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Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT
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GOMEZ TRIAL ATTORNEYS JOHN H. GOMEZ [email protected] DEBORAH S. DIXON [email protected] 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496
LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650) [email protected] WILLIAM B. RICHARDS, JR. (SBN 298552) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone:(619) 696-9006 Facsimile: (619) 564-6665
[Additional counsel on signature page] Class Counsel
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
KIM ALLEN, LAINIE RIDEOUT, and
KATHLEEN HAIRSTON, on behalf of
themselves, all others similarly
situated, and the general public,
Plaintiffs,
v.
SIMILASAN CORPORATION,
Defendant.
Case No. 3:12-cv-00376-BAS (JLB)
CLASS ACTION
NOTICE OF JOINT MOTION AND
JOINT MOTION FOR AN ORDER (1)
GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT, (2) CERTIFYING
SETTLEMENT CLASS, (3)
APPOINTING CLASS
REPRESENTATIVES AND CLASS
COUNSEL, (4) APPROVING NOTICE
PLAN, AND (5) SETTING FINAL
APPROVAL HEARING
NO ORAL ARGUMENT UNLESS
REQUESTED BY THE COURT
Hearing: May 8, 2017
Judge: Hon. Cynthia A. Bashant
Courtroom: 4B
Case 3:12-cv-00376-BAS-JLB Document 257 Filed 04/06/17 PageID.9087 Page 1 of 3
1 Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
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NOTICE OF MOTION AND MOTION
The parties respectfully and jointly move for an order: (1) Granting Preliminary
Approval of Class Action Settlement; (2) Certifying a Settlement Class; (3) Appointing
Plaintiffs Class Representatives and Plaintiff’s Attorneys as Settlement Class Counsel; (4)
Approving the Notice Plan; and (5) Setting the Final Approval Hearing and Schedule. This
joint motion is based on this Notice of Motion and Motion; the Memorandum of Points and
Authorities filed concurrently herewith; the Declaration of Deborah S. Dixon and all
exhibits attached thereto; the Declaration of Ronald A. Marron and its exhibit; the
Declaration of Michelle Gillette; the record on file and all proceedings had in this matter
to date; and all further evidence and argument submitted in support of or against the motion.
Dated: April 6, 2017 GOMEZ TRIAL ATTORNEYS
By: s/ Deborah S. Dixon
John H. Gomez
Deborah S. Dixon
655 West Broadway, Suite 1700
San Diego, California 92101
Telephone: (619) 237-3490
Facsimile: (619) 237-3496
LAW OFFICES OF RONALD A. MARRON
Ronald A. Marron
William B. Richards, Jr.
651 Arroyo Drive
San Diego, California 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
Case 3:12-cv-00376-BAS-JLB Document 257 Filed 04/06/17 PageID.9088 Page 2 of 3
2 Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
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THE GOETZ FIRM, LLC Dean A. Goetz
603 N. Coast Hwy 101, Ste. H
Solana Beach, California 92075
Telephone: (858) 481-8844
Facsimile: (858) 481-2139
Dated: April 6, 2017 /s/ Michelle Gillette
MICHELLE GILLETTE
CROWELL & MORING LLP
275 Battery St., 23rd Floor
San Francisco, CA 94111
Direct: 415.365.7445
Attorneys for Defendant Similasan
Corporation
* Counsel for Plaintiff certifies that, pursuant to Section 2.f.4. of the Court’s CM/ECF
Administrative Policies, Defendant’s counsel, Michelle Gillette, has reviewed the
contents of this Joint Motion for Preliminary Approval of Settlement and authorized
placement of her electronic signature on this document.
Case 3:12-cv-00376-BAS-JLB Document 257 Filed 04/06/17 PageID.9089 Page 3 of 3
Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
MEM. OF POINTS & AUTHORITIES IN SUPPORT OF JOINT MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
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GOMEZ TRIAL ATTORNEYS JOHN H. GOMEZ [email protected] DEBORAH S. DIXON [email protected] 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496
LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650) [email protected] WILLIAM B. RICHARDS, JR. (SBN 98552) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone:(619) 696-9006 Facsimile: (619) 564-6665
[Additional counsel on signature page] Class Counsel
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
KIM ALLEN, LAINIE RIDEOUT, and
KATHLEEN HAIRSTON, on behalf of
themselves, all others similarly
situated, and the general public,
Plaintiffs,
v.
SIMILASAN CORPORATION,
Defendant.
