BURSOR & FISHER, P.A

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28 PLAINTIFFS’ NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 2:12-CV-01983 GHK (MRW)

BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) L. Timothy Fisher (State Bar No. 191626)Annick M. Persinger (State Bar No. 272996)1990 North California Boulevard, Suite 940Walnut Creek, CA 94596Telephone: (925) 300-4455E-Mail: [email protected]

[email protected] [email protected]

Co-Lead Class Counsel

[Additional counsel on signature page]

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated,

Plaintiffs, v.

HYLAND’S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY,

Defendants.

Case No. 2:12-CV-01983 GHK(MRW)

PLAINTIFFS’ NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Date: November 28, 2016 Time: 9:30 a.m. Courtroom: 650

Hon. George H. King

Case 2:12-cv-01983-GHK-MRW Document 275 Filed 10/14/16 Page 1 of 3 Page ID #:13111

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To all parties and their attorneys of record, please take notice that on

November 28, 2016 at 9:30 a.m. in Courtroom 650, or as soon thereafter as may be

heard, Plaintiffs Enzo Forcellati and Lisa Roemmich, on behalf of themselves and all

others similarly situated will, and hereby do, respectfully move for an order:

1. granting preliminary approval of the parties’ proposed class action

settlement;

2. finding that the settlement is within the range of reasonableness and

possible final approval such that class notice should be provided;

3. approving the form and manner of class notice;

4. finding that the requirements for certification of the settlement class for

settlement purposes have been satisfied;

5. appointing Plaintiffs as the class representatives

6. appointing Plaintiffs’ counsel as class counsel;

7. scheduling the Fairness Hearing;

8. determining that the notice of the settlement and Fairness Hearing

complies with all legal requirements;

9. directing that notice should be provided to class members;

10. appointing KCC Class Action Services, LLC as the Settlement

Administrator; and

11. staying all proceedings other than those related to the settlement pending

the Fairness Hearing.

This motion is based on this Notice, Plaintiffs’ Memorandum in Support of

Motion for Preliminary Approval, the parties’ Stipulation of Settlement, the

Declaration of L. Timothy Fisher in Support of Preliminary Approval, the

Declaration of Enzo Forcellati in Support of Preliminary Approval, the Declaration

of Lisa Roemmich in Support of Preliminary Approval, and the Declaration of

Patrick M. Passarella Regarding Notice and Settlement Administration.


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This motion is made following the conference of counsel. Defendants do not

oppose this motion.

Dated: October 14, 2016 BURSOR & FISHER, P.A.

By: /s/ L. Timothy Fisher L. Timothy Fisher

Scott A. Bursor (State Bar No. 276006) L. Timothy Fisher (State Bar No. 191626)Annick M. Persinger (State Bar No. 272996)1990 North California Blvd., Suite 940Walnut Creek, CA 94596Telephone: (925) 300-4455E-Mail: [email protected]


VOZZOLO LLC Antonio Vozzolo (pro hac vice) 345 Route 17 South Upper Saddle River, New Jersey 07458 Phone: 201-630-8820 Fax: 201-604-8400 [email protected]

FARUQI & FARUQI, LLP Nadeem Faruqi 685 3rd Avenue 26th Floor New York, NY 10017 Tel: (212) 983-9330 Fax:(212) 983-9331 E-Mail: [email protected]



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28 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. 2:12-CV-01983 GHK (MRW)

BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 276006) L. Timothy Fisher (State Bar No. 191626)Annick M. Persinger (State Bar No. 272996)1990 North California Boulevard, Suite 940Walnut Creek, CA 94596Telephone: (925) 300-4455E-Mail: [email protected]



[Additional counsel on signature page]



Plaintiffs, v.


Defendants.


PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


Hon. George H. King

Case 2:12-cv-01983-GHK-MRW Document 275-1 Filed 10/14/16 Page 1 of 30 Page ID

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TABLE OF CONTENTS PAGE(S)

I. INTRODUCTION .......................................................................................... 1II. PROCEDURAL BACKGROUND ................................................................. 2

A. Forcellati et al. v. Hyland’s Inc. et al., 12-cv-01983GHK(MRW) (C.D. Cal.)....................................................................... 2

B. Kaatz v. Hyland’s Inc. et al., 16-cv-00237-VB (S.D.N.Y) .................... 8 III. CONDITIONAL CERTIFICATION OF THE SETTLEMENT

CLASS ......................................................................................................... 10 A. THE STANDARD FOR CLASS CERTIFICATION .......................... 10 B. THE PROPOSED SETTLEMENT CLASS SHOULD BE

CERTIFIED FOR SETTLEMENT PURPOSES ................................. 10 1. Ascertainability ......................................................................... 112. Numerosity - 23(a)(1) ............................................................... 12 3. Commonality - 23(a)(2) ............................................................ 12 4. Typicality - 23(a)(3).................................................................. 13 5. Adequacy - 23(a)(4) .................................................................. 14 6. Predominance - 23(b)(3) ........................................................... 15 7. Superiority - 23(b)(3) ................................................................ 15

IV. THE SETTLEMENT IS FAIR, ADEQUATE, ANDREASONABLE ............................................................................................ 15 A. The Amount Offered in Settlement ..................................................... 16 B. A Comparison of the Settlement Amount to the Average

Actual Damages Shows that the Amount Offered Is Fair,Adequate, and Reasonable .................................................................. 18

C. The Strength of Plaintiffs’ Case and the Specific Risks ofThis Litigation .................................................................................... 20

D. The Extent of Discovery and Status of Proceedings ............................ 21 E. Experience and Views of Counsel ....................................................... 22

V. THE PROPOSED NOTICE SHOULD BE APPROVED .............................. 22 A. The Manner of Notice Satisfies All Requirements .............................. 23 B. The Form of the Notices and Claim Form ........................................... 24 C. KCC Should Be Appointed Settlement Administrator ........................ 25

VI. CONCLUSION ............................................................................................ 25


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TABLE OF AUTHORITIES PAGE(S)

CASES

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................................10

Braynen v. Nationstar Mortgage, LLC, 2015 WL 6872519 (S.D. Fla. Nov. 9, 2015) .........................................................24

Dei Rossi v. Whirlpool Corp., 2016 WL 3519306 (E.D. Cal. June 28, 2016) ................................................. 16, 17

Erickson v. Corinthian Colleges, Inc., 2015 WL 12001275 (C.D. Cal. Dec. 22, 2015) ............................................... 15, 24

Forcellati v. Hyland's Inc., 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) .................................................. passim

Gascho v. Global Fitness Holdings, LLC, 2014 WL 1350509 (S.D. Ohio Apr. 4, 2014) ........................................................20

Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269 (6th Cir. 2016) ................................................................................20

Guido v. L'Oreal, USA, Inc., 2013 WL 3353857 (C.D. Cal. July 1, 2013)..........................................................11

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ....................................................................... passim

In re American Apparel, Inc. v. S'holder Litig., 2014 WL 10212865 (C.D. Cal. July 28, 2014) ......................................................22

In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) ................................................................................22

In re Mego Financial Corp. Securities Litig., 213 F.3d 454 (9th Cir. 2000) .......................................................................... 18, 21

In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008).................................................................22

In re Pac. Enters. Sec. Litig., 47 F.3d 373 (9th Cir. 1995) ..................................................................................21

McCrary v. Elations Co., LLC, 2014 WL 1779243 (C.D. Cal. Jan. 13, 2014) ........................................................11

Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ..........................................................................21


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28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. 2:12-CV-01983 GHK (MRW)

Parkinson v. Hyundai Motor America, 258 F.R.D. 580 (C.D. Cal. 2008) ..........................................................................11

Poertner v. Gillette Co., 2015 WL 4310896 (11th Cir. 2015) ......................................................................24

Rodriguez v. West Publishing Corp., 563 F.3d 948 (9th Cir. 2009) .................................................................... 22, 23, 24

Shames v. Hertz Corp., 2012 WL 5392159 (S.D. Cal. Nov. 5, 2012) ............................................. 18, 19, 20

Sharobiem v. CVS Pharmacy, Inc., 2015 WL 10791914 (C.D. Cal. Sept. 2, 2015) .......................................... 10, 24, 25

STATUTES

15 U.S.C. § 2301................................................................................................ 3, 5, 8

California Business & Professions Code § 17200 ......................................................3

California Business & Professions Code § 17500 ......................................................3

California Civil Code § 1750 .....................................................................................3

Mo. Ann. Stat. § 407.010 ...........................................................................................4

N.J.S.A. § 58:8-1 .......................................................................................................3

New York General Business Law § 349................................................................. 8, 9

New York General Business Law § 350................................................................. 8, 9

RULES

Fed. R. Civ. P. 23 ............................................................................................... 10, 13

Fed. R. Civ. P. 23(a) .......................................................................................... 10, 11

Fed. R. Civ. P. 23(b) ................................................................................................11

Fed. R. Civ. P. 23(b)(1), (2), or (3) ..........................................................................10

Fed. R. Civ. P. 23(c)(2)(B) .......................................................................................22

Fed. R. Civ. P. 23(e)(1) ............................................................................................22

Fed. R. Civ. P. 23(f) ...................................................................................................5


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I. INTRODUCTION After four years of vigorous litigation, the Parties in this action have reached a

settlement that provides a real and substantial monetary benefit to the class.

Specifically, without having to submit any proof of purchase, each Class Member

may submit a claim for up to two full refunds for the children’s homeopathic

products at issue in this case. There is no limit on the number of full refunds that

Defendants will pay to Class Members who do provide a proof of purchase.

Additionally, there is no cap on the amount of money that Defendants will pay to

Class Members. As a result, there is no risk that Class Members’ refunds will be

prorated or reduced for any reason. Further, instead of coming from the same

common fund, the costs of notice administration, and any incentive awards or

attorney’s fees will be paid separately from the refunds paid to Class Members.

Thus, those costs will not affect the amount of refunds that will be paid to Class

Members under the settlement. Because Plaintiffs sought to recover full refunds for

Class Members based on their purchase of ineffective homeopathic products, the

provision of full refunds under the settlement is an exceptional result for the class.

Indeed, the settlement provides complete relief, or close to it, to Class Members who

submit claims. Accordingly, the settlement proposed in the Parties’ Stipulation of

Settlement is fair, adequate and reasonable. See Declaration of L. Timothy Fisher

(“Fisher Decl.”), Ex. 1 (Stipulation of Settlement). Given that the settlement

provides real monetary relief to Class Members who purchased the products that

Plaintiffs allege were misrepresented as effective, Plaintiffs request that the Court

find that the settlement is within the range of possible approval.

Defendants have denied, and continue to deny, all of the claims and

contentions alleged in this action. Defendants, however, have considered the risks

and potential costs of trial, on the one hand, and the benefits of the proposed

settlement on the other, and have agreed to settle the action upon the terms and


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conditions set forth in the Stipulation of Settlement submitted herewith. Thus,

Defendants do not oppose this motion. For these reasons and the reasons below, the

Parties request that the Court enter a preliminary approval order that: (a) finds that

the settlement is within the range of reasonableness and possible final approval such

that class notice should be provided; (b) approves the manner and form of class

notice, including the Long Form Notice, the Postcard Notice, and the Short Form

Notice, attached to the Stipulation as Exs. C, D, F; (c) finds that the requirements for

certification of the settlement class for settlement purposes have been satisfied, and

appoints Plaintiffs as the class representatives and their counsel as class counsel; (d)

schedules the Fairness Hearing; (e) determines that the notice of the settlement and

Fairness Hearing, complies with all legal requirements, and directs that it should be

provided to the Class Members; (f) appoints KCC Class Action Services, LLC as the

Settlement Administrator; and (g) stays all proceedings other than those related to

the settlement pending the Fairness Hearing. See Fisher Decl. Ex. 1, Stipulation of

Settlement (Proposed Preliminary Approval Order: Ex. B).

II. PROCEDURAL BACKGROUND

A. Forcellati et al. v. Hyland’s Inc. et al., 12-cv-01983 GHK(MRW) (C.D. Cal.)

On March 8, 2012, Plaintiff Enzo Forcellati commenced a proposed class

action against Defendants Hyland’s Inc., and Standard Homeopathic Company

entitled Forcellati v. Hyland’s Inc. et al. (United States District Court, Central

District of California, Case No. 12-cv-1983-GHK) (the “Forcellati Action”). See

Complaint, Dkt. 1. Plaintiff Forcellati asserted claims on behalf of himself and a

proposed nationwide class of purchasers of (i) Cold ‘n Cough 4 Kids, (ii) Cough

Syrup with 100% Natural Honey 4 Kids, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold

Relief Strips 4 Kids with Zinc, and (v) Nighttime Cold ‘n Cough 4 Kids. Plaintiff

Forcellati alleged that Defendants made false and misleading statements about its

kids’ products, such as that the kids’ products were “Safe & Effective” for treating


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cold and flu symptoms and that they were “100% Natural.” See generally id.

Plaintiff Forcellati further alleged that, in fact, the kids’ products are no better than a

placebo because the homeopathic ingredients in the products are ultra-diluted. See

generally id. Based on his allegation that none of Defendants’ kids’ homeopathic

products could provide natural relief from illnesses, Plaintiff Forcellati brought

claims individually and on behalf of a putative class for violation of the Magnuson-

Moss Warranty Act, 15 U.S.C. § 2301, et seq., for unjust enrichment, for breach of

express warranty, for breach of implied warranty, for violation of the New Jersey

Consumer Fraud Act, N.J.S.A. § 58:8-1, et seq., for violation of the Consumer Legal

Remedies Act (“CLRA”), California Civil Code § 1750, et seq., for violation of the

False Advertising Law (“FAL”), California Business & Professions Code §§ 17500

et seq., and for violation of the Unfair Competition Law (“UCL”), California

Business & Professions Code §§ 17200 et seq. Id.

On April 23, 2012, Defendants filed a motion to dismiss. Dkt. 9. On April 30,

2012, Plaintiff Forcellati opposed. Dkt. 16. On June 1, 2012, the Court dismissed

Plaintiff’s unjust enrichment claim but denied the remaining portions of Defendants’

motion. Dkt. 27. On June 15, 2012, Hyland’s answered Plaintiff Forcellati’s

Complaint, denying liability. Dkt. 33.

On July 20, 2012, Hyland’s removed an action entitled Roemmich v. Hyland’s

Inc. et al. from the Superior Court of California, County of Los Angeles to the

United States District Court, Central District of California (Case No. 12-cv-6256)

(the “Roemmich Action”). On November 8, 2012, the Court ordered that the

Forcellati and Roemmich Actions be consolidated, and appointed Bursor & Fisher,

P.A. and Faruqi & Faruqi LLP as co-lead counsel in the Forcellati and Roemmich

Actions (hereafter the “Consolidated Action” or the “Action”). Dkt. 43. On

December 7, 2012, Plaintiff Enzo Forcellati, and Lisa Roemmich, filed a

Consolidated Amended Class Action Complaint that added Lisa Roemmich as a


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Plaintiff to the Action. Dkt. 44. In addition to the claims in Plaintiff Forcellati’s

Complaint, the Consolidated Amended Class Action Complaint also asserted claims

for Violation of the Missouri Merchandising Practices Act, Mo. Ann. Stat. §§

407.010, et seq. Id.

