IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW EDWARDS, ET AL., No. 17-16459

Plaintiffs-Appellees, D.C. Nos. 4:11-cv-04766-JSW

4:11-cv-04791-JSW
4:11-cv-0523-JSW
v. Northern District Of California
Oakland
CHRISTOPHER ANDREWS Judge Jeffrey S. White
Objector – Appellant,
v.

NATIONAL MILK PRODUCERS

FEDERATION, AKA Cooperatives

Working Together; et al.,

Defendants-Appellees

APPELLANT CHRISTOPHER ANDREWS INFORMAL APPEAL BRIEF

Page 1 of 48
 Request for Oral Argument

Per FRAP 34(a)(1) the appellant requests oral argument in this case. One of the three

issues has not been raised and ruled on by this circuit in approximately thirty eight years.

It’s time that district courts are provided updated guidance so plainly defective approvals

like this one are not rubber stamped for the sake of expediency or to save face.

A favorable ruling will get the 73 million unmanned class members out of this biased,

error strewn, abuse of discretion approval that violates 9th Circuit, Supreme Court case law

and due process rights of the entire class.

Page 2 of 48
 Table Of Contents

Request For Oral Argument…………………………………………………….……….…2

Page 1 Of Informal Brief………………………………………………………….………..4
Corporate Disclosure…………………………………………………………………........5
Statement of Subject Matter And Appellate Jurisdiction…………………………….……5
Three Unresolved Issues In The Objection That Need To Be Addressed In This Appeal..6
The Appellant Has Standing To Appeal …………………………………….……..…......7
Standard of Review And Abuse of Discretion Test In The 9th Circuit……………………9
Page 2 Of Informal Brief………………………………………………………………….11
Page 3 Of Informal Brief -Case Background And The Missing Start And End Day Of The
Class Period……………………………………………………………………………....12
Violations of Rule 23……………………………………………………………………..13
Lack Of Spanish Translation of the Long Notice, Legal Notice and Claim Form For Up To
8.7 Million Potential Class Members Who Only Speak Spanish and Can’t Read the
English Only Notice, Can’t Fill Out/File A Claim, Opt Out Form Or Be Heard Causes The
Approval To Violate Rule 23(e)(1), 23(e)(2), Rule 23(c)(2), Rule 23(c)(2)(b) And Violates
Due Process……………………………………………………………………...14
Spanish Speaking State Statistics…………………………………………………………20
Incentive Awards Violate 9th Circuit Case Law………………………………………..…23
Sealing the Damage Report Is Illegal Under 9th Circuit and Supreme Court Law……….27
Standard Of Review…………………………………………………………………..…..30
A. Argument………………………………………………………………………………31
The Settlement Is Not Fair, Reasonable and Adequate Under Rule 23…………….……32
The Harmful Errors By All The Parties Invalidate This Approval………………………33
Inadequacy of Representation ……………………………………………………………35
Hagens Berman, The Named Plaintiffs And The Court Failed In Their Fiduciary Duties
Owed To The Class Based On The Errors Raised By The Appellant In His Objection….36
Page 4 Of Informal Brief……………………………………………………………..….39
Table of Authorities…………………………………………………………………..…..39
Statutes, Rules, Regulations and Other Cites………………………………………….….43
Conclusion And Request For Relief……………………………………………………...45
Page 5 Of Informal Brief………………………………………………………………….46
Certificate Of Service…………………………………………………………………..…47

Page 3 of 48
9th Circuit Case No. 17-16459
Page 1 of Informal Brief
1. Jurisdiction

a. Timeliness of Appeal:

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

Response: Doc 485, 486 and 487 all dated June 26, 2017

(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 July 13, 2017

Page 4 of 48
 Corporate Disclosure

Christopher Andrews is an individual, non attorney, and not a corporation

Statement of Subject Matter and Appellate Jurisdiction

The district court 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; with many

of the 73 million class members in the class states. The class members are citizens of

states other than a defendant’s state of citizenship; and no exception to the Class Action

Fairness Act applies. This court has appellate jurisdiction under 28 U.S.C. § 1291 because

this is an appeal from a final approval order.

Three Unresolved Issues In The Objection That Need To Be Addressed In This

Page 5 of 48
Appeal

Question: Does the failure to have a tab on the class website to simply change the English

Notice, Legal Notice and Claim Form into Spanish for approximately 8.7 million class

members who have a hard time speaking, let alone reading English, violate Rule 23(c)(2),

Fed. R. 23 c (2)(b) notice requirements, Rule 23(e), due process and/or constitute abuse of

discretion by the district court? Answer: Yes.

Question: Does the disparity between the $5,000.00 Incentive Awards granted by the court

to each named plaintiff compared to the $30.00 ish the individual unnamed class members

were each advised they might receive for their individualized damages, serve as a

disincentive for the named class members to care little about the relief offered to the

individual unnamed class members thus constituting abuse of discretion by the district

court under 9th Circuit case law? Answer: Yes.

Question: Did the appellant and 73 million member class have the right to review the

expert damage report that should have been on the website that the class is paying for

before deciding what action to take regarding his/our claims, so was the document

illegally sealed under 9th Circuit, Supreme Court case law and due process under the

Constitution constituting abuse of discretion by the court? Answer: Yes

Page 6 of 48
 The Appellant Has Standing To Appeal

Article III.

To establish Article III standing, the plaintiff must show that it has “(1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1549 (2016). Id. at 1547. 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 milk.

The appellant 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 meets the requirements of Article III standing under a

“constructive common fund theory.” See Lobatz v. U.S. West Cellular of Cal., Inc., 222

F.3d 1142, 1147 (9th Cir. 2000).

Appellant Christopher Andrews is of legal age, a valid class member, objector and a

citizen of the State of Michigan. He 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. He filed a timely objection and supplements such as

Doc 432, 436, 446,450, 453 and 456.

Page 7 of 48
The appellant also does have standing to object on behalf of the five million plus non

English reading, Spanish speaking only class members and anyone else who can’t read the

English Notice. The appellant objected on his behalf and on behalf of all 73 million class

members regardless of what race they are or what language they speak. In his objection

Doc 432 pg 8 of 49 the objector/appellant wrote;

“This objection is written on his behalf and on behalf of all 73 million class members.”