Case No. 3:12-cv-00376-BAS (JLB)
CLASS ACTION
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
JOINT MOTION FOR AN ORDER (1)
GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT, (2) CERTIFYING
SETTLEMENT CLASS, (3)
APPOINTING CLASS
REPRESENTATIVES AND CLASS
COUNSEL, (4) APPROVING NOTICE
PLAN, AND (5) SETTING FINAL
APPROVAL HEARING
NO ORAL ARGUMENT REQUESTED
UNLESS REQUESTED BY THE COURT
Hearing: May 8, 2017
Judge: Hon. Cynthia A. Bashant
Courtroom: 4B
Case 3:12-cv-00376-BAS-JLB Document 257-1 Filed 04/06/17 PageID.9090 Page 1 of 30
i Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
MEM. OF POINTS & AUTHORITIES IN SUPPORT OF JOINT MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
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TABLE OF CONTENTS
I. FACTUAL AND PROCEDURAL BACKGROUND ........................................... 1
II. SUMMARY OF THE SETTLEMENT .................................................................. 4
III. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND
ADEQUATE AND SATISFIES THE CRITERIA FOR PRELIMINARY
APPROVAL ........................................................................................................... 6
A. Class Action Settlements Are Favored by the Ninth Circuit ....................... 6
B. The Court Should Certify the Class for Settlement Purposes ...................... 9
1. Numerosity ......................................................................................... 9
2. Commonality .................................................................................... 10
3. Typicality ......................................................................................... 11
4. Adequacy of Representation ............................................................ 12
C. The Proposed Settlement is Superior to Other Available Methods for Fairly
and Efficiently Adjudicating the Controversy ........................................... 14
1. The Settlement was Reached at Arms’ Length ................................ 15
2. The Settlement is Fair for All Claimants ......................................... 15
3. The Proposed Settlement is Fundamentally Fair, Reasonable, and
Adequate .......................................................................................... 16
i. The Strength of Plaintiffs’ Case ............................................ 17
ii. Complexity, Expense, and Probable Length of Litigation .... 17
iii. The Risks of Maintaining Class Action Status Throughout
Trial ........................................................................................ 18
iv. Amount of Recovery ............................................................. 18
v. The Extent of Discovery Completed and the Stage of the
Proceedings ............................................................................ 19
vi. The Experience and Views of Counsel ................................. 20
vii. The Reaction of the Class Members to the Proposed
Settlement .............................................................................. 20
D. The Proposed Form of Class Notice and Notice Plan Satisfy the
Requirements of Rule 23 ............................................................................ 21
E. The Proposed Timeline for Events Should be Adopted ............................. 22
IV. CONCLUSION ..................................................................................................... 23
Case 3:12-cv-00376-BAS-JLB Document 257-1 Filed 04/06/17 PageID.9091 Page 2 of 30
ii Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
MEM. OF POINTS & AUTHORITIES IN SUPPORT OF JOINT MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
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TABLE OF AUTHORITIES
Cases
Allen v. Hyland’s, Inc., 12-cv-1150 DMG (C.D. Cal.) ................................................... 14
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) ......................... 8
Beck-Ellman v. KAZ USA, Inc., 2013 WL 1748729 (S.D. Cal. 2013) ........................... 14
Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) ............................................ 20
Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) ........................... 6, 16
City P’ship Co. v. Jones Intercable, Inc., 213 F.R.D. 576 (D. Colo. 2002) ..................... 9
Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) .................................... 6
Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)............................................................ 20
DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) ................................ 18, 19
Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) ..................................... 10, 11
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .............................................. 14
Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87 (S.D.N.Y. 1981) ................ 13
Gallucci v. Boiron, Inc., No. 11CV2039 JAH NLS, 2012 WL 5359485
(S.D. Cal. Oct. 31, 2012) ............................................................................................. 12
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ............................................... 10, 11
Gribble v. Cool Transports Inc., No. CV 06-04863, 2008 WL 5281665
(C.D. Cal. 2008) .......................................................................................................... 15
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................. 7, passim
Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964) ............................. 9
In re Abbott Labs. Norvir Anti-Trust Litig., Nos. C 04-1511 CW, C 04-4203 CW,
2007 WL 1689899 (N.D. Cal. June 11, 2007) .............................................................. 9
In re Cont’l Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) ............................................... 16
In re Ferrero Litig., No. 11-CV-205 H(CAB), 2011 WL 5557407
(S.D. Cal. Nov. 14, 2011) ............................................................................................ 11
In re GM Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) ..... 15
Case 3:12-cv-00376-BAS-JLB Document 257-1 Filed 04/06/17 PageID.9092 Page 3 of 30
iii Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)
MEM. OF POINTS & AUTHORITIES IN SUPPORT OF JOINT MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
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In re Heritage Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403
(C.D. Cal. June 10, 2005) ............................................................................................ 15
