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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DiVESIGN
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`STEPHEN HADLEY, et a1.
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`Case No. 5:16—cv—04955LHK
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`V.
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`KELLOGG SALES COMPANY
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`[Fed R. Civ. P. 23(a), (b), (e), (h)]
`Judge Lucy H. Koh
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`MOTION FOR WHILE/MARY APPROVAL ..
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`Counsel who certified a “Californian Class” (“California-Class Counsel”)
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`claims that the new nationwide deal has “no obvious deficiencies”—as before. DE
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`377 at 24. This third—timecharm backfired again as before, because one can Spot
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`obvious deficiencies, and the burden is on Plaintiffs to show all of why it deserves
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`preliminary approval, and not “if it has no ‘obvious deficiency’, it is worth approval.’
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`Fed. R. Civ. Proc. 28 placed an affirmative burden on California—Class
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`Counsel, such that “[a] party seeking class certification must affirmatively
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`demonstrate his compliance with the Rule—that is, he must be prepared to prove
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`that there are infect sufficiently numerous parties, common questions of law or
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`fact, etc.” Wei-Mart Stores 1). Dukes, 568 US. 338, 849 (2011). As California-Class
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`Counsel repeatedly seek to settle on .a nationwide basis—of which does not have a
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`certified litigation class, and failed twice—«the standard must be heightened:
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`“Confronted with a request for settlement—only class certification
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`[rules]
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`designed to protect absentees by blocking unwarranted or overbroad class
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`Case 5:16-cv-O4955-LHK Document 384 Filed 03/19/21 Page 2 of 3
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`California—Class Counsel is basically asking “a delegation of judicial power to the
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`plaintiffs, who can obtain class certification just by hiring a competent expert.”
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`West 12. P1mdential89o, 282 F.3d 935, 938 (7th Cir. 2002) (Easterbrook, «1.). Maybe
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`it takes a statistician to tell whether the “quintiles” are fairly allocated, or what
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`else might be really “behind the scenes’h—but 0y pres is for sure behind the scenes.
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`The “black box” combines with “0y pres in, coupons out” still offers grave
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`concerns that the “Class” still will get next to nothing from “black box” mysteries,
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`so that a substantial cut might really go to cry pres. Cy pres is permitted in this
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`Circuit, only when a direct distribution will be “infeasible given that each class
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`member's direct recovery would be de minimis. ” Lane 7). Facebook, 696 F.3d 811,
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`ll
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`821 (9th Cir. 2012). But clearly, Class will get some funds anywcm, making
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`“infeasibility of distribution” impossible, and the Class deserves the entire fund pro
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`rate, without resorting to 0y pres, which has full of problems as an Article III
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`standing’s redressability problem, see Brief for the US. as Ari/teas Curiae, Frank
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`22. Geog, 139 S. Ct. 1041 (2019), 2018 WL 3456069, at 1528 (US. July 16, 2018), or
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`as a settlement fairness / allocation/ excess fee problem. See Dennis o. Kellogg Ca,
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`697 F.3d 858 (9th Cir. 72012). Pearson o. NBTY, 772 F.3d 778 (7th Cir. 2014).
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`Third, Californian-Class Counsel appears to have abdicated its duty for the
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`entire Californian class, by seeking to settle a nationwide class that treats
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`Californian claims undervalued: Whether or not one is in California class, “every
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`21 Class Member who makes a claim will be subject to the same claims process that
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`Case 5:16-cv-O4955-LHK Document 384 Filed 03/19/21 Page 3 of 3
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`provides the same remedy based on the claimant’s purchase history.” DE 377 at 27.
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`But it is more than obvious that California—Class’ litigable claims have more
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`worth than nationwide rtonwlitigable claimsm-without a certified class to proceed in
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`a trial. “A fundamental conflict exists Where [Californian Litigation Class]
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`members [are] harmed by the same conduct that benefitted [Nationwide] members
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`of the class.” Valley Drag Co. 1). Geneva Phonmta, 350 F.3d 1181, 1189 (11th Cir.
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`2003). The Court should set dates for a trial so that this Court’s judicial resources
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`need not be wasted further by endless attempts to settle profitably Without real,
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`relief. Or, “[a] district court may decertify a class at any time.” Rodriguez 1). West
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`Publishing Corp, 568 F.3d 948, 966 (9th Cir. 2009) (citation omitted).
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`W
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`For the foregoing reasons, the motion should be denied.
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`Dated: March 15, 2021
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`Respectfully Submitted,
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`/s[_ Shiyang Huang
`Shiyang Huang
`2800 SW Engler Ct,
`Topeka, KS 66614
`(314) 6691858
`deg;stagesettlemerite'lgtrriwithers
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 15, 2021, I mailed the foregoing paper wit
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`the Court. CM/ECF will notify all counsels of record.
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`(sf Shiyang Huang
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