You are on page 1of 52

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER ANDREWS 9TH Circuit Case No. 17-15067

Appellant,
Originating Case No. 3:10-md-02143-RS
U.S. District Court for Northern
California, San Francisco
In re:

Optical Disk Drive Products


Antitrust Litigation,
______________________

Indirect Purchaser Class,

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

Page 1 of 52
APPELLANT'S INFORMAL BRIEF

Page 1 of informal brief..2

Page 2 of informal brief..3

Page 3 of informal brief..7

Page 4 of informal brief.. .44

Page 5 of informal brief.....49

Table of Contents.9

1. Jurisdiction

a. Timeliness of Appeal:

(i) Date of entry of judgment or order of originating court:

Response: December 19, 2016

(ii) Date of service of any motion made after judgment (other than for fees and costs):

Response: Not Applicable

(iii) Date of entry of order deciding motion:

Response: Not Applicable

(iv) Date notice of appeal filed:

Response: Mailed on January 09, 2017, filed in 9th Circuit on January 13, 2017

Page 2 of 52
9th Cir. Case No. 17-15067

2. What are the facts of your case?

Corporate Disclosures

Christopher Andrews is an individual and makes the following disclosures:

1. Andrews is not a subsidiary or affiliate of a publicly owned corporation.

2. There is no publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome.

Statement of Subject Matter and Appellate Jurisdiction

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-

filed appeal from a final decision.

Appellant Christopher Andrews is a citizen of Michigan, valid class member, objector,

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

the entire 122 million member class.

Page 3 of 52
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

computer. Objector has attempted to obtain information from HP and Office

Depot/OfficeMax but they claim the records only go back five years so he was

unsuccessful. Appellant requested information as to where and whom Class

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.

Page 4 of 52
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

Lobatz, 222 F.3d at 1147.

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

v. Bedolla, 787 F .3d 1218, 1222 (9th Cir. 2015).

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).

Page 5 of 52
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

of discretion. Id.at 1148.

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.

Page 6 of 52
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.

4. State the claim or claims you raised at the originating court.


Response: See starting on next page

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.

Page 7 of 52
Case Background

The class includes individuals and businesses who, as residents of Arizona, California,

District of Columbia, Florida, Hawaii, Kansas, Maine, Massachusetts, Michigan,

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

refers to a DVD-RW, DVD-ROM, or COMBO drive manufactured by one or more

Defendants or their asserted conspirators. Purchases made directly from an ODD

manufacturer and the purchases of Panasonic-branded computers are not included.

The settlements provide for $124.5 million in recovery for class members. Specifically:

The Panasonic Settlement provides for a $16.5 million to a settlement fund.

The NEC Settlement provides for a $6.5 million settlement fund.

The Sony Settlement provides for a $28.5 million settlement fund.

The HLDS Settlement provides for a $73 million settlement fund.

Page 8 of 52
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

Appellants Informal Brief........2


Corporate Disclosures...3
Statement of Subject Matter and Appellate Jurisdiction...3
Questions of Law, Fact, Material Errors and Abuse of Discretion Require Reversal.........6
Case Background...8
Table of Contents..9
Summary of Appeal.10
Houston Weve Had A Problem Here......10
The Material Reversible Issues That Were Raised and Ignored In the Approval Process
Make This Settlement Slam Dunk Invalid and Abuse of Discretion ..11
1.The Service Fees Awarded Violate Three of the Four Settlement Releases........17
Reversible Issues Caused by the Four Settlement Releases18
A. NEC Release...19
B. Sony Release...19
C. HLDS Release....20
D. Panasonic Release Is Unlawful and Violates Rule 23 ...21
2.The Releases Unclear and Ambiguous Language Makes Them Invalid..21
The Zero Claims Take Rate Is a Failure Under Rule 23.25
Awarding A $3.7 million Check for Expenses That Contain No Evidence of their Accuracy,
Validity and Appear Excessive Is Abuse Of Discretion ..27
Attorneys Fees and Nontaxable Costs Awarded Are Excessive ..28
This Is An Ongoing Mega-Fund Settlement So Fees Should Have Been Reduced..30
The Manual of Complex Litigation, 3rd..33
Sealing The Records is Illegal under 9th Circuit and Supreme Court Precedent....35
A. Standard of Review38
B. Argument....39
Rule 23(e) Was Obviously Violated.......40
The Court Failed In Its Fiduciary Duties to Unrepresented Members of the Class42
Table of Authorities.44
Statutes, Rules and Regulations..47
Other Miscellaneous Cites..47
Conclusion..........48
Certificate of Service..50

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

overpaid fees and expenses and is abuse of discretion .