On January 7, 2013, Hyland’s filed a motion to dismiss Plaintiffs’ prayer for

punitive damages in the Consolidated Amended Class Action Complaint. Plaintiffs

opposed. Dkt. 49. On February 14, 2013, the Court denied Defendants’ motion.

Dkt. 56.

Following denial of Defendants’ second motion to dismiss, Defendants

produced, and Plaintiffs reviewed, over 52,000 pages of documents. See Fisher

Decl. ¶ 10. Documents that Plaintiffs’ counsel reviewed included, for example,

Hyland’s advertising and labeling, test results, internal communications, and sales

information. Id. Following Plaintiffs’ review of the documents, Plaintiffs deposed

Dr. Iris Bell, Defendants’ Director of Scientific Affairs, and Thanh-Thao Minh Le,

Defendants’ Vice President of Marketing. Id. at ¶ 11. Defendants deposed Plaintiff

Enzo Forcellati, and Plaintiff Lisa Roemmich. Id.

On September 16, 2013, Plaintiffs filed a motion for class certification. Dkt.

82. In support of that motion, Plaintiffs submitted an expert report from Arthur P.

Grollman, a recognized clinical pharmacology expert. Dkt. 82. After deposing Dr.

Grollman, on October 28, 2013, Hyland’s opposed Plaintiffs’ motion. Dkt. 94;

Fisher Decl. ¶ 3. In support of their opposition, Defendants submitted expert reports

from Dr. Stewart, Dr. Cristofaro, Dr. Punzo, and Dr. Fisher. Before filing their

reply, Plaintiffs deposed each of Defendants’ experts. Id. After Plaintiffs filed their

reply in support of certification, pursuant to the Court’s December 19, 2013 order, on

February 3, 2014, the Parties submitted supplemental briefing on the issue of

whether the proposed class was ascertainable. Dkt. 125, 133. Subsequently, on

April 9, 2014, the Court certified the following Rule 23(b)(3) class for monetary


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relief with respect to Plaintiffs’ claims for violation of Magnuson-Moss Act, 15

U.S.C. § 2301, et seq., breach of express warranty, breach of implied warranty,

violation of the CLRA, violation of the FAL, and violation of the UCL:

(a) A nationwide class of all persons in the United States who purchased the following Hyland’s products on or after March 8, 2008: (i) Cold ‘n Cough 4 Kids, (ii) Cough Syrup with 100% Natural Honey 4 Kids, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold Relief Strips 4 Kids with Zinc, and (v) Nighttime Cold ‘n Cough 4 Kids;

(b) A 49-state class of all persons in the United States except for those in California who purchased Hyland’s Complete Flu Care 4 Kids on or after March 8, 2008.

Dkt. 144. The Court appointed the law firms of Bursor & Fisher, P.A., and Faruqi &

Faruqi, LLP as class counsel. Id. The Court appointed Plaintiffs Enzo Forcellati

and Lisa Roemmich as Class Representatives. Id. The Court, however, denied

Plaintiffs’ request to certify a Rule 23(b)(2) class for injunctive relief, and denied

certification of Plaintiffs’ proposed New Jersey and Missouri subclasses. Id.

In response to this Court’s decision to certify a nationwide class, on April 23,

2014, Hyland’s filed a petition for permission to appeal pursuant to Fed. R. Civ. P.

23(f). Fisher Decl. ¶ 12. On April 30, 2014, Plaintiffs filed an answer in opposition

to Hyland’s petition. Id. On July 8, 2014, the Ninth Circuit denied Hyland’s Fed. R.

Civ. P. 23(f) petition. Dkt. 154.

On August 4, 2014, the Court issued an Order Re Form and Dissemination of

Notice to the Class. Dkt. 155. In that Order, the Court instructed Plaintiffs to select

a claims administrator and provide the Court with evidence of the selected

administrator’s qualifications. Id. On August 11, 2014, Plaintiffs submitted a notice

of their selection of Kurtzman Carson Consultants (“KCC”) as claims administrator.

Dkt. 156. Along with their notice of claims administrator selection, Plaintiffs

submitted a declaration from KCC that detailed their long experience with class

action notice and settlement administration. Dkt. 156-1. Based on that declaration,


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on August 12, 2014, the Court approved Class Counsel’s retention of KCC as the

claims administrator in this case. Dkt. 157. Thereafter, On September 18, 2014,

KCC sent notice to Class Members by email and U.S. Mail.

While notice was being sent to the Class Members, the Parties continued

working with experts and taking discovery. Plaintiffs deposed Defendants’

marketing employees, Jennifer Jacobs and Amy Fox, as well as Mark Phillips, a

Hyland’s pharmacist. Fisher Decl. ¶ 11. Additionally, while this litigation was

pending, a study on one of the products at issue, Cold ‘n Cough 4 Kids, was in

progress at the University of Washington. Id. at ¶ 10. To evaluate that study,

Plaintiffs subpoenaed and obtained study documents from the University of

Washington. Id. at ¶¶ at 10-11. Plaintiffs also deposed the chief investigator of the

study, Dr. James Taylor, after interim results were produced, and again after final

results were produced. Id. After the results of Defendants’ study were available,

Plaintiffs deposed Dr. Bell a second time. Id. at ¶ 11. Plaintiffs’ and Defendants’

experts also issued opinions on the interim results of the study, and then

supplemented their opinions once final results were available. Id. Plaintiffs deposed

Defendants’ experts Dr. Bellavite, and Dr. Calabrese. Id. Defendants deposed

Plaintiffs’ experts Dr. Howlett, Dr. Grollman, Dr. Bausell, Dr. Ernst, and Mr. Weir.

Id. Finally, Plaintiffs deposed Hyland’s CEO Dr. Borneman. Id.

After the Parties completed extensive discovery, including twenty-four

depositions, on September 5, 2014, Hyland’s filed a motion for summary judgment.

Fisher Decl. ¶ 11; Dkt. 159. Plaintiffs opposed in a joint brief on that same date.

Dkt. 159. On January 12, 2015, the Court denied Hyland’s motion for summary

judgment. Dkt. 179.

Since a class had been certified and Defendants’ motion for summary

judgment had been denied, the Parties began preparation for trial. The Parties

exchanged exhibit lists, witness lists, objections, motions in limine, pre-trial


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conference statements, and trial briefs. See e.g. Dkt. 204-212, 215, 224-225.

Plaintiffs visited the courtroom to test their electronic presentations. Fisher Decl. ¶

13. The Parties began to prepare their witnesses, and marked exhibits with the

Court’s official exhibit tags. Id. On October 22, 2015, Hyland’s filed an ex parte

application to continue the trial based on their contention that Plaintiffs’ trial brief

raised new issues. Dkt. 239. On October 23, 2015, just days before the pretrial

conference, the Court vacated all trial dates to consider Hyland’s request for judicial

estoppel, to consider the Parties’ motions in limine, and to evaluate Defendants’

objections to the deposition videos to be used at trial. Dkt. 245.

At various stages of the case, the Parties attempted to resolve this matter. As

early as October 30, 2012, the Class Representatives and Hyland’s participated in a

full-day in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. Fisher

Decl. ¶ 14. On May 9, 2013, the Parties participated in a second full-day in-person

mediation with Mr. Meyer. Id. On March 25, 2015, the Parties participated in a

full-day in-person settlement conference with the Hon. Jay C. Gandhi, United States

Magistrate Judge. Dkt. 189. On October 19, 2015, the Parties participated in a

second full-day in-person settlement conference with Judge Gandhi. Dkt. 217. On

July 6, 2016, the Parties participated in a third full-day in-person settlement

conference with Judge Gandhi. Dkt. 268. After continuing to work with Judge

Gandhi following the July settlement conference, on July 18, 2016, the Parties in the

Consolidated Action reached the proposed settlement described herein. Fisher Decl.

¶ 14. There can be no question that the Parties engaged in non-collusive, arm’s

length negotiations.

Moreover, against the background of the procedural history of this litigation,

it is clear that Class Counsel conducted a thorough examination and investigation of

the facts and law relating to the matters in this Consolidated Action. Class Counsel

also evaluated the merits of the Parties’ contentions and evaluated the proposed


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settlement. The Class Representatives and Class Counsel, after taking into account

the foregoing, along with the risks and costs of further litigation, including pretrial

motions and trial, represent that they are satisfied that the terms and conditions of

the Stipulation of Settlement are fair, reasonable, and adequate, and that the

Settlement Agreement discussed herein is in the best interest of the Settlement Class

Members. Fisher Decl. ¶ 15; Forcellati Decl. ¶¶ 10-11; Roemmich Decl. ¶¶ 9-10.

B. Kaatz v. Hyland’s Inc. et al., 16-cv-00237-VB (S.D.N.Y) On January 12, 2016, Plaintiffs Marie Kaatz and Abigail Gagliardi

commenced an action entitled Kaatz v. Hyland’s Inc. et al. (United States District

Court, Southern District of New York, Case No. 7:16-cv-00237-VB) (the “Kaatz

Action”), as a proposed class action, asserting claims for violation of New York

General Business Law §§ 349 and 350, the consumer protection statutes of all fifty

states, and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq., as well as

for breach of express warranty, for breach of implied warranty of fitness for a

particular purpose, for negligent misrepresentations, and for unjust enrichment. Dkt.

1. The Kaatz Action asserted claims with respect to Hyland’s (i) Baby Teething

Gel; (ii) Baby Cough Syrup, (iii) Baby Gas Drops, (iv) Baby Infant Earache Drops,

and (v) Baby Nighttime Tiny Cold Syrup. Id. Like Plaintiffs Forcellati and

Roemmich, the Plaintiffs in the Kaatz Action allege that Defendants’ products are

not effective for relieving symptoms and are not 100% natural. Compare

Consolidated Complaint, Dkt. 44, ¶ 46 with Kaatz Complaint, Dkt. 1, ¶ 2. Also like

the Plaintiffs in the Consolidated Action, the Plaintiffs in the Kaatz Action allege

that the products do not provide any benefits beyond that of a placebo. Compare

Consolidated Complaint, Dkt. 44, ¶ 63 with Kaatz Complaint, Dkt. 1, ¶ 2. Indeed,

the Plaintiffs in the Kaatz Action copied word-for-word large swaths of the

Consolidated Complaint in this Action. Compare e.g., Consolidated Complaint,

Dkt. 44, ¶¶ 15-17, 19-20, 22-23, 25-41 with Kaatz Complaint, Dkt. 1, ¶¶ 29-34, 39-


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45, 49-59.

Furthermore, the products in the babies’ line are marketed along with the

products in the kids’ line because all of the kids’ and babies’ products are meant to

fill the gap left by the FDA’s determination that children under a certain age should

not take other over-the-counter medications for their illnesses. See Fisher Decl. Ex.

2, February 11, 2014 Deposition of Amy Fox, 84:8-86:14; id. at Ex. 3 (Exhibit 17 to

Fox deposition: “‘Finding safe medicines for babies and children is challenging for

parents,’ says Amy Fox, vice president of product innovation at Hyland’s. ‘It’s

important to feel confident and secure in what you’re giving your child, which is

why we put so much care into the medicines we create.’”); id. (specifying that that

Baby Tiny Cold Tablets, and Baby Cough Syrup were safe alternatives to traditional

OTC products for babies 6 months to 2 years, and that Cold ‘n Cough 4Kids,

Sniffles ‘n Sneezes 4Kids, and Cough Syrup with 100% Natural Honey 4Kids were

safe alternatives for children 2-12); see also e.g. id. at Ex. 2, Deposition of Amy

Fox, 79:12-25; id. at Ex. 4 (Exhibit 15 to Fox deposition).

On July 6, 2016, the District Court for the Southern District of New York

denied Defendants’ motion to dismiss the Complaint in the Kaatz Action, but limited

the New York Plaintiffs’ claims under New York General Business Law §§ 349 and

350, breach of implied warranty of fitness for a particular purpose, for negligent

misrepresentations, and for unjust enrichment to a putative class of New York

purchasers. Dkt. 29. On July 20, 2016, Defendants filed an answer to the Complaint

in the Kaatz Action, denying liability. Dkt. 31.

Given the substantial similarity between this litigation and the Kaatz Action,

Defendants agreed that, with Court approval, Plaintiffs should file a Second

Amended Consolidated Class Action Complaint that includes all of the products in

their kids’ and babies’ lines. See Fisher Decl. Ex. 1, Stipulation of Settlement,

Recitals CC. (discussing agreement to filing of Second Amended Consolidated


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Complaint); id. at § I. Definitions 1.36, 1.38 (defining Settlement Class and

Settlement Class Products to include Defendants’ babies’ line). Thus, Plaintiffs

have sought to file a Second Amended Consolidated Class Action Complaint that

brings claims for purchasers of products in both the babies’ line and the kids’ line of

Hyland’s products. See Motion for Leave to File Second Amended Complaint filed

concurrently herewith.

III. CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS

A. THE STANDARD FOR CLASS CERTIFICATION Rule 23 of the Federal Rules of Civil Procedures sets forth the conditions that

must be fulfilled for a court to certify a class. “Where the parties seek certification

of a class in the settlement context, [the court’s] analysis must be no less rigorous

than if [the court] were determining whether to certify a class in a contested class

certification motion.” See Sharobiem v. CVS Pharmacy, Inc., 2015 WL 10791914,

at *1 (C.D. Cal. Sept. 2, 2015) (citing Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 620 (1997)). “The requirements of Rule 23 are clear: First, the Class must meet

the Rule 23(a) prerequisites of numerosity, commonality, typicality, and adequacy.

Second, ‘the parties seeking certification must also show that the action is

maintainable under Fed. R. Civ. P. 23(b)(1), (2), or (3).’” Id. (quoting Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998)). Since Plaintiffs “seek

conditional certification of a 23(b)(3) class,” “the requirements of predominance and

superiority must also be met.” Id.

B. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES

Plaintiffs seek conditional certification, for settlement purposes, of a

nationwide class defined as all persons in the United Sates who purchased the

following Hyland’s products on or after March 8, 2008: (i) Cold ‘n Cough 4 Kids,

(ii) Cough Syrup with 100% Natural Honey, (iii) Sniffles ‘n Sneezes 4 Kids, (iv)

Cold Relief Strips 4 Kids with Zinc, (v) Nighttime Cold ‘n Cough 4 Kids, (vi)


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Complete Flu Care 4 Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix)

Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold

Syrup. Excluded from the Class are: (a) Hyland’s employees, officers and directors,

(b) persons or entities who purchased the products for the purpose of re-sale, (c)

retailers or re-sellers of the products, (d) governmental entities, (e) persons who

timely and properly exclude themselves from the Class as provided herein, and (f)

the Court, the Court’s immediate family, and Court staff. For the following reasons,

like the class already certified in this action, the Settlement Class meets the

requirements of Rule 23(a) and (b). See Forcellati v. Hyland’s Inc., 2014 WL

1410264 (C.D. Cal. Apr. 9, 2014).

