Professional Documents
Culture Documents
Appellant,
Originating Case No. 3:10-md-02143-RS
U.S. District Court for Northern
California, San Francisco
In re:
Plaintiff-Appellee
v.
Christopher Andrews
Objector-Appellant,
v.
Panasonic Corporation
Panasonic Corporation of North America,
NEC Corporation,
Sony Corporation,
Sony Optiarc Inc.,
Sony Optiarc of America, Inc.,
Sony NEC Optiarc, Inc.,
Hitachi Ltd.,
Hitachi-LG Data Storage, Inc.
Hitachi-LG Data Storage Korea,Inc.
Defendants-Appellees
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APPELLANT'S INFORMAL BRIEF
Table of Contents.9
1. Jurisdiction
a. Timeliness of Appeal:
(ii) Date of service of any motion made after judgment (other than for fees and costs):
Response: Mailed on January 09, 2017, filed in 9th Circuit on January 13, 2017
Page 2 of 52
9th Cir. Case No. 17-15067
Corporate Disclosures
2. There is no publicly owned corporation, not a party to the appeal, that has a
The district court in theory had jurisdiction under 28 U.S.C. 1332(d)(2) because this is a
class action where the amount in controversy exceeds $5,000,000 exclusive of costs; many
of the 122 million class members in the twenty three states and District of Columbia class
are citizens of states other than a defendants state of citizenship; and no exception to the
Class Action Fairness Act applies. (More about this theory reference later.)
This court also has appellate jurisdiction under 28 U.S.C. 1291 because this is a timely-
appellant and affirms under penalty of perjury, in accordance with 28 U.S.C. 1746, attests
that the information regarding his class membership is true and correct to the best of his
knowledge, belief and that the objection and appeal are written on behalf of himself and
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On August 23, 2016 the objector received an email from the claims administrator that did
in fact confirm that he did purchase a computer that contained a internal ODD during the
class period. See attached Exhibit 1. During the class period April 01, 2003 and December
31, 2008 he purchased a new Gateway computer for his own use and not for resale or
distribution. The computer was purchased in Troy, Michigan from a Gateway store during
the class period that contained an internal ODD. This was the second Gateway computer
purchased by the objector. Objector paid approximately $500.00 in cash, plus tax for the
computer. Objector did register the computer with Gateway. Gateway corporate was
contacted but to receive information you are required to provide the serial number which is
unavailable due to the fact that computer was disposed of long ago.
Objector also states that he disposed of two non Gateway computers in the spring of 2007.
He believes he purchased at least one of them during the class period which was an HP
Depot/OfficeMax but they claim the records only go back five years so he was
Counsel/Defendants/ Notice Administrator obtained his email address from. This would
also provide additional verification that he falls inside the class definition. Class Counsel
and the administrator refused that request through their silence. Dkt. 1978 pg 2. The
objector filed a claim on August 31, 2016 at 8:38 a.m. See attached Exhibit 2.
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Article III. The objector has standing to object because To have standing, a litigant must
seek relief for an injury that affects [her] in a personal and individual way.
Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v. Defenders of
Wildlife , 504 U.S. 555, 560 n.1 (1992)) The appellant suffered injury (damages) based on
overpaying for the computer due to this optical disk antitrust scheme and also has standing
to appeal a final approval of a class action settlement without the need to intervene
formally in the case. Delvin v. Scardelletti, 536 U.S.1, 122 S. Ct. 2005 (2002). Objector
also contends that Class Counsel and named plaintiffs colluded with the defendants to
orchestrate an excessively high fee award and ignored all the material errors and issues
listed below in exchange for an unfair settlement for the class. Objector meets the
requirements of Article III standing under a constructive common fund theory. See
Under Federal Rule of Civil Procedure 23(e)(2), a district court may approve a class action
settlement only after finding that the settlement is fair, reasonable, and adequate.
The decision to approve a class action settlement is reviewed for abuse of discretion. Allen
We review the factual determinations underlying an award of attorneys fees for clear
error and the legal premises a district court uses to determine an award de novo. Ferland
v. Conrad Credit Corp.,244 F.3d 1145, 1147 48 (9th Cir. 2001) (citation omitted).
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If we conclude that the district court applied the proper legal principles and did not clearly
err in any factual determination, then we review the award of attorneys fees for an abuse
Questions of Law, Fact, Material Errors and Abuse of Discretion Require Reversal
Most fundamentally, as mandated by due process (and enforced through Federal Rule of
Civil Procedure 23), the named plaintiffs interests must in fact be aligned with those of the
class, and the named plaintiffs must adequately represent the interests of the class
throughout the litigation. Taylor v. Sturgell, 553 U.S. 880, 90001 (2008); Hansberry v.
Lee, 311U.S. 32, 4143 (1940). In this approval they are not.
In the 9th Circuit the abuse of discretion test requires a consideration as to whether the
district court identified the correct legal standard for decision of the issue before it. Second,
the test then requires a determination whether the district courts findings of fact, and its
application of those findings of fact to the correct legal standard, were illogical,
implausible, or without support in inferences that may be drawn from facts in the record.
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9th Cir. Case No. 17-15067
3. What did you ask the originating court to do (for example, award damages, give
injunctive relief, etc.)?
Response: Reject the settlement, unseal illegally sealed records, reduce attorney fees,
expenses, provide more details on the expense request that is devoid of anything but basic
information presently, fix the multitude of material reversible errors in the releases and
throughout this settlement which make the approval a mistake of law, violates Rule 23, 9th
Circuit, Supreme Court precedents, violates basic contract law and is clearly abuse of
discretion making it a rubber stamp approval. If the parties had done their job there would
be nothing to object to.
5. What issues are you raising on appeal? What do you think the originating court did
wrong?
Response: See starting on next page. These are the same issues and claims raised in
number four above and again repeated in detail below as they were in the objection and
two supplements that were ignored and/or ruled on incorrectly.
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Case Background
The class includes individuals and businesses who, as residents of Arizona, California,
Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New
York, North Carolina, Oregon, Tennessee, Utah, Vermont, West Virginia, or Wisconsin that,
during the period of April 1, 2003 to December 31, 2008, purchased a new computer with
an internal ODD, a stand-alone ODD designed for internal use in a computer, or an ODD
designed to be attached externally to a computer for their own use and not for resale. ODD
The settlements provide for $124.5 million in recovery for class members. Specifically:
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The four settlements allegedly release Panasonic, NEC, Sony, HLDS, Hitachi, Ltd., LG
Electronics, Inc., and LG Electronics USA, Inc. from claims made in the litigation.