Class actions are different because it allows all class members to object on behalf of

themselves and/or the class for the benefit everyone as a whole.

If the Spanish reading only claimants cannot read and understand a long notice, the legal

notice, emails and claim form that is in English only, how would they be able to object to

the English only documents in the first place? They can’t, so who would look out for their

rights when class counsel fails to do so? Common sense, logic and fair play say the

appellant does have standing and can object and appeal on their behalf.

During the class period from 2003 to the present, (the exact start date is missing and not

properly defined making the Long Notice unclear, ambiguous and defective), the objector

purchased milk and milk products while a resident of the State of Michigan for his own

use and not for resale.

The appellant purchased one gallon of milk a week, fifty two weeks a year every year

during the class period (fourteen years) so he has been damaged by overpaying for all that

Page 8 of 48
milk. The objector was unable to figure out even a ballpark estimate of his individual

damages because information needed to arrive at that figure was missing in the defective

Long Notice and Settlement Agreement making it impossible for him or an average class

member to know what their individual damages are and therefore the best course of action

to take before deciding whether to file a claim, opt out or object. The objector nether the

less filed a claim on September 14, 2016 at 12:24 p.m. EST. This claim was not

challenged by plaintiffs. Doc 432 Exhibit 1 in that document.

Standard of Review And Abuse of Discretion Test In The 9th Circuit

In the 9th Circuit’s 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 court’s 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

and evidence produced in the appellant’s filings. A district court’s decision to approve a

class action settlement is reviewed for abuse of discretion. In re Bluetooth Headset Prod.

Liab. Litig., 654 F.3d 935, 940 (9th Cir. 2011). A failure to apply the correct standard of

law is an abuse of discretion. Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir

2004).

Questions of law are reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir.

2000). The decision to approve a class action settlement is reviewed for abuse of

Page 9 of 48
discretion. Allen v. Bedolla, 787 F .3d 1218, 1222 (9th Cir. 2015). “A court abuses its

discretion when it fails to apply the correct legal standard or bases its decision on

unreasonable findings of fact.” Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir.

2011).

This approval has all of the above issues. There are constitutional, legal and factual

mistakes in this settlement and approval that cause it to be an absolute abuse of discretion.

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.”

In this case the evidence proves that the approval is flawed, defective, illegal, biased and

abuse of discretion.

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, 900–01 (2008); Hansberry v.

Lee, 311U.S. 32, 41–43 (1940). The interests between the named plaintiffs and unnamed

class are not all aligned, their willful blindness, ignorance and greed sold out the 73

million class members. A reversal is requested based on the evidence below.

9Th Circuit Case No. 17-16459

Page 2 Of Informal Brief

Page 10 of 48
3. What did you ask the originating court to do (for example, award damages, give

injunctive relief, etc.)?

Response: Reverse the settlement and adequately address the three huge due process and

notice violations in the Long Form Legal Notice, Legal Notice and Claim Form under

Rule 23(2)(a)(b) and that violate the legal rights via due process of the 72 million

unnamed class members. The appellant also pointed out the outrageously high incentive

awards compared to the relief the unnamed class members were offered which sold the

class out and requested the exert damage report that was illegally kept sealed from the

class and the lack of Spanish notice affecting million of class members. This approval is a

mistake of law, violates Rule 23 provisions, 9th Circuit, Due Process and Supreme Court

precedents.

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: A lot is wrong with this approval that starts on the next page. The appellant will

focus on three issues instead of four. The approval was made for the sake of expediency.

9th Circuit Case No. 17-16459

Page 3 Of Informal Brief

Page 11 of 48
What are the facts of your case?

Case Background And The Missing Start And End Day Of The Class Period

From the FAQ section of the website, (the Long Notice was deleted from the website

covering up the reversible error showing the start class date is invalid, voiding the notice);

This section is form the FAQ section

https://www.boughtmilk.com/faqs/

“Who is included in the settlement?” Last seen September 01, 2018

“This antitrust lawsuit alleges a nationwide conspiracy by CWT and its members to limit

the production of raw farm milk by prematurely slaughtering 500,000 cows, in order to

illegally increase the price of milk and other fresh milk products, which it did. Defendants

deny any wrongdoing or liability for the claims alleged.

Individuals and entities who, as residents of Arizona, California, the District of Columbia,

Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon,

South Dakota, Tennessee, Vermont, West Virginia, or Wisconsin, during the period of

2003 to the present, purchased milk or other fresh milk products (including cream, half &

half, yogurt, cottage cheese, cream cheese, or sour cream) for their own use and not for

resale. Governmental entities are excluded from the class.”

Violations of Rule 23

Page 12 of 48
The three specific issues the objector raises in this appeal objection cause the following

sections of Rule 23, among others to be violated thus prohibiting approval of the deal are:

Specifically, “[a] district court may not certify a class until it ‘is satisfied, after a rigorous

analysis,’ that Rule 23(a)’s certification prerequisites are met.” Id. at 612 (quoting Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).

Rule 23(a)(4)'s requirement is met if "the representative parties will fairly and adequately

protect the interests of the class."

Rule 23(e)(2) imposes a duty on courts to approve a class action settlement only after a

hearing and on finding that it is “fair, reasonable, and adequate” which this is clearly not.

Rule 23(g)(1)(A) states the court may [also] consider any other matter pertinent to

counsel's ability to fairly and adequately represent the interests of the class. Fed. R

Civ. P. 23(g)(l)(B); see also

Rule 23(g)(2) (the court may appoint an attorney as class counsel only if they are

adequate under Rule 23(g)(l) and (4); (Class counsel must fairly and adequately

represent the interests of the class). They are not.

Rule 23(g)(1)(B) Additionally, a court “may consider any other matter pertinent to

counsel’s ability to fairly and adequately represent the interests of the class.”