1. Ascertainability “‘The requirement of an ascertainable class is met as long as the class can be

defined through objective criteria.’” Forcellati, 2014 WL 1410264, at *5 (quoting

Guido v. L'Oreal, USA, Inc., 2013 WL 3353857, at *18 (C.D. Cal. July 1, 2013)).

“A class is sufficiently ascertainable if ‘the proposed class definition allows

prospective plaintiffs to determine whether they are class members with a potential

right to recover.’” Id. (quoting Parkinson v. Hyundai Motor America, 258 F.R.D.

580, 593–94 (C.D. Cal. 2008)). Here, Plaintiffs have precisely defined their class

based on objective criteria: purchase of Defendants’ kids’ and babies’ products

within a prescribed timeframe. See id. “This is enough to satisfy Rule 23(a)’s

implied ascertainability requirement.” Id. (citing McCrary v. Elations Co., LLC,

2014 WL 1779243 (C.D. Cal. Jan. 13, 2014)). Furthermore, in light of the proposed

claims administration procedure (discussed below), “confirming individuals’ class

membership does not pose overwhelming manageability hurdles in this case.” Id. at

*7. Therefore, like the class originally certified in this action, the Settlement Class is

sufficiently ascertainable. See id. at *8 (citations omitted).


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2. Numerosity - 23(a)(1) “Defendants concede that they have sold millions of units of their children’s

cold and flu products nationwide.” Forcellati, 2014 WL 1410264, at *5. The

addition of the babies’ line of products only increases the number of purchasers in

the class. “Accordingly, the numerosity requirement is satisfied here.” Id.

3. Commonality - 23(a)(2) Rule 23(a)(2) requires a showing that “there are questions of law or fact

common to the class.” Plaintiffs allege that Defendants uniformly misrepresented

that the products for children and babies offer effective and all natural relief from the

symptoms of illness. Specifically, Defendants made the following uniform claims on

the product labels:

• Sniffles ‘n Sneezes 4 Kids: “Safe and Effective relief of cold symptoms,” “100% Natural,” and provides “Natural Relief.”

• Cold Relief with Zinc: “Fast relief from cold symptoms,” “Relieves: Runny nose, Sneezing [and] Sore throat,” and “100% Natural.”

• Cold ‘n Cough 4 Kids: relieves the symptoms of colds including, “Sneezing & runny nose, Nasal congestion, Sore throat, Cough,” “100% Natural,” and provides “Natural Relief.”

• Complete Flu Care 4 Kids: “Relieves” “Fevers & Chills,” “Body Aches,” “Headaches,” and “Coughs and Congestion,” “Fights Flu Naturally,” and provides “Natural Relief.”

• Nighttime Cough ‘n Cold 4Kids: “Temporarily relieves the symptoms of the common cold,” including “Sore Throat,” “Nasal Congestion,” “Cough,” “Runny nose” and “Sneezing,” and provides “Natural Relief.”

• Cough Syrup with 100% Natural Honey: “Temporarily relieves the symptoms of the common cold including moist, dry, tight or tickling coughs, and chest congestion,” and provides “Natural Relief.”

• Baby Cough Syrup: “Relief of Coughs Due to Colds,” and provides “Natural Relief.”

• Baby Nighttime Tiny Cold Syrup: “Relief of Runny Nose, Congestion and Sleeplessness Due to Colds,” and provides “Natural Relief.”

• Baby Gas Drops: “Natural Relief of Gas Discomfort and Pain.”


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• Baby Infant Earache Drops: “Fast Soothing Relief of Ear Pain and Irritability,” and provides “Natural Relief.”

• Baby Teething Gel: “Fast Relief of Pain and Irritability from Teething,” and provides “Natural Relief.”

See e.g. Proposed Second Amended Complaint ¶¶ 47-57 (depicting labels).

Plaintiffs further contend that common evidence shows that the products are not all

natural and are nothing more than placebos. See e.g., id. ¶ 46. As a result, here, all

of Plaintiffs’ claims share the same fundamental premise: Defendants misrepresent

that their products are all natural and that they effectively treat the symptoms of

illness when, in fact, they are not natural and do not have any medicinal value

whatsoever. See Forcellati, 2014 WL 1410264, at *9. “Because a determination of

the truth or falsity of Defendant[s’] representation of [the products’] efficacy will

resolve an issue that is central to the validity of each one of the claims in one stroke,”

and the products’ “efficacy can be established on a class-wide basis through clinical

studies and expert testimony, Plaintiffs have sufficiently shown commonality.” Id.

It is immaterial that the kids’ and babies’ products contain different ingredients

because Plaintiffs challenge the products’ common homeopathic preparation. Id.

“Accordingly, because Plaintiffs’ central theory of the case is susceptible to class-

wide proof, Plaintiffs have satisfied the commonality requirement.” Id. at *10.

4. Typicality - 23(a)(3) “‘Under [Rule 23’s] permissive standards, representative claims are typical if

they are reasonably coextensive with those of absent class members; they need not

be substantially identical.’” Forcellati, 2014 WL 1410264, at *10 (quoting Hanlon,

150 F.3d at 1020). “The typicality inquiry ‘turns on Plaintiffs’ legal theory, not the

specific fact from which it arose.” Id. (quotations omitted). Here, Plaintiffs’ claims

are typical of the class because Plaintiffs’ theory of the case that the products are

uniformly ineffective, applies equally to both Plaintiffs and the Settlement Class

Members. See id. Further, it makes no difference that Plaintiffs and the Settlement


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Class Members may have purchased different kids’ and babies’ products because the

“typicality requirement does not mandate that the products purchased ... must be the

same as those of absent class members.” Id. (internal quotations omitted). “Here,

Plaintiffs allege that the same homeopathic preparation renders all of Defendants’

products ineffective, and that misrepresentations about the products’ efficacy are

uniformly made across Defendants’ product line.” Id. “Accordingly, the various

products purchased ... do not negate a finding of typicality because Plaintiffs allege

that the class members’ injuries arise[ ] from a common wrong.” Id. (quotations

omitted). “Plaintiffs’ claims are therefore ‘reasonably co-extensive with those of

absent class members.’” Id. (quoting Hanlon, 150 F.3d at 1020).

5. Adequacy - 23(a)(4) Based on Plaintiffs’ showing with their motion for class certification, this

Court has already concluded that “the named Plaintiffs and their counsel ‘will fairly

and adequately protect the interests of the class.’” Forcellati, 2014 WL 1410264, at

*11; see also Plaintiffs’ Memorandum in Support of Class Certification, Dkt. 21, at

21:19-22:8. Since a class was certified in this action, Plaintiffs have continued to

perform their duties as class representatives. See Forcellati Decl. ¶¶ 1-11;

Roemmich Decl. ¶¶ 2-10. For example, Plaintiffs prepared to appear at trial, and

consulted with their counsel concerning the proposed settlement to ensure that it was

in the best interest of the Settlement Class Members. Id. Plaintiffs have no conflicts

of interest with the class, have the same interests as the Class Members, and have

retained competent counsel. Id. Thus, Plaintiffs have adequately represented the

interests of the Class Members, and should be appointed Class Representatives of the

Settlement Class.

Plaintiffs’ counsel, including Bursor & Fisher, Faruqi & Faruqi, and

Vozzolo LLC, have also continued to perform their duties as Class Counsel. See

Fisher Decl. Exs. 5-7 (firm resumes). Following class certification, Class Counsel


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defeated Defendants’ motion for summary judgment, prepared for trial and reached a

settlement that provides full refunds to Class Members – the exact relief that

Plaintiffs sought on behalf of themselves and the Class Members. Therefore, Class

Counsel should be appointed to represent the interests of the Settlement Class

Members.

6. Predominance - 23(b)(3) This Court has already concluded that individual questions “do not overwhelm

the far more substantial common questions that drive Plaintiffs’ theory of the case”

because the “crux of Plaintiffs’ allegations is that Defendants’ products contain no

active ingredients at all because of their common homeopathic dilution.” Forcellati,

2014 WL 1410264, at *11. “As a result, the products’ unique ingredients are

relatively unimportant and do not threaten to predominate.” Id. “Accordingly,

Plaintiffs have sufficiently shown that ‘common questions present a significant

aspect of the case’ to satisfy the predominance requirement.” Id. at 12 (quoting

Hanlon, 150 F.3d at 1022).

7. Superiority - 23(b)(3)

Rule 23(b)(3) also requires that “a class action [be] superior to other available

methods for fairly and efficiently adjudicating the controversy.” “Given that class

members have no other realistic way to pursue such low-value claims, class

treatment cannot fairly be construed as an inferior method of adjudication here.”

Forcellati, 2014 WL 1410264, at *8; see also id. at *12. Class treatment is superior.

As a result, each of the requirements of Rule 23 are met, and the Court should

conditionally certify the Settlement Class, for settlement purposes.

IV. THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE “In the class action context, district courts must evaluate ‘whether a proposed

settlement is fundamentally fair, adequate, and reasonable.’” Erickson v. Corinthian

Colleges, Inc., 2015 WL 12001275, at *1 (C.D. Cal. Dec. 22, 2015) (citing Hanlon,


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150 F.3d at 1026). “To make such a determination, courts consider a number of

factors, including “(1) the strength of plaintiffs’ case; (2) the risk, expense,

complexity, and likely duration of further litigation; (3) the risk of maintaining class

action status throughout the trial; (4) the amount offered in settlement; (5) the extent

of discovery completed, and the stage of the proceedings; (6) the experience and

views of counsel; (7) the presence of a governmental participant; and (8) the reaction

of the class members to the proposed settlement.” Id. “Because some of these

factors cannot be fully assessed at the preliminary approval stage, [courts] look to the

applicable factors to determine whether the proposed settlement is within the range

of possible approval such that notice should be sent to Class Members who can

further weigh in on the fairness of the proposed settlement.” Id. Here, each of the

factors considered for settlement approval show that the Parties’ proposed settlement

is within the range of possible approval.

A. The Amount Offered in Settlement The Parties’ proposed settlement provides a real and substantial monetary

benefit to the class whether or not Class Members can provide proof of purchase.

See e.g., Dei Rossi v. Whirlpool Corp., 2016 WL 3519306 (E.D. Cal. June 28, 2016)

(granting preliminary approval of claims made settlement that required Whirlpool to

make a cash payment or give a rebate whether or not class members provided

documentation). Specifically, to all Class Members who submit a valid Claim Form,

Defendants will pay a full refund of the MSRP of or the actual purchase price, as

follows: • Without Proof of Purchase. Claims for a full refund of the MSRP for up to

two (2) unit purchases of Settlement Class Products will be paid without requiring proof of purchase.

• With Proof of Purchase. Claims for a full refund for three (3) or more unit purchases of Settlement Class Products will be paid with proof of purchase to avoid fraudulent claims. Class Members who submit proof of purchase that reveals the actual price paid for a Settlement Class Product will receive a refund of the actual price paid. If proof of purchase does not reveal the actual


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price paid for a Settlement Class Product, the Settlement Class Member will be receive a refund of the MSRP for each Settlement Class Product.

Fisher Decl. Ex. 1, Stipulation of Settlement, § III. “MSRP” means Hyland’s

average suggested retail price for the Settlement Class Products, as follows: (i) Cold ‘n Cough 4 Kids $8.94 (ii) Cough Syrup with 100% Natural Honey

$8.89

(iii) Sniffles ‘n Sneezes 4 Kids $8.09 (iv) Cold Relief Strips 4 Kids with Zinc $6.99 (v) Nighttime Cold ‘n Cough 4 Kids $9.42 (vi) Complete Flu Care 4 Kids $6.96 (vii) Baby Teething Gel $7.59 (viii) Baby Cough Syrup $10.66 (ix) Baby Gas Drops $12.99 (x) Baby Infant Earache Drops $10.39 (ix) Baby Nighttime Tiny Cold Syrup $11.99 See id.; see also Fisher Decl. Ex. 8 (MSRP spreadsheet). Notably, there is no limit to

the number of refunds that Defendants will pay to the class as a whole, and Class

Members’ full refunds will not be prorated for any reason. Additionally, the

settlement provides that Hyland’s will provide a money back guarantee on their

website. Defendants have also agreed to pay the costs of class notice, two incentive

awards in the amount of $5,000, and a fee and expense award of $2.9 million. 1

Notably, the costs of notice and claims administration, as well as the fee and

incentive awards will not be drawn from the same fund as the refunds to Class 1 In recognition of the time and effort that the Class Representatives expended in pursuing this Consolidated Action and in fulfilling their obligations and responsibilities as Class Representatives, including responding to discovery, attending their depositions, and preparing to appear at trial, Class Counsel will submit an application for Incentive Awards of $5,000 to each Class Representative. Fisher Decl. Ex. 1, Stipulation of Settlement, § III; see also Forcellati Decl. ¶¶ 1-11; Roemmich Decl. ¶¶ 1-10. Class Counsel will make an application to the Court for an Attorneys’ Fee and Expense Award in an amount not to exceed $2.9 million, which includes reimbursement of Class Counsel’s costs and expenses. Fisher Decl. Ex. 1, Stipulation of Settlement, § III. At final approval, Class Counsel will also include detailed time records sufficient to enable the Court to do a lodestar analysis. Fisher Decl. ¶ 16.


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Members and will not detract from the Class Members’ recovery. In short, the

settlement constitutes an excellent recovery for the class and should be approved.

B. A Comparison of the Settlement Amount to the Average Actual Damages Shows that the Amount Offered Is Fair, Adequate, and Reasonable

“To assess whether the amount offered is fair, the Court may compare the

settlement amount to the parties’ estimates of the maximum amount of damages

recoverable in a successful litigation.” See Shames v. Hertz Corp., 2012 WL

5392159, at *6 (S.D. Cal. Nov. 5, 2012) (citing In re Mego Financial Corp.

Securities Litig., 213 F.3d 454, 459 (9th Cir. 2000)). Here, the amount available

under the settlement mirrors the total recovery that Plaintiffs could have obtained if

they successfully proceeded through trial on their claims. Since Class Members can

receive full refunds with proof of purchase and two full refunds without submitting

any proof of purchase, most Class Members are receiving exactly the amount that

Plaintiffs sought on their behalf in this action. Forcellati, 2014 WL 1410264 at *5.