TABLE OF CONTENTS
Page 9 of 52
Page 10 of 52
Summary of Appeal
The terms and provisions of the four Settlement Agreements along with a multitude of
other reversible errors, issues and mistakes of law make the approval legally defective,
unbinding on the class and defendants, unfair, unreasonable, inadequate, are not in the best
interests of each of the Class Members, are not in full compliance with all applicable
requirements of the Rule 23 of the Federal Rules of Civil Procedure, 9th Circuit, Supreme
Court case law, due process, Class Action Fairness Act (CAFA), basic contract law
That famous line sums up this settlement and approval. As of this filing date the following
issues/errors continue to plague this $124.5 million approval that comprise (based on the
appellants research) up to 122 million class members in twenty three states and the
District of Columbia which cause it to be invalid. (It was implied the class was 25 million
based on 25 million emails to be sent out to notify class members but later it was revealed
that there were actually 14.2 million emails addresses with just two print ads to any other
potential claimants). Dkt 1953 pgs 49-52 is above Dkt 1944 on Pacer. The appellant
brought all the issues repeated below to the attention of the lower court and requested to
appear at the Fairness Hearing by telephone, Dkt 2009, and was denied, Dkt 2050. The
court rubber stamped a clearly unlawful settlement without performing the proper amount
of due diligence by failing to review and follow applicable law, rules, procedures and
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precedents. The proof that this settlement was rubber stamped, rushed through and errors
made is the fact the Fairness Hearing for this $124 million still ongoing mega-case
settlement took just 32 minutes, leaving the issues below unaddressed and unresolved. See
Fairness Hearing transcript. The approval of these four deals violates Rule 23(e) and is
abuse of discretion.
There is a saying that if something looks like a duck, walks like a duck, and quacks like a
duck, then it is probably a duck. In re Sorah, 163 F.3d 397, 401 (6th Cir. 1998).
The Material Reversible Issues That Were Raised and Ignored In the Approval
All the issues repeated below, were brought to the attention of Class Counsel, the court and
are located at Dkt. Nos. 1953 located above Dkt 1944 on Pacer, Dkts 1978 and 2009.
There is no justification for this approval, none. This appeal has legs, like Godzillas.
The proposed approval order was not available on the website to review and
possibly object to. Upon reviewing the final approval order it does not state that the court
has jurisdiction over the subject matter of the Action, the Parties, and all persons in the
Settlement Class because that statement is missing, voiding the approval. Dkt. 2133.
The capitalized terms used in the Approval/Order do not have the same meaning as
defined in the Settlement Agreements making the deals unclear, ambiguous and invalid.
Dkt 2133
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Missing from the class website are any of the complaints, including the fifth
amended one for the objector and class members to review because they are apparently
illegally under seal. The class has a right to see what the defendants allegedly did, what
evidence class counsel has uncovered to date which all bears on the whether the class
members should take these four deals or not. The sealing of the records violates 9th Circuit
and Supreme Court law. (see Panasonic release pg 7 six lines from bottom referencing this
1953 pg 17
Missing from the website and Long Notice is the estimated number of the class so
the parties cannot justify the settlement, damages, amount etc. Appellant calculates 107
million additional class members but counsel has no estimate available violating the Class
2, 51, 52.
Defendants are required to estimate using the best available data the number of class
members to help determine if the settlement is fair, reasonable and adequate under all
Under 1711
(7) (A) if feasible, the names of class members who reside in each State and the estimated proportionate
share of the claims of such members to the entire settlement to that States appropriate State official; or
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(B) if the provision of information under subparagraph (A) 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.
https://www.gpo.gov/fdsys/pkg/PLAW-109publ2/pdf/PLAW-109publ2.pdf
Missing is the stated average percentage overcharge/amount of each optical disc
drive and the artificial increase of that price that was caused by this illegal anti-trust
scheme. Without an accurate and provable answer, an approval and settlement amount
cannot be determined by the class members to decide if the amount is fair, reasonable,
mechanism they already have set up but class members who do not have one are out of
luck. Appellant requested that those that do not have an electronic mechanism be able to
receive a post card check instead but the issue remains unaddressed. Dkt 1953 pg 19
Objector requested a copy of any expert reports and/or summaries establishing the
alleged minimum/maximum damages to the class for all the defendants during the class
period but silence was the response. Class Counsel did not post that information to website
for the class to see to allow a review prior to a class member deciding what was the best
course of action to take regarding its claims, cheating the class members of accurate and
timely information they require to decide whether to stay in, opt out or object. The
information is under seal illegally violating 9th Circuit and Supreme Court precedent. Dkt.
1953 pg 12.
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The parties never required claimants to affirmatively agree to the release of claims
when submitting a claim form. Since there is no release with the claim form to review nor
is any referenced or incorporated into it, the claimant is not releasing any claims against
any of the four defendants. The releases do not bind the claimants in any way shape or
form so the defendants do not have a valid binding release making the releases and
approval invalid. In Fairness Hearing Transcript pg 7 @13 there was no packets sent out,
just eleven lines on a page. See also attached Exhibit 3 and Dkt. 1953 pg 49 and same page
@ 15-16. 207 million impressions is misleading and meaningless see Dkt 2009 pg 21-48
maybe a couple of hundred thousand eyeballs equal 207 million impressions but not 207
million people.
The direct class period in the related case was January 01, 2004 to December 31,
indirect class period is April 01, 2003 to December 31, 2008. Logically and legally
speaking the indirect class period should not be harmed for less than the direct class period.
The direct class was overcharged and incurred their damages by overpaying for those disc
drives then installed in the products that were then made available for sale and purchase to
the ultimate retail end user, the indirect class. Indirect class members were still purchasing
the products that were shipped into the indirect retail sales channel long after the direct
class purchased the disks. An extension to the indirect class period is required to match the
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direct class time period so more damages are required making this approval abuse of
There are a group of parties that should have been excluded out of the four
settlement releases but were not allowing bad actors to profit from their scheme such as:
directors, other individuals and entities in which a Defendant has a controlling interest or
such Persons, applicable insurance companys successors, reinsurers and their agents,
federal, state and local government entities. In addition judicial officers including judges,
magistrates presiding over this action, mediators and members of his/her immediate family,
judicial staff within the third degree of consanguinity and counsel for the parties were not
excluded from the class and should be. A court should also not be approving settlements it
this agreement, Releasors expressly waive and release, upon this Agreement becoming
final, any and all provisions, rights, and benefits conferred by 1542 of the California Civil
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Code, which states: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A
The section above is legally binding and enforceable only on male class members and
claimants. It does not apply to females, businesses or other legal entities causing 1542 to be
invalid for two thirds of all class members and claimants making all the releases invalid.
See page 8 of Panasonic release, pg 7 of NEC release, page 8 of Sonys release and page 9
15, 2107.) See Dkt 2009 pg 8-9. Since the four agreements are almost identical with a few
minor exceptions, Class Counsel is the only non variable law firm in the equation in all
four documents so logically that would make class counsel the drafter of the agreements.
Since the parties invoked California Civil Code 1542 (and equivalent, comparable, or
analogous provisions of the laws of the United States of America or any state or territory
thereof, or of the common law or civil law) and there are a multitude of uncertainties and
ambiguous definitions in the four agreements the presumption found in California Civil
Code section 1654 (and equivalent, comparable, or analogous provisions of the laws of the
United States of America or any state or territory thereof, or of the common law or civil
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law) treat uncertainties in a contract as interpreted against the party causing an uncertainty
to exist that is not waived by all parties making the releases fatally conflicted and invalid.
The Service Fees Awarded Violate Three of the Four Settlement Releases
Incentive awards to named plaintiffs were not mentioned nor were amounts disclosed in
the Long Notice Form. This omission makes any opportunity for the class to object to their
size and their possible negative effect on the deals impossible to make, invalidating the
service awards and the approval by tricking the class out of required information that we
needed to file proper objections and evaluate the likelihood of success of our claims.
