambiguous as to
when the other seven agreements were actually agreed to in writing vs. when the
document was prepared, invalidating seven of the nine settlement agreements for
approval, enforcement and finality purposes.
8. The nine Settlement Agreements and the Amendments that change the class periods
along with all the other missing exhibits were not approved as fair, reasonable,
adequate, and in the best interests of the Settlement Class, fail the requirements of Due
Process and The Federal Rule of Civil Procedure 23 have not been satisfied.
9. There is no evidence in the Opinion/Order that anyone provided both the nine
proposed Settlements and the Amendments to the Agreements, to the relevant state
and federal authorities within 10 days of the filing of the proposed Settlements with the
Court, so the nine Defendants may not have expressly complied with the requirements
of The Class Action Fairness Act of 2005 for both sets of documents. Append.
20
10. Class counsel failed to file with the court the motion for Judgment Entry and Order.
It was never made available to the class for review and to possibly object to before
appearing on the docket in final binding form. (The court rolled its Opinion/Approval
into one document). The approval is thus in violation of 1715 3(A)6 of The Class Action
Fairness Act of 2005 28 U.S.C. Public law 109-2 because the parties did not include any
proposed final judgment or notice of dismissal in their notice to all applicable Attorney
Generals and appropriate Federal official(s) as required and is invalid and unbinding.
Appen P pg 8 top.
In addition Section 1715 (3)(7)(A)(B) was also violated by the parties failing to provide
names and addresses of class members or (B) wherein if the provision of information
under subparagraph 9A is not feasible, a reasonable estimate of the number of class
members residing in each state and the estimated proportionate share of the claims of
such members to the entire settlement; Appen. P. pg 8 top.
There is nothing anywhere in the filings of the estimated number of potential class
members and how many reside in each state. The class size was intentionally left out to
make class counsels claim that the settlement amount is fair, reasonable and adequate
appear to be true to obtain unfair approval at the expense of the class for their fees first.
Without a class size to compare to the damage amount everything looks great, but when
included, its a Grand Canyon wide failure because the class has no basis to determine if
they should take the amount offered. The petitioner came up with the 175 million class
members/35 million households himself using mattress sales and census data for the
entire class period in the affected class states since no one else has offered any ballpark
21
estimate. Petitioners number went unchallenged by class counsel, defendants and the
court. This error conflicts with existing requirements under federal law and the court
violated 23c(3)(a) by not identifying who the class members are in the approval.
11. The Court did not order, implement and enforce each and every term, provision,
condition and agreement of the Class Settlement Agreements, the Amendments and all
exhibits listed above (which are all missing) so the nine deals cannot be effective,
implemented and enforced as proposed and approved, voiding the approval.
12. The Court did not appoint or reappoint any escrow agent that was sent funds from
the defendants. Those funds should not have been deposited by the defendants to begin
with and cannot be distributed to class counsel or the class because the unknown escrow
agent is not under or bound by any of the courts orders, decrees or authority.
13. The Court did not appoint or reappoint the claims administrator.
14. Class counsel and defendants have not agreed that the actions were litigated in
compliance with Fed. R. Civ. P. 11.
15. The seventeen named plaintiffs that were granted $200,000.00 in incentive awards
by the court did not endorse in writing on behalf of themselves and the unnamed class
members that they agreed with the nine settlement agreements terms and that the
deals are fair, reasonable and adequate under Rule 23 which now bind the class,
unfairly extinguishing their legal and due process rights.
16. The Federal Rules of Civil Procedure require, upon certification of the class, that
"the best notice that is practicable under the circumstances" be given, "including
individual notice to all members who can be identified through reasonable effort."
22
Fed.R.Civ.P. 23(c)(2)(B). The court wrote in its Opinion/Approval document The size of
the class of IPPs in this case is enormous; indeed, in a brief submitted to the Supreme
Court, defense counsel characterized this case as likely the largest class action ever
certified. Petition for Writ of Certiorari at 2, Carpenter Co. v. Ace Foam, Inc., 135 S. Ct.
1493 (2015) (No. 14-577). Doc 2020 pg id 95419. Apparently no attempt was ever made
to notice any one of 175 million class members directly resulting in just 54,000 claims
submitted for a claims take rate of 0.00030857142 of 1%, a clear notice failure.