In re Live Concert Antitrust Litig., 247 F.R.D. 98 (C.D. Cal. 2007) .............................. 12
In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ................................... 19
In re Nvidia Derivs. Litig., No. C-06-06110-SBA (JCS), 2008 WL 5382544
(N.D. Cal. Dec. 22, 2008) ............................................................................................ 17
In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ......................... 18
In re Pacific Enters. Secs. Litig., 47 F.3d 373 (9th Cir. 1995) ....................................... 20
In re Static Random Access Antitrust Litig., No. C 07-01819 CW, 2008 WL 4447592
(N.D. Cal. Sept. 29, 2008) ............................................................................................. 9
In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145 (Ct. App. 2010) ............... 13
In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ............................................... 6
In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ....................... 7
In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ............................................................. 13
Jaffe v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 346417
(N.D. Cal. Feb. 7, 2008) .............................................................................................. 19
Kirkorian v. Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988) ......................................... 8
Knight v. Red Door Salons, Inc., No. 08-1520 SC, 2009 WL 248367
(N.D. Cal. Feb. 2, 2009) .......................................................................................... 7, 20
Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ................................ 6, 8
Lobatz v. U.S. W. Cellular, Inc., 222 F.3d 1142 (9th Cir. 2000) .................................... 19
Lowden v. T-Mobile USA, Inc., 512 F.3d 1213 (9th Cir. 2008) ..................................... 15
Misra v. Decision One Mortg. Co., 2009 WL 4581276 (C.D. Cal. Apr. 13, 2009) . 16, 17
Nat'l Rural Telecomms. Coop. v. DirecTV, 221 F.R.D. 523 (C.D. Cal. 2004)............... 18
Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir. 1982) ....................... 6
Quintero v. Mulberry Thai Silks, Inc., No. C 08-02294 MHP, 2008 WL 4666395
(N.D. Cal. Oct. 21, 2008) ............................................................................................ 10
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CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement (the “Agreement”) is made and entered
into by and between Plaintiffs Lainie Rideout and Kathleen Hairston (the
“Representative Plaintiffs”), on behalf of themselves and the certified classes in this
action (collectively, the “Plaintiffs”), and Defendant Similasan Corporation
(“Similasan” or “Defendant”), to settle and compromise this action, and settle,
resolve, and discharge the Released Claims, as defined below, according to the terms
and conditions herein. Plaintiffs and Similasan are collectively referred to herein as
the “Settling Parties.”
RECITALS
1. PROCEDURAL BACKGROUND
1.1. WHEREAS, Plaintiffs filed an action in the United States District Court
for the Southern District of California against Defendant, entitled Allen, et al. v.
Similasan Corp., No. 3:12-cv-00376, bringing claims under California’s Consumer
Legal Remedies Act, (Civ. Code § 1750, et seq. [“CLRA”]), Unfair Competition
Law (Bus. & Prof. Code § 17200, et seq. [“UCL”]), False Advertising Law (id. §
17500, et seq. [“FAL”]), violation of the Magnuson-Moss Warranty Act (15 U.S.C.
§ 2301, et seq. [“MMWA”]), and Breach of Express and Implied Warranties.
1.2. WHEREAS, on March 30, 2015, the Court certified two classes in this
case (Dkt. No. 143).
1.3. WHEREAS, on January 17, 2017, the Court denied in part Defendant’s
motion for summary judgment (Dkt. 171) and motion to decertify the class (Dkt. No.
164), and denied Plaintiffs’ motion for leave to amend (Dkt. No. 174). (Dkt. No.
247).
1.4. WHEREAS, on March 6, 2017, the parties attended the Final Pre-Trial
Conference with a trial scheduled to begin on April 11, 2017.
1.5. WHEREAS, based upon the discovery taken to date, investigation, and
evaluation of the facts and law relating to the matters alleged in the pleadings, plus
the risks and uncertainties of continued litigation and all factors bearing on the merits
of settlement, Plaintiffs and Defendant have agreed to settle the claims asserted in
the Litigation pursuant to the provisions of this Agreement.
1.6. NOW THEREFORE, subject to the Final Approval of the Court as
required herein and by applicable law and rules, the Settling Parties hereby agree, in
consideration of the mutual promises and covenants contained herein, that any
Released Claims against any Released Parties shall be settled, compromised, and
forever released upon the following terms and conditions.
Ex. 1, Pg. 002
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TERMS AND CONDITIONS OF THE SETTLEMENT
2. DEFINITIONS
2.1. As used herein, the following terms have the meanings set forth below.
2.2. As used herein, the term “Authorized Claimant” means any Class
Member who validly and timely submits a Claim Form according to the terms of this
Settlement Agreement and does not validly request exclusion from the Class.
2.3. “CAFA Notice” means the notice of this settlement to the appropriate
federal and state officials in the United States, as provided by the Class Action
Fairness Act of 2005, 28 U.S.C. § 1715, and as further described in Paragraph 7.3.
2.4. As used herein, the term “Claim” means a request made by a Class
Member in order to receive a Settlement Payment pursuant to the procedures stated
below in Section 3.6.
2.5. As used herein, the term “Claim Form” means the form a Class Member
must validly and timely submit to receive a Settlement Payment under this
Agreement. The Claim Form must be substantially similar to the form attached as
Exhibit D.
2.6. “Class” means all purchasers of all Similasan Corporation homeopathic
Products nationwide for personal or household use and not for resale, as listed in
Exhibit A to this Agreement, from February 10, 2008 to the present. Excluded from
the Class are governmental entities, Defendant, any entity in which Defendant has a
controlling interest, its employees, officers, directors, legal representatives, heirs,
successors and wholly or partly owned subsidiaries or affiliated companies,
including all parent companies, and their employees; and the judicial officers, their
immediate family members and court staff assigned to this case.