According to information obtained in one of Class Counsels filing buried deep on the
website Doc 1963 pg 30 of 30, the motion for fees, expenses and service awards, they write
Three of the settlement releases propose a fee award of $1,500.00 and one release is silent
awarded are invalid because three of the defendants did not agree to have the awards taken
out of the settlement fund that were in excess of $1,500.00. At the fairness hearing the
court stated verbally that the service awards were $2,500.00, which Class Counsel had an
obligation to correct and point out that mistake but mislead the class and the court by
omission which is misconduct. See Fairness Hearing Transcript page 7 top of page. The
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$2,500.00 in service awards paid cannot be deducted from the settlement fund which they
have already been via the unethical quick pay provision and is abuse of discretion.
The $2,500.00 fee awarded to each named plaintiff compared to what each unnamed class
member may recover which is $1.00 each if all filed a claim, not $10.00 as stated in the
Long Notice. (122 million members divided by $124 million gross settlement amount).
That means the incentive awards of $2,500.00 that were granted represent 250,000 % more
that unmanned class members are guaranteed to receive vs. what unnamed class members
may receive. No breakdown as to how the service award figure arrived at was provided. It
is way too high and apparently sold the class down the disk river for a quick trip over the
4. I have reviewed the terms of the settlements with the defendants Panasonic
Corporation, Sony Opticare Inc., Sony Opticare America Inc., Hitachi-LG Data Storage,
Inc. Hitachi-LG Data Storage Korea Inc., LG Electronics, Inc. and LG Electronics USA,
Inc. (collectively referred to as the :Settling Defendants), discussed these terms with my
attorneys, and I am aware of and approve all terms of the proposed settlements, as it affects
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The issues below which were raised by the appellant contradict the named plaintiffs
statements above, were ignored by class counsel and the court in this rush to approve. Dkt
NEC Release
Service awards were not mentioned and should be on page 14 after (e) so the class could
not object to the amounts and decide for ourselves whether those awards played a role in
the named plaintiffs endorsing this deal by putting their own interests ahead of the class for
their fee. Payment for Service Awards cannot legally be taken from the fund.
. Sony Release
Sony release is overbroad, page 9 top of page the release states, whether or not concealed
additional facts.
Sony agrees not to oppose a request for service awards to each named plaintiff in the
revised motion for Class Certification, up to a maximum of $1,500, payable from the
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Settlement Amount in Paragraph 15. Plaintiffs and Lead Counsel agree not to seek a
Response: The court awarded $2,500.00 to each named plaintiff. Since class counsel and
the court intentionally provided the named plaintiffs with a windfall, like their attorney fee
award, they violated this section and invalidating this release. No funds for service fees can
be awarded because this defendant has objected to any amount over $1,500.00 and
. HLDS Release
Refers to a 5th amended complaint on page 8 but there is a sixth complaint that was not and
should have been made available to the class on the website but its unlawfully sealed.
Page 17 F Service Awards, number 27. Settling defendants agree not to oppose a request
for service awards to each named plaintiff in the Revised Motion for Class certification, up
and Lead Counsel agree not to seek a service award in excess of the above amount.
Response: HLDSs part of the award cannot come out of the settlement fund because
named plaintiffs were awarded $2,500.00 each not $1,500.00 that was agreed to, which
Page 21 of 52
The Released Claims does not include claims for product defect or personal injury or
breach of contract arising in the ordinary course of business or indirect purchaser claims
for ODDs that were not purchased indirectly from defendants or their alleged co-
conspirators.
Panasonics release is invalid because it does not include the paragraph above and by
default is releasing personal injury claims, product defect and breach of contract that are
not in the complaint making the release overbroad. This is unfair, inadequate, unreasonable
Panasonic agrees not to oppose a request for service awards to each named plaintiff in the
revised motion for Class Certification, up to a maximum of $1,500. Plaintiffs and Lead
Counsel agreed not to seek a service award in excess of the above amount.
Response: The court awarded $2,500.00 violating the agreement made and invalidating this
deal. Since Class Counsel failed to state that if any release is invalid that does not make all
of them invalid, because they are a package deal, this makes this entire settlement as a
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whole unapprovable because Class Counsel did not state otherwise, they are not severable.
Rule 23(a) 4 was also violated by releasing personal injury claims for this one defendant.
The objection below was filed in the United States District Court for the Northern District
This document address the ambiguous and unclear meaning of numerous terms and unfair
conditions created in the four releases above in this case rendering the approval defective,
Rule 23 requires judicial review of any settlement of the claims, issues, or defenses of a
certified class. Fed. R. Civ. P. 23(e). The decision of whether to approve a proposed class action
fairness or final approval hearing. See MANUAL FOR COMPLEX LITIGATION, FOURTH
21.632 (2004).
Importantly, [t]he purpose of Rule 23(e) is to protect the unnamed members of the class from
unjust or unfair settlements affecting their rights. Tijero v. Aaron Bros., Inc., No. C 10-01089,
2012 U.S. Dist. LEXIS 183238, at *20 (N.D. Cal. Jan. 2, 2013) (citing In re Syncor ERISA Litig.,
516 F.3d 1095, 1100 (9th Cir. 2008)). The Courts primary concern in reviewing a class
settlement agreement must be the protection of those class members . . . whose rights may not
have been given due regard by the negotiating parties. Stokes v. Interline Brands, Inc., No. 12-
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cv-05527-JD, 2014 U.S. Dist. LEXIS 111734, at *8 (N.D. Cal. Aug. 12, 2014) (citing Officers
for Justice v.Civil Serv. Commn of S.F., 688 F.2d 615, 624 (9th Cir. 1982)).
Preliminary approval and notice of the proposed settlement to the class are appropriate
only when the settling parties demonstrate that the proposed settlement appears to be the
product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not
improperly grant preferential treatment to class representatives or segments of the class, and falls
with the range of possible approval. In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078,
1079 (N.D. Cal. 2007) (internal quotation marks and citation omitted) (emphasis added); see
also Acosta v.Trans Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007) (To determine whether
preliminary approval is appropriate, the settlement need only be potentially fair, as the Court will
make a final determination of its adequacy at the hearing on the Final Approval, after such time
inadequate settlement notice and violation of the identical predicate rule. If a releases scope is
clarified after the Courts preliminary approval and after class notice is distributed, a change in
the scope could constitute a substantive change in the settlements terms, impacting class
membersrights under the agreement. See Hendricks v. Starkist Co., No. 13-cv-00729 HSG, slip
op. at 2-3,ECF No. 336 (N.D. Cal. Feb. 19, 2016) (Hendricks Opinion) (declining final
approval settlement approval based on inadequate notice due to a change in the releases scope
after preliminary approval). Class notice then fails to satisfy due process requirements because
the parties cannot establish that class members were informed of the consequences of remaining
in the class or opting out. Id. at 3. Settlement Agreements may also release claims based on the
identical factual predicate as the underlying claims even though the claims were not presented
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and might not have been presentable in the class action at that time. See Hesse v. Sprint Corp.,
598 F.3d 381, 590 (9th Cir. 2010). However, as discussed in more detail below, superficial
similarity between the two class actions is insufficient to justify the release of later claims by the
settlement of the former. Id. at 591. The fact that both actions in Hesse involved Sprints
improper billing of government fees to its customers was insufficient to release claims based on
the identical factual predicate, since the factual predicate in each case was different: different
improper for different reasons. Id. See also Hendricks Opinion at 6 (declining to approve a final
settlement in which the scope of the release differs from the scope of liability alleged based on a
similar factual predicate); Willner v. Manpower, Inc., No. 11-cv-02856-JST, 2014 U.S. Dist.