The court’s decision to approve a claims-made settlement in Shames is

instructive. There, the plaintiffs averred that the maximum amount of damages that

each class member would be entitled to if plaintiffs were successful in the litigation

was approximately $3 for each day that the class members rented a car from

Defendants. Shames, 2012 WL 5392159, at *6. Under the settlement, the class

could choose from two options: (1) $2 for each rental day, with a minimum payment

of $5 no matter the length of the rental, or (2) a voucher for 1-2 days of rentals. Id.

at *3. In finding that the settlement amount was fair and reasonable in light of actual

damages, the court noted that “[w]hen compared to the estimated actual damages [of

$3 a day], the $2 cash option represents a recovery of at least 67% of actual

damages.” Id. at *7. The court further concluded that “the cash option compensates

each class member for all of – or slightly more than – his or her actual damages.” Id.

Similarly, here, the maximum amount of damages that each class member


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would be entitled to recover if Plaintiffs were successful at trial would be the retail

price of each of the products that each class member purchased. Under the

settlement, Class Members can receive a full refund for each product that they can

submit proof of purchase for, or a full refund for up to two products that they cannot

submit a proof of purchase for. As a result, most Class Members will receive all of

their actual damages. See Shames, 2012 WL 5392159, at *7. Therefore, the

settlement is clearly fair to those Class Members

The only Class Members who will not receive their actual damages are Class

Members who purchased more than two Hyland’s products but cannot provide proof

of purchase. The two product limit, however, does not render the settlement unfair

to Class Members who bought more than two products but do not have proof of

purchase. First, the two product limit is a balance between awarding such Class

Members their full recovery and the inability of those same Class Members to prove

their purchases. Put another way, the number of full refunds that Class Members

without proof of purchase can claim is limited to deter fraudulent claims. As

Plaintiffs explained at class certification, “because the Products are inexpensive, for

a claimant to gain a meaningful sum through fraud” would require many false

claims. See Joint Ascertainability Brief, Dkt. 133, at 9-10.

Second, in this case, each class member without proof of purchase likely

purchased only a few of the products. In that connection, unlike a beverage or other

food product, for example, many Class Members did not purchase Hyland’s products

on a daily or weekly basis. Rather, they more likely purchased a few products while

their children were under the FDA age-limit for other over the counter medications.

Thus, a refund of the value of two products without a proof of purchase, is

commensurate with the average injury in this case. In other words, the limited

group of Class Members who purchased more than two products but do not have

proof of purchase will still receive an average recovery in this case of between


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$13.92 to $25.98, or the value of the MSRP purchased multiplied by two available

refunds without proof of purchase. See also Gascho v. Global Fitness Holdings,

LLC, 2014 WL 1350509, at *21 (S.D. Ohio Apr. 4, 2014) (finding that a claims

made average recovery of $31.99 for class members was significant where the

estimated average injury included improper charges such as a $26.76 monthly

charge, a $10 cancellation fee, and/or a $15 facility fee); see also Gascho v. Global

Fitness Holdings, LLC, 822 F.3d 269 (6th Cir. 2016) (affirmed).

Finally, the difference between a recovery of the value of two products and

any additional products purchased is of no moment because “the settlement in this

case provides for an immediate and substantial cash payment to class members,

considering the value of the claims and the risks of protracted litigation.” See

Gascho, 2014 WL 1350509, at *25

C. The Strength of Plaintiffs’ Case and the Specific Risks of This Litigation

Although Plaintiffs continue to believe that they could prove to a jury that the

products are mere placebos, Plaintiffs also understand that proceeding to trial poses

serious risks. Indeed, a jury in a similar case involving Defendants’ homeopathic

products concluded that Plaintiffs had not met their burden of proof and found for

Defendants on every claim. See Allen v. Hyland’s Inc., Case No. 12-cv-01150-

DMG-MAN, Dkt. 426 (Verdict Form); see also Lewert v. Boiron, Inc., 11-cv-10803,

Dkt. 447 (Verdict Form). The result of the Allen trial is sobering. While Plaintiffs

are confident that, with the study on one of the products at issue in this case, they

would have prevailed, the Allen trial makes clear that a favorable result could not be

guaranteed for the class. There is no guarantee that the verdict in this action would

be any different than the verdict in the Allen action. See Shames, 2012 WL 5392159,

at *6 (“Plaintiffs faced significant uncertainty and risk of nonrecovery at trial,

making a pre-trial settlement a reasonable tactical choice.”). There is no guarantee

that the jury would have been more persuaded by Plaintiffs’ experts than by


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Defendants’ experts. There is no guarantee that Plaintiffs would have prevailed on

their motions in limine, or that Plaintiffs would have successfully opposed

Defendants’ motions in limine. There is no guarantee that the majority of

Defendants’ evidentiary objections to the video depositions of key witnesses Dr.

Taylor and Dr. Borneman would have been overruled. There is no guarantee that the

Court would have given the jury instructions requested by Plaintiffs – an issue that

was highly contentious in this case. By settling Plaintiffs avoid the risk of trial and

guarantee a recovery to the class. Since the risks of proceeding to trial are

substantial, this bird in the hand is worth two in the bush, and the settlement warrants

preliminary approval. See e.g., Nat'l Rural Telecommunications Coop. v. DIRECTV,

Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004) (“The Court shall consider the vagaries of

litigation and compare the significance of immediate recovery by way of the

compromise to the mere possibility of relief in the future, after protracted and

expensive litigation. In this respect, ‘It has been held proper to take the bird in hand

instead of a prospective flock in the bush.’” (citations omitted)).

D. The Extent of Discovery and Status of Proceedings Under this factor, courts evaluate whether class counsel had sufficient

information to make an informed decision about the merits of the case. See In re

Mego Financial Corp. Securities Litigation, 213 F.3d at 459. The settlement was

reached on the eve of trial, after four years of litigation, during which time, Plaintiffs

completed extensive discovery. Given the procedural history of this case, there can

be no doubt that Class Counsel had sufficient information to make an informed

decision about the merits of this case as compared to the benefit provided by the

proposed settlement. See supra § II. Additionally, substantial settlement

negotiations have taken place between the Parties. Notably, when a settlement is

negotiated at arm’s-length by experienced counsel, there is a presumption that it is

fair and reasonable. See In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.


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1995). The Parties also worked closely with Judge Gandhi, an experienced mediator

who ultimately led the Parties to resolution. In re Bluetooth Headset Prod. Liab.

Litig., 654 F.3d 935, 946 (9th Cir. 2011) (“[The] presence of a neutral mediator [is] a

factor weighing in favor of a finding of non-collusiveness.”).

E. Experience and Views of Counsel “The recommendations of plaintiffs’ counsel should be given a presumption of

reasonableness.” In re American Apparel, Inc. v. S’holder Litig., 2014 WL

10212865, at *14 (C.D. Cal. July 28, 2014) (citation omitted); accord In re

Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008). Deference to

Class Counsel’s evaluation of the Settlement is appropriate because “[p]arties

represented by competent counsel are better positioned than courts to produce a

settlement that fairly reflects each party’s expected outcome in litigation.”

Rodriguez v. West Publishing Corp., 563 F.3d 948, 967 (9th Cir. 2009). Here, the

Settlement was negotiated by counsel with extensive experience in consumer class

action litigation. See Fisher Decl. Exs. 5-7 (firm resumes). Based on their

experience, Class Counsel concluded that the settlement provides exceptional results

for the class while sparing the class from the uncertainties of continued and

protracted litigation. Fisher Decl. ¶ 15.

V. THE PROPOSED NOTICE SHOULD BE APPROVED Once preliminary approval of a class action settlement is granted, notice must

be directed to class members. For class actions certified under Rule 23(b)(3),

including settlement classes like this one, “the court must direct to class members 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). In addition, Rule 23(e)(1) applies to any class settlement and requires

the Court to “direct notice in a reasonable manner to all class members who would

be bound by a proposal.” Fed R. Civ. P Rule 23(e)(1). When a court is presented


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with class notice pursuant to a settlement, both the class certification notice and

notice of settlement may be combined in the same notice. Manual, § 21.633 at 321-

22. This notice allows Class Members to decide whether to opt out of or participate

in the class and/or to object to the Settlement and argue against final approval. Id.

A. The Manner of Notice Satisfies All Requirements The proposed notice program informs the Class Members of their rights and

includes a comprehensive plan for delivery of notice by e-mail, U.S. Mail, a

settlement website, publication, and internet banner ads. See Fisher Decl. Ex. 1,

Stipulation of Settlement, § V; Passarella Decl. ¶¶ 5, 7-15. The Parties’ proposed

notice program is the best notice practicable under the circumstances. After

certifying a class in this action, this Court reviewed competing notice programs and

assured that class members received the best notice practicable under the

circumstances. See Notice Order, Dkt. 155. Mindful of the fact that this Court

carefully structured the notice plan at class certification, the Parties modeled the

notice on that plan, as follows: • Email Notice: Notices will be emailed to all 622,858 Settlement Class

Members for whom email address have been identified; • U.S. Mail Notice: Notices will be mailed to approximately 213,852

Settlement Class Members for whom they do not have an email address but do have a mailing addresses;

• Settlement Website: The Long Form Notice and Claim Form shall be posted on a dedicated website with links to important case documents;

• Publication Notice: The Short Form Notice shall be published in the National Edition of USA Today once a week for four consecutive weeks;

• Internet Banner Ad Campaign: The Short Form Notice shall also be publicized with an internet campaign targeting parents, and people who may have purchased a homeopathic product; and

• CAFA Notice: KCC shall also cause to be disseminated the notice to public officials required by the Class Action Fairness Act (“CAFA”) in accordance with the provisions of that Act.

Compare Order re: Form and Dissemination of Notice to the Class, Dkt. 155 with

Fisher Decl. Ex. 1, Stipulation of Settlement, § V; see also Passarella Decl. ¶¶ 7-21.


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The notice plan set forth in the Stipulation of Settlement satisfies due process.

B. The Form of the Notices and Claim Form The Parties drafted the Long Form Notice, the Short Form Notice, the

Postcard Notice, and the Claim Form so that they are clear and easy for a layperson

to understand. The Notices adequately inform Class Members of the settlement’s

material terms, including the definition of the Settlement Class, the claims that will

be released by the Settlement Class, the amount available to the Class in refunds, the

procedure to follow to submit a valid and timely claim, the procedure for opting out

of the Settlement Class, that incentive awards and attorney’s fees will be sought at

final approval, and the procedure for objecting to the settlement. See Fisher Decl.

Ex. 1, Stipulation of Settlement (Notices: Exs. C, D, F). The Notices explicitly state

that only Class Members who submit timely, written objections may voice their

objections at the hearing. See id.; Erickson, 2015 WL 12001275, at *3. The Notices

also make clear that a Class Member can object to the proposed settlement, the

proposed reimbursements to Class Members, the attorneys’ fee and expense award,

the incentive awards, and/or the costs of claims administration. See id. As such, the

forms of the Notices proposed by the Parties comply with applicable standards for

class action settlements like this one. See id.; see generally Passarella Decl.

With respect to claim forms, this Court has recognized: Generally, claim forms are used in consumer class actions in which class members are difficult to identify. In those cases, the form helps identify members and substantiate that they are part of the class.

Sharobiem, 2015 WL 10791914, at *3. Since a claim form is necessary to establish

class membership, here, a claim form is necessary. See id.; see also Poertner v.

Gillette Co., 2015 WL 4310896, at *4 (11th Cir. 2015) (approving claims made

settlement where “the claiming process-completing a one-page form and submitting

it either online or by mail-particularly [was not] difficult or burdensome”); Braynen

v. Nationstar Mortgage, LLC, 2015 WL 6872519, at *7 (S.D. Fla. Nov. 9, 2015)


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(approving claims made settlement and stating that “[t]he Claim Form should take no

more than a few minutes for the average Claimant to complete and request the

submission of no supporting materials that would be required in an individual

lawsuit”). Like the Notices, the Parties drafted the Claim Form so that it would be

clear and easy for a lay person to understand. First, the Claim Form explicitly states

in itemized form and in one location what must be sent to the Settlement

Administrator and how a Class Members should send it. See Fisher Decl. Ex. 1,

Stipulation of Settlement (Claim Form: Ex. A); Cf. Sharobiem, 2015 WL 10791914,

at *2. Second, the Claim Form emphasizes that Class Members must submit the

form to claim any benefit. See id. Third, the Claim Form also provides clearly

demarcated boxes for Class Members to provide their mailing and email address,

defines the Class by objective criteria, provides boxes to enter the number of

products purchased, delineates the dollar amount that will be refunded, and reminds

Class Members that they are submitting the form under penalty of perjury. See id.

Plaintiffs request that the Court approve the Notices, and Claim Form.

C. KCC Should Be Appointed Settlement Administrator The Parties request that the Court appoint KCC as the Settlement

Administrator. KCC is a well-qualified and experienced claims administrator that

has overseen claims administration in countless class actions settlements. Passarella

Decl. ¶¶ 1-4. In fact, based on a declaration from KCC, on August 12, 2014, this

Court approved KCC as the claims administrator that would send notice following

class certification. See Dkt. 157; see Dkt. 156-1 (KCC Decl.). After Court approval,

KCC sent notice to the class. As a result, KCC is familiar with the issues in this case

and is uniquely qualified to serve as Settlement Administrator.

VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant

preliminary approval.


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Dated: October 14, 2016 BURSOR & FISHER, P.A.

By: L. Timothy Fisher L. Timothy Fisher Scott A. Bursor (State Bar No. 276006) L. Timothy Fisher (State Bar No. 191626) Annick M. Persinger (State Bar No. 272996) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-Mail: [email protected]

[email protected] [email protected] VOZZOLO LLC Antonio Vozzolo (pro hac vice) 345 Route 17 South Upper Saddle River, New Jersey 07458 Phone: 201-630-8820 Fax: 201-604-8400 [email protected] FARUQI & FARUQI, LLP Nadeem Faruqi 685 3rd Avenue 26th Floor New York, NY 10017 Tel: (212) 983-9330 Fax:(212) 983-9331 E-Mail: [email protected] Co-Lead Class Counsel


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28 FISHER DECLARATION IN SUPPORT OF PRELIMINARY APPROVAL CASE NO. 2:12-CV-01983 GHK (MRW)

BURSOR & FISHER, P.A. VOZZOLO LLC Scott A. Bursor (State Bar No. 276006) Antonio Vozzolo (pro hac vice) L. Timothy Fisher (State Bar No. 191626) 345 Route 17 South Annick M. Persinger (State Bar No. 272996) Upper Saddle River, NJ 07458 1990 North California Boulevard, Suite 940 Phone: 201-630-8820 Walnut Creek, CA 94596 Fax: 201-604-8400 Telephone: (925) 300-4455 [email protected] E-Mail: [email protected]


FARUQI & FARUQI, LLP Nadeem Faruqi 685 3rd Avenue 26th Floor New York, NY 10017 Tel: (212) 983-9330 Fax:(212) 983-9331 E-Mail: [email protected]




Plaintiffs, v.


Defendants.