2.7. “Class Period” means February 10, 2008 through the date the Judgment
is entered.
2.8. “Class Counsel” means the Representative Plaintiffs’ and the Class’
counsel of record in the Litigation, the Law Offices of Ronald A. Marron, APLC,
Gomez Trial Attorneys, and Law Offices of Dean Goetz.
2.9. “Class Member” means a Person who falls within the definition of the
Class.
2.10. “Court” means the United States District Court for the Southern
District of California.
2.11. “Defense Counsel” means Defendant’s counsel of record in the
Litigation, Michelle Gillette of Crowell & Moring, LLP.
2.12. “Effective Date” means the first date by which any Judgment entered
Ex. 1, Pg. 003
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pursuant to the Agreement becomes Final.
2.13. “FDA” means the United States Food and Drug Administration.
2.14. “Final” means (a) if no appeal from the Judgment is filed, the date of
expiration of the time for the filing or noticing of any appeal from the Judgment; or
(b) if an appeal from the Judgment is filed, and the Judgment is affirmed or the
appeal dismissed, the date of such affirmance or dismissal; or (c) if a petition for
certiorari seeking review of the Appellate Judgment is filed and denied, the date the
petition is denied; or (d) if a petition for a writ of certiorari is filed and denied, the
date the petition is denied; or (e) if a petition for a writ of certiorari is filed and
granted, the date of final affirmance or final dismissal of the review proceeding
initiated by the petition for a writ of certiorari. Any proceeding or order, or any
appeal or petition for a writ of certiorari pertaining solely to any application for
attorneys’ fees or expenses will not in any way delay or preclude the Judgment from
becoming Final.
2.15. “Fund” means the total amount of money Similasan will deposit of not
to exceed seven hundred thousand dollars ($700,000.00), out of which all claims,
costs, and fees associated with the Agreement will be had, including Settlement
Payments, incentive awards, attorneys’ fees and costs, and costs of Notice and
Notice or Claims administration.
2.16. “Judgment” means the judgment to be entered by the Court pursuant to
the Settlement.
2.17. “Litigation” means Kimberly Allen, et al v. Similasan Corp., No. 3:12-
cv-00376, pending in the U.S. District Court for the Southern District of California.
2.18. “Notice” means a document, substantially in the form of Exhibit B
hereto (the “Long Form Notice”), and “Summary Notice” means a document
substantially in the form of Exhibit C hereto, to be disseminated in accordance with
the Preliminary Approval Order, informing Persons who fall within the Class
definition of, among other things, the pendency of the Litigation, the material terms
of the proposed Settlement, and their options with respect thereto.
2.19. “Notice Administrator” or “Claims Administrator” means Classaura
LLC, the company jointly selected by the Parties and approved by the Court to
provide notice to the Class, including CAFA and CLRA Notice.
2.20. “Notice Plan” means the method of providing the Class with notice of
the settlement, as approved by the Court.
2.21. “Opt-Out Date” means the date that is the end of the period to request
exclusion from the Class established by the Court and set forth in the Notice.
2.22. “Parties” means the Representative Plaintiffs, on behalf of themselves
Ex. 1, Pg. 004
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and the classes, and Defendant.
2.23. “Person” means an individual, corporation, partnership, limited
partnership, association, joint stock company, estate, legal representative, trust,
unincorporated association, government or any political subdivision or agency
thereof, any business or legal entity, and such individual’s or entity’s spouse, heirs,
predecessors, successors, representatives, and assignees.
2.24. “Preliminary Approval Order” means an order providing for, among
other things, preliminary approval of the Settlement and dissemination of the Notice
to the Class according to the Notice Plan.
2.25. “Products” means all homeopathic products distributed by Defendant,
as identified in Exhibit A, in any variation, format, dosage, dilution, or packaging.
2.26. “Released Claims” means, with the exception of claims for personal
injury, any and all claims, demands, rights, suits, liabilities, and causes of action of
every nature and description whatsoever, known or unknown, matured or
unmatured, at law or in equity, existing under federal and/or state law, including
without limitation a waiver of all rights under Section 1542 of the California Civil
Code, that the Representative Plaintiffs and/or any Class Member has or may have
against the Released Persons arising out of, in connection with, or related in any
way, directly or indirectly, to Defendant’s advertising, marketing, packaging,
labeling, promotion, sale, or distribution of the Products, that have been brought,
could have been brought, or are currently pending, by any Class Member against
Released Persons, in any forum in the United States (including territories and Puerto
Rico).
2.27. “Released Persons” means Defendant, its respective parent companies,
subsidiary companies, affiliated companies, past, present, and future officers (as of
the Effective Date), directors, shareholders, employees, predecessors, principals,
insurers, administrators, agents, accountants, consultants, advisers, independent
contractors, distributors, subcontractors, vendors, buyers, experts, servants,
successors, trustees, co-conspirators, buyers, attorneys, representatives, heirs,
executors, and assigns of all of the foregoing persons and entities.
2.28. “Representative Plaintiffs” means Kathleen Hairston and Lainie
Rideout.