LEXIS 123450, at *22 (N.D. Cal. Sept. 3, 2014) (holding that a release of claims that go
B. The Proposed Settlement Has Obvious Deficiencies and Does Not Fall Within
Preliminary approval of the proposed settlement must be withheld because it has obvious
deficiencies and does not fall within the range of possible approval to the extent it includes an
overbroad release of claims that were neither pled nor litigated by Plaintiffs and for which
Defendants are paying no consideration. For that reason, the release is woefully overbroad and
patently unfair to the class, including Dawson and those he represents in the Dawson Action.
When a contract is reduced to writing, the intention of the parties is to be ascertained from the
determine the parties intent solely by reference to that language. PV Little Italy, LLC v.
MetroWork Condominium Assn, 210 Cal. App. 4th 132, 145-46, (2012) (internal citations
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omitted) (interpreting scope of release of developers rights). In Operating Engineers Pension
Trust Fund v. Clarks Welding & Mach., 688 F. Supp. 2d 902 (N.D. Cal. 2010), this Court
similarly held:
the plain and ordinary meaning of the language used by the parties. Coast Plaza
Doctors Hosp. v. Blue Cross of Cal., 83 Cal. App. 4th 677, 684, 99 Cal. Rptr. 2d
809 (Ct. App. 2000). Where contract language is clear and explicit and does not
lead to absurd results, the court ascertains intent from the written terms and goes
no further. Shaw v. Regents of University of Cal., 58 Cal. App. 4th 44, 53, 67 Cal.
Rptr. 2d 850 (Ct. App. 1997) . . . . That intent is to be inferred, if possible, solely
from the written provisions of the contract. Id.; see also 66 Am. Jur. 2d Release
expressed through a releases terms considering all the facts and circumstances.). Id. at 910
(emphasis added).
The grossly overbroad and defective releases along with the unclear, ambiguous and unfair
terms used throughout the four agreements in this case makes the settlements/approval not
The court wrote in the direct class case in 05-11-15 Upon further consideration, it would be
premature to rule on the fee and incentive payment issues in the absence of information regarding
the number of claims made and the estimated payout per class member. Dkt 1609 @ 21-23. Copy
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attached Exhibit4 also at http://www.odddirectpurchaserantitrustsettlement.com/case-
documents.aspx
Missing in this indirect class case as of 12-6-16 is a declaration to the Court regarding the
final number and dollar amount of claims received as of the Fairness Hearing date. (zero)
This missing information about the response rate should have been disclosed to validate the
effectiveness of the notice program which helps prove adequate notice under Rule 23. If
the missing information was not good enough to approve the direct class settlement at that
time in the direct case why is it OK to approve these deals for the indirect class at this time
with that same exact information missing here? Its not. With the record showing a claims
response rate of zero and since the notice program has not even been completed yet, there
is no way for counsel or the court to prove adequate notice or success under Rule 23. The
class has no idea what they are to receive so there is no legal justification for the approval.
A glaring problem is the claims process runs just 14 weeks before objection deadline
expires and just 21weeks of claims processing time from start of the claims process to the
date of the fairness hearing. The timeline from the final fairness hearing to the end of the
claim period is 28 weeks further into the future leaving over 7 months before the claims
deadline expires. The last day to file a claim is July 01, 2017 so Class Counsel and the
court cannot vouch for the success of the notice program with all that time and claims left
unaccounted for. Since there is absolutely no proof that the notice is adequate or notice
program was, is, or will be successful, the court approve this deal and violated Rule 23 and
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due process. The timing of all this is entirely off. By rushing this deal though numerous
errors have been made at the expense of the class. The lack of any claims result or process
in this case proves and makes for defective notice (see Union Asset Mgmt. Holding A.G. v.
Dell, Inc., 669 F.3d 632, 641 (5th Cir. 2012). Dkt 1953 pg 26 middle.
An unknown number of the 14.7 million emails actually sent out ever never made it to the
In Box, ended up in the Spam box and were never ever opened based on the response
rate. 99% of class members have never viewed the website and were cheated out of timely
Class Counsel and the administrator could have very easily informed the class and court of
the number of actual number of class members who actually opened the emails and how
many filed a claim at the fairness hearing but chose not to disclose those numbers because
they are horribly low and would make the deals unapprovable if known. Had the court
allowed the appellant to attend the hearing via telephone he would have asked that question
and a lot more. Dkt 1953 pgs 25-28 Dkt 2009 Exhibit 3 pg 21-49.
Notice to the class must contain information that a reasonable person would consider to
member of the class and be bound by the final judgment. In re Domestic Air Transp.
Antitrust Litig., 141 F.R.D. 534, 553 (N.D. Ga. 1992). In particular, the notice should
provide information that will enable class members to calculate or at least estimate their
Page 28 of 52
individual recoveries, including estimates of the size of the class and any subclasses.
No one has seen any evidence or receipts of the expenses claimed, not the named
plaintiffs, the unnamed class members or even the court. The court should have at a
minimum requested proof to validate and check the accuracy of the figures before
approving this. Hard evidentiary proof is required that justifies the $3.7 million check.
The cost of the administrator is not included in the notice nor has plaintiffs counsel
broken it down like they should have for review by the Court in its settlement papers and
posted to the website for review by all. Missing is how the experts invoices are
calculated, hourly rates, hours expended etc. to determine if the costs are fair, reasonable
and adequate, what the budget was. No bill paying customer would ever agree to pay these
expenses and unknown hourly rates charged them without being able to see
documentation and evidence. Who does business like this? No one, except class lawyers.
Its stunning that a $3.7 million invoice has no receipts for anyone but the lawyers to
review and is all kept secret. Dkt 1978 pages 3-4 and 11-24.
Class Counsel was awarded fees of 25% of 124.5 million or $31 million for this still
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ongoing mega-fund settlement. It is still too high based on the fact counsel had all the
extensive work performed by the taxpayer funded U.S. Department of Justice, the
Taiwanese Fair Trade Commission, the European Commission and the direct class. Class
counsel received a free ride in fees from settlements that the court ignored when making
violated antitrust laws (including the U.S. Department of Justice, Taiwanese Fair Trade
Counsels risk of recovery was extremely low from the beginning so their fee should have
been reduced to make up for the gift to them. The indirect class was simply handed the
evidence, they piggybacked on the direct classs work along with governments own
results and leveraged all that but and were paid like they had no help at all in this matter.
Class Counsel could have never, ever have come up with all the evidence on their own.
Once some of the defendants plead guilty, than agreed to settle the direct purchaser actions,
Page 30 of 52
settlement of the indirect actions was a foregone conclusion. Therefore due to the low risk
of recovery and results of those settlements the fee awarded is excessive and abuse of
Class Counsel billed class for all the work performed not for each year of the
litigation it was performed in but rather as if it was all performed in 2016, grossly
overbilling the class, cheating it and violating fiduciary duties owed to the class. No one
1099 contract attorneys are being billed at 1100% more than they were paid with the
average being $30 an hour across the country based on publically available advertisements
on craigslist and based on what the objector has reviewed over the past several years for
the $2 million in contract attorney billings. This huge markup in this case should be
treated as costs and even if not treated as costs, the markup is usurious and cannot be
justified. Non attorneys, which are part of the overhead are also billed into the lodestar, a
The following five pages are from Dkt 1953 pgs 30-36.