17. The petitioner objected in his objection Appen K page 1-2 and to the Court in the
fairness hearing Appen. J pg 46 that it, its immediate family, staff were not excluded
out in the nine agreements from filing claims for damages against the fund because
class counsel forgot to state the exclusions and the district court ignored that
red flag error. A judge should not be ruling on a case he is personally involved in.
18. The petitioner objected at the fairness hearing and stated that This is from
document number 371, page ID 5836, paragraph 53. This was written by class counsel
in their filings.The acts alleged against the Defendants in this Complaint were
authorized, ordered, or done by their officers, agents, employees, or representatives,
while actively engaged in the management and operation of Defendant's businesses or
affairs," end of quote. Appendix Jpg id 95329 ,95330.
The following group of parties should have also been excluded out of the nine
settlements and agreements in this multibillion dollar anti-trust scheme, but were not,
allowing the bad actor architects to become beneficiaries of this fraud by reaping
23
benefits from the class fund that was created because of the actions they undertook the
caused that damages that resulted in this suit being filed to begin with:
The attorneys, defendants, the twenty five bad actor architects individually named in
the complaint and their immediate families, co-conspirators, firms, trusts, partnerships,
corporations, officers, directors, other individuals and entities in which a Defendant has
a controlling interest or property interest; their legal representatives, heirs, successorsin-interest or assigners of such persons, applicable insurance companys successors,
reinsurers and their agents, federal, state and local government entities, judicial
officers including judges, magistrates presiding over this action, mediators, special
masters, and members of his/her immediate family and judicial staff all within the third
degree of consanguinity.
19. The Plan of Allocation is as follows V. Administration. All determinations under
this Plan of Allocation shall be made by the Claims Administrator, subject to review by
Lead Counsel and approval by the Court. Appendix Q the term claim is missing
should be on page 1.
In petitioners initial objection is a template the petitioner requested be added to the
nine settlement agreements to create a legitimate claims process for the class because
none exists and the suggestion was ignored by the court. The missing inclusion pages
are; Administration and Calculation of Claims, Final Awards, Supervision and
Distribution of Settlement Fund process which explains the duties, rights and
responsibilities of the administrator and claimants in the entire claims process because
there is nothing like this anywhere the petitioner can see, its completely missing.
24
Appen. K pages 11-23. The claimants have no protections in place if the administrator
unfairly rejects a claim for any reason, say a minor error they presently cant correct,
wont receive a penny and never know why. This entire unknown, black hole claims and
administration process is clear as a sunny day violation of the due process rights of the
class, violates the rules of common sense, Rule 23(e), was not explained or justified by
class counsel in the deals, at the fairness hearing or by the court in the
Approval/Opinion, a reversible error. And without reliable administration the
defendant will not have the benefit of a valid and binding settlement. In Redman v.
RadioShack Corp., 768 F.3d 622, Seventh Circuit, 2014.
20. The court failed to include or incorporate who the defined class is, the numbers in
the defined class, who the named plaintiffs are that represent the class and which firms
represent the named plaintiffs. The Miller firm appears to lack a named plaintiff and
some others Kerger and Schubert firmsdont claim to represent anyone but filed for fees.
21. Missing is The Order Granting Preliminary Approval to the nine Settlements.
The petitioner has stated in five filings over the past year he will not drop the objection
and appeal for even one million dollars, the issues must be repaired. Appen. G pg 5
THE JUDGMENT ENTRY DOCUMENT IS INVALID
The court failed to state in its Judgment Entry that the claims were dismissed with
prejudice for all nine settlements and that the Final Judgment should issue consistent
with Federal Rule of Civil Procedure 58 making the Judgment Entry invalid, unbinding
on the defendants, the class and making the appeal bond order moot.
25
The Courts Approval Contains The Same Reversible Issues as in Shane vs.
Blue Cross Blue Shield of Michigan Case Causing Intra-Circuit And InterCircuit Conflicts And Violates This Courts Sealed Records Precedent
The three reasons (sealed expert damage report, excessive attorney fees and incentive
awards) that this petitioner raised in the 6th Circuits case, in Shane Group, Inc. v. Blue
Cross Blue Shield of Michigan , 825 F3d 299 15-1544 June 07, 2016, that is the new
controlling legal authority in this case (that took effect eleven days before the bond
order was affirmed by the panel and that caused the reversal of the approval in that
case), are the same three exact issues the petitioner raises in this case here in this same
circuit but the new law was ignored in the bond decision. This panels incorrect ruling
creates an intra-circuit and intra-circuit splits. Appen. H.