2.29. “Settlement” means the settlement set forth in this Agreement.
2.30. “Settlement Amount” means the total amount Defendant agrees to pay
for settlement of this matter, inclusive of all payments to the class, class notice and
administration costs, and all other costs and attorneys’ fees, including incentive
awards.
2.31. “Settling Parties” means, collectively, Defendant, the Representative
Ex. 1, Pg. 005
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Plaintiffs, and all Class Members.
2.32. The plural of any defined term includes the singular, and the singular
of any defined term includes the plural, as the case may be.
3. DENIAL OF WRONGDOING AND LIABILITY
3.1. Defendant denies the material factual allegations and legal claims
asserted by the Representative Plaintiffs in the Litigation, including any and all
charges of wrongdoing or liability arising out of any of the conduct, statements, acts
or omissions alleged, or that could have been alleged, in the Litigation. This
Settlement is entered into solely to eliminate the uncertainties, burdens, and
expenses of protracted litigation.
4. THE BENEFITS OF SETTLEMENT
4.1. Class Counsel and the Representative Plaintiffs recognize and
acknowledge the expense and length of continued proceedings that would be
necessary to prosecute the Litigation through trial and appeals. Class Counsel also
has taken into account the uncertain outcome and the risk of any litigation, especially
in complex actions such as this Litigation, as well as the difficulties and delays
inherent in such litigation. Class Counsel is mindful of the inherent problems of
proof under the claims and possible defenses to the claims asserted in the Litigation.
Class Counsel believes that the proposed Settlement confers substantial benefits
upon the Class. Based on their evaluation of all of these factors, the Representative
Plaintiffs and Class Counsel have determined that the Settlement is in the best
interests of the Representative Plaintiffs and the Class.
5. SETTLEMENT CONSIDERATION
5.1. Monetary Consideration
5.1.1. Award to the Settlement Class. Each Authorized Claimant is
entitled to receive a Settlement Payment. To be entitled to receive a Settlement
Payment, a Class Member must timely submit a valid and complete Claim Form and
any supporting documentation required. The manner for submitting a timely, valid,
and complete Claim Form is specified in Section 6.2 below. Payments shall be made
by check to the Authorized Claimants by the Claims Administrator.
5.1.2. Funding Settlement Payments. Similasan will establish a Fund,
not to exceed seven hundred thousand dollars ($700,000.00), out of which all claims,
costs, and fees associated with the Agreement will be had, including Settlement
Payments, incentive awards, attorneys’ fees and costs, and costs of Notice and
Notice administration. The total amount of monetary payment by Similasan will be
contingent upon final approval by the Court, not to exceed $700,000.00 total
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payment. Similasan will only be obligated to pay the amount approved by the Court.
5.1.3. Incentive Awards to Named Plaintiffs. Plaintiff will make an
application for incentive awards of up to $2,500.00 for each Representative Plaintiff,
Lainie Rideout and Kathleen Hairston, for a total of up to $5,000.00 with such
amount subject to Court approval. Representative Plaintiffs will not seek an amount
greater than those amounts for this Litigation. Representative Plaintiffs’ incentive
awards are to be paid from the Fund.
5.1.4. Attorneys’ Fees and Costs. Class Counsel will apply to the
Court for reimbursement of all costs and for attorneys’ fees of not more than 25% of
the Fund, subject to Court approval. All attorneys’ fees and costs awarded by the
Court will be paid from the common fund by the Claims Administrator within 10
days of the Effective Date.
5.1.5. Pro Rata Claims. If there is money remaining in the Fund after
all Claims have been made and paid and after the Court determines an amount for
incentive awards and attorneys’ fees and costs, and all costs of Notice and Notice
administration have been paid, such remaining funds will be equally distributed pro
rata to each Authorized Claimant who submitted a valid Claim Form. There will be
no cy pres or reversion fund.
5.2. Non-Monetary Consideration
5.2.1. Similasan acknowledges that it has or will be updating its website
to provide important information to consumers, which has been or will be done in
part as a result of the Lawsuit. Specifically, Similasan will add to its website a link
to FDA Compliance Policy Guide section 400.400 to provide consumers with more
information about the regulation of homeopathic products.
5.2.2. Similasan acknowledges that it has or will be making label
changes, which has been or will be done in part as a result of the Litigation.
Specifically, Similasan will place the following language on the same outer label or
package panel on the Products that bears the Drug Facts box: “These statements are
based upon traditional homeopathic principles. They have not been reviewed by the
Food and Drug Administration.”
5.2.3. To the extent that any state and/or federal statute, regulation,
policies, and/or code may at any time impose other, further, different and/or
conflicting obligations or duties on Defendant with respect to the labeling and
advertisement of the Products, this Agreement and any Judgment that may be
entered pursuant thereto, as well as the Court’s continuing jurisdiction with respect
to implementation and enforcement of the terms of this Agreement, shall cease as to
Defendant’s conduct covered by that statute, regulation, and/or code as of the
effective date of such statute, regulation, and/or code.