Houston, weve had a problem here

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

Page 11 of 52
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

Process Make This Settlement Invalid and Abuse of Discretion

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

Page 12 of 52
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

hidden fifth amended complaint. https://www.opticaldiskdriveantitrust.com/#three.) Dkt

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

Action Fairness Act. https://www.opticaldiskdriveantitrust.com/#three and see Dkt 1953 pg

2, 51, 52.

Under 28 U.S.C. 1711- 1715 (CAFA) Class Action Fairness Act

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

sections of Rule 23. This they failed to do the following:

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

Page 13 of 52
(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,

adequate and justified. https://www.opticaldiskdriveantitrust.com/#three (for all four

releases). Dkt 1953 pg 19


Electronic payment. Class members can receive damages via electronic payment

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.

Page 14 of 52
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,

2011 and January 1, 2004 to January 1, 2010.

http://www.odddirectpurchaserantitrustsettlement.com/ under (B) last seen 3-15-17. The

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
Page 15 of 52
direct class time period so more damages are required making this approval abuse of

discretion. Dkt. 1953 pg 21-22. https://www.opticaldiskdriveantitrust.com/#three. Last seen

March 15, 2017.

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:

The defendants, members of the immediate families of Defendants, co-conspirators,

named employees in the complaints, 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, successors-in-interest or assigners of

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

is personally involved in for obvious reasons. Dkt. 2009 pg. 2

Paragraph 14 of each of the releases state: In addition to the provisions of Paragraph 13 of

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

Page 16 of 52
Code, which states: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A

GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE

MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR:

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

of HLDS release at https://www.opticaldiskdriveantitrust.com/#three. (Last seen March

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

Page 17 of 52
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

and a $4,500 service award for each of the class representatives.

Three of the settlement releases propose a fee award of $1,500.00 and one release is silent

regarding the awards. https://www.opticaldiskdriveantitrust.com/#three. The amounts

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

Page 18 of 52
$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

falls violating Rule 23. Dkt. 1953 pg 42.

Reversible Issues Caused by the Four Settlement Releases

Each of the named plaintiffs stated in doc 1963-4 Paragraph 4 that:

4. I have reviewed the terms of the settlements with the defendants Panasonic

Corporation, Panasonic Corporation of North America, NEC Corporation, Sony

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

me and the members of the Class.

Page 19 of 52
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

2009 pg 7-9 https://www.opticaldiskdriveantitrust.com/#three.

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

or hidden, without regard to the subsequent discovery or existence of such different or

additional facts.

This is impermissibly overboard.

Panasonics release on page 15 number 23 F under Service Awards states:

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

Page 20 of 52
Settlement Amount in Paragraph 15. Plaintiffs and Lead Counsel agree not to seek a

service award in excess of the above amount.

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

invalidating this release. .

. 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

to a maximum of US $1,500, to be drawn exclusively from the Settlement Fund. Plaintiffs

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

defendants should have objected to invalidating this agreement.

All defendants except Panasonic included the following in their releases;

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.

Panasonic Release Is Unlawful and Violates Rule 23

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

and unlawful under Rule 23(e) thereby invalidating this release.

Panasonics release on page 15 number 23 F under Service Awards also states:

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

Page 22 of 52
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 Releases Unclear and Ambiguous Language Makes Them Invalid

The objection below was filed in the United States District Court for the Northern District

of California Case 4:14-md-02541-CW Document 562 on 02/14/2017.

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,

reversible and abuse of discretion.

II. LEGAL ARGUMENT

A. Standard for Preliminary Approval Under Rule 23(e)

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

settlement entails a two-step process, including a preliminary fairness evaluation, and a

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-

Page 23 of 52
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

as any party has had a chance to object and/or opt out.).

Clarification of a releases scope before preliminary approval is critical to avoid an

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

Page 24 of 52
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

surcharges, imposed to recoup different costs, that were alleged to be

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

beyond the scope of the allegations of the operative complaint is impermissible).

B. The Proposed Settlement Has Obvious Deficiencies and Does Not Fall Within

the Range of Possible Approval

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

writing alone, if possible . . . . When the language of the instrument is unambiguous, we

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

Page 25 of 52
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:

In interpreting an unambiguous contractual provision, the court must give effect to

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

31 (The scope of a release is determined by the intention of the parties as

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

fair, reasonable, adequate, unenforceable and invalid.

The Unknown Claims Take Rate Number Is a Failure under Rule 23

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

Page 26 of 52
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

Page 27 of 52
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

and accurate information and the opportunity to file a claim.

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

be material in making an informed, intelligent decision of whether to opt out or remain a

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.

Manual for Complex Litigation 21.312 (4th ed. 2004).

Accuracy, Validity and Appear Excessive Is Abuse Of Discretion Awarding a $3.7

Million Check for Expenses That Contain No Evidence Of Their

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.