ATTORNEY FEE AWARD VIOLATES THIS COURTS PREVAILING MARKET
RATES PRECEDENT THAT WAS IGNORED AND A HISTORICAL BILLING
RATES ARGUMENT SUBSTITUTED IN THE COURTS CROSSCHECK
ANALYSIS AND WHICH CREATES INTRA AND INTER CIRCUIT CONFLICTS
It is abuse of discretion and reversible error for a court to award an attorney fee that
uses an inflated illegal crosscheck attorney fee amount based all the firms billed
inflated hourly rates to the class based on a firms historical billing rates that is in
conflict and way above the prevailing market rates in violation of this Courts
precedent, this circuits own controlling authority and the 3rd Circuit for example.
The "starting point" in determining the appropriate hourly fee is the attorneys' usual
billing rate. Public Interest Research Group of N.J., Inc., v. Windall, 51 F.3d 1179,
1185 (3d Cir. 1995) The Supreme Court has directed that district courts should then
26
27
That statement is misleading and deceiving on the class and court whereby Mr. Miller
never had any partners in this case, his entire attorney staff are 1099 contractors, and
he is a solo attorney. Exhibit I
Mr. Millers statement continues:
It does not include any time devoted to preparing this declaration or otherwise
pertaining to the Joint Fee Petition. The lodestar calculation is based on my firms
historical billing rates in effect at the time services were performed. Exhibit 2 was
prepared from contemporaneous time records regularly prepared and maintained by
my firm. Those records are available for in camera inspection by the Court, if
necessary. The hourly rates for my firms attorneys and professional support staff,
which are included in Exhibit 2, are the historical, usual and customary hourly rates
charged for their services to non-contingent fee paying clients and which have been
submitted to other courts in connection with applications for an award of attorneys
fees in other complex class actions.
http://www.polyfoamclassaction.com/ fee petition at bottom of page.
Contrary to this circuits standards and this Courts own precedent that the hourly rates
be based on prevailing market rates, Mr. Miller and all the other firms ignore, create
and substitute their own precedent and criteria which violates this circuits and this
Courts guidelines like many other firms this petitioner has seen in many cases in
circuits all over the country. The court allowed nine of the ten firms to use the following
clause in their fee petition instead of the proper prevailing market rates guideline
without explanation. The lodestar calculation is based on my firms historical billing
rates in effect at the time services were performed.
Class counsel also incredibly argued in the fairness hearing that the court should not
apply the market rate argument (as set forth by this petitioner in his one hundred
page filing) because it wasnt fair, which the Court fell for in violation of this circuits,
other circuits case law and this Courts precedent. Append. J pg id 95385 at 10-20.
28
MR. KERGER: Your Honor, if I might. I wanted to address the issue of the market
rate with an argument I haven't seen. If you're in New York City or Los Angeles, you
have a significantly different cost of doing business than we do in Toledo. If you ask
lawyers to come here to work, these folk, any of them, and say they have to bill by
what Rob and I can live with in this community, they're not going to come. And you
will make the MDL decision outcome determinative in many cases. Everybody would
want to go to New York or Los Angeles or Miami.
The court wrote; The rates charged by Counsel are high. But IPPs provide the
following statistics, which generally undercut this objection: (i) the average billing
rate for partners in the DPPs lodestar was 25.8% higher than the average rate for
partners in the IPPs lodestar ($705.06 versus $560.13); (ii) the average rate for all
other (non-partner) attorneys in the DPPs lodestar was 25.1% higher than the
average rate for all other attorneys in the IPPs lodestar ($438.30 versus $350.22);
and (iii) the average rate for paralegals in the DPPs lodestar was 27.8% higher than
the average rate for paralegals in the IPPs lodestar ($244.84 versus $191.60).
Ultimately, the hourly rates used by Counsel in the lodestar calculation are not
unreasonable, with the understanding that they are already calculated to account
for litigation risk Appendix ?? E(Doc. 1971 at 22 (entering the final fee award for
DPP Class Counsel)). Appen. J page 39 of 44 pg id 95445.
