Christopher Andrews v. Panasonic Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2021
• Docket: 19-16803
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 23 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: LITHIUM ION BATTERIES No. 19-16803 ANTITRUST LITIGATION, D.C. No. 4:13-md-02420-YGR ------------------------------

INDIRECT PURCHASER PLAINTIFFS, MEMORANDUM*

Plaintiff-Appellee,

v.

CHRISTOPHER ANDREWS,

Objector-Appellant,

PANASONIC CORPORATION; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted August 18, 2020** San Francisco, California

Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.

Pro se objector Christopher Andrews appeals the district court’s approval of

the third and final round of settlements in an antitrust action by Indirect Purchaser

Plaintiffs (IPPs) alleging price-fixing of lithium-ion batteries by defendant

electronics companies. The district court granted class certification for a

nationwide settlement class and approved a $49 million settlement, allocating 90

percent to class members in Illinois Brick1 repealer states and 10 percent to class

members in non-repealer states. We have jurisdiction under 28 U.S.C. § 1291. We

review certification of a settlement class and approval of a class action settlement

for abuse of discretion. In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556

(9th Cir. 2019) (en banc). We affirm.

1. Named plaintiffs have standing. Contrary to Andrews’ contentions,

representative plaintiffs need only allege standing at the class certification stage.

See In re Zappos.com, Inc., 888 F.3d 1020, 1028 nn.11–12 (9th Cir. 2018). And

although Andrews argues that named plaintiffs and class members in non-repealer

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Ill. Brick Co. v. Illinois, 431 U.S. 720, 729–31 (1977) (holding that indirect purchasers cannot recover damages under federal antitrust law). 2 states lack standing, non-repealer class members’ ability to recover under federal

antitrust law does not affect our subject matter jurisdiction. See Gerlinger v.

Amazon.com Inc., 526 F.3d 1253, 1256 (9th Cir. 2008) (noting that antitrust

standing is an element of proof for damages, not a jurisdictional prerequisite).

2. The district court did not abuse its discretion in finding that named

plaintiffs fairly and adequately represented the class in accordance with Federal

Rule of Civil Procedure (FRCP) 23(a)(4). A serious conflict of interest between

the interests of class representatives and members of the class can impair adequate

representation. See In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., &

Prods. Liab. Litig., 895 F.3d 597, 607 (9th Cir. 2018). Although the inclusion of

both repealer and non-repealer class members in the settlement class here created a

potential conflict of interest between class members with claims of differing

values, this conflict was mitigated by the district court’s differential allocation of

the settlement fund to class members in repealer and non-repealer states. See id. at

607 n.13; Hanlon v. Chrysler Corp., 150 F.3d 1011, 1021–22 (9th Cir. 1998),

overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338

(2011). Furthermore, there is no indication that named plaintiffs in either repealer

3 or non-repealer states lacked incentive to vigorously prosecute the case on behalf

of the class. See Hanlon, 150 F.3d at 1021.2

3. The district court did not abuse its discretion in determining that class

counsel fairly and adequately represented the class in accordance with FRCP

23(a)(4) and 23(g)(4). A conflict undermining adequate representation by counsel

may be evidenced where a settlement is “driven by fees” or where attorney’s fees

are disproportionately large. Hanlon, 150 F.3d at 1021. The district court here

mitigated concerns that the settlement agreement might be driven by attorney’s

fees by awarding fees separately from the settlement agreement, and the thirty

percent attorney’s fee award here is not a disproportionate distribution of the total

settlement fund. See id. Beyond conflict-free representation, the district court’s

finding that counsel had litigated vigorously on behalf of the class by conducting

extensive discovery and motions practice over more than six years of litigation is

not clearly erroneous. See id. at 1021–22.