While 25% may be customary for recoveries less than $50 million, it is an excessive fee for
settlements of greater than $100 million and this case is still ongoing! See, e.g. In re
Page 31 of 52
Synthroid Marketing Litig,. 325 F. 3d 974,980 (7th Cir. 2003) (awarding fee of 20% on $88
million recovery). The court failed to explain why this alternative was not justified.
The median rate for recoveries in the range between $100 million and $250 million is
17.9% and the mean is 16.9%. See Fitzpatrick, an Empirical Study of Class Action
Settlements and Their Fee Awards, at pg. 839. This has been referred to as the market
To avoid the anchoring effect, the Court should have looked primarily to empirical
evidence to determine the appropriate fee award, without reference to IPP Counsels
request. The Court should start its percentage of the fund analysis with an open mind,
unframed by Class counsels fee request. As one court explained, cases that employ the
percentage approach arbitrarily tend to start their analysis with the attorneys' request, rather
than at an objective marker, thereby tending to anchor the Courts analysis to the
anchoring effect allows plaintiffs' counsel to manipulate the fee award they are likely to
receive by simply requesting a higher percentage. Id. at 763. To minimize this problem,
the Court should have looked primarily to empirical evidence to determine the starting
point for an appropriate fee award, not Class Counsels request. See id.
Based on the awards in similar cases, the Court should award Class Counsel no more than
fee against counsels lodestar is particularly important in a megafund case such as this.
Page 32 of 52
Notably, since this not a typical class action, it qualifies as a megafund case. See In re
Prudential Ins. Co. of Am. Sales Practices Litig. , 106 F. Supp. 2d 721, 73536 (D.N.J.
2000) (noting that percentage awards in megafund cases range from 4.1 percent to 17.92
percent of fund and awarding 4.8 percent of fund.); see also In re BaldwinUnitedCorp.
Litig., 1986 WL 12195 (S.D.N.Y.) (attorneys fees constituted 4.1% of the $183.8 million
settlement fund); In re WashingtonPublic Power Supply Sys. Sec. Litig., 779 F.Supp. 1063
65,628 (S.D.Tex. September 1, 1983) (awarding fee of 9 percent of $366, million fund); In
re Agent Orange Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985), (fee award
constituted 5.5 percent fee of the $180 million settlement fund); In re MGM Grand Hotel
Fire Litig., 660 F.Supp. 522 (D.Nev.1987), (fee award constituted 7 percent fee of the $205
million settlement fund.); In re Washington Public Power Supply Sys. Sec. Litig.
(WPSS), 19 F.3d 1291, 1297, 1301 (9th Cir.1994) ($687 million settlement fund; 4.658
percent fee award reversed and remanded because district court abused its discretion in
refusing to award a risk multiplier; court indicated that a greater award was appropriate);
settlement fund; 6.6 percent fee award); In re Nasdaq MarketMakersAntitrust Litig ., 187
F.R.D. 465 (S.D.N.Y. 1998) (awarding fees and expenses of 14.4 percent of the common
fund); Bowling v. Pfizer, 922 F.Supp. 1261, 128384 (S.D. Ohio 1996) ($102.5 million
settlement fund; 10 percent fee award plus separate award of up to 10 percent of all future
Page 33 of 52
contributions to settlement fund); Sioux Nation of Indians v. United States, 227 Ct.Cl. 404,
650 F.2d 244, 247 (1981) ($106 million settlement fund; 10 percent fee award); Stender v.
Lucky Stores, Inc., No. 88cv1467 (N.D.Cal. Apr. 20, 1994) ($107 million settlement; fees
and costs consumed 12.8% of recovery) (reported in 18 Class Action Reports 338
approach is certainly warranted here. The rationale for this approach is to account for
economies of scale: In many instances the increase [in fund size] is merely a factor of the
size of the class and has no direct relationship to the efforts of counsel . See, In re Nasdaq
, 187 F.R.D. at 486. In the Lehman case 7-3-12 in which this objector filed the sole
objection, the court awarded 16% of $516 million settlement, in Lehman Brothers
Securities and ERISA Litigation SDNY 1:09-md-02017 In the Citigroup Inc. Securities
Litigation 1:09-md-02070 SDNY 8-1-13 counsel was awarded 12% of $590 million.
The fee sought here by lead counsel far exceeds what is customarily awarded when
applying the percentage of fund method in cases of this magnitude, its too large given
the work performed by the attorneys, its too large given lead counsels actual risk of non
recovery, its out of line with fees in similar cases it had government players and it fails a
lodestar cross-check. No multiplier should have been added based on government actions.
The Manual of Complex Litigation, 3rd , speaks to the issue fees in mega fund cases.
Page 34 of 52
Use of the lodestar may be more appropriate than the percentage of the fund method where
the fund is extraordinarily large. As with percentage fees, an award of attorneys fees under
the lodestar method should fairly compensate the attorney for the reasonable value of the
services beneficially rendered, based on the circumstances of the particular case, (emphasis
added) Manual for Complex Litigation, 3rd , pp. 197201,24.121 & 24.122.
Thus, there is no sound basis for awarding class counsels fee based purely on counsels
lodestar. Regardless, should the Court be inclined to award fees based on the percentage
approach, counsel should at the least be required to fully substantiate their fees by
reference to the above factors listed in the Manual for Complex Litigation.
Also on point is In re: NASDAQ Market Makers Antitrust Litigation, U.S.D.C., So. Dist.
NY, 187 F.R.D. 465; 1998 U.S. Dist. LEXIS 17557; 19982 Trade Cas. (CCH) P72, 337
(Decided 11/9/98) In this landmark case, U.S. District Judge Robert W. Sweet did an
exhaustive analysis of attorneys fees in mega fund cases. The Court reasoned that the
beginning point in any class action settlement is assessing fees from a common fund is to
determine the true value of the settlement, and then he stated, 25% . . . is not the
benchmark for circumstances, the percentage will decrease as the size of the fund
The NASDAQ Court went on to state, where the fund is unusually large, some Courts have
used a sliding scale, with the percentage decreasing as the magnitude of the fund increased
. . . citing Manual for Complex Litigation , 3 rd, 24.12 at 189, Fed. Jud. Ctr. (1995)
Page 35 of 52
(citations omitted); See, e.g ., Branch v. FDIC, 1998 U.S. Dist. LEXIS 7815, 1998 WL
151249 (March 23, 1998) (applying 14% to $22 million; 12% of the next $10 million, and
The NASDAQ Court continued, this sliding scale is explained in part by economics of
scale . . . it is generally not 150 times more difficult to prepare, try and settle a $150
million case than it is to try a $1 million case. As noted in In re:First Fidelity Securities
Litigation, 750 F. Supp. 160 (D.N.J. 1990), there is considerable merit to reducing the
percentage as the size of the fund increases. In many instances, the increase is merely a
factor of the size of the class and has no direct relationship to the efforts of counsel, Id .,
at 164 n.1.
This procedure was adopted in the Third Circuit in In re: Prudential Insurance Company
America Sales Practice Litigation Agent Actions; et al. U.S. Ct. App., 3 rd Cir., 148 F. 3d
283; 1998 U.S. App. LEXIS 17057; 41 Fed. R. Serv. 3d (Callaghan) 596 (1998); Cert. Den.