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5.2.4. Nothing in this Agreement will prohibit Defendant from making
any representation in the labeling, advertising, or marketing of the Products that is
permitted by applicable law, regulations, or policies promulgated by FDA or other
state or federal agency.
5.2.5. Defendant shall be bound by any labeling laws or regulations that
restrict or expand the scope of claims for which the Products are eligible, and any
laws or regulations that have a bearing on the labeling or advertising of the Products
shall supersede any terms of this Agreement to the extent they are inconsistent with
such terms.
6. CLASS SETTLEMENT PROCEDURES
6.1. Cooperation to Obtain Court Approval. The Parties will jointly take
reasonable steps necessary to secure the Court’s approval of this Settlement
Agreement and the Settlement.
6.2. Claims Procedure. To be eligible to receive a Settlement Payment,
Class Members must accurately complete and submit a Claim Form with any
required documentation specified on the Claim Form and deliver that form and any
required supporting documentation to the Claims Administrator no later than 30 days
following Final Approval Hearing, or September 7, 2017. The Claim Form and any
supporting documentation required may be submitted electronically or by U.S.
postal mail. The delivery date is deemed to be the date (a) the Claim Form is
deposited in the U.S. Mail as evidenced by the postmark, in the case of submission
by U.S. mail, or (b) in the case of submission electronically through the Settlement
Website, the date the Claims Administrator receives the Claim Form, as evidenced
by the transmission receipt. Any Class Member who fails to submit a valid and
timely Claim Form will not receive any benefits under this Settlement Agreement.
The eligibility and any documentation requirements for each category of Settlement
Payment are specified on the Claim Form.
7. ADMINISTRATION AND NOTICE
7.1. Appointment and Retention of Notice and Claims Administrator
7.1.1. The Parties shall jointly retain the Notice and Claims
Administrator(s) (“Administrator”) (including subcontractors) to help implement the
terms of the Settlement Agreement.
7.1.2. The Administrator will facilitate the notice process by assisting
the Parties in the implementation of the Notice Plan, as well as CAFA Notice,
although Defendant shall retain ultimate responsibility for effecting CAFA notice
within the required time.
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7.1.3. The Administrator shall be responsible for providing the Parties
with assistance, as necessary, such as by preparing affidavits of work it has
performed with respect to implementing the Class Notice, and providing regular
updates to the Parties’ counsel about the status of the claims process.
7.1.4. All fees, costs, and expenses of the Administrator related to this
Settlement will be paid out of the Settlement Amount.
7.2. Class Settlement Website
7.2.1. The Notice Administrator will create and maintain the Class
Settlement Website, to be activated within fifteen (15) calendar days of its receipt of
the Preliminary Approval Order. The Notice Administrator’s responsibilities will
also include securing an appropriate URL, such as
www.SimilasanClassActionSettlement.com. The Class Settlement Website will
contain Settlement information and case-related documents such as the Settlement
Agreement, the Long-Form Notice, the Preliminary Approval Order, Class
Counsel’s motion for fees, costs, and incentive awards for the Representative
Plaintiffs, and Notices from the Court. In addition, the Class Settlement Website
will include procedural information regarding the status of the Court-approval
process, such as an announcement of the Final Approval Hearing Date, when the
Final Approval Order and Judgment has been entered, and when the Effective Date
has been reached.
7.2.2. The Class Settlement Website will terminate (be removed from
the internet) and no longer be maintained by the Notice Administrator thirty (30)
days after either (a) the Effective Date or (b) the date on which the Settlement
Agreement is terminated or otherwise not approved by a court, whichever is later.
The Notice Administrator will then transfer ownership of the URL to Defendant.
7.2.3. All costs and expenses related to the Class Settlement Website
shall be paid out of the Settlement Amount, as approved by the Court.
7.3. CAFA Notice
7.3.1. The Parties agree that the Notice Administrator shall serve notice
of the settlement that meets the requirements of CAFA, 28 U.S.C. § 1715, on the
appropriate federal and state officials no later than 10 days after the filing of this
Settlement Agreement with the Court.
7.3.2. Notwithstanding 7.3.1, Defendant shall have ultimate
responsibility to ensure that CAFA notice is in fact accomplished consistent with the
statutory requirements.
7.3.3. All costs and expenses related to the CAFA Notice shall be paid
out of the Settlement Amount.
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7.3.4. Defendant will file a certification with the Court stating the
date(s) on which the CAFA notices were sent. Defendant, as assisted by the Notice
Administrator, will provide Class Counsel with any substantive responses received
in response to any CAFA notice.
7.3.5. The Notice Administrator shall also publish the Summary Notice
in a newspaper in a manner sufficient to meet California Government Code § 6064
and Civil Code § 1781, which cost shall be paid out of the Settlement Amount.
7.4. Notice Plan
7.4.1. Class Notice shall conform to all applicable requirements of the
Federal Rules of Civil Procedure, the United States Constitution (including the Due
Process Clauses), and any other applicable law, and shall otherwise be in the manner
and form agreed upon by the Parties and approved by the Court.