DECLARATION OF L. TIMOTHY FISHER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL


Hon. George H. King


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I, L. Timothy Fisher, declare as follows:

1. I am an attorney at law licensed to practice in the State of California. I

am also a member of the bar of this Court and a partner at Bursor & Fisher, P.A.,

counsel of record for Plaintiffs. I have personal knowledge of the facts set forth in

this declaration, and, if called as a witness, could and would competently testify

thereto under oath.

2. Attached hereto as Exhibit 1 is a true and correct copy of the parties’

Stipulation of Settlement, including all exhibits thereto.

3. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from

the deposition of Amy Fox.

4. Attached hereto as Exhibit 3 is a true and correct copy of Exhibit 17 to

the Fox deposition, which is an article entitled “Hyland’s Inc. showcasing natural

solutions for big coughs and tiny colds at ABC Kids Expo, October 14-17, 2012.”

5. Attached hereto as Exhibit 4 is a true and correct copy of Exhibit 15 to

the Fox deposition, which is an article entitled “Hyland’s, Inc. launches Hyland’s

Baby Cough Syrup for infants 6 months and older.”

6. Attached hereto as Exhibit 5 is a true and correct copy of Bursor &

Fisher’s firm resume.

7. Attached hereto as Exhibit 6 is a true and correct copy of Vozzolo

LLC’s firm resume.

8. Attached hereto as Exhibit 7 is a true and correct copy of Faruqi &

Faruqi LLP’s firm resume.

9. Attached hereto as Exhibit 8 is a spreadsheet prepared by Defendants

that lists the average retail price for each product for each year during the class

period, as well as the average retail price for each product over the entire class

period.


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10. The parties completed extensive discovery. Defendants produced, and

Plaintiffs reviewed, over 52,000 pages of documents. Documents that Plaintiffs’

counsel reviewed included, for example, Hyland’s test results, internal

communications, and sales information. Additionally, while this litigation was

pending, a study on one of the products at issue, Cold ‘n Cough 4 Kids, was in

progress at the University of Washington. To evaluate that study, Plaintiffs obtained

study documents from the University of Washington.

11. The parties completed twenty-four depositions. Plaintiffs deposed Dr.

Iris Bell, Defendants’ Director of Scientific Affairs. Plaintiffs also deposed

Defendants’ marketing employees, Thanh-Thao Minh Le, Ms. Jacobs and Ms. Fox,

as well as Mr. Phillips, a Hyland’s pharmacist. Plaintiffs deposed the chief

investigator of Defendants’ Cold ‘n Cough 4 Kids study, Dr. James Taylor, after

interim results were produced, and again after final results were produced. After the

results of Defendants’ study were available, Plaintiffs deposed Dr. Bell a second

time. Plaintiffs’ and Defendants’ experts all issued opinions on the interim results of

the study, and then supplemented their opinions once final results were available.

Plaintiffs deposed Defendants’ experts Dr. Bellavite, and Dr. Calabrese. In addition

to Plaintiff Forcellati and Plaintiff Roemmich, Defendants deposed Plaintiffs’

experts Dr. Howlett, Dr. Grollman, Dr. Bausell, Dr. Ernst, and Mr. Weir. Finally,

Plaintiffs deposed Hyland’s CEO Dr. Borneman.

12. In response to this Court’s decision to certify a nationwide class, on

April 23, 2014, Hyland’s filed a petition for permission to appeal pursuant to Fed. R.

Civ. P. 23(f). On April 30, 2014, Plaintiffs filed an answer in opposition to Hyland’s

Petition. On July 8, 2014, the Ninth Circuit denied Hyland’s petition.

13. To prepare for trial, in the fall of 2015, Plaintiffs’ counsel began

prepping their witnesses, including the Plaintiffs and their experts. Plaintiffs’

counsel also visited the Courtroom to practice setting up their electronic


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presentations. Additionally, Plaintiffs’ counsel marked exhibits with the Court’s

official exhibit tags.

14. Throughout this litigation, the Parties worked on settlement. As early

as October 30, 2012, the Class Representatives and Hyland’s participated in a full-

day in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. On May 9,

2013, the Parties participated in a second full-day in-person mediation with Mr.

Meyer. On March 25, 2015, the Parties participated in a full-day in-person

settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge.

On October 19, 2015, the Parties participated in a second full-day in-person

settlement conference with Judge Gandhi. On July 6, 2016, the Parties participated

in a third full-day in-person settlement conference with Judge Gandhi. After

continuing to work with Judge Gandhi following the July settlement conference, on

July 18, 2016, the Parties in the Consolidated Action reached the proposed

Stipulation of Settlement, which is attached hereto as Exhibit 1.

15. Class Counsel, after taking into account the their thorough examination

and investigation of the facts and law in this action, along with the risks and costs of

further litigation, including pretrial motions and trial, represents that they are

satisfied that the terms and conditions of the Stipulation of Settlement are fair,

reasonable, and adequate, and that the Settlement Agreement discussed herein is in

the best interest of the Settlement Class Members.

16. At final approval, Class Counsel will provide the Court with detailed

time records sufficient to enable the Court to do a lodestar analysis.

I declare under penalty of perjury under the laws of the United States and the

State of California that the foregoing is true and correct. Executed on October 14,

2016.

L. Timothy Fisher L. Timothy Fisher


#:13147

EXHIBIT 1


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28 STIPULATION OF SETTLEMENT CASE NO. 2:12-CV-01983 GHK (MRW)

BURSOR & FISHER, P.A.Scott A. Bursor (State Bar No. 276006) L. Timothy Fisher (State Bar No. 191626) Annick M. Persinger (State Bar No. 272996) 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-Mail: [email protected] [email protected] [email protected] Co-Lead Class Counsel NORTON ROSE FULBRIGHT US LLP Jeffrey Margulies, State Bar No. 126002 Spencer Persson, State Bar No. 235054 Stephanie Stroup, State Bar No. 235071 Jade Jurdi, State Bar No.273401 555 South Flower Street Forty-First Floor Los Angeles, CA 90071 Telephone: (213) 892-9200 E-Mail: [email protected] [email protected] [email protected] [email protected] Attorneys for Defendants [Additional counsel on signature page]



Plaintiffs, v. HYLAND’S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY,

Defendants.

Case No. 2:12-CV-01983 GHK(MRW) STIPULATION OF SETTLEMENT Hon. George H. King


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28 STIPULATION OF SETTELEMNT CASE NO. 2:12-CV-01983 GHK (MRW)

TABLE OF CONTENTS PAGE(S)

RECITALS .................................................................................................................. 1 I. DEFINITIONS .................................................................................................. 7 II. CERTIFICATION OF THE SETTLEMENT CLASS ................................... 14 III. SETTLEMENT CONSIDERATION .............................................................. 15 IV. CLASS COUNSEL’S FEE AND EXPENSE AWARD AND

CLASS REPRESENTATIVES’ INCENTIVE AWARDS ............................. 16 V. NOTICE TO THE CLASS AND ADMINISTRATION OF

SETTLEMENT ............................................................................................... 17 VI. CLASS SETTLEMENT PROCEDURES ....................................................... 20 VII. RELEASES ..................................................................................................... 25 VIII. SUBMISSION OF THE SETTLEMENT TO THE COURT ......................... 27 IX. MISCELLANEOUS PROVISIONS ............................................................... 30


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This Stipulation of Settlement is made by and among Enzo Forcellati, and Lisa

Roemmich, (the “Class Representatives”), on behalf of themselves and the

Settlement Class (defined below), on the one hand, and Hyland’s, Inc., Standard

Homeopathic Laboratories Inc., and Standard Homeopathic Company (“Defendants”

or “Hyland’s”), on the other.

RECITALS A. On March 8, 2012, Plaintiff Enzo Forcellati commenced a proposed

class action against Defendants Hyland’s Inc., and Standard Homeopathic Company

entitled Forcellati v. Hyland’s Inc. et al. (United States District Court, Central

District of California, Case No. 12-cv-1983-GHK) (the “Forcellati Action”).

Plaintiff Forcellati asserted claims on behalf of himself and a proposed nationwide

class of purchasers of (i) Cold ‘n Cough 4 Kids, (ii) Cough Syrup with 100% Natural

Honey 4 Kids, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold Relief Strips 4 Kids with

Zinc, and (v) Nighttime Cold ‘n Cough 4 Kids for violation of the Magnuson-Moss

Warranty Act, 15 U.S.C. § 2301, et seq., unjust enrichment, breach of express

warranty, breach of implied warranty, violation of the New Jersey Consumer Fraud

Act, N.J.S.A. § 58:8-1, et seq., violation of the Consumer Legal Remedies Act

(“CLRA”), California Civil Code § 1750, et seq., violation of the False Advertising

Law (“FAL”), California Business & Professions Code §§ 17500 et seq., and

violation of the Unfair Competition Law (“UCL”), California Business &

Professions Code §§ 17200 et seq. Plaintiff Forcellati alleged that Hyland’s made

false and misleading statements about its Children’s Cold and Flu Products, such as

that the Children’s Cold and Flu Products were “Safe & Effective” for treating cold

and flu symptoms and that they were “100% Natural.” Plaintiff Forcellati further

alleged that, in fact, the Children’s Cold and Flu Products are no better than a

placebo because the homeopathic ingredients in the Products are ultra-diluted.


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B. On April 23, 2012, Defendants filed a motion to dismiss. On April 30,

2012, Plaintiff Forcellati opposed. On June 1, 2012, the Court dismissed Plaintiff’s

unjust enrichment claim but denied the remaining portions of Defendants’ motion.

C. On June 15, 2012, Hyland’s answered Plaintiff Forcellati’s Complaint,

denying liability.

D. On July 20, 2012, Hyland’s removed an action entitled Roemmich v.

Hyland’s Inc. et al. from the Superior Court of California, County of Los Angeles to

the United States District Court, Central District of California (Case No. 12-cv-6256)

(the “Roemmich Action”).

E. On October 15, 2012, the Court ordered that the Forcellati and

Roemmich actions be consolidated. The Court further ordered that the parties were

to meet and confer to determine the appropriate lead counsel.

F. On October 30, 2012, the Class Representatives and Hyland’s

participated in a full-day in-person mediation with Robert A. Meyer of Loeb & Loeb

LLP.

G. On October 31, 2012, the parties reported that Bursor & Fisher, P.A.

and Faruqi & Faruqi, LLP would serve as co-lead counsel in the consolidated cases.

H. On November 8, 2012, the Court ordered that the Forcellati and

Roemmich Actions be consolidated, and appointed Bursor & Fisher, P.A. and Faruqi

& Faruqi LLP as co-lead counsel in the Forcellati and Roemmich Actions (hereafter

the “Consolidated Action” or the “Action”).

I. On December 7, 2012, Plaintiff Enzo Forcellati, and Lisa Roemmich,

filed a Consolidated Amended Class Action Complaint that added Lisa Roemmich as

a Plaintiff to the Action. In addition to the claims in Plaintiff Forcellati’s Complaint,

the Consolidated Amended Class Action Complaint also asserted claims for

Violation of the Missouri Merchandising Practices Act, Mo. Ann. Stat. §§ 407.010,

et seq.


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J. On January 7, 2013, Hyland’s filed a motion to dismiss Plaintiffs’

prayer for punitive damages in the Consolidated Amended Class Action Complaint.

Plaintiffs opposed. On February 14, 2013, the Court denied Hyland’s motion.

K. On May 9, 2013, the Parties participated in a second full-day in-person

mediation with Robert A. Meyer of Loeb & Loeb LLP.

L. On September 16, 2013, Plaintiffs filed a motion for class certification.

On October 28, 2013, Hyland’s opposed Plaintiffs’ motion. Pursuant to the Court’s

December 19, 2013 order, on February 3, 2014, the Parties submitted supplemental

briefing on the issue of whether the proposed class was ascertainable.

M. On April 9, 2014, the Court certified the following Rule 23(b)(3) class

for monetary relief with respect to Plaintiffs’ claims for violation of Magnuson-Moss

Act, 15 U.S.C. § 2301, et seq., breach of express warranty, breach of implied

warranty, violation of the CLRA, violation of the FAL, and violation of the UCL:

(a) A nationwide class of all persons in the United States who

purchased the following Hyland’s products on or after March 8,

2008: (i) Cold ‘n Cough 4 Kids, (ii) Cough Syrup with 100%

Natural Honey 4 Kids, (iii) Sniffles ‘n Sneezes 4 Kids, (iv)

Cold Relief Strips 4 Kids with Zinc, and (v) Nighttime Cold ‘n

Cough 4 Kids;

(b) A 49-state class of all persons in the United States except for

those in California who purchased Hyland’s Complete Flu Care

4 Kids on or after March 8, 2008.

The Court appointed the law firms of Bursor & Fisher, P.A., and Faruqi &

Faruqi, LLP as class counsel. The Court appointed Plaintiffs Enzo Forcellati and

Lisa Roemmich as Class Representatives. The Court denied Plaintiffs’ request to

certify a Rule 23(b)(2) class for injunctive relief, and denied certification of

Plaintiffs’ proposed New Jersey and Missouri subclasses.


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N. On April 23, 2014, Hyland’s filed a petition for permission to appeal

pursuant to Fed. R. Civ. P. 23(f). On May 5, 2014, Plaintiffs filed an answer in

opposition to Hyland’s petition. On July 8, 2014, the United States Court of Appeals

for the Ninth Circuit denied Hyland’s Fed. R. Civ. P. 23(f) petition.

O. On August 4, 2014, the Court issued an Order Re Form and

Dissemination of Notice to the Class.

P. On September 18, 2014, the claims administrator Kurtzman Carson

Consultants (“KCC”) sent notice to class members by email and U.S. Mail.

Q. On September 5, 2014, Hyland’s filed a motion for summary judgment.

Plaintiffs opposed in a joint brief on that same date. On January 12, 2015, the Court

denied Hyland’s motion for summary judgment.

R. On March 25, 2015, the Parties participated in full-day in-person

settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge.

S. On October 19, 2015, the Parties participated in a second full-day in-

person settlement conference with the Hon. Jay C. Gandhi, United States Magistrate

Judge.

T. On October 22, 2015, Hyland’s filed an ex parte application to continue

the trial, originally set for October 27, 2015, based on the fact that Plaintiffs

presented a new case theory in their trial brief and Motions in Limine.

U. On October 23, 2015, the Court vacated all trial dates to consider

Hyland’s request for judicial estoppel, to consider the parties’ Motions in Limine and

to evaluate Defendants’ objections to deposition exhibits to be used at trial.

V. On February 17, 2016, the Court held that Plaintiffs were judicially

estopped from changing their theory of the case.