Just because the Court over paid the direct class attorneys way above prevailing
market rates via an inflated lodestar calculation in violation of this Courts precedent ,
does not justify overpaying class counsel in this case, which it did, without a doubt,
despite overwhelming evidence presented to it by the petitioner. The courts rationale is
a wrong, conclusionary in nature and does not explain why the Court chose to use its
$27 million inaccurate artificially inflated hourly rate lodestar number as the basis for
the cross check vs. the petitioners accurate $10 million number (now $13 million) as
described in extreme detail backed up with one hundred pages of evidence in Exhibit I
which no one challenged. The Courts lodestar calculation is an inexcusable error and
opposite of this circuits, other circuits and this Courts guidelines.
29
30
31
32
The inflated lodestar amount calculation using the historical billing rates argument
violates this 6th Circuit, other circuits guidelines and this Courts own guidelines. That
inflated hourly rate number was used as the basis of its crosscheck analysis which
makes the percentage of fee award per se unreasonable and unlawful and would have
failed the crosscheck if the lawful hourly rates guidelines were used.
The court failed to explain why it was fair to allow class counsel to bill the class the $9.4
million in hourly fees overcharges by the other firms for all their non 1099 attorneys as
shown by the petitioner in Appen. I
Adding that $9.4 million in overcharges from the other law firms to the $6.8 million
overcharge by Mr. Millers firm, the total hourly rate overcharge to the class for all the
firms combined is $16.2 million ($6.8 million + $9.4 million is $16.2 million) that the
cross check and multipier is in large part based on is close enough to the $20.6 million
overcharge shown by the petitioner to the Court in Appendix I pg 74 pg id 91765 in his
objection for the court to not have missed it. The lodestar calculated and awarded by the
court was $27 million, but in reality is $13 million for a 207% overcharge that is the
basis for the now invalid crosscheck number. The final award by the court to class
counsel of $36 million is clearly unreasonable, materially incorrect and unjustifiable.
The court is required to explain all this so as to allow for a review of its decision by a the
class and a higher court but the inappropriate appeal bond order prevents the 6th
Circuit from reviewing and reversing this illegal overcharge fee award and for all the
reasons as well. The fee issues in this foam case match the issues in Shane decision
exactly, again creating an intra circuit split if allowed to stand.
33
Lastly, ten partners combined charged hourly rates on an average of $706.00 an hour,
way over prevailing market rates which the court chose not to address either.
From the Shane decision which is now controlling but was ignored in the bond order
Next, in approving class counsels fee request of approximately $10 million, the
district court erred in relying in part on the higher amount calculated by means of
the lodestar method.
That method examines whether the rates and hours spent by class counsel are
reasonable. The courts error was specific to the record here. One problem is that the
rates claimed by class counsel are exceedingly high: some 20 lawyers billed the class
more than $700 per hour, and some billed more than $900 per hour; and over 40
paralegals charged an average of $228 per hour, which is more than $10 per hour
higher than the rates charged by the top 1% of paralegals nationwide. See Natl Assn
of Legal Assistants & Paralegals, 2015 National Utilization and Compensation
Survey Report, Section 3 Billing Rates, at 2-3 available at
https://www.nala.org/sites/default/files/15SEC3.pdf. Class counsel also billed various
administrative personnel at rates up to $175 per hour, including a receptionist
billing $125 per hour. These are Bentley rates, not Cadillac rates, and if a district
court thinks they are relevant to the fees that unnamed class members should
actually pay, the court must explain why. Moreover, class counsel provided no
backup whatsoeverno time records, no descriptions of work donein support of
their hours spent working on the case. Instead, class counsel provided the district
court with a single page of documentation for each firm, listing only the employee
names, titles, rates, hours, andby multiplying the rates and hoursthe total
lodestar for that firm. The documentation of fees in this case should have only
heightened the district courts concerns about
whether the settlement is fair to unnamed members of the class. Appendix H pg14.
SEALING THE RECORDS IN THIS CASE CAUSES INTRA AND INTER
CIRCUIT CONFLICTS IN THIS 6TH, THE 2ND, 3RD, 9TH CIRCUITS, CONFLICTS
WITH THIS COURTS PRESCEDENT AND IS ABUSE OF DISCRETION
Courts have historically recognized a general right to inspect and copy public
records and documents, including judicial records and documents. Nixon v. Warner
Commcns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2 nd 570 (1978).