Page 13 of 48
Lack Of Spanish Translation of the Long Notice, Legal Notice and Claim Form For

Up To 8.7 Million Potential Class Members Who Only Speak Spanish and Can’t

Read the English Only Notice, Can’t Fill Out/File A Claim, Opt Out Form Or Be

Heard Causes The Approval To Violate Rule 23(e)(1), 23(e)(2), Rule 23(c)(2), Rule

23(c)(2)(b)And Violates Due Process

“Courts have long recognized that settlement class actions present unique due process

concerns for absent class members. ” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d

935, 946 (9th Cir. 2011) (citation and internal quotations omitted).

The Long Notice Is Defective for the Spanish Speaking Non English
Reading Group
The appellant has not seen this issue raised in his review of a few hundred class action

settlement documents, objections and appeals he has read over the years and this is the

first time where a specific group was knowingly excluded out of the class action

settlement that falls under Rule 23 due to a language barrier created by class counsel’s

own negligence and by a court approving a defective settlement. Missing is an adequate

explanation justifying why 8.7 million class members forfeited their rights and their

damages to others. (See Dkt 432 pages 20 and 21 and pg 21-23 of this informal brief) This

error violates Rule 23, common sense, due process and Rule 23.

Notice must be given, moreover, “in a form and manner that does not systematically leave

an identifiable group without notice.” Mendoza v. Tucson School District, 623 F.2d 1338,

1351 (9th Cir. 1980) (quoting Mandujano v. Basic Vegetable Prods., Inc.,

Page 14 of 48
541 F.2d 832, 853 (9th Cir. 1976)).

-The threshold requirement of class notice is whether the means employed to distribute the

notice was reasonably calculated to apprise the class of the pendency of the action, the

proposed settlement and the class members’ rights to opt out or object. See Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). The mechanics of the notice process are

left to the discretion of the court, subject only to the broad “reasonableness” standards

imposed by due process. Under Rule 23(c)(2)(B),and (e) class members must receive “the

best notice that is practicable under the circumstances, including individual notice to all

members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).

The Notice in this case violates due process is not “reasonably calculated under all the

circumstances to apprise Class Members of the pendency of the action and to afford them

an opportunity to object.” UAW v. General Motors Corp ., 497 F.3d 615,

629 (6th Cir. 2007).

Hagens Berman has itself created language barriers because there is no mention or version

in Spanish in the Long Notice or on the website that affects more than 8.7 million class

members. A sentence like this should have been on the website directing those who need

the notice in Spanish to click a button next to the following sentence changing it into

Spanish: Aga click aqui para una version en Espanol del aviso (Click here for the Spanish

version.) Class Counsel plum forgot about those who habla and hablar Espanol only.

Page 15 of 48
The Spanish reading only group was identified to the court and class counsel by the

appellant in his objection. The appellant objected on his behalf and on behalf of

all 73 million class members regardless of what language they speak. In his objection Doc

432 pg 8 of 49 the objector/appellant wrote;

“This objection is written on his behalf and on behalf of all 73 million class members.”

The district court spent just one sentence addressing this huge Rule 23 and due process

issue the objector raised. The court addressed it below in Doc 485 starting on page 6 @28

last sentence when it wrote:

“The Court overrules Andrews’s objection that notice was not provided in Spanish
because a toll-free automated telephone support line did provide notice in both English
and Spanish.” The Court also overrules Andrews’s other pro se objections to the notice
process, which are conclusory and do not give adequate weight to the extensive
declarations submitted by Plaintiffs regarding the design and execution of the class
notice.”

That is a grossly inadequate, shortsighted and unreasonable explanation by the court to

justify approving the settlement which causes 8.7 million unnamed class members to

forfeit their due process rights, damages, along with violating Rule 23 because they cannot

read the English only notice which is illegal and abuse of discretion. A simple tab to

change the English Notice into Spanish on the class website is all that was needed but the

court feels that because those who required Spanish notice could call a toll free number

that explanation was acceptable alternative. See Exhibit 1.

Page 16 of 48
8.7 million Spanish class members should not and cannot be expected to call the

administrator and have them translate the entire document over the phone for them.

That would take ten minutes each at least (the appellant timed himself reading it in

English to come up with the ten minute figure and he is a speed reader). The class pays for

all that telephone time because the administrator is charging the class per minute when

live operators are involved.

This settlement bars anyone who can’t read English from participating and they have to

walk away with their rights trampled and damages left to be collected by others. This is

2017 and notice rules need to be updated to protect non English reading claimants in this

settlement and tens of millions of future unnamed class members in the future class

actions. The parties need guidance which is really just a new common sense rule to be

followed. Class counsel plum forgot about that material issue, it’s that simple. The court is

absolutely wrong and this is not a harmless error. Harmless errors are those that “do not

affect the substantial rights of the parties.” 28 U.S.C. § 2111; see also Fed. R. Civ. P. 61.

An error affects a party’s substantial rights when it is prejudicial, “which means that there

must be a reasonable probability that the error affected the outcome of the [proceeding].”

United States v. Marcus, 560 U.S. 258, 262 (2010).

The 8.7 million Spanish speaking only, non English reading group is a specific class that

the appellant identified to the court that did not receive adequate notice because they can’t

read the English only legal notice or long notice or email. The notice is defective as to

Page 17 of 48
content and format for this group because of lead counsel’s ignorance in their dash for the

cash and for the court to close the case out and obstruct a valid appeal.

This lack of Spanish notice and claim form prohibits this group from being able to read

the Notice, understand their options, the right to be heard and they can’t file a claim even

if they wanted to thus violating Rule 23(c)(2) (e)(1) and Fed. R. 23(c) (2)(b) and all

constitutional requirements and due process protections because the Spanish speaking non

English reading segment could not understand specifically:

A. The class action itself;

B. The terms of the proposed Settlement and the benefits available to each Settlement

Class Member, the proposed fees and costs to Class Counsel;

C. Each Settlement Class Member's right to object or opt out of the settlement, and the

timing and procedures for doing so was not possible;

D. Preliminary court approval of the proposed Settlement;

E. The date of the Fairness Hearing as well as the rights of Settlement Class Members to

file documentation in support of or in opposition to and appear in connection with said

hearing;

F. How to go about filing a claim for their rightful damages.)

There is no doubt that the lacks of Spanish translation notice issue is not a frivolous issue.