W. On January 12, 2016, Plaintiffs Marie Kaatz and Abigail Gagliardi

commenced an action entitled Kaatz v. Hyland’s Inc. et al. (United States District

Court, Southern District of New York, Case No. 7:16-cv-00237-VB) (the “Kaatz


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Action”), as a proposed class action, asserting claims for violation of New York

General Business Law §§ 349 and 350, the consumer protection statutes of all fifty

states, and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq., as well as

breach of express warranty, breach of implied warranty of fitness for a particular

purpose, negligent misrepresentations, and unjust enrichment. The Kaatz Action

asserted claims with respect to Hyland’s (i) Baby Teething Gel; (ii) Baby Cough

Syrup, (iii) Baby Gas Drops, (iv) Baby Infant Earache Drops, and (v) Baby

Nighttime Tiny Cold Syrup. Like Plaintiffs Forcellati and Roemmich, the Plaintiffs

in the Kaatz Action allege that Defendants’ Products are not effective for relieving

symptoms and are not 100% natural. Also like the Plaintiffs in the Consolidated

Action, the Plaintiffs in the Kaatz Action allege that the Products do not provide any

benefits beyond that of a placebo.

X. On June 2, 2016, the Court ordered the Parties in the Consolidated

Action to participate in a settlement conference with the Hon. Jay C. Gandhi, United

States Magistrate Judge.

Y. On July 6, 2016, the Parties in the Consolidated Action participated in a

third full-day in-person settlement conference with the Hon. Jay C. Gandhi, United


Z. On July 6, 2016, the District Court for the Southern District of New

York denied Defendants’ motion to dismiss the Complaint in the Kaatz Action, but

limited the New York Plaintiffs’ claims under New York General Business Law §§

349 and 350, breach of implied warranty of fitness for a particular purpose, negligent

misrepresentations, and unjust enrichment to a putative class of New York

purchasers.

AA. On July 18, 2016, the Parties in the Consolidated Action reached a

settlement in the Consolidated Action.


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BB. On July 20, 2016, Defendants filed an answer to the Complaint in the

Kaatz Action, denying liability.

CC. Following execution of this Stipulation of Settlement, with Defendants’

agreement and Court approval, Plaintiffs will file a Second Amended Complaint that

brings claims for violation of the Magnuson-Moss Act. 15 U.S.C. § 2301, et seq.,

breach of express warranty, breach of implied warranty, violation of the Consumer

Legal Remedies Act (“CLRA”), California Civil Code § 1750, et seq., violation of

the False Advertising Law (“FAL”), California Business & Professions Code §§

17500 et seq., and violation of the Unfair Competition Law (“UCL”), California

Business & Professions Code §§ 17200 et seq. on behalf of: All persons in the

United States who purchased the following Hyland’s products on or after March 8,

2008: (i) Cold ‘n Cough 4 Kids, (ii) Cough Syrup with 100% Natural Honey, (iii)

Sniffles ‘n Sneezes 4 Kids, (iv) Cold Relief Strips 4 Kids with Zinc, (v) Nighttime

Cold ‘n Cough 4 Kids, (vi) Complete Flu Care 4 Kids, (vii) Baby Teething Gel, (viii)

Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi)

Baby Nighttime Tiny Cold Syrup.

DD. The Class Representatives allege in this Consolidated Action, inter alia,

that Hyland’s deceived customers by representing that products for children and

babies are effective at treating illness when, in fact, the ultra-diluted ingredients have

no pharmacological effect beyond that of a placebo.

EE. Hyland’s denies the material allegations made in the Consolidated

Action, and denies any and all liability with respect to all facts and claims alleged

therein, and further denies that any of the Settlement Class Members (defined below)

or anyone has suffered any harm or damage or is entitled to any monetary or relief

whatsoever in connection with the Consolidated Action.

FF. Class Counsel conducted an examination and investigation of the facts

and law relating to the matters in this Consolidated Action, including, but not limited


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to, engaging in discovery, review and analysis of Hyland’s documents and data, as

well as Hyland’s testing of the Settlement Class Products. Class Counsel also

evaluated the merits of the Parties’ contentions and evaluated this Settlement, as it

affects all Parties, including the Settlement Class Members. The Class

Representatives and Class Counsel, after taking into account the foregoing, along

with the risks and costs of further litigation, including pretrial and trial, represent that

they are satisfied that the terms and conditions of this Stipulation of Settlement are

fair, reasonable, and adequate, and that the Settlement Agreement set forth herein is

in the best interest of the Settlement Class Members.

GG. Hyland’s, while continuing to deny all allegations of wrongdoing and

disclaiming all liability with respect to all claims, considers it desirable to resolve the

Consolidated Action on the terms stated herein to avoid further expense,

inconvenience and burden and, therefore, has determined that this Settlement on the

terms set forth herein is in Hyland’s best interests.

HH. Substantial settlement negotiations have taken place between the

Parties, including five full day mediation sessions, the first two with Robert A.

Meyer of Loeb & Loeb LLP, and the final three with the Hon. Jay C. Gandhi, United


In consideration of the covenants and agreements set forth herein, and of the

releases and dismissals of claims as described below, and other good and valuable

consideration, the receipt and sufficiency of which hereby is acknowledged by each

of the Parties, the Class Representatives, on behalf of themselves and the Settlement

Class Members, and Hyland’s agree to the Settlement described herein, subject to

Court approval, under the following terms and conditions:

I. DEFINITIONS 1.1 As used in this Stipulation of Settlement, the following capitalized

terms have the meanings specified below. Unless otherwise indicated, defined terms


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include the plural as well as the singular.

1.2 “Action” or “Consolidated Action” shall mean the class action lawsuit

entitled Forcellati et al. v. Hyland’s, Inc. et al., Case No. 2:12-CV-01983

GHK(MRW) pending in the United States Central District of California, which

encompasses the higher-numbered action Roemmich v. Hyland’s Inc. et al., Case No.

12-CV-6256.

1.3 “Claim Deadline” means 90 days after the Notice Date, by which

Settlement Class Members must submit a claim to obtain the Class Benefit described

in III of this Stipulation of Settlement.

1.4 “Claim Form” means the form substantially in the form attached hereto

as Exhibit A to be submitted by Class Members seeking to recover the Class Benefit

described in this Stipulation of Settlement in Section III. The format of the Claim

Form may be modified by the Court in the Preliminary Approval Order, substantially

in the form attached hereto as Exhibit B, or to meet the requirements of the

Settlement Administrator

1.5 “Claimant” means a Class Member who submits a claim for cash as

described in Section III of this Settlement Agreement.

1.6 “Class Benefit” has the meaning set forth in Section III below.

1.7 “Class Counsel” means Bursor & Fisher, P.A., Vozzolo LLC, and

Faruqi & Faruqi, LLP.

1.8 “Class Notice” means the Court-approved “Notice of Class Action

Settlement,” which includes the Long Form Notice, the Short Form Notice, the

Postcard Notice, the Email Notice, and the Publication Notice.

1.9 “Class Representatives” means Enzo Forcellati, and Lisa Roemmich.

1.10 “Court” means the United States District Court, Central District of

California.


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1.11 “Defendants’ Counsel,” or “Defense Counsel” means the law firm of

Norton Rose Fulbright US LLP.

1.12 “Email Notice” means the Short Form Notice that will be sent via email

to all Class Members for whom an email address is available. The Email Notice will

contain the Short Form Notice content in the body of the message and will contain a

link to the Settlement Website, and the Long Form Notice.

1.13 “Fairness Hearing” means the hearing that is to take place after entry of

the Preliminary Approval Order, the Notice Date, and the Claim Deadline for

purposes of: (a) determining the fairness, adequacy, and reasonableness of the

Settlement Agreement; and (b) ruling upon an application by Class Counsel for a Fee

and Expense Award and Plaintiffs’ Incentive Awards. The Parties shall request that

the Court schedule the Fairness Hearing for a date that is in compliance with the

provisions of 28 U.S.C. § 1715(d).

1.14 “Fee and Expense Award” means the amount awarded to Class Counsel

by the Court for attorneys’ fees, costs, and expenses.

1.15 “Final Settlement Approval Date” means the date that is 30 days after

service of notice of entry of the Settlement Approval Order and Final Judgment on

the Parties and all objectors to the Settlement Agreement, if any, without any appeal

being taken, or if an appeal or request for review has been taken, the date on which

the Settlement Approval Order and Final Judgment has been affirmed by the court of

last resort to which an appeal or request for review has been taken and such

affirmance is no longer subject to further appeal or review, or the date of denial of

review after exhaustion of all appellate remedies.

1.16 “Incentive Award(s)” means any award sought by application to and

approved by the Court that is payable to the Class Representatives.

1.17 “Long Form Notice” means the notice (substantially in the form

attached hereto as Exhibit C) to be posted in English and Spanish on the Settlement


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Website. The website and the Long Form Notice will be accessible through a

hyperlink embedded in the Email Notice and Internet Banners.

1.18 “MSRP” means Hyland’s average suggested retail price for the

Settlement Class Products during the Settlement Class Period as follows:

(i) Cold ‘n Cough 4 Kids $8.94

(ii) Cough Syrup with 100% Natural

Honey

$8.89

(iii) Sniffles ‘n Sneezes 4 Kids $8.09

(iv) Cold Relief Strips 4 Kids with Zinc $6.99

(v) Nighttime Cold ‘n Cough 4 Kids $9.42

(vi) Complete Flu Care 4 Kids $6.96

(vii) Baby Teething Gel $7.59

(viii) Baby Cough Syrup $10.66

(ix) Baby Gas Drops $12.99

(x) Baby Infant Earache Drops $10.39

(ix) Baby Nighttime Tiny Cold Syrup $11.99

1.19 “Notice Date” means 30 days following the Preliminary Approval

Order.

1.20 “Notice of Missing or Inaccurate Information” means the notice sent by

the Claims Administrator to a Claimant who has submitted a Claim Form with

inaccurate, disqualifying, incomplete, or missing information that is required for the

Claimant to be considered eligible for the Class Benefit.

1.21 “Objection Deadline” means the date, to be set by the Court, by which

Settlement Class Members must file objections, if any, to the Settlement Agreement

in accordance with Section VI of this Stipulation of Settlement. The Parties shall

request that the Court set an Objection Deadline 90 days after the Notice Date.


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1.22 “Opt-Out Date” means the date, to be set by the Court, by which a

Request for Exclusion must be sent to the Settlement Administrator for a Class

Member to be excluded from the Settlement Class. The Parties shall request that the

Court set an Opt-Out Date 90 days after the Notice Date.

1.23 “Parties” means Enzo Forcellati, Lisa Roemmich on the one hand, and

Hyland’s, Inc., Standard Homeopathic Laboratories Inc., and Standard Homeopathic

Company on the other.

1.24 “Postcard Notice” means the notice (substantially in the form attached

hereto as Exhibit D) to be sent via regular mail to all class members for whom the

Parties do not have a valid email address but do have a mailing address.

1.25 “Preliminary Approval” means that the Court has entered an order

preliminarily approving the terms and conditions of this Stipulation of Settlement,

including the manner of providing and content of Class Notice to Settlement Class

Members.

1.26 “Preliminary Approval Date” means the date on which the Court enters

the Preliminary Approval Order.

1.27 “Preliminary Approval Order” means the Court’s order, substantially in

the form attached hereto as Exhibit B, preliminarily approving the Settlement

Agreement set forth in this Stipulation of Settlement and approving the Settlement

Notice Plan.

1.28 “Proof of Purchase” means receipts, packaging of Settlement Class

Products, bottles or other containers of Settlement Class Products, or other

documentation from a third-party commercial source reasonably establishing the

purchase during the Settlement Class Period of one or more of the Settlement Class

Products claimed to have been purchased by the Settlement Class Member.

1.29 “Publication Notice” means publication of the Short Form Notice in the

National Edition of USA Today once a week for four consecutive weeks, and a


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Facebook campaign targeting people who have expressed an interest in or “like”

pages related to Hyland’s, homeopathy, homeopathic medicine, and wellness as well

as those people who have expressed an interest in or “like” pages related to

parenting.

1.30 “Released Claims” means the claims released by the Settlement Class

Members, as described in Section VII below, who do not submit a valid Request for

Exclusion.

1.31 “Released Persons” means Hyland’s Inc., Standard Homeopathic

Laboratories Inc., and Standard Homeopathic Company; all of their past and present

respective parents, subsidiaries, divisions, affiliates, persons and entities directly or

indirectly under its or their control in the past or in the present; all of their respective

assignors, predecessors, successors, and assigns; and all past or present partners,

shareholders, managers, members, directors, officers, employees, agents, attorneys,

insurers, accountants, and representatives of any and all of the foregoing.

1.32 “Request for Exclusion” means the written communication that must be

sent to the Settlement Administrator and postmarked on or before the Opt-Out Date

by a Settlement Class Member who wishes to be excluded from the Settlement Class.

1.33 “Settlement Administrator” means KCC Class Action Services, LLC (or

“KCC”) and its successors and assigns.

1.34 “Settlement Agreement” means the agreement set forth by the terms of

this Stipulation of Settlement.

1.35 “Settlement Approval Order and Final Judgment” means an order and

judgment issued and entered by the Court, substantially in the form as that attached

hereto and made a part hereof as Exhibit E, approving this Settlement Agreement as

binding upon the Parties and the Settlement Class Members, entering final judgment,

and setting the Fee and Expense Award, to Class Counsel by the Court. The

Settlement Approval Order and Final Judgment shall constitute a judgment within


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the meaning and for purposes of Rule 54 of the Federal Rules of Civil Procedure.

The Parties jointly shall request the Court to enter the proposed Settlement Approval

Order and Final Judgment substantially in the form attached hereto and made a part

hereof as Exhibit E.

1.36 “Settlement Class Members,” “Class Members,” “Class,” or “Settlement

Class” means: All persons in the United States who purchased the following

Hyland’s products on or after March 8, 2008: (i) Cold ‘n Cough 4 Kids, (ii) Cough

Syrup with 100% Natural Honey, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold Relief

Strips 4 Kids with Zinc, (v) Nighttime Cold ‘n Cough 4 Kids, (vi) Complete Flu Care

4 Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x)

Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup. Excluded

from the Class are: (a) Hyland’s employees, officers and directors, (b) persons or

entities who purchased the Products for the purpose of re-sale, (c) retailers or re-

sellers of the Products, (d) governmental entities, (e) persons who timely and

properly exclude themselves from the Class as provided herein, and (f) the Court, the

Court’s immediate family, and Court staff.

1.37 “Settlement Class Period” means the period of time from March 8, 2008

through the Notice Date.

1.38 “Settlement Class Products” means: (i) Cold ‘n Cough 4 Kids, (ii)

Cough Syrup with 100% Natural Honey, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold

Relief Strips 4 Kids with Zinc, (v) Nighttime Cold ‘n Cough 4 Kids, (vi) Complete

Flu Care 4 Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas

Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup.

1.39 “Settlement Notice and Other Administrative Costs” means all costs and

expenses actually incurred by the Settlement Administrator in the publication and

sending of Class Notice, establishment of the Settlement Website, and the

processing, handling, reviewing, and paying of claims made by Claimants.


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1.40 “Settlement Notice Plan” means the Settlement Administrator’s plan to

disseminate Class Notice to Settlement Class Members, as described in Section V

below.