The district court in this foam class action settlement sealed almost the entire record
and most importantly the experts damage report, the basis of the deals. The petitioner
34
inquired about damages but was ignored, Appendix K pg 8 middle of page. There are
106 documents placed under seal in this case. This petitioner was concerned with
damages such as the total maximum damages caused to the class, how much in
damages each defendant was responsible for which would be located in the experts
damage report which encompasses thirty nine documents. The damage range in this
case was not mentioned in the long notice or included in any documents on the
Administrators class website. One week before the Fairness Hearing the petitioner was
sent 350 pages of documents and the day before the hearing petitioner receiver 400
pages of documents which were included in class counsels response to objections that
were only posted to the docket. Appen F. Dkt 2018 pg id 95318 @12-19 and pg id 95319
@ 2-5. The four damage numbers that were made public to the class by the Court in the
a week before in the documents the petitioner received and were never see or disclosed
to the 23,000 class members who had already filed claims before the fairness hearing
date. Even more egregious is the fact class counsel never posted those 700 pages of
important documents that contain the damage information and maximum damage
ranges to the administrators website for the next seven weeks after the fairness
hearing when the claims window was still open. Those additional 31,000 new claimants
were unaware of the information described above so all the claimants due process
rights have been violated. Had the petitioner and the unnamed class members had
access to the applicable sealed records, say on the website, this petitioner and other
class members might have opted out and filed through small claims court ($5,500.00
limit with the bed costing $3,000.00) and obtained many, many multiples of an
35
unknown amount that we might have received by are forced to stay in the settlement
because of the lack of evidence we would need to decide the best course of action to take.
How those damage estimates were arrived at was and still is missing to this day
cheating the class of accurate information they are entitled to see before making a
decision as to what the best course of action to take regarding their rights, damage
recovery and whether or not it makes sense to that the offer, object or opt out. The
claimants had no idea what the damages were so they did not have even a ballpark
estimate of the amount they might individually receive when considering or filing a
claim vs. what they could expect to receive at trial and whether taking some unknown
amount now was preferable to accepting some unknown amount at a future trial later.
Many more claims and objections might have been filed but without critical information
to access and review, the default action is to do nothing. The petitioner and the 175
million class members are forced not to opt out and stick it out because the $2 million
expert damage report we paid for is unlawfully under seal.
The 106 sealed documents in this approval include; Plaintiffs Memorandum of Law in
Support of Indirect Plaintiff Motion for Class Certification and Appendix with 65
exhibits, Declaration of expert Russell Lamb Parts 1 & 2 plus a 4 part Dkt. 578-583,
Addendum to Declaration of Russell Lamb (Dkt. 590), responses by defendants to
exclude the report and testimony of Dr. Lamb are sealed, the Memo in Opposition to
Defendants Motions to Exclude the Report and strike testimony Dkt. 845-849 testimony
of Dr Lamb, 35 attachments are also unlawfully sealed, more sealed documents Dkt.
875-874, Dkt 1816 Sealed document Motion to Dismiss,lack of standing> The entire
36
record is sealed making a review by the 175 million class members to determine if the
entire settlement and approval is fair, reasonable and adequate, the best course of
section to take compared to our like hood of success of our claims and whether to accept
a vast difference in maximum class damages that exist now or at trial impossible to
calculate violating Rule 23(e)(2).
The ruling written and discussed by Judge Kuthledge in the Shane vs. Blue Cross of
Michigan case, in this same 6th circuit, is the controlling legal authority that was
ignored without explanation. Since sealing the records was wrong and cause for reversal
in the Shane case it has to be wrong in this case by default. The bond order was entered
on April 16, 2016, the Shane decision was issued on June 07, 2016, the petitioner filed a
Rule 28j submission on the controlling legal change that was received by the appeals
court on June 09, 2016 and the appeal bond order was issued on June 20, 2016. The
appellate court failed to address why the thirteen day old new case law did not apply to
this case when the appeal was pending and which should have caused the reversal of
the bond order issued by the district court instead of upholding it. Appen. L. The
petitioner filed a 58(e) motion on June 23, 2106 regarding the new case law to the
district court which was denied. Appen. M.
The following are parts of the decision in the 6th Circuit, Shane Group, Inc. v. Blue
Cross Blue Shield of Michigan , 825 F3d 299 which this petitioner was an appellant in
(15-1544) that sealing the records, particularly the expert damage report was as illegal
in that case as it is in this case, and would absolutely force reversal of this approval in
this case as well but the appeal bond order ensures that wont occur.
37
The following comes from the US District Court S.D. California by Anthony J. Battaglia
2013 WL 6190895 only Westlaw citation is currently available Rich v. Shrader Civ
09cv652 AJB (BGS) Nov. 26, 2103. Appen. H pg 12 top paragraph.