1/1999, where the court awarded, in a mega fund case awarded a fee of 6.7%.
The fee paid to class counsel in the present case represents a gross windfall to counsel.
Sealing the Records is Illegal under 9th Circuit and Supreme Court Precedent
The appellant filed a motion to unseal records Dkt 2009 pg. 5-43 plus 48 pages exhibit
which the court and Class Counsel ignored. The parties conflated the discovery order and
sealing the records, a vast difference in requirements between both, violating due process
Page 36 of 52
documents are under seal improperly that class members should have had access to so
sealing the records, like the complaints and amended complaints and the damage report
making the sealing of the records abuse of discretion. The appellant requested the damage
report and the response from the defendants and class counsel was silence. The following
The Court relied on information in sealed documents which obviously played a role in the
Courts decision to grant preliminary approval and played a role in the final approval
process. Therefore the class has a right to see and read any improperly sealed documents
(like the experts damage report as well as hidden documents that should have been placed
on the Administrators website) to use in our decisions as to what action to take and the
likely hood of success is on our claims for ourselves. The 122 million class members could
not view the documents. Appellant has raised the issue of unsealing records in his objection
and supplement and Class Counsel did not responded regarding the expert damage
report(s) that is sealed and should be allowed to become public and posted to the
administrators website class so the class and objector can review them. The court failed to
In antitrust cases like this one specifically, this interest focuses both on the result of the
case and the actual conduct that gave rise to the case. Accordingly, courts can only seal
court filings when the requesting party has demonstrated the most compelling reasons to do
so. Similarly, the district courts order granting a sealing request must set forth specific
Page 37 of 52
factual findings and legal conclusions to justify the sealing, even when both parties agree
to the request to seal. The parties should have shown some compelling interest in secrecy
outweighed the public interest in disclosure. And the district court should have set forth
undermined the settlement fairness hearing. The sealing prevented the class from
In the 6th Circuit Shane Group, Inc. et al v. Blue Cross Blue Shield of Michigan, Nos. 15-
1544/1551/1552, Op., June 7, 2016 ( Dkt. 38-2) that this objector was an appellant in the
6Th Circuit ruled that the objectors could not assess the fairness of the settlement or raise
sufficient objections without reviewing the sealed documents. The information designated
as Confidential Information including depositions and excerpt(s) may not meet the
The Local Rules for the Northern District of California explicitly state that [r]eference to
confidential is not sufficient to establish that a document, or portions thereof, are sealable.
Page 38 of 52
The party that has designated the material confidential must submit a declaration
The Court relied on information in sealed documents which obviously played a role in the
Courts decision to grant preliminary approval and played a role in the final approval
process. Therefore the class as a right to see and read any improperly sealed documents to
use in our decisions as to what action to take and the like hood of success is on our claims
for ourselves.
This from the 9th Circuit, case No. 15-55084, Center for Auto Safety v. Chrysler Group
A party seeking to seal a judicial record bears the burden of overcoming a strong
and the court must then balance the compelling interests of the public and the
party seeking to keep the judicial record secret. Under an exception for sealed
Standard of Review
The Court reviews a district courts decision to unseal court records for an abuse
of discretion. Blum v. Merrill LynchPierce Fenner & Smith, Inc., 712 F.3d 1349,
1352 (9th Cir.2013). Where the district courts decision turns on a legal question,
1100 (9th Cir. 1999). We have jurisdiction because an order denying a motion to
1291 or as a collateral order. Olinerv. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir.
The unnamed class members never saw the sealed documents, like the damage reports, that
they had a right to see when determining the best course of action to take regarding their
claims and whether they should accept the amount offered to them. The named plaintiffs
apparently never saw the sealed documents either because the named plaintiffs never
charged the class for the time it would have take them to individually review all 115 plus
sealed documents, those being Dkt. 1623,1677, 1747, 1748. The court failed to properly
justify the sealing of each of these documents in violation of 9th Circuit and Supreme Court
precedent making the approval unlawful, reversible error and abuse of discretion.
Argument
The objector states that the following observation made in this Circuit also applies. This
from the US District Court S.D. California by Anthony J. Battaglia 2013 WL 6190895 Rich
Courts have historically recognized a general right to inspect and copy public
Page 40 of 52
Warner Commcns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2nd
570 (1978). Unless a particular court record is one traditionally kept secret, a
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
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
That was not done in this case. The class and general public have a right to know how, why
and the mechanics of this illegal action. We the class members have a right to individually
view and read any improperly, applicable sealed information like the expert damage report,
before making a decision as to the best course of action to take regarding our claims and
likelihood of success before are rights are extinguished forever. Any records improperly
sealed should have been unsealed for the class to review and posted to the settlement
Page 41 of 52
website before any approval was considered and made as the appellant requested but the
court failed to justify sealing of the records making these four approvals unlawful. When
you negotiate a settlement you cant keep the foundation or the reasons for that settlement
secret from up to 122 million people that are going to be affected by it.
The district court must ensure that the representative plaintiff fulfills his fiduciary duty
toward the absent class members Diaz v. Trust Territory of Pacific Islands, 876 F.2d 1401,
1408 (9th Cir. 1989). The class is not the client. The class attorney continues to have
settlement. Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 835 (9th Cir.
1976).
Rule 23(e) inquiry protects unnamed class members from unjust or unfair settlements
Windsor, 521 U.S. 591, 594 (1997). And in reviewing settlements, courts have a duty to
protect the interests of absent class members. Silber v. Mabon, 957 F.2d 697, 701(9th Cir.
1992); see also Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir. 1987)
(In approving a proposed class action settlement, the district court has a fiduciary
responsibility to ensure that the settlement is fair and not a product of collusion, and that
the class members interests were represented adequately.). Dkt 1953 pg 37 -52
Page 42 of 52
The fairness of the settlement must be evaluated primarily based on how it compensates
class members not on whether it provides relief to other people, much less on whether
it interferes with the defendants marketing plans. Synfuel Techs., Inc. v. DHL Express
(USA) Inc., 463 F.3d 646, 654 (7th Cir. 2006) (emphasis added); see also, e.g., Katrina
Canal Breaches Litg., 628 F.3d at 195; Gen. Motors Pickup Litg., 55 F.3d at 80912.
The law relies upon the fiduciary obligation[s] of the class representatives and,
especially, class counsel, to protect those interests. Creative Montessori Learning Ctrs. V.
Ashford Gear LLC, 662 F.3d 913, 917 (7th Cir. 2011).