4. The district court did not abuse its discretion by approving service

awards for named plaintiffs. Service awards do not necessarily create an

2 Andrews did not argue before the district court that the nationwide settlement class fails the predominance requirement of FRCP 23(b)(3), and thus we do not consider it on appeal. See Friedman v. AARP, Inc., 855 F.3d 1047, 1057 (9th Cir. 2017). 4 impermissible conflict of interest. In re Online DVD-Rental Antitrust Litig., 779

F.3d 934, 943 (9th Cir. 2015). Here, the district court appropriately took into

account the length of the litigation, the time and resources class representatives

expended litigating the case, the ultimate recovery, and comparable settlements in

deciding to approve the service awards. See Staton v. Boeing Co., 327 F.3d 938,

977 (9th Cir. 2003). The awards were not conditioned on support of the

settlement, nor was there any service award agreement prior to litigation. Cf.

Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1164 (9th Cir. 2013);

Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 959–60 (9th Cir. 2009). Moreover,

the service awards of $10,000 for individual named plaintiffs and $25,000 for the

two governmental entities were not disproportionate to the $49 million settlement.

See Staton, 327 F.3d at 977; In re Online DVD-Rental Antitrust Litig., 779 F.3d at

942–43.

5. The district court did not abuse its discretion in finding the

distribution plan fair, reasonable, and adequate under FRCP 23(e)(2). We review

the district court’s analysis to determine (1) whether it meets the high procedural

bar for pre-certification settlement and (2) whether the district court abused its

discretion in finding that the settlement was fair, reasonable, and adequate. See

Allen v. Bedolla, 787 F.3d 1218, 1223–24 (9th Cir. 2015). The district court here

5 met its pre-class certification procedural burden by considering the recovery in

comparison to the strength of the case, the stage of litigation, the risk of further

litigation, and any indications of potential collusion. See Churchill Vill., LLC v.

Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004); In re Bluetooth Headset Prods.

Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011).

Furthermore, the district court did not abuse its discretion in finding that the

agreement was substantively fair. FRCP 23(e)(2) requires consideration of

whether: (1) “the class representatives and class counsel have adequately

represented the class”; (2) “the proposal was negotiated at arm’s length”; (3) “the

relief provided for the class is adequate”; and (4) “the proposal treats class

members equitably relative to each other.” For the reasons we have already

discussed, the class was adequately represented by class representatives and

counsel. See Hanlon, 150 F.3d at 1021–22. The settlement is the third in this

action and followed multiple mediation sessions, and Andrews does not contend

that it was not negotiated at arm’s length. The district court considered the

adequacy of the relief, “taking into account the costs, risks, and delay of trial and

appeal,” and permissibly found the $49 million award robust. And finally, the

district court permissibly found that the differential allocation of the settlement

between class members in repealer and non-repealer states was equitable because,

6 although their claims were less valuable, class members in non-repealer states were

still active litigants entitled to minimal recovery.

6. The district court did not abuse its discretion in finding that the notice

program was adequate under FRCP 23(c)(2). Notice of a proposed settlement

under FRCP 23(b)(3) must be “the best notice that is practicable under the

circumstances.” FRCP 23(c)(2)(B). However, the Rule does not require “actual

notice to each individual class member.” Briseno v. ConAgra Foods, Inc., 844

F.3d 1121, 1128 (9th Cir. 2017). Instead, “notice must be reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections.” Roes, 1-2 v.

SFBSC Mgmt., LLC, 944 F.3d 1035, 1045 (9th Cir. 2019) (internal quotation and

citation omitted). Notice here was not inadequate merely because every class

member was not directly mailed or because counsel did not obtain more unnamed

class member emails. See FRCP 23(c)(2) advisory committee’s notes. IPPs

appropriately focused on the means most likely to notify class members, including

through traditional and technological means and publication. See Roes, 944 F.3d at

1045. Nor was the content of the notice otherwise deficient. FRCP 23(c)(2)(B)

lists seven items that “must be included,” but we have declined to extend the

7 content requirements any further. Roes, 944 F.3d at 1044. Here, the notice

appropriately included the information required by FRCP 23(c)(2)(B).

7. The settlement agreement is not otherwise legally deficient. First,

there is no discrepancy between the execution date and the date of the last defense

counsel signature on the Toshiba Settlement Agreement. Second, although

Andrews argues that a variety of claims procedures are missing from the settlement

agreement, he provides no authority requiring that any of this information be

included.

AFFIRMED. Appellant’s Motion to Stay the Decision, filed March 29,

2021, is DENIED.