38
Courts have historically recognized a general right to inspect and copy public
records and documents, including judicial records and documents. Nixon v. Warner
Commcns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2 nd 570 (1978).
Unless a particular court record is one traditionally kept secret, a strong
presumption in favor of access is the starting point. Kamakana v. City and Cntry of
Honolulu, 447 F. 3rd 1172, 1178 (9th Cir 2006) (quoting Foltz v. State Farm Mut
Auto. Ins. Co., 331 F. 3d 1122, 1135 (9th Cir 2003)). In order to overcome this strong
presumption, a party seeking to seal a judicial record must articulate justification for
sealing that outweigh the public policies favoring disclosure. See id at 1178-79. In
turn the court must conscientiously balance { } the competing interests of the
public and the party who seeks to keep certain judicial records secret. Id. After
considering these interests, if the court decides to seal certain judicial records, it
must base its decision to seal certain judicial records, it must base its decision on a
compelling reason and articulate the factual basis for its ruling, without relying on
hypothesis or conjecture. Id (citing Hagestad v. Tragesser, 49 F. 3d 1430, 1434 (9 th
Circuit. 1995)).
Courts around the country have made clear that anyone seeking to seal court
records must meet a heavy burden especially class action cases like this one. The
parties may not have met this burden. Their interests do not outweigh the publics
(including the class members) interest in having full access to the judicial record.
The Court should order unsealing of all current unsealed documents and post them
all to the docket and allow an adequate amount of time for the class to review them
and possibly take action in response. Secrecy is fine at the discovery stage, before
the material enters the judicial record. Shane Group, Inc. v. Blue Cross Blue Shield
of Michigan, 825 F.3d 299,305 (6th Cir. 2016) (quoting Baxter Intl, Inc. v. Abbott
Labs., 297 F.3d 544, 545 (7th Cir. 2002)); see also Krause v. Rhodes, 671 F.2d 212
(6th Cir. 1982) (dealing with the public access to discovery materials produced in
civil cases stemming from the Kent State shootings, but not entered into the judicial
record).
The actual document this section below came out of is at 2:10-cv14360-DPH-MKM Doc
296 page ids 11432 and 11433, Shane vs. Blue Cross, Plaintiffs Opposition to Non
Parties Motion to Redact and Seal. November 01, 2016.
39
When the circuit rejected the bond order appeal by this petitioner it incorrectly assumed
the district court had legally binding settlements, approval and judgment entry in place
but it did not. So the bond order issued by the district court and up held by the circuit is
incorrect. After the district court ordered the appeal bond the petitioner filed a Non
Emergency Motion for Reversal/Stay of Bond Order The circuit picked out the
petitioners same paragraph and used it on page 3, second paragraph rejecting the
appeal. The petitioner, based on his evidence, overcame and has overcome all four
factors cited and the issues above prove this approval is not fair, reasonable and
40
adequate to the class in violation of Rule 23(e)(2) and (g)(4) and creates an unfair and
impermissible barrier to appeal for this petitioner. Appen. N pg 2,3.
The Courts Clear Bias In The Bond Order Calls for Summary Deposition
The court wrote:
Their conduct here resembles scavenger ants on a jelly roll, scrambling to extort
money from the approved settlements. Accordingly, this factor weighs strongly in
favor of imposing a bond. Appen.O pg 6 top paragraph
To now have Objectors file frivolous appeals in pursuit of a payoff is not simply a
detriment to the settling parties -- it is an insult to the judicial system. Appen. O
pg 16 under conclusion.
And only a year ago, another court in this Circuit found Andrews submissions are
not warranted by the law and facts of the case, were not filed in good faith and were
filed to harass Class Counsel. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich.,
2015 WL 1498888, at *20 (E.D. Mich. 2015). Appen. O pg 5 top.
The circuit disagreed and reversed the case. (Header information is not on the top of the
Pacer document). This verbalized agenda driven judicial bias by the court and its
distain for the objectors has directly caused this usurious unjustified approval and
appeal bond to be issued for questioning the possibility the court might have got it
wrong, which it did, and it also unfairly infected and influenced the circuit court to
reject the bond order. This approval was going through regardless of the reversible
errors contained within it.