Upon review of the record pursuant to the factors identified in Officers for Justice v. Civil
Serv. Comm'n, 688 F.2d 615, 625 (9th Cir.1982) and Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026 (9th Cir.1998), the Court failed to find that the terms and provisions of the four
Settlement Agreements have been entered into in good faith, and are fair, reasonable, and
adequate, in the best interest of each of the Class Members, and in full compliance with all
applicable requirements of the Federal Rules of Civil Procedure, the Rules of the Court,
due process, basic contract law and any other applicable law. The evidence clearly shows
The Court Failed In Its Fiduciary Duties to Unrepresented Members of the Class
A district court must act as a fiduciary for the class, with a jealous regard for the rights
and interests of absent class members. In Mercury Interactive Corp., 618 F. 3rd 988, 994-95
Page 43 of 52
(9th Cir. 2010) (quoting In re Washington Pub. Power Supply Systems Lit. 19 F. 3d 1291,
1302 (9th Cir 1994)). Both the United States Supreme Court and the Court of Appeals
have repeatedly emphasized the important duties and responsibilities that devolve upon a
district court pursuant to Rule 23(e) prior to final adjudication and settlement of a class
action suit. In re Relafen Antitrust Litigation, 360 F. Supp.2d 166, 192-94 (D.Mass. 2005),
citing inter alia Amchem Prods., Inc v Windsor, 521 U.S. 591, 617, 623 (1997) (Rule 23(e)
Bank, 288 F. 3d 277, 279-80 (7th Cir. 2002) (district judges are to exercise the highest
settlement). Dkt 1953 37-38. The court cannot accept a settlement that the proponents
have not shown to be fair, reasonable and adequate. In re General Motors Corp, Pick-Up
Truck Fuel Tank Prod. Liab. Litig., 55F. 3d 768, 785 (3d Cir. 1995) (quoting Grunin v
International House of Pancakes, 513 f. 2d 114, 123 (8th Cir.1975)). A trial court has a
continuing duty in a class action cases to scrutinize the class attorney to see that he or she
is adequately protecting the interests of the class. The district court must ensure that the
representative plaintiff fulfils his fiduciary toward the absent class members. There should
burden of proving its fairness. True v American Honda co. 749 F. Supp. 2nd 1052, 1080
(C.D.Cal. 2010) (citing 4 Newberg on Class actions $ 11:42 (4th ed 2009)). Accord
Page 44 of 52
American Law Institute Principles of the Law of Aggregate Litig. $3.05 (2010) (Ali
Page 45 of 52
9th Circuit case No. 17-15067
Response: Yes
Table of Authorities
Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v. Defenders of
Wildlife , 504 U.S. 555, 560 n.1 (1992))....5
Delvin v. Scardelletti, 536 U.S.1, 122 S. Ct. 2005 (2002).....5
Lobatz, 222 F.3d at 1147....5
Diaz v. Trust Territory of Pacific Islands, 876 F.2d 1401, 1408 (9th Cir. 1989).39
Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 835 (9th Cir. 1976)..39
Allen v. Bedolla, 787 F .3d 1218, 1222 (9th Cir. 2015)5
Ferland v. Conrad Credit Corp.,244 F.3d 1145, 1147 48 (9th Cir. 2001) ..5
Taylor v. Sturgell, 553 U.S. 880, 90001 (2008)..6
Hansberry v. Lee, 311U.S. 32, 4143 (1940).....6
Sorah, 163 F.3d 397, 401 (6th Cir. 1998).11
United States District Court for the Northern District of California Case 4:14-md-02541-
CW Document 562 on 02/14/2017...21
Tijero v. Aaron Bros., Inc., No. C 10-01089,2012 U.S. Dist. LEXIS 183238, at *20 (N.D.
Cal. Jan. 2, 2013) (citing In re Syncor ERISA Litig.,516 F.3d 1095, 1100 (9th Cir.200822
Stokes v. Interline Brands, Inc., No. 12-cv-05527-JD, 2014 U.S. Dist. LEXIS 111734, at *8
(N.D. Cal. Aug. 12, 2014) (citing Officers for Justice v.Civil Serv. Commn of S.F., 688 F.2d
615, 624 (9th Cir. 1982))22
Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007)..23
Acosta v.Trans Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007)23
Hendricks v. Starkist Co., No. 13-cv-00729 HSG, slip op. at 2-3,ECF No. 336 (N.D. Cal.
Feb. 19, 2016)23
Hesse v. Sprint Corp., 598 F.3d 381, 590 (9th Cir. 2010).23
Willner v. Manpower, Inc., No. 11-cv-02856-JST, 2014 U.S. Dist. LEXIS 123450, at *22
(N.D. Cal. Sept. 3, 2014)...24
PV Little Italy, LLC v.MetroWork Condominium Assn, 210 Cal. App. 4th 132, 145-46.24
Operating Engineers PensionTrust Fund v. Clarks Welding & Mach., 688 F. Supp. 2d 902
(N.D. Cal. 2010)24
Page 46 of 52
Coast PlazaDoctors Hosp. v. Blue Cross of Cal., 83 Cal. App. 4th 677, 684, 99 Cal. Rptr.
2d 809 (Ct. App. 2000).24
Shaw v. Regents of University of Cal., 58 Cal. App. 4th 44, 53, 67 Cal.Rptr. 2d 850 (Ct.
App. 1997)25
Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 641 (5th Cir. 2012)25
Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 641 (5th Cir. 2012)26
Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534, 553 (N.D. Ga. 1992).27
Synthroid Marketing Litig,. 325 F. 3d 974,980 (7th Cir. 2003).30
CardinalHealth, 528 F. Supp. 2d at 762-63..31
Prudential Ins. Co. of Am. Sales Practices Litig. , 106 F. Supp. 2d 721, 73536 (D.N.J.
2000)..31
BaldwinUnitedCorp. Litig., 1986 WL 12195 (S.D.N.Y.).31
WashingtonPublic Power Supply Sys. Sec. Litig., 779 F.Supp. 1063 (D.Ariz.199031
Corrugated Container Antitrust Litig., 19832 Trade Cas (CCH) 65,628 (S.D.Tex.
September 1, 1983)..31
Agent Orange Prod. Liab. Litig., 611 F.Supp. 1296 (E.D.N.Y.1985.31
MGM Grand Hotel Fire Litig., 660 F.Supp. 522 (D.Nev.1987..32
Washington Public Power Supply Sys. Sec. Litig. (WPSS), 19 F.3d 1291, 1297, 1301 (9th
Cir.1994)..32
Folding Carton Antitrust Litig., 84 F.R.D. 245 (N.D.Ill.1979)..32
Nasdaq MarketMakersAntitrust Litig ., 187 F.R.D. 465 (S.D.N.Y. 1998)..32
Sioux Nation of Indians v. United States, 227 Ct.Cl. 404, 650 F.2d 244, 247 (1981)32
Stender v. Lucky Stores, Inc., No. 88cv1467 (N.D.Cal. Apr. 20, 1994).32
Shell OilRefinery, 155 F.R.D. 552 (E.D.La.1993)..32
Nasdaq , 187 F.R.D. at 486..32
Lehman Brothers Securities and ERISA Litigation SDNY 1:09-md-02017..33
Citigroup Inc. Securities Litigation 1:09-md-02070 SDNY 8-1-1333
NASDAQ Market Makers Antitrust Litigation, U.S.D.C., So. Dist. NY, 187 F.R.D. 465;
1998 U.S. Dist. LEXIS 17557; 19982 Trade Cas. (CCH) P72, 337..34
Branch v. FDIC, 1998 U.S. Dist. LEXIS 7815, 1998 WL 151249 (March 23, 1998)..34
First Fidelity Securities Litigation, 750 F. Supp. 160 (D.N.J. 1990).34
Prudential Insurance Company America Sales Practice Litigation Agent Actions; et al.
Shane Group, Inc. et al v. Blue Cross Blue Shield of Michigan, Nos. 15-1544/1551/1552,
Op., June 7, 2016 ( Dkt. 38-2)37
Center for Auto Safety v. Chrysler Group LLC filed January 11, 2016, 9th Circuit, case No.