It costs almost nothing to include a Spanish Notice or any other language for that matter to

be included on the class website. Many websites simply include a tab to click on to change
Page 18 of 48
the English Notice into Spanish, it’s done all the time and it’s inexcusable, unfair,

unreasonable and inadequate for Class Counsel to have forgotten about that segment of

the class in this case.

See Exhibit 1 for an example of a notice translated into Spanish by class counsel in the

battery case and the disk case where the appellant filed objections and appeals in with this

same law firm in this case, Haggens Berman. Google translate is a wonderful free tool to

use if Hagens Berman can remember to put the clients ahead of their assembly line

settlement process that settles for the standard 30% of the damages regardless of the

strength of the evidence in a case.

Federal Rule of Civil Procedure 23(e)(1) provides that “[t]he Court must direct notice in a

reasonable manner to all class members who would be bound by the proposal.” While the

Court has discretion as to the form and content of the notice, the notice must meet certain

due process requirements. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172-177 (1974).

The notice must be “reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the [settlement] and afford them an opportunity to

present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950).

The following is from Dkt 432 pages 20 and 21.

Page 19 of 48
 “Notice is not available in Spanish like it is in the optical disc drive (and battery

settlements) where the same lead counsel in this case is involved in that case.

Speaking English is one thing but reading and understanding it, especially a legal notice for

a proposed class action settlement that affects their rights, is something else.

Spanish Language

38.4 million

The number of U.S. residents 5 and older who spoke Spanish at home in 2013. This is a

120 percent increase since 1990 when it was 17.3 million.

Those who hablan español en casa constituted 13.0 percent of U.S. residents 5 and older.

Spanish population in the U.S.

Estimate Margin of error, Percent, Percent Margin of Error

Spanish 38,417,235 +/-106,063 13.0%+/-0.1

Speak Spanish less than “very

16,201,382 +/-80,466 5.5%+/-0.1
well”

http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk

The population in the class represents about 23% of the 321 million residents or 73 million

adults in the U.S. Spanish speaking/reading is 12% of the 73 million class members would

translate into approximately 8.7 million class members requiring the notice in Spanish.

Page 20 of 48
The notice needs to be redone on the website to include a simple button to click that

changes the notice to Spanish like this, Aga click aqui para una version en Espanol del

aviso just like on the Optical Disc Drive website. Not doing this decreases claims. The

email should have been written in Spanish as well as English. By failing to take into

account the large Spanish population, counsel is deterring those claimants from being able

to file a claim, objecting, opting out and just being able to understand facts they are entitled

to before making a decision in this class action lawsuit. It’s a bit late changing it now”.

The chart below was in the possession of the appellant and he would have raised these

numbers at the fairness hearing where he appeared by phone but the court illegally

prohibited him from speaking about any issue he already raised.

This is wrong. The appellant was illegally muzzled violating his due process rights and his

freedom of speech. Court Order Dkt 478 Pg 6 @23-25 and Pg 7 @1-7.

Spanish Speaking State Statistics

State Number Speaking Spanish Only -Percent speaking Only Spanish

1. California 4,303,949 13.70%

4. Arizona 435,186 9.16%

11. District of Columbia 25,355 4.70%

20. Massachusetts 162,908 2.74%

Page 21 of 48
 22. Nebraska 39,825 2.50%

28. Wisconsin 76,697 1.53%

31. Minnesota 61,817 1.35%

35. Tennessee 64,378 1.21%

36. Michigan 100,689 1.09%

40. Missouri 45,990 0.88%

43.

45. South Dakota 3,999 0.57%

49. West Virginia 5,728 0.34%

Sources U.S. Census

Content Author: Statistic Brain Date research was conducted: August 8, 2016, Spanish Speaking
State Statistics, Demographics

http://www.statisticbrain.com/spanish-speaking-state-statistics/

A total of 5 million potential class members above in these settlements speak Spanish only

according to the US government (most of them in California where this litigation takes

place and where Hagens Berman is located. In fact the State of California prints many

forms in Spanish.) That segment obviously cannot read the English only Long Form

Notice, Legal Notice and Claim Form. Notice compliance and lack of proper procedures

does not constitute due and sufficient notice to the class in violation of Rule 23 and Due

Process under the U.S. Constitution.

Page 22 of 48
*- Incentive Awards Violate 9th Circuit Case Law

Under the FAQ’s section it states:

“For example, the regular fixed amount may be $30, or it may be higher or lower

depending on the numbers of all class members making claims, with the higher fixed cash

payment above that amount”.

The individual named plaintiffs each were scheduled to and did receive $5,000.00 in

incentive awards. That is 16,666% more than the unnamed class members could ever

receive compared to the miniscule $30.00 unnamed plaintiffs might receive for their claim

from the get go without any claims being submitted. That disparity is way too much of a

material difference not to have negatively influenced the named plaintiffs to have rubber

stamped this deal for their own benefit first while selling the remaining 72 million

unnamed class members down the milk river. See Dkt. 432 pg 44, Dkt 446 pg 13-17.

In the end the unnamed individual class members did not receive $30.00 each but just

$6.79 each compared to the $5,000.00 the named plaintiffs each received. Doc 485 page

19 @ 19.

This is 73,000% more than the unnamed class members received from a case that was gift

wrapped and literally hand delivered to Class Counsel’s door step by a third party. The

amounts are exactly the same for all named plaintiffs even though the “work” ranged from

being on the case for 2.5 years to 5 years. Dkt 446 pg 13. The question confronting the

named plaintiffs is this. Should they take the $5,000.00 incentive left dangling in front of

Page 23 of 48
their noses vs. the $30.00 ish settlement amount that was initially stated each unnamed

class claimant would receive in the Long Notice, (now $6.79) to endorse this deal?

The $5,000.00 is a slam dunk easy decision to make and take for the named plaintiffs

while selling the class out like our lawyers did. The $5,000.00 divided into the $30.00

that each named individual named plaintiff was initially told they may receive means the

named plaintiffs incentive awards were equal to 166 unnamed class members claims

combined, before a single claim was filed. Based on the claims actually filed, the reduced

damage amount came in at $6.79 to each individual unnamed class claimant. That $6.79

payment represents the payment that 736 unnamed class members received combined!