7.4.2. As part of the Notice Plan, Similasan agrees to include a sentence
on its website (www.similasanusa.com) with its “satisfaction guarantee” that if a
consumer purchased a product from 2008 to the end of the class period and did not
obtain any relief from use of the Product, they could “click here” to be directed to
the Class Settlement Website. The exact language of the statement will be agreed
upon by the parties.
7.4.3. Within thirty (30) days after preliminary approval by the Court
of this Settlement, the Settlement Administrator shall commence providing Notice
to the Settlement Class according to the Notice Plan as attached in Exhibit E.
7.4.4. The Parties agree to the content of the Notices, substantially in
the forms attached to this Agreement as Exhibit B and Exhibit C, as approved by
the Court.
7.5. Other Administration and Notice Provisions
7.5.1. Declarations of Compliance. The Notice Administrator shall
prepare a declaration attesting to compliance with the publication requirements set
forth in the Class Notice Plan. Such declaration shall be provided to Class Counsel
and Defendant’s Counsel and filed with the Court no later than 10 days prior to the
Final Approval Hearing.
7.5.2. Best Notice Practicable. The Parties agree, and the Preliminary
Approval Order shall state, that compliance with the procedures described in this
Article is the best notice practicable under the circumstances and shall constitute due
and sufficient notice to the Settlement Class of the pendency of the Action,
certification of the Settlement Class, the terms of the Settlement Agreement, and the
Final Approval Hearing, and shall satisfy the requirements of all applicable law.
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7.5.3. Report On Requests For Exclusion. Not later than ten days before
the Final Approval Hearing, the Notice Administrator shall prepare and deliver to
Class Counsel, who shall file it with the Court, and Defendant’s Counsel, a report
stating the total number of Persons that have submitted timely and valid Requests
for Exclusion from the Settlement Class, and the names of such Persons.
7.5.4. Inquiries From Settlement Class Members. It shall be the
responsibility of Class Counsel to establish procedures for receiving and responding
to all inquiries from Settlement Class Members with respect to this Settlement.
Defendant and Defendant’s counsel may, but are not required, to respond to such
inquiries.
7.5.5. Taxes
7.5.6. The Representative Plaintiffs and Class Counsel shall be
responsible for paying any and all federal, state, and local taxes due on any payments
made to them pursuant to the Settlement.
7.5.7. Class Members shall be responsible for paying any and all
federal, state, and local taxes due on any payments made to them pursuant to the
Settlement.
7.5.8. Taxes due in connection with the Notice Plan shall be paid
by the Notice Administrator from the funds provided to it to effectuate the Notice
Plan.
8. RELEASES
8.1. Upon the Effective Date, the Representative Plaintiffs and each of the
Class Members will be deemed to have, and by operation of the Judgment will have,
fully, finally, and forever released, relinquished, and discharged the Released
Persons from all Released Claims, meaning, with the exception of claims for
personal injury, any and all claims, demands, rights, suits, liabilities, and causes of
action of every nature and description whatsoever, known or unknown, matured or
unmatured, at law or in equity, existing under federal and/or state law, including
without limitation a waiver of all rights under Section 1542 of the California Civil
Code, that the Representative Plaintiffs and/or Class Member has or may have
against the Released Persons arising out of, in connection with, or related in any
way, directly or indirectly, to Defendant’s advertising, marketing, packaging,
labeling, promotion, sale, and/or distribution of the Products, that have been brought,
could have been brought, or are currently pending, up to the date of the Effective
Date, by any Class Member against Released Persons, in any forum in the United
States (including their territories and Puerto Rico). Class Members do not waive
their right to contact, in any way or for any purpose, any state or federal agency
regarding the activities of any party, nor do they waive any right to enjoy benefits
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obtained by a state or federal agency.
8.2. After entering into this Settlement Agreement, the Representative
Plaintiffs or the Class Members may discover facts other than, different from, or in
addition to, those that they know or believe to be true with respect to the Released
Claims. The Representative Plaintiffs and the Class Members expressly waive and
fully, finally, and forever settle and release any known or unknown, suspected or
unsuspected, contingent or noncontingent equitable claim, whether or not concealed
or hidden, without regard to the subsequent discovery or existence of such other,
different, or additional facts.
8.3. All Parties to this Settlement Agreement, including the Representative
Plaintiffs and the Class Members, specifically acknowledge that they have been
informed of Section 1542 of the California Civil Code by their legal counsel via the
Notice, and they expressly waive and relinquish any rights or benefits available to
them under this statute. California Civil Code § 1542 provides:
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.
8.4. Notwithstanding California Civil Code § 1542, or any other federal or
state statute or rule of law of similar effect, this Agreement shall be given full force
and effect according to each and all of its expressed terms and provisions, including
those related to any unknown or unsuspected claims, liabilities, demands, or causes
of action which are based on, arise from or are in any way connected with the
Litigation.