Attorneys Fees and Nontaxable Costs Awarded Are Excessive

Class Counsel was awarded fees of 25% of 124.5 million or $31 million for this still

Page 29 of 52
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

the award which is abuse of discretion.

This from some of the filings in the record:

Over 2,452 examples of collusive activity between the defendants, covering

customers which comprise 71 percent of U.S. purchases of ODDs.


Three separate government enforcement agencies have found the ODD cartel

violated antitrust laws (including the U.S. Department of Justice, Taiwanese Fair Trade

Commission, and the European Commission).


Over 1,267 phone calls between competitors based on phone records.44

recordings of conversations between competitors made during the DOJs criminal

investigation into the ODD cartel.

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

discretion. Dkt 1953 pg 28-30. Dkt 1978 pgs 11-24.

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

pays lawyers like that. Dkt 1978 pg 2 bottom.

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

big no, no. Dkt 1978 pg 3 bottom and pgs 11-24.

This Is an Ongoing Mega-Fund Settlement So Fees Should Have Been Reduced

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

rate for attorney services.

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

attorneys biased fee request. In re CardinalHealth, 528 F. Supp. 2d at 762-63. This

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

10%-14% because this is a megafund settlement. The need to crosscheck a contingent

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

(D.Ariz.1990); In reCorrugated Container Antitrust Litig., 19832 Trade Cas (CCH)

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);

In re Folding Carton Antitrust Litig., 84 F.R.D. 245 (N.D.Ill.1979) ($200 million

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

(MayJune1995)); In re Shell OilRefinery, 155 F.R.D. 552 (E.D.La.1993) ($170 million

settlement fund; 17.92 percent fee award). Accordingly, a declining percentage

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

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

increases. NASDAQ at p. 21.

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

5% over and above $32 million).

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

rights of the claimants. Applicable information encompassing up to 115 separate

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

is from Dkt 2009 pg 11-17 and Exhibit 2 pg 1-17.

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

rule on the appellants motion to unseal records. Dkt 2009 page 5.

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

trade secrets, attorney-client privilege or statutorily mandated confidentiality that

outweighed the public interest in disclosure. And the district court should have set forth

specific findings and conclusions justifying nondisclosure. The sealed documents

undermined the settlement fairness hearing. The sealing prevented the class from

determining whether the settlement was fair, reasonable and adequate.

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

demanding requirements for a seal so the approval was vacated.

The Local Rules for the Northern District of California explicitly state that [r]eference to

a stipulation or protective order that allows a party to designate certain documents as

confidential is not sufficient to establish that a document, or portions thereof, are sealable.

4 N.D. Cal.Civ. R. 79-5(d)(1)(A).

Page 38 of 52
The party that has designated the material confidential must submit a declaration

establishing that the information is privileged, protectable as a trade secret or otherwise

entitled to protection under the law. Id. 79-5(b), (d)(1)(A)

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

LLC filed January 11, 2016

A party seeking to seal a judicial record bears the burden of overcoming a strong

presumption in favor of access to court records by showing compelling reasons,

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

materials attached to a discovery.

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,

however, its underlying legal determination is subject to de novo review. San


Page 39 of 52
Jose Mercury News, Inc. v.U.S. Dist. CourtN.D. Cal. (San Jose), 187 F.3d 1096,

1100 (9th Cir. 1999). We have jurisdiction because an order denying a motion to

unseal or seal documents is appealable either as a final order under 28 U.S.C.

1291 or as a collateral order. Olinerv. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir.

2014) (internal quotation marks and citation omitted).

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

v. Shrader Civ 09cv652 AJB (BGS)

Courts have historically recognized a general right to inspect and copy public

records and documents, including judicial records and documents. Nixon v.

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

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 (9th Circuit. 1995)).

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.

Rule 23(e) Was Obviously Violated

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

responsibilities to each individual member of the class even when negotiating a

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

agreed to by fainthearted or self-interested class representatives. Amchem Products, Inc.v.

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 approval is wrong and is abuse of discretion.

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)

protects unnamed class members from unjust or unfair settlements agreed to by

fainthearted or self-interested class representatives): Reynolds v. Beneficial Natt

Bank, 288 F. 3d 277, 279-80 (7th Cir. 2002) (district judges are to exercise the highest

degree of vigilance in scrutinizing proposed settlements of class actions prior to

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

be no presumption in favor of settlement approval: the proponents of a settlement bear the

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

Principles). Dkt 1953 pg 37-39.

Page 45 of 52
9th Circuit case No. 17-15067

6. Did you present all issues listed in #5 to the originating court?

Response: Yes

7. What law supports these issues on appeal?

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

counsel.) (internal quotation omitted).

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?

Response: Not applicable

I certify under penalty of perjury that all of the above is true and accurate to the best of

my knowledge.

Executed March 16, 2017

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

Case Name: Christopher Andrews, (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. (Appellees)

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