Using the $30.00 individual figure or the $6.79 figure the $5,000.00 bounty sold us out

and unduly influenced them to endorse this poor deal with class counsel’s approval so

they could reap a windfall in awarded fees costs and bloated administrator fees, all done

for their money first, the class gets ripped off for a second and third time and the court

intentionally attempts to bury the valid objection and appeal issues to clear a docket and

avoid having to confront its own errors in an appeal.

The settlement assured the named plaintiffs an unchallenged application for an incentive

award of $5,000.00. There is an “overlap” between the deal obtained by the named

representatives and the unnamed class members. Pampers , 724 F.3d at 722. While the

class members’ shares can be reduced pro rata the named plaintiff’s incentive award is

fixed. This payment makes the named plaintiff far more than whole and “provide[s] a

Page 24 of 48
disincentive for the named plaintiff to care about the adequacy of relief afforded unnamed

class members.” Pampers , 724 F.3d at 722.

The Seventh Circuit referred to this phenomenon as “leverag[ing]” “the class device…for

one person’s benefit.” Murray v. GMAC Mortg. Corp., 434 F.3d 948, 952 (7th Cir. 2006).

In Murray, the incentive payment “of $3,000…[was] three times the statutory maximum,

while others don’t get even the $100 that the Act specifies as the minimum.” Id. “Such a

settlement is untenable.” Id.

“The premise of a class action is litigation by representative parties adjudicates the rights

of all class members, so basic due process requires that named plaintiffs possess undivided

loyalties to absent class members.” Broussard v. Meineke Discount Muffler Shops, Inc.,

155 F.3d 331, 338 (4th Cir. 1998).

The Ninth Circuit has disavowed these types of disproportionate incentive awards. See

Radcliffe v. Experian Info. Solutions , 715 F.3d 1157 (9th Cir. 2013). The Ninth Circuit

determined that incentive awards conditioned upon endorsement of the settlement

proposed were impermissible. But more than that, “the significant disparity between the

incentive awards and the payments to the rest of the class members further exacerbated

the conflict of interest caused by the conditional incentive awards.” Id . at 1165. “There is

a serious question whether class representatives could be expected to fairly evaluate

whether awards ranging from $26 to $750 is a fair settlement value when they would

receive $5,000 incentive awards.” Id . As the disparity here is similar—$5,000 per

Page 25 of 48
representative, at most $60.00 per class member—the logic of Radcliffe applies just as

forcefully. In such situations there is a well-founded fear that named representatives will

be “more concerned with maximizing [their own gain] than with judging the adequacy of

the settlement as it applies to class members at large.” Id. (quoting Staton, 327 F.3d at

977). Staton had also repudiated disproportionate incentive awards.

There is a tremendous question of Rule 23(a)(4) adequacy: were the class representatives

and counsel in this case acting in the best interests of the class, or in the best interests of

class counsel? No.

See Pampers, supra. If the latter, then the plaintiffs cannot satisfy the 23(a)(4) and (g)(4)

adequacy inquiries. See Lobatz v. U.S. West Cellular of Cal., Inc.,

222 F.3d 1142, 1147 (9th Cir. 2000) (if “class counsel agreed to accept excessive fees and

costs to the detriment of class plaintiffs, then class counsel breached their fiduciary duty to

the class.”); Creative Montessori Learning Ctrs. v. Ashford Gear LLC , 662 F.3d 913, 917

(7th Cir. 2011) (counsel must show the district court that “they would prosecute the case

in the interest of the class . . . rather than just in their interests as lawyers who if

successful will obtain a share of any judgment or settlement as compensation for their

efforts.”). The class must be decertified if there is anything less than “undivided loyalties.”

Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998) At

a minimum, the settlement must be rejected as unfairly dividing the constructive common

fund. The discrepancy between the incentive awards and the amount received by a typical

Page 26 of 48
class member must not be so great that it compromises the adequacy of class

representation. Radcliffe, 715 F.3d at 1164; Staton, 327 F.3d at 977. (Just like the lawyers

in this case, the named class members are now unjustified class action lottery winners that

sold out the unnamed class members for their $5,000.00 in service awards and the still

inflated attorneys fees and costs.)

Sealing the Damage Report Is Illegal Under 9th Circuit and Supreme Court

Law

The appellant would have expanded on the missing damage report as well but he was

illegally prohibited from speaking about it by the court violating his due process and free

speech rights so the biased court would not have to deal with the truth. Dkt 446 pg 3-5,11.

The Court relied on information in sealed documents, like the damage report, which

obviously played a role in the Court’s decision to grant preliminary approval and played a

pivotal role in the final approval process. Therefore the class has a right to see and read any

improperly sealed documents (like the expert’s damage report that should have been placed

on the Administrator’s website) to use in our decisions as to what action to take and the

likely hood of success on our claims for ourselves. The 73 million class members could not

view that critical document. Appellant has raised the issue of unsealing the damage report

in his objection and filed a motion to unseal it but it’s a big state secret so no one in the

unnamed class can ever see it. Dkt 453 Motion to Unseal.

Page 27 of 48
The parties conflated the discovery order and sealing the records, a vast difference in

requirements between both, violating due process rights of the claimants. The class

members should have had access to the damage report so we can determine of the repost

supports or rejects the amount settled for was fair, reasonable and adequate. The court’s

brief comment in Doc ??? pg hardly is an adequate explanation based on the rules for the

balancing test and/or abuse of discretion test.

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 court’s order granting a sealing request must set forth specific

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 and whether to take

the amount offered, object or opt out so the class is stuck and that is not right.

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

Page 28 of 48
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).

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

Court’s 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 likely hood of success on our claims

for ourselves before we decide what action to take.