REASONS FOR GRANTING PETITION AND CONCLUSION
This petitioner and 175 million class members need your help to fix this egregious
miscarriage of justice. Since the foundation of the settlement/approval is legally invalid
and unbinding to start with under either common law, contract law, proper legal
standards, Rule 23(e),(g)(4), 6th Circuit, numerous other circuits and Supreme Court
41
precedents, individually and/or in combination, this makes the appeal bond order
inappropriate. The court issued the bond as retaliation and since bias cant be fixed the
bond order is inappropriate. The irrefutable evidence proves that summary
deposition/reversal has now been established and is requested.
In the alternative this court should grant certiorari to resolve this intra and inter multi
circuit split, ensure compliance with other circuits, this Courts law, and ensure a
consistent application of Federal Rule of Civil Procedure 23(e)(2).
I swear under penalty of perjury 28 U.S.C. Code 1746 that all the information is true
and correct to the best of my knowledge.
Respectfully Submitted,
Christopher Andrews Pro se, PO Box 530394 Livonia, MI 48153-0394 P 248-635-3810
Email caaloa@gmail.com December
,2016
42
In The
2016, as required by
Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI on
each party to the above proceeding or that partys counsel, and on every other person
required to be served, by depositing an envelope containing the above documents in the
United States mail properly addressed to each of them and with first-class postage
prepaid, or by delivery to a third party commercial carrier for delivery within three
calendar days. The names and addresses of those served on the indirect side were
obtained from the docket as of December 12, 2106 and the settlement agreements.
43
Petitioner requested via email from Indirect Lead Counsel and from one of the Indirect
Defendants counsels the names on each side who were required to be served a copy and
the response was refused through silence so this was the best the petitioner can do.
Indirect Plaintiffs and defendants from docket and the nine settlement agreements:
Mr. Miller, Miller Law Firm 115 South LaSalle Street Ste 2910 Chicago, IL 60603,
three copies the other two for Louis and David Carson, no known address, they can
forward it on.
Richard M. Kerger, Kerger & Hartman 33 South Michigan Street Ste 100 Toledo, OH
43604
Jay B. Shapiro Stearns Weaver Miller Weissler Alhadeff & Sitterson 150 West Flagler
Street Ste 2200 Miami, FL 33130
Robert C. Schubert Schubert & Reed Two Embarcadero Center Ste 1050 San Francisco,
CA 94111
Michael Mustard Barnes &Thornburg LLP 110 East Wayne Street Ste 600 Fort Wayne
IN 46802
John Mayo VP General Counsel HSM 235 2nd Avenue NW Hickory NC 28601
Laurie Novion Shook, Hardy & Brown LLC 2555 Grand Blvd Kansas City, MO 64018
Daniel Warncke Taft Stettinius & Holliste LLP 425 Walnot Street Ste 1800 Cincinnati, Ohio 45202
Daniel Swanson Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angles CA 900713197
Bruce McCulloch Freshfields, Bruckarus ect. LLP 700 13th Street N.W. 10th Floor Washington, DC
20005
Randall Allen Allison & Bird LLP One Atlantic Center 1201 W. Peachtree Street Atlanta, GA 30309
44
Carpenter Company, nothing on docket or address in settlement release. Googled phone number,
called spoke to gentleman in legal department said send it to them. Carpenter Company, Attention
Legal Department 5061 Monument Avenue Richmond VA 23230
Adam Wolfson Quinn, Emanuel, Urquhart etc, 865 South Figueroa Street 10th Floor Los Angeles CA
90017
David Wicklund Shumaker, Loop & Kendrick 100 Jackson Street Toledo Ohio 43604
Eric Wiechmann McCarter & English 185 Asylum Street 36th Floor Hartford, CT 06103
Hollis Salzman Robbins, Kaplan Miller ect. 601 Lexington Avenue Ste 3400 New York, New York
10022
Kurt Rupert Hartzog, Conger Cason ect. 201 Robert S. Kerr Avenue Ste 1600 Oklahoma City, OK
73102
Meegan Hollywood Robins, Kaplan, Miller ect. 601 Lexington Avenue New York, New York 10022
William Blechman Kenny Nachwalter 201 South Biscayne Blvd. Ste 1100 Miami, FL 33131
Kendrall Milard, Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, IN 46204-3535
Edward G. Warin (no firm name) 1650 Farnam Street The Omaha Building Omaha, NE
68102-2186
Michael Steinberg Sullivan & Cromwell LLP 1888 Century Park East Los Angles California 90067
Total 24 copies
I declare under penalty of perjury that the foregoing is true and correct.
, 2016