1.41 “Settlement Website” means a website operated and maintained by the

Settlement Administrator solely for purposes of making available to the Settlement

Class Members the Long Form Notice, documents, information, and online claims

submission process referenced in Sections V and VI, below.

1.42 “Short Form Notice” means the notice, (substantially in the form

attached hereto as Exhibit F), that will be published in the national edition of USA

Today once a week for four consecutive weeks, and that will be sent by email to all

class members for whom email addresses are identified.

1.43 “Stipulation of Settlement” means this document and its exhibits,

attached hereto and incorporated herein, including all subsequent amendments

agreed to in writing by the Parties and any exhibits to such amendments.

II. CERTIFICATION OF THE SETTLEMENT CLASS 2.1 The Parties agree, for settlement purposes only, that the Settlement

Class shall be certified and proceed as a class action under Federal Rule of Civil

Procedure 23(b)(3), with a class consisting of all Settlement Class Members, and

with Plaintiffs Forcellati and Roemmich as Class Representatives and with Class

Counsel as counsel for the Settlement Class Members.

2.2 Any certification of a conditional, preliminary or final Settlement Class,

pursuant to the terms of this Stipulation of Settlement, shall not be construed as an

admission on the part of Hyland’s that the Settlement Class is appropriate for class

treatment under the Federal Rules of Civil Procedure or any similar state or federal

class action statute or rule.

2.3 In the event that the Court does not preliminarily or finally approve the

Settlement Agreement, nothing herein shall be construed to alter the Court’s April 9,


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2014 certification of the following Rule 23(b)(3) classes: (a) A nationwide class of

all persons in the United States who purchased the following Hyland’s products on

or after March 8, 2008: (i) Cold ‘n Cough 4 Kids, (ii) Cough Syrup with 100%

Natural Honey 4 Kids, (iii) Sniffles ‘n Sneezes 4 Kids, (iv) Cold Relief Strips 4 Kids

with Zinc, and (v) Nighttime Cold ‘n Cough 4 Kids; (b) A 49-state class of all

persons in the United States except for those in California who purchased Hyland’s

Complete Flu Care 4 Kids on or after March 8, 2008.

III. SETTLEMENT CONSIDERATION 3.1 Class Benefits. In full, complete, and final settlement and satisfaction

of the Consolidated Action and all Released Claims, and subject to all of the terms,

conditions, and provisions of this Stipulation of Settlement, Hyland’s agrees to

provide the following consideration to Settlement Class Members:

(a) To each Settlement Class Member who follows the procedures set

forth in Section VI of this Stipulation of Settlement and submits a valid Claim Form,

Hyland’s will pay a full refund of the MSRP or the actual purchase price, as follows:

(i) Without Proof of Purchase. Claims for a full refund of

the MSRP for up to two (2) unit purchases of Settlement Class Products will be paid

without requiring proof of purchase.

(ii) With Proof of Purchase. Claims for a full refund for

three (3) or more unit purchases of Settlement Class Products will be paid with proof

of purchase to avoid fraudulent claims. Settlement Class Members who submit proof

of purchase that reveals the actual price paid for a Settlement Class Product will

receive a refund of the actual price paid. If proof of purchase does not reveal the

actual price paid for a Settlement Class Product, the Settlement Class Member will

be receive a refund of the MSRP for each Settlement Class Product.

3.2 Injunctive Relief. Hyland’s will include a money back guarantee on its

website.


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3.3 Costs of Class Notice and Claims Administration. Hyland’s will pay

the costs of the Settlement Administrator.

3.4 Fee and Expense Award. Hyland’s will pay a Fee and Expense

Award and Incentive Awards as described in Section IV. IV. CLASS COUNSEL’S FEE AND EXPENSE AWARD AND CLASS

REPRESENTATIVES’ INCENTIVE AWARDS 4.1 Incentive Awards. In recognition of the time and effort that the Class

Representatives expended in pursuing this Consolidated Action and in fulfilling their

obligations and responsibilities as Class Representatives, including responding to

discovery, attending their depositions, and preparing to appear at trial, Class Counsel

will submit an application for Incentive Awards of $5,000 to each Class

Representative. Any Court-ordered Incentive Award will be paid to the Class

Representatives by Hyland’s no later than 15 days after the Final Settlement

Approval Date.

4.2 Fee and Expense Award. Class Counsel will make an application to

the Court for an Attorneys’ Fee and Expense Award in an amount not to exceed $2.9

million, which includes reimbursement of Class Counsel’s costs and expenses.

(a) Such Class Counsel’s Fee and Expense Award shall be paid by

wire transfer to Class Counsel, subject to Court approval, as follows: $750,000

within 5 days after Preliminary Approval, and the remainder in quarterly installments

over four years from the date of final approval, subject to paragraph 4.2(b) below.

The quarterly installments shall be paid on dates to be agreed on by the Parties

following entry of the Settlement Approval Order and Final Judgment.

(b) The Fee and Expense Award shall be the total obligation of

Hyland’s to pay for attorneys’ fees, costs, and/or expenses of any kind (including,

but not limited to, travel, filing fees, court reporter, and videographer expenses,

expert fees, and costs, and document review and production costs) related to this

Consolidated Action or any claims asserted in the Consolidated Action.


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Notwithstanding the foregoing, if the Final Settlement Approval Order and Final

Judgment or any part of it is vacated, overturned, reversed, or rendered void or

unenforceable as a result of any appeal, or the Settlement Agreement is voided,

rescinded, or otherwise terminated for any other reason, then Class Counsel shall,

within 60 days, repay to Hyland’s the full amount of the attorneys’ fees and costs

paid by Hyland’s to Class Counsel. Class Counsel shall provide an undertaking

satisfactory to Defendants’ Counsel and the Settlement Administrator to repay to

Hyland’s all attorneys’ fees and costs paid by Hyland’s to Class Counsel if the

Settlement is not finally approved or the award of attorneys’ fees and expenses is

later modified or reversed for any reason. Such undertaking may be in the form of a

promissory note or letter of credit acceptable to Defendants and the Settlement

Administrator.

4.3 Class Counsel shall have the sole and absolute discretion to allocate the

Fee and Expense Award amongst Plaintiffs’ Counsel and any other attorneys for

Plaintiffs. Hyland’s shall have no liability or other responsibility for allocation of

any such attorney’s fees and expenses awarded, and, in the event that any dispute

arises relating to allocation of fees, Class Counsel agree to hold Hyland’s harmless

from, and indemnify Hyland’s with respect to, any and all such liabilities, costs, and

expenses, including attorneys’ fees and costs of such dispute. V. NOTICE TO THE CLASS AND ADMINISTRATION OF

SETTLEMENT 5.1 The Class Notice shall conform to all applicable requirements of the

Federal Rules of Civil Procedure, the United States Constitution (including the Due

Process Clauses), the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and any

other applicable law, and shall otherwise be in the manner and form approved by the

Court.

5.2 General Notice Terms. The Class Notice Shall:


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(a) inform Settlement Class Members that, if they do not exclude

themselves from the Class, they may be eligible to receive the relief under the

proposed Settlement Agreement;

(b) contain a short, plain statement of the background of the

Consolidated Action, the Class certification for settlement purposes and the proposed

Settlement Agreement;

(c) describe the proposed settlement relief outlined in this Stipulation

of Settlement;

(d) state that any relief to Settlement Class Members is contingent on

the Court’s final approval of the proposed Settlement Agreement;

(e) inform Settlement Class Members of their rights to exclude

themselves form the Settlement Class or object to the proposed Settlement

Agreement as described in Section VI below.

5.3 Time and Manner of Notice. Class Notice shall be provided in the

manner that Class Notice was provided upon Class Certification in this Consolidated

Action, as follows:

(a) On or before the Notice Date, which is 30 days following

Preliminary Approval, the Settlement Administrator shall cause a copy of the Short

Form Notice to be sent by email to all class members for whom email addresses are

identified. The Email Notice will provide prominent links to the Long Form Notice,

the Claim Form, and the Settlement Website;

(b) On or before the Notice Date, the Settlement Administrator shall

cause a copy of the Postcard Notice to be sent by regular mail to all class members

for whom the Parties do not have a valid email address but do have a mailing

address. The Short Form Notice will prominently provide information for accessing

the Settlement Website, the Claim Form, and the Long Form Notice;


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(c) On or before the Notice Date, Class Counsel shall cause a copy of

the Long Form Notice, in both English and Spanish, to be posted on a dedicated

website together with links to the Claim Form, and important case documents, such

as the Preliminary Approval Order, this Stipulation of Settlement, the Consolidated

Amended Class Action Complaint, Defendants’ Answer to Consolidated Amended

Class Action Complaint, and any Second Amended Class Action Complaint;

(d) Class Counsel shall have registered www.HylandsLawsuit.com

for this purpose, along with several additional domains that will mirror and/or link to

that website, including www.HylandsClassAction.com. Class members will be

directed to the website by hyperlinks embedded in the email version of the Short

Form Notice and by references in the Postcard, and Short Form Notices. The

www.HylandsLawsuit.com website will allow Class Members to submit Claim

Forms online and will contain information relevant to Class Members, including but

not limited to all applicable deadlines, this Stipulation of Settlement, Class Notice, a

downloadable Claim Form, all papers filed by the Parties in support of the proposed

Settlement Agreement (including Plaintiffs’ anticipated motion for a Fee and

Expense Award), orders of the Court pertaining to this Stipulation of Settlement, and

contact information for the Settlement Administrator for a toll-free telephone

number, e-mail, and U.S. mail. The Parties shall use reasonable efforts to agree on

all information and documents to be posted on this website and no information shall

be posted or provided on the website without the Parties’ express approval. The

website shall be rendered inactive 90 days after the Final Settlement Approval Date;

and

(e) Commencing on or before the Notice Date, the Settlement

Administrator shall undertake Publication Notice as provided in Section 1.299.

5.4 Notice Period. The Notice Period shall run for 90 days following the

Notice Date. The Long Form, Short Form, and Postcard Notices shall inform Class


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Members of the Opt-Out Deadline and the Objection Deadline, which will be set by

the Court in the Preliminary Approval Order. Any Class Member who does not file

a valid and timely Request for Exclusion will be bound by the Settlement Agreement

set forth in this Stipulation of Settlement and by Final Judgment concluding this

Consolidated Action.

5.5 Responsibilities of Settlement Administrator. The Settlement

Administrator will help implement the terms of this Stipulation of Settlement. The

Settlement Administrator shall be responsible for administrative tasks, including,

without limitation, (a) notifying the appropriate state officials about the Settlement

Agreement, (b) arranging, as set forth in this Section and in the Preliminary

Approval Order, for distribution of Class Notice (in the form approved by the Court)

and Claims Forms (in the form approved by the Court) to Settlement Class Members,

(c) answering inquiries from Settlement Class Members and/or forwarding such

written inquiries to Class Counsel or their designee, (d) receiving and maintaining on

behalf of the Court and the Parties any Settlement Class Member correspondence

regarding Requests for Exclusion from the Settlement Agreement, (e) posting notices

on the Settlement Website, Claim Forms, and other related documents, (f) receiving

and processing claims and distributing cash payments to Settlement Class Members,

and (g) otherwise assisting with implementation and administration of the Settlement

Agreement terms. The actual costs and expenses of the Settlement Administrator

will be paid by Hyland’s as part of the Settlement Consideration as described in

Section III above.

VI. CLASS SETTLEMENT PROCEDURES 6.1 Settlement Class Member Eligibility Requirements. To be eligible to

receive relief under the Settlement Agreement, Settlement Class Members must

submit a claim to the Claims Administrator by completing and certifying the online

Claim Form on the Settlement Website or completing, certifying and mailing the


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Claim Form to the Claims Administrator. The Claim Form must be submitted online

or postmarked no later than the Claim Deadline. Claim Forms submitted or

postmarked after the Claim Deadline shall be denied by the Claims Administrator

and Hyland’s will not be obligated to make any payment on such claims.

6.2 Requirements for Valid Claim Forms. No Claim Form will be

deemed valid unless it is signed in hard copy or in online form by the Settlement

Class Member under penalty of perjury, and is postmarked or submitted online on or

before the Claim Deadline.

6.3 Review by Claims Administrator. The Claims Administrator shall

review all submitted Claim Forms within a reasonable time to determine each

Settlement Class Member’s eligibility for relief, and the amount of such relief, if

any. Copies of submitted Claim Forms shall be provided to Defense Counsel and to

Class Counsel upon request. Settlement Class Members who submit valid Claim

Forms shall be entitled to relief as set forth in paragraph 3.1(a) of this Stipulation of

Settlement. Settlement Class Members who submit Claims Forms that do not meet

the Eligibility Requirements or the Requirements for Valid Claim Forms, as

described in this Section VI of this Stipulation of Settlement, shall not be entitled to

the relief set forth in paragraph 3.1(a) of this Stipulation of Settlement. The Claims

Administrator shall use standard and customary procedures to prevent the payment

of fraudulent claims and to pay only legitimate claims.

6.4 Incomplete Claim Forms. Failure to provide all information requested

in the Claim Form will not result in nonpayment of a claim. Instead, the Settlement

Administrator will take customary steps to determine whether the Settlement Class

Member is eligible for payment and to determine the amount of the payment based

on the information contained in the Claim Form or otherwise submitted, or based on

other reasonably available information. Claim Forms that omit essential or required

information that cannot be identified from reasonably available information shall be


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returned by the Claims Administrator with a Notice of Missing or Inaccurate

Information via email to the Settlement Class Member’s email address indicated on

the Claim Form. If the Claims Administrator is unable to return the Claim Form

with a Notice of Missing or Inaccurate Information as a result of omitted

information, the Claims Administrator will reject that Settlement Class Member’s

claim, and Hyland’s will not be obligated to provide the Class Benefit set forth in

paragraph 3.1(a) above.

6.5 Inaccurate Claim Forms. Claim Forms submitted with inaccurate or

disqualifying information shall be returned by the Claims Administrator with a

Notice of Missing or Inaccurate Information via email to the Settlement Class

Member’s email address indicated on the Claim Form. If the Claims Administrator

is unable to return the Claim Form with a Notice of Missing or Inaccurate

Information as a result of inaccurate information, the Claims Administrator will

reject that Settlement Class Member’s claim, and Hyland’s will not be obligated to

provide the Class Benefit set forth in paragraph 3.1(a) above.

6.6 Resubmission of Claim Forms following Notice of Missing or Inaccurate Information. Settlement Class Members whose Claim Forms are

returned with a Notice of Missing or Inaccurate Information shall have until the

Claim Deadline, or 30 days from when the Notice of Missing or Inaccurate

Information was emailed by the Settlement Administrator, whichever is later, to

respond to the Notice of Missing or Inaccurate Information with a revised Claim

Form that is complete and contains no inaccurate or disqualifying information. If a

Settlement Class Member fails to timely respond to the Notice of Missing or

Inaccurate Information, or resubmits a Claim Form that is incomplete or inaccurate

the Claims Administrator shall reject that Settlement Class Member’s Claim Form,

and Hyland’s will not be obligated to provide the Class Benefit set forth in paragraph

3.1(a) above.