15-55084..37
Blum v. Merrill LynchPierce Fenner & Smith, Inc., 712 F.3d 1349, 1352 (9th Cir.2013)..38
San Jose Mercury News, Inc. v.U.S. Dist. CourtN.D. Cal. (San Jose), 187 F.3d 1096,
1100 (9th Cir. 1999)...38
Page 47 of 52
Olinerv. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014)..38
Rich v. Shrader Civ 09cv652 AJB (BGS)..39
Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2nd
570 (1978)39
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))39
Hagestad v. Tragesser, 49 F. 3d 1430, 1434 (9th Circuit. 1995)).40
Diaz v. Trust Territory of Pacific Islands, 876 F.2d 1401, 1408 (9th Cir. 1989)40
Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 835 (9th Cir. 1976)..41
Amchem Products, Inc.v. Windsor, 521 U.S. 591, 594 (1997).41
Silber v. Mabon, 957 F.2d 697, 701(9th Cir. 1992); see also Grant v. Bethlehem Steel
Corp., 823 F.2d 20, 22 (2d Cir. 1987)..41
Synfuel Techs., Inc. v. DHL Express (USA) Inc., 463 F.3d 646, 654 (7th Cir. 2006)41
Katrina Canal Breaches Litg., 628 F.3d at 19541
Gen. Motors Pickup Litg., 55 F.3d at 80912..41
Creative Montessori Learning Ctrs. V.Ashford Gear LLC, 662 F.3d 913, 917 (7th Cir.
2011)....41
Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir.1982) and Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998)..41
Mercury Interactive Corp., 618 F. 3rd 988, 994-95 (9th Cir. 2010) (quoting In re Washington
Pub. Power Supply Systems Lit. 19 F. 3d 1291, 1302 (9th Cir 1994))..42
Relafen Antitrust Litigation, 360 F. Supp.2d 166, 192-94 (D.Mass. 2005), citing inter alia
Amchem Prods., Inc v Windsor, 521 U.S. 591, 617, 623 (1997)..42
Reynolds v. Beneficial Natt Bank, 288 F. 3d 277, 279-80 (7th Cir. 2002)42
General Motors Corp, Pick-Up Truck Fuel Tank Prod. Liab. Litig., 55F. 3d 768, 785 (3d
Cir. 1995) (quoting Grunin v International House of Pancakes, 513 f. 2d 114, 123 (8th
Cir.1975))43
True v American Honda co. 749 F. Supp. 2nd 1052, 1080 (C.D.Cal. 2010) (citing 4
Newberg on Class actions $ 11:42 (4th ed 2009))...43
Page 48 of 52
Statutes, Rules and Regulations
28 U.S.C. 1332(d)(2).3
28 U.S.C. 1291.3
28 U.S.C. 1746.3
28 U.S.C. 1711- 1715 (CAFA) Class Action Fairness Act.12
Federal Rule of Civil Procedure 23.6
Rule 23(e)..42
Rule 23(a)4.21
Fed. R. Civ. P. 23(e)..22
28 U.S.C. 1711- 1715 (CAFA) Class Action Fairness Act.....12
1542 of the California Civil Code..15
California Civil Code section 1654.15
4 N.D. Cal.Civ. R. 79-5(d)(1)(A)34
Id. 79-5(b), (d)(1)(A)..35
Other Miscellaneous Cites
https://www.opticaldiskdriveantitrust.com/#three (valid as of March 15, 2017 this is the
class action website see under documents for releases. 12, 13, 16, 18
https://www.gpo.gov/fdsys/pkg/PLAW-109publ2/pdf/PLAW-109publ2.pdfFairness 13
.http://www.odddirectpurchaserantitrustsettlement.com/case-documents.aspx....,......14,25
MANUAL FOR COMPLEX LITIGATION, FOURTH 21.632 (2004)...22
66 Am. Jur. 2d Release 31..25
Manual for Complex Litigation 21.312 (4th ed. 2004).27
Fitzpatrick, an Empirical Study of Class Action Settlements and Their Fee Awards, at pg.
83930
The Manual of Complex Litigation, 3rd...33
4 N.D. Cal.Civ. R. 79-5(d)(1)(A).37
Id. 79-5(b), (d)(1)(A)37
Page 49 of 52
Conclusion
Class Counsel and the court breached their fiduciary duties to the class, by agreeing to and
making an unacceptable number of material reversible errors and leaving out and
overlooking numerous provisions in the four releases against the best interests of unnamed
class members so they fallen way short of the undivided loyalties counsel and the court
must have toward unnamed class members under Rule 23(g)(4). See Rodriguez v. West
Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009) (The responsibility of class counsel to
absent class members...does not permit even the appearance of divided loyalties of
For all the reasons stated above this Court should reverse the approval because of all the
material errors and abuse of discretion that has taken place, order the unsealing of all
improperly sealed records, rule that the four settlement agreements are all defective,
unlawful and unbinding on the class and defendants, correct the multitude of other material
errors listed above, provide any other instructions for the district court to follow, like
sanctions for misleading the class and court by omission in the service award trick, reduce
fees and expenses, as well as any other relief the Court deems appropriate and necessary.
The 122 million unnamed class members need your help in reversing this awful approval.
On the bright side though Class Counsel and the named plaintiffs have their inflated $35
million in fees, expenses and service awards already via a quick pay provision and the
court has a clear docket regarding these four defendants. Thank you.
Page 50 of 52
9th Cir. Case No. 17-15067
8. Do you have any other cases pending in this court? If so, give the name and docket
number of each case.
Response: No
9. Have you filed any previous cases which have been decided by this court? If so, give the
name and docket number of each case.
Response: No
10. For prisoners, did you exhaust all administrative remedies for each claim prior to filing
your complaint in the district court?
I certify under penalty of perjury that all of the above is true and accurate to the best of
my knowledge.
Christopher Andrews
PO Box 530394
Livonia, MI 48153-0394
Telephone 248-635-3810
Email: caaloa@gmail.com
Pro se Appellant
Page 51 of 52
9th Cir. Case No. 17-15067
CERTIFICATE OF SERVICE
I certify that a copy of this forty nine page appeal brief and 8 copies including three pages
of attachments to the 9th Circuit Appeals Court via USPS Priority Mail and one copy each
was sent to the parties listed below via USPS First Class Mail on March 16, 2107.
Christopher Andrews
PO Box 530394
Livonia, MI 48153-0394
Telephone 248-635-3810
Email: caaloa@gmail.com
Pro se Appellant
Winston & Strawn LLP Attention: Jeffrey Kessler, Attorneys for Panasonic Corp and Panasonic Corp of
North America 200 Park Avenue New York, New York 10166
Winston & Strawn LLLP Attention: Robert Pringle, Attorneys for NEC Corporation 101 California Street,
Suite 3500 San Francisco, CA 94111
Boies, Schiller & Flexner LLP Attention: John Cove Jr,. Attorneys for Sony Corp, Sony Optiare America,
Inc., Sony Optiarc, Inc. 1999 Harrison Street, Suite 900 Oakland, CA 94612
Ropes & Gray LLP Attention: Mark Popofsky, Attorneys for Hitachi-LG Data Storage, Inc. and Hitachi-
LG Data Storage Korea, Inc. Three Embarcadero Center Suite 200 San Francisco, CA 94111
Hagens, Berman, Sobol Shapiro LLP Class Counsel, Attention: Steve Berman, 1918 Eighth Avenue, Suite
3300 Seattle WA 98101
Page 52 of 52