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 court’s decision to unseal court records for an abuse of

discretion. Blum v. Merrill LynchPierce Fenner & Smith, Inc., 712 F.3d 1349, 1352 (9th
Page 29 of 48
Cir.2013). Where “the district court’s decision turns on a legal question, however, its

underlying legal determination is subject to de novo review.” San Jose Mercury News, Inc.

v.U.S. Dist. Court—N.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 appellant and unnamed class members never saw the sealed damage report that they

had a right to see when determining the best course of action to take before deciding the

best course of action to take regarding their claims and whether they should accept the

amount offered. The court failed to properly justify the sealing of the damage report 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)

Page 30 of 48
 “Court’s have historically recognized a “general right to inspect and copy public

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

Warner Commc’ns, 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

Page 31 of 48
claims and likelihood of success before are rights are extinguished forever. The court

should review the decision de novo using the balancing test. The appellant requested the

report in his objection but counsel and the court failed to adequately address this illegal

sealing of the report which is a clear due process violation. When you negotiate a

settlement you can’t keep the foundation or the reasons for that settlement secret from up

to 73 million people that are going to be affected by it. Since the class paid for the report

the class has a right to see it, just like seeing a receipt at a restaurant before paying it.

The Settlement Is Not Fair, Reasonable and Adequate Under Rule 23

“In order to approve a settlement in a class action, the court must conduct a three-step

inquiry. First, it must assess whether defendants have met the notice requirements under

the Class Action Fairness Act Second, it must determine whether the notice requirements

of Federal Rule of Civil Procedure 23(c)(2)(B) have been satisfied. (not for the Spanish

speaking non English reading group it didn’t). Finally, it must conduct a hearing to

determine whether the settlement agreement is “fair, reasonable, and adequate.” See Fed.

R. Civ. P. 23(e)(2); Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003) (discussing the

Rule 23(e)(2) standard); Adoma v. Univ. of Phoenix. Inc., 913 F.Supp.2d. 964, 972 (E.D.

Cal. 2012) (conducting three-step inquiry). The Incentive Awards caused collusion to

occur among the named plaintiffs, and the lawyers against the best interest of the class so

parts two and three were not met here. That report is not a secret, I want to see it.

. The Harmful Errors By All The Parties Invalidate This Approval

Page 32 of 48
The errors made above by the parties and court are were all raised in the appellant’s

objection. The three issues separately and or combined make the approval legally

defective, unfair, unreasonable, inadequate, unbinding on the appellant, not in the best

interests of each of the 72 million 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, violates free speech, Class Action Fairness Act

(CAFA) and basic contract law. The biggest losers as usual are the unnamed class

members. The errors pointed out by the appellant are not harmless errors. Harmless errors

are those that “do not affect the substantial rights of the parties.” 28 U.S.C. § 2111; see

also Fed. R. Civ. P. 61. An error affects a party’s substantial rights when it is prejudicial,

“which means that there must be a reasonable probability that the error affected the

outcome of the [proceeding].” United States v. Marcus, 560 U.S. 258, 262 (2010)).

The district court could not help itself and be more welcoming of Class Counsel’s error

strewn settlement that confirms it’s biases than facts pointed out by the objector that

challenge them. The result is a rushed approval that clears the docket and violates Rule 23,

due process, 9th Circuit and Supreme Court case law. Their decision not to pause and fix

the clearly three reversible errors gives the impression that the parties and court

disregarded the judicial system and avoided their responsibilities to the unnamed class.

“The need for the adequacy of representation finding is particularly acute in settlement

class situations[.]" Gen. Motors Pick-Up Litig., 55 F.3d at 795. Thus, the Supreme Court

Page 33 of 48
itself has emphasized that the courts must give "undiluted, even heightened, attention in

the settlement context[]" to the certification requirements of Rule 23. Amchem Prods.,

Inc. v. Windsor, 521 U.S. 591, 620, 722*722 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see

also UAW, 497 F.3d at 625 (same).

“Class certification is appropriate if the [district] court finds, after conducting a ‘rigorous

analysis,’ that the requirements of Rule 23 have been met.”

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir.

2013) (quoting Walmart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011). Rule 23(a)

(4) requires that ‘representative parties will fairly and adequately protect the interests of

the class’ . . . This requirement protects the due process interests of unnamed class

members, who are bound by any judgment in the action.” Lowery v. City of Albuquerque ,

273 F.R.D. 668, 68 0 (D.N.M. 2011); see also Lile v. Simmons ,143 F.Supp.2d 1267, 1277

(D.Kan.2001) (“Due process requires that the Court ‘stringently’ apply the competent

representation requirement because class members are bound by the judgment (unless they

opt out), even though they may not actually be aware of the proceedings.”). Accordingly,

“there has been a failure of due process only in those cases where it cannot be said that the

procedure adopted fairly insures the protection of the interests of absent parties who are to

be bound by it.” Hansberry v. Lee , 311 U.S. 32, 42 (1940). Rule 23(g)(1)(A) states the

court may [also] consider any other matter pertinent to counsel's ability to fairly

and adequately represent the interests of the class. Fed. R Civ. P. 23(g)(l)(B); see also

Page 34 of 48
Rule 23(g)(2) (the court may appoint an attorney as class counsel only if they are

adequate under Rule 23(g)(l) and (4); (Class counsel must fairly and adequately

represent the interests of the class). In this case the named plaintiffs and class

counsel did not adequately protect the class.

A ‘rigorous analysis” was performed in this case that all Rule 23 requirements were met

because they were not.

Inadequacy of Representation

Rule 23(a)(4)'s requirement is met if the representative parties will fairly and adequately

protect the interests of the class." The adequacy inquiry ensures (1) absence of conflicts of

interest between named parties and the class they seek to represent, and (2) attorneys for

class representatives are experienced and qualified to conduct the litigation.

The fourth requirement requires the judge to determine both whether the named class

members are situated to protect the class and whether their attorneys are qualified to

protect the class. Clearly all parties on the plaintiff’s side are inadequate. There is a huge

conflict between named and unnamed plaintiffs that being the notice, incentive awards and

the illegally sealed damage report that everyone and the district court say are not issues for

the 73 million member class. The appellant disagrees.

Because class counsel owes a fiduciary duty to the class—and because absent class

members have little or no say who represents them—courts should not allow even

Page 35 of 48
 the appearance of divided loyalties or “potentially conflicting interests.”Hansberry

v. Lee, 311 U.S. 32, 44 (1940) (class representatives); cf. also Young v. United

States ex rel. Vuitton et Fils SA, 481 U.S. 787(1987) prosecutors).”