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6.7 Provision of Class Benefit. All Settlement Class Members who are

eligible and who submit a valid Claim Form shall be sent cash awards, or a letter

explaining the rejection of their Claim Form, within 45 calendar days of the Final

Settlement Approval Date. Hyland’s shall pay the Settlement Administrator the

aggregate value of all cash awards to be distributed to Settlement Class Members no

later than 15 calendar days after the Final Settlement Approval Date. All cash

awards to Settlement Class Members will be in the form of checks, and such checks

will state that the must be redeemed within 180 calendar days of the Final Settlement

Approval Date or they will become void.

6.8 Requests for Exclusion. Any individual who would otherwise be a

Settlement Class Member but who does not wish to obtain the Class Benefit or to be

bound by the terms of this Stipulation of Settlement must postmark a written Request

for Exclusion to the Claims Administrator no later than the Opt-Out Date. The

Request for Exclusion must be in writing and include a statement of intention to be

excluded from the Settlement Class. Additionally, to be valid, a Request for

Exclusion must contain:

(a) the name of this lawsuit, Forcellati v. Hyland's Inc., Case No. 12-

cv-1983 GHK (MRWx);

(b) the individual’s name, current address, and telephone number;

and

(c) the individual’s signature.

6.9 Each Request for Exclusion must be submitted individually. Each

Request for Exclusion may not be submitted on behalf of more than one individual.

So-called “mass” or “class” Requests for Exclusion shall not be allowed.

6.10 Any individual who submits a timely and valid Request for Exclusion

will not be bound by this Stipulation of Settlement or have any right to object, appeal

or comment thereon.


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6.11 At least seven calendar days prior to the Fairness Hearing, Class

Counsel shall prepare or cause the Settlement Administrator to prepare a list of the

persons who have excluded themselves in a valid and timely manner from the

Settlement Class, and Class Counsel shall file that list with the Court.

6.12 Objections. Settlement Class Members shall have the right to appear

and present objections as to any reason why the terms of this Stipulation of

Settlement and the Settlement Agreement set forth herein should not be given Final

Approval. Any objection must be in writing and filed with the Court, with a copy

delivered to Class Counsel and Defense Counsel at the addresses set forth in the

Class Notice, no later than the Objection Deadline to be set by the Court.

Additionally, to be valid, objections must:

(a) include the Settlement Class Member’s name, current address,

and telephone number, or the Settlement Class Member’s lawyer’s name, current

address and telephone number;

(b) contain a caption or title that identifies it as an objection to the

Settlement Agreement in Forcellati v. Hyland’s, Inc., Case No. 12-cv-1983 GHK

(MRWx);

(c) contain a clear and concise statement of the Settlement Class

Member’s objection, including the facts supporting the objection and the legal

grounds on which the objections is based;

(d) whether the Settlement Class Member intends to appear at the

Fairness Hearing; and

(e) include documents sufficient to establish membership in the

Settlement Class such as a verification under oath as to the date and location of their

purchase of a Settlement Class Product or a Proof of Purchase as defined herein.

6.13 No Settlement Class Member shall be entitled to be heard at the

Fairness Hearing (whether individually or through separate counsel) or to object to


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the Settlement Agreement, and no written objections or briefs by any Settlement

Class Member shall be considered by the Court at the Fairness Hearing unless a

written objection is filed with the Court and delivered to Class Counsel and Defense

Counsel by the Objection Deadline.

6.14 Class Counsel, on behalf of Plaintiffs and the Settlement Class, and

Defense Counsel, on behalf of Hyland’s, shall have the right to respond to any

objection prior to the Fairness Hearing.

6.15 Settlement Class Members who do not request exclusion and who fail to

file and timely serve written objections in the manner specified herein shall be

deemed to have waived any objections and shall be foreclosed from making any

objection (whether by appeal or otherwise) to Final Approval of the Settlement

Agreement, and shall be bound, to the extent allowed by law, by the terms of this

Stipulation of Settlement.

VII. RELEASES 7.1 Release by Settlement Class Members. Effective as of the Final

Settlement Approval Date, each and every Settlement Class Member (except any

such person who has filed a proper and timely Request for Exclusion) shall release

and forever discharge, and shall be forever barred from asserting, instituting or

maintaining against any or all of the Released Persons, any and all claims, demands,

actions, causes of action, lawsuits, arbitrations, damages, or liabilities whether legal,

equitable, or otherwise, relating in any way to the claims asserted or the factual

allegations made in the Consolidated Action, including without limitation the

allegation that Settlement Class Products’ ingredients are ineffective, the allegation

that the Settlement Class Products are not all natural, and/or the purchase of any of

the Settlement Class Products during the Settlement Class Period (collectively, the

“Claims”). With respect to the Claims released pursuant to this paragraph, each

Settlement Class Member shall be deemed to have waived and relinquished, to the


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fullest extent permitted by law, the provisions, rights and benefits of California Civil

Code section 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). Section 1542 provides that: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Each and every term of this paragraph shall inure to the benefit of each and all of the

Released Persons, and each and all of their respective successors and personal

representatives, which persons and entities are intended to be beneficiaries of this

paragraph.

7.2 Effectuation of Settlement. None of the above releases include

releases of claims or otherwise affects the rights to enforce the terms of this

Stipulation of Settlement.

7.3 No Admission of Liability. This Stipulation of Settlement and the

Settlement Agreement set forth herein reflects, among other things, the compromise

and settlement of disputed claims among the Parties, and neither this Stipulation of

Settlement nor the releases given herein, nor any consideration therefor, nor any

actions taken to carry out the terms of this Stipulation of Settlement, are intended to

be, nor may they be deemed or construed to be, an admission or concession of

liability, or the validity of any claim, defense, or of any point of fact or law on the

part of any party. Hyland’s denies the material allegations of the Consolidated

Amended Class Action Complaint and any Second Amended Complaint that may be

filed in this Consolidated Action following execution of this Stipulation of

Settlement. Neither this Stipulation of Settlement, nor the fact of the Settlement

Agreement set forth herein, nor the settlement proceedings, nor the settlement


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negotiations, nor any related document, shall be used as an admission of any fault or

omission by any or all of the Released Persons, or be offered or received in evidence

as an admission, concession, presumption, or inference of any wrongdoing or

liability by any or all of the Released Persons in any proceeding, other than such

proceedings as may be necessary to consummate, interpret or enforce this Stipulation

of Settlement.

VIII. SUBMISSION OF THE SETTLEMENT TO THE COURT 8.1 As soon as is practicable following the signing of this Stipulation of

Settlement, Class Counsel shall apply to the Court for entry of the Preliminary

Approval Order, for the purpose of, among other things:

(a) Finding that the Settlement Agreement is within the range of

reasonableness and possible Final Approval such that the Class Notice should be

provided pursuant to this Stipulation of Settlement;

(b) Approving the Class Notice, including the Long Form Notice, the

Postcard Notice, and the Short Form Notice, substantially in the form set forth at

Exhibits C, D, and F;

(c) Finding that the requirements for certification of the Settlement

Class for settlement purposes have been satisfied, appointing Plaintiffs as the

representatives of the Class, and their counsel as Class Counsel;

(d) Scheduling the Fairness Hearing on a date ordered by the Court,

provided in the Preliminary Approval Order, and in compliance with applicable law,

to determine whether the Settlement Agreement should be approved as fair,

reasonable, and adequate, and to determine whether a Final Order and Final

Judgment should be entered;

(e) Determining that the Notice of the Settlement Agreement and of

the Fairness Hearing, as set forth in this Stipulation of Settlement, complies with all


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legal requirements, including but not limited to the Due Process Clause of the United

States Constitution;

(f) Appointing KCC Class Action Services, LLC as the Settlement

Administrator;

(g) Directing that Class Notice shall be given to the Class as provided

in Section V of this Stipulation of Settlement;

(h) Providing that Class Members will have until the Claim Deadline

to submit a Claim Form;

(i) Providing that any objections by an Class Member to the

certification of the Settlement Class and the proposed Settlement Agreement set forth

in this Stipulation of Settlement, and/or entry of the Final Order and Final Judgment,

shall be heard and any papers submitted in support of said objections shall be

considered by the Court at the Fairness Hearing only if, on or before the Objection

Deadline set by the Court, such objector files with the Court a written objection and

notice of the objector’s intention to appear, and otherwise complies with the

requirements set for in Section VI of this Stipulation of Settlement;

(j) Establishing the dates by which the Parties shall file and serve all

papers in support of the application for final approval of the Settlement Agreement

and/or in response to any valid and timely objections;

(k) Providing that all Settlement Class Members will be bound by the

Final Order and Final Judgment unless such members of the Settlement Class timely

submit a valid Request for Exclusion in the manner set forth in Section VI of this

Stipulation of Settlement;

(l) Providing that Settlement Class Members who wish to exclude

themselves from the Settlement Agreement will have until the Opt-Out Date to

submit a valid Request for Exclusion in the manner set forth in Section VI of this

Stipulation of Settlement;


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(m) Directing the Parties, pursuant to the terms and conditions of this

Stipulation of Settlement, to take all necessary and appropriate steps to establish the

terms and conditions of this Stipulation of Settlement and the Preliminary Approval

Order; and

(n) Pending the Fairness Hearing, staying all proceedings in the

Consolidated Action, other than the proceedings necessary to carry out or enforce the

terms and conditions of this Agreement and the Preliminary Approval Order, and

enjoining Class Members from bringing or prosecuting any action relating to the

Released Claims.

8.2 At the Fairness Hearing, the Parties shall seek to obtain from the Court a

Final Order and Final Judgment. The Final Order and Final Judgment shall, among

other things:

(a) Find that the Court has personal jurisdiction over all Settlement

Class Members, the Court has subject matter jurisdiction over the claims asserted in

the Consolidated Action, and that venue is proper;

(b) Finally approve the Settlement Agreement pursuant to Rule 23 of

the Federal Rules of Civil Procedure;

(c) Certify the Settlement Class for settlement purposes only;

(d) Find that the Class Notice complied with all laws and

requirements, including, but not limited to, the Due Process Clause of the United

States Constitution;

(e) Incorporate and effectuate the release set forth in the Stipulation

of Settlement make the Release effective as of the Final Settlement Approval Date;

(f) Authorize the Parties to implement the terms of the Stipulation of

Settlement;

(g) Enjoin Class Members from bringing or prosecuting any action

relating to the Released Claims; and


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(h) Dismiss the Consolidated Action with prejudice, except that the

Court will retain jurisdiction relating to the administration, consummation,

enforcement, and interpretation of the Stipulation of Settlement, the Final Order and

Final Judgment, any final order approving an Attorneys’ Fees and Expenses Award

and Incentive Awards, and for any other necessary purpose.

8.3 The Parties acknowledge that each intends to implement the terms of

this Stipulation of Settlement. The Parties shall, in good faith, cooperate and assist

with and undertake all reasonable action and steps to accomplish all required events

on the schedule set by the Court, and shall use reasonable efforts to implement all

terms and conditions of this Stipulation of Settlement. In the event that the Court

does not preliminarily or finally approve the Settlement Agreement, the Parties

further agree to continue to cooperate in good faith to address any deficiencies raised

by the Court in an expeditious manner.

8.4 Effect if Settlement Is Not Approved. This Stipulation of Settlement

was entered into only for purposes of settlement, subject to and without waiver of the

Parties’ respective rights. If the Court does not enter the Preliminary Approval

Order or does not grant final approval, or if the final Settlement Approval Order and

Final Judgment is vacated, overturned, reversed, or rendered void as a result of an

appeal, the Parties shall be restored to their respective positions immediately

preceding execution of this Stipulation of Settlement.

IX. MISCELLANEOUS PROVISIONS 9.1 The Parties agree that the recitals are contractual in nature and form a

material part of this Stipulation of Settlement.

9.2 This Stipulation of Settlement and its accompanying exhibits set forth

the entire understanding of the Parties. No change or termination of this Stipulation

of Settlement shall be effective unless in writing and signed by Plaintiffs’ Counsel


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and Hyland’s Counsel. No extrinsic evidence or parol evidence shall be used to

interpret this Stipulation of Settlement.

9.3 All of the Parties warrant and represent that they are agreeing to the

terms of this Stipulation of Settlement based upon the legal advice of their respective

attorneys, that they have been afforded the opportunity to discuss the contents of this

Stipulation of Settlement with their attorneys and that the terms and conditions of

this document are fully understood and voluntarily accepted.

9.4 The waiver by any party of a breach of any term of this Stipulation of

Settlement shall not operate or be construed as a waiver of any subsequent breach by

any party. The failure of a party to insist upon strict adherence to any provision of

the Stipulation of Settlement shall not constitute a waiver or thereafter deprive such

party of the right to insist upon strict adherence.

9.5 The headings in this Stipulation of Settlement are inserted merely for

the purpose of convenience and shall not affect the meaning or interpretation of this

document.

9.6 This Stipulation of Settlement may be executed by facsimile signature

and in counterparts, each of which shall be deemed an original and all of which,

when taken together, shall constitute one and the same instrument. The date of

execution shall be the latest date on which any party signs the Stipulation of

Settlement.

9.7 This Stipulation of Settlement has been negotiated among and drafted

by Class Counsel and Defense Counsel. Plaintiffs, Plaintiffs’ Counsel, Class

Members, and Defendants shall not be deemed to be the drafter of this Stipulation of

Settlement or of any particular provision, nor shall they argue that any particular

provision should be construed against its drafter or otherwise resort to the contra

proferentem canon of construction. Accordingly, this Stipulation of Settlement

should not be construed in favor of or against one party as to the drafter, and the


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Parties agree that the provisions of California Civil Code § 1654 and common law

principles of construing ambiguities against the drafter shall have no application. All

Parties agree that counsel for the Parties drafted this Stipulation of Settlement during

extensive arm’s-length negotiations. No parol or other evidence may be offered to

explain, construe, contradict, or clarify its terms, the intent of the Parties or their

counsel, or the circumstances under which this Stipulation of Settlement was made

or executed.

9.8 Any disagreement and/or action to enforce this Stipulation of Settlement

shall be commenced and maintained only in the Court in which this Consolidated

Action is pending.

9.9 The Parties reserve the right, subject to the Court’s approval, to agree to

any reasonable extensions of time that might be necessary to carry out any of the

provisions of this Stipulation of Settlement.

9.10 In the event any one of the provisions contained in this Stipulation of

Settlement shall for any reason be held to be invalid, illegal, or unenforceable in any

respect, such invalidity, illegality, or unenforceability shall not affect other

provisions if Defense Counsel and Class Counsel, on behalf of the Parties, mutually

elect to proceed as if such invalid, illegal, or unenforceable provision had never been

included in this Stipulation of Settlement.

[Intentionally Left Blank; Signatures on Following Page(s)]


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