Class Counsel and name plaintiffs’ claim they have acted in good faith towards the

class but “this is irrelevant to the appearance of impropriety.” Wright v. United

States , 732 F.2d 1048, 1055 (2d Cir. 1984) (Friendly, J.);

accord Wendt v. Fischer, 243 N.Y. 439, 443–44 (1926) (Cardozo, J.); Meinhard v.

Salmon, 249 N.Y. 458, 465, 467–68 (1928) (Cardozo, J.).The “‘appearance’ of

divided loyalties refers to differing and potentially conflicting interests and is not

limited to instances manifesting such conflict.”Keyes v. Pacific Lumber Co., 51

F.3d 1449, 1465 (9th Cir. 1995).”

The above is taken from a petitioner’s Supreme Court Brief, Frank vs. Gaos pending at the

Supreme Court in 17-961 pg 54 and 55.

Hagens Berman, The Named Plaintiffs And The Court Failed In Their Fiduciary

Duties Owed To The Class Based On The Errors Raised By The Appellant

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

(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

Page 36 of 48
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 Nat’t

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). “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 American Law Institute Principles

of the Law of Aggregate Litig. $3.05 © (2010) (Ali Principles”). In short, Class Counsel

has agreed to numerous provisions against the best interests of unnamed class members,

and has fallen short of the undivided loyalties counsel must have toward unnamed class

Page 37 of 48
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 divide loyalties of counsel.”) (internal quotation

omitted).For this independent reason, the Court should reverse the approval and correct the

three issues above.

9th Circuit case No. 17-16459

Page 4 Of Informal Brief
6. Did you present all issues listed in #5 to the originating court?

Response: Yes.

Page 38 of 48
7. What law supports these issues on appeal?

Table of Authorities

Adoma v. Univ. of Phoenix. Inc., 913 F.Supp.2d. 964, 972 (E.D. Cal. 2012)………...32

Allen v. Bedolla, 787 F .3d 1218, 1222 (9th Cir. 2015). ……………………………….7

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 722*722 117 S.Ct. 2231, 138

L.Ed.2d 689 (1997)…………………………………………………………………..….34

Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 940 (9th Cir. 2011). ………………9

Blum v.Merrill LynchPierce Fenner & Smith, Inc., 712 F.3d 1349,1352 (9th cir.2013).30

Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998)

…………………………………………………………………………………..…25

Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998)

…………………………………………………………………………………….27

Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004)………………………..9

Center for Auto Safety v. Chrysler Group LLC 9th Circuit, case No. 15-55084, filed

January 11, 2016 ………………………………………………………………….…….29

Creative Montessori Learning Ctrs. v. Ashford Gear LLC , 662 F.3d 913, 917 (7th Cir.

2011)…………………………………………………………………………………….26

Delvin v. Scardelletti, 536 U.S.1, 122 S. Ct. 2005 (2002)………..……………………..7

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172-177 (1974)…………………………19

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974)………………………….……15

Page 39 of 48
Foltz v. State Farm Mut Auto. Ins. Co., 331 F. 3d 1122, 1135 (9th Cir 2003))…………..31

Gen. Motors Pick-Up Litig., 55 F.3d at 795……………………………………………..34

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))………………………………………………………………………………..37

Hagestad v. Tragesser, 49 F. 3d 1430, 1434 (9th Circuit. 1995………………………….31

Hansberry v. Lee , 311 U.S. 32, 42 (1940)………………………………………………35

Hansberry v. Lee, 311 U.S. 32, 44 (1940) ………………………………………..……..36

Hansberry v. Lee, 311U.S. 32, 41–43 (1940)…………………………………………....10

Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). …………………………..……..7

Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v. Defenders of

Wildlife , 504 U.S. 555, 560 n.1 (1992))…………………………………………….….…7

Kamakana v. City and Cntry of Honolulu, 447 F. 3rd 1172, 1178 (9th Cir 2006) (quoting

Keyes v. Pacific Lumber Co., 51 F.3d 1449, 1465 (9th Cir. 1995)………………………36

Lile v. Simmons ,143 F.Supp.2d 1267, 1277 (D.Kan.2001)………………………..……34

Lobatz v. U.S. West Cellular of Cal., Inc., 222 F.3d 1142, 1147 (9th Cir. 2000)…….…7

Lobatz v. U.S. West Cellular of Cal., Inc., 222 F.3d 1142, 1147 (9th Cir. 2000)………26

Lowery v. City of Albuquerque , 273 F.R.D. 668, 68 0 (D.N.M. 2011)……………..…34

Meinhard v. Salmon, 249 N.Y. 458, 465, 467–68 (1928) (Cardozo, J.)…………………36

Page 40 of 48
Mendoza v. Tucson School District, 623 F.2d 1338, 1351 (9th Cir. 1980) (quoting

Mandujano v. Basic Vegetable Prods., Inc., 541 F.2d 832, 853 (9th Cir. 1976))……….14

Mercury Interactive Corp., 618 F. 3rd 988, 994-95 (9th Cir. 2010) (quoting 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) 994))…………….…...37

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)……………….19

Murray v. GMAC Mortg. Corp., 434 F.3d 948, 952 (7th Cir. 2006)…………………...25

Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011)………………………… 10

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n, 7, 98 S. Ct. 1306, 55 L. Ed. 2nd

570 (1978). …………………………………………………………………………..…..31

Oliner v.Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014)…………………………….30

Pampers , 724 F.3d at 722………………………………………………………………..25

Radcliffe v. Experian Info. Solutions , 715 F.3d 1157, 1165,977 (9th Cir. 2013)………26

Radcliffe, 715 F.3d at 1164……………………………………………………………….27

Reynolds v. Beneficial Nat’t Bank, 288 F. 3d 277, 279-80 (7th Cir. 2002)……………...37

Rodriguez v. West Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009)………………...38

San Jose Mercury News, Inc. v.U.S. Dist. Court—N.D. Cal. (San Jose), 187 F.3d 1096,

1100 (9th Cir. 1999)…………………………………………………………………..…..30

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). Id. at 1547…………………….….7

Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003)……………………………..….32

Page 41 of 48
Staton, 327 F.3d at 977…………………………………………………………………...27

Taylor v. Sturgell, 553 U.S. 880, 900–01 (2008)………………………………….…….10

True v American Honda co. 749 F. Supp. 2nd 1052, 1080 (C.D.Cal. 2010)……………..37

UAW v. General Motors Corp ., 497 F.3d 615, 629 (6th Cir. 2007)……………………..15

UAW, 497 F.3d at 625 (same)……………………………………………….…………..15

United States v. Marcus, 560 U.S. 258, 262 (2010)). …………………………..……….33

United States v. Marcus, 560 U.S. 258, 262 (2010)……………………………………..17

Washington Pub. Power Supply Systems Lit. 19 F. 3d 1291, 1302 (9th Cir 1994……….37

Wendt v. Fischer, 243 N.Y. 439, 443–44 (1926) (Cardozo, J)……………………….….36

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir.

2013 (quoting Walmart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011). ……..…34

Wright v. United States , 732 F.2d 1048, 1055 (2d Cir. 1984) (Friendly, J.)……………36

Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787(1987)………………..36

Statutes, Rules, Regulations and Other Cites

FRAP 34(a)(1)…………………………………………………………………………2

28 U.S.C. §1332(d)(2)………………………………………………………………....5

28 U.S.C. § 1291………………………………………………………………..…..5,30

Page 42 of 48
Rule 23(c)(2)…………………………………………………………………….…6,14

Fed. R. 23(c)(2)(b)…………………………………………………………..6,14,18,32

Rule 23(e)……………………………………………………………………....6,19, 37

Article III………………………………………………………………………………..7

28 U.S.C. § 1746……………………………………………………………………..…7

23(e)(2)………………………………………………………………………………...10

Rule 23(2)(a)(b)……………………………………………………………………..…11

23(a)……………………………………………………………………………………13

23(a)(4)……………………………………………………………………………..13,35

23(e)(2)…………………………………………………………………………..….13,32

Rule 23(g)(1)(A)……………………………………………………………………13,35

Rule 23(g)(l)(B)…………………………………………………………………13,35

Rule 23(g)(2)……………………………………………………………………….13,35

Rule 23(e)(1)…………………………………………………………………………..14

23(e)(2)……………………………………………………………………………..…14

Rule 23 (c) (2)(B),and (e)……………………………………………………………..15

28 U.S.C. § 2111………………………………………………………………..…..17,33

Fed. R. Civ. P. 61………………………………………………………………..….17,33

Rule 23(c)(2) (e)(1)…………………………………………………………………….18

Rule 23(a)(4)…………………………………………………………………………..26

Rule 23(g)(4)…………………………………………………………………………..26

4. N.D. Cal. Civ. R. 79-5(d)(1)(A)…………………………………………………….29

Id. 79-5(b), (d)(1)(A)…………………………………………………………………..29

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Rule 23(g)(l) and (4)………………………………………………………………35

Accord American Law Institute Principles of the Law of Aggregate Litig. $3.05 © (2010)
(Ali Principles”)……..…………………..…………………………………………….38

Conclusion And Request For Relief

Reversal is required under law because the court, lawyers and the named plaintiffs sold

out the class for the sake of expediency, their fees and incentive awards. A reversal will

correct this huge Rule 23 and due process errors that have occurred in this approval. It will

protect the 73 million class members in this case and set a standard for other circuits to
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follow to protect hundreds of millions more future class members in the 700 class actions

that settle every year in this country that by default exclude out millions of class members

who cannot read the English Only Notice which notifies them in the wrong language that

their rights are forfeited if they don’t act, which they can’t, even if they wanted to.

Opportunity is knocking for needed concrete changes to be made by the 9th Circuit.

9th Circuit Case No. 17-17-16459

Page 5 Of Informal Brief

8. Do you have any other cases pending in this court? If so, give the name and docket
number of each case.
Response: Yes, The firm, Hagens Berman Sobol, made many of the same reversible
Ground Hog Day legal errors in each of the cases below that need correction.
Kevin Young, et al v. LG Chem., et al case No. 17-15795,
Battery II Indirect Purchaser Actions 17-17369

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Indirect Purchaser Class, et al v. Panasonic, et al Case No.17-15067
Disk II 17-17436.

“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).

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: Not yet, he expects to win all cases referenced above including this one.

10. For prisoners, did you exhaust all administrative remedies for each claim prior to
filing your complaint in the district court?
Response: Not applicable

This entire informal brief document is double spaced, is not over the 50 page limit and

contains 9975 words with Times Roman Numeral 14 font as counted by Word 2007.

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

knowledge. Executed on September , 2018

Christopher Andrews, Pro se Appellant, non attorney- PO Box 530394 Livonia, MI

48153-0394 Telephone: 248-635-3810 Email: caaloa@gmail.com

9th Cir. Case No. 17-16459

CERTIFICATE OF SERVICE

Case Name: Christopher Andrews, (Appellant) v. Matthew Edwards and National Milk
Producers Federation aka Cooperatives Working Together

I certify under penalty of perjury that that one original and seven copies of this 48 page
informal appeal brief were sent to the 9th Circuit Court of Appeals via USPS Priority Mail
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on September , 2018 and one copy each was sent to the parties listed below via prepaid
first class mail also on September ?? 2018.

Christopher Andrews
PO Box 530394
Livonia, MI 48153-0394
Telephone 248-635-3810
Email: caaloa@gmail.com
Pro se Appellant

Mr. Berman
Hagens Berman Sobol Shapiro LLP- Plaintiffs
715 Hearst Avenue, Suite 202
Berkeley, CA 94710

Jill O’Toole
Shipman & Goodman LLP for Agri-Mark
One Constitution Plaza
Hartford, CT 06103
Steve Kuney
Williams & Connolly LLP for DFA
725 Twelfth Street NW
Washington, DC 20005

Nathan Eimer
Eimer Stahl LLP for Land O’ Lakes
224 South Michigan Avenue, Suite 1100
Chicago, IL 60604

Kenneth Ewing
Steptoe & Johnson LLP for NMPF
1330 Connecticut Avenue, NW
Washington, DC 20036

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