9. CLASS CERTIFICATION
9.1. The Parties agree that, for settlement purposes only, this Litigation shall
be re-certified as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3)
with Representative Plaintiffs as Class Representatives and Class Counsel as counsel
for the Settlement Class, defined as follows:
9.2. All persons in the United States who purchased the Products as defined
in Paragraph 2.6 and Exhibit A, within the Class Period as defined in Paragraph 2.6.
The Class expressly excludes Defendant and its present and former officers,
directors, employees and immediate families; and the Court, its officers and their
immediate families.
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9.3. In the event the Settlement is terminated or for any reason the
Settlement is not effectuated, the certification of the Settlement Class shall be
vacated and the Litigation shall proceed with the classes as certified by the Court on
March 30, 2015 (Dkt. No. 143).
10. SETTLEMENT HEARING
10.1. Promptly after execution of this Agreement, the Parties will submit the
Agreement together with its Exhibits to the Court and will request that the Court
grant preliminary approval of the Settlement, as of the date of which the settlement
shall be deemed “filed” within the meaning of 28 U.S.C. § 1715, and issue the
Preliminary Approval Order. The Court has scheduled a Final Approval Hearing for
August 7, 2017, at 10:30 a.m., which may be modified as required, to determine
whether the Settlement should be granted final approval and whether the Fee
Application should be granted (“Final Approval Hearing”). The Parties shall request
the Court schedule the Fee Application to be filed no later than seven (7) calendar
days prior to the Opt-Out and Objection deadline.
10.2. Defendant shall cooperate in good faith in Plaintiffs’ preparation of the
motion for preliminary approval of the Settlement as necessary, including by
providing Class Counsel with then-available details of the payment of the out-of-
pocket costs of label changes, corrective advertising, and other measures and relief
such as implementing web site changes, and any and all other costs associated with
implementing the provisions of this Agreement; and will provide signed declarations
of appropriate corporate officers of Defendant, if necessary.
10.3. Defendant shall not oppose Plaintiffs’ assertion, in papers filed in
furtherance of this Settlement, that the Class satisfies each of the elements required
under Federal Rules of Civil Procedure 23(a) and (b). Defendant shall not oppose
the following when done for Settlement Purposes: certification of the Class, and the
appointment of Hairston and Rideout as Class Representatives and their counsel as
Class Counsel, as set forth herein.
10.4. The Parties agree to the form and substance of the proposed Preliminary
Approval Order, attached hereto as Exhibit F, to be lodged with the Court with the
motion for preliminary approval of the Settlement Agreement.
10.5. Procedures for Objecting to the Settlement
10.5.1. Class Members shall have the right to appear and show
cause, if they have any reason why the terms of this Agreement should not be given
Final Approval, subject to each of the sub-provisions contained in Paragraph 10.5.
Any objection to this Agreement, including any of its terms or provisions, must be
in writing, filed with the Court, with a copy served on Class Counsel, Counsel for
Defendant, and the Notice Administrator at the addresses set forth in the Class
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Notice, and postmarked no later than thirty (30) days prior to the Final Approval
Hearing Date. Class Members may object either on their own or through an attorney
hired at their own expense.
10.5.2. If a Class Member hires an attorney to represent him or
her at the Final Approval Hearing, he or she must do so at his or her own expense.
No Class Member represented by an attorney shall be deemed to have objected to
the Agreement unless an objection signed by the Class Member is also filed with the
Court and served upon Class Counsel, Counsel for Defendant, and the Notice
Administrator at the addresses set forth in the Class Notice thirty (30) days before
the Final Approval Hearing.
10.5.3. Any objection regarding or related to the Agreement
shall contain a caption or title that identifies it as “Objection to Class Settlement in
Allen v. Similasan, No. 12-cv-00376 CAB” and also shall contain information
sufficient to identify and contact the objecting Class Member (or his or her attorney,
if any), as well as a clear and concise statement of the Class Member’s objection,
documents sufficient to establish the basis for their standing as a Class Member, i.e.,
verification under oath as to the approximate date(s) and location(s) of their
purchase(s) of the Products, the facts supporting the objection, and the legal grounds
on which the objection is based. Any objections not submitted to the Court at least
thirty (30) days prior to the Final Approval Hearing are deemed waived. If an
objecting party chooses to appear at the hearing, that objecting party must file with
the Court, at least thirty (30) days before the Final Approval Hearing, a notice of
intent to appear, which must list the name, address, and telephone number of the
attorney, if any, who will appear on behalf of that objecting party.
10.5.4. Any Class Member who does not object to the
Agreement, or who does not opt out in compliance with the opt out provision in
Paragraph 10.7 below, is deemed to be a Class Member and bound by the Settlement
Agreement or any further orders of the Court in this Litigation.
10.5.5. Any Settlement Class Member wishing to object to or to
oppose the approval of this Settlement and/or the Fee and Cost Application shall file
a written objection (with a statement of reasons) with the Court and serve it on the
Parties at least twenty-one days before the date of the Final Approval Hearing. Any
Settlement Class Member that fails to do so shall be foreclosed from making such
objection or opposition. The Representative Plaintiffs will file with the Court their
brief in support of final settlement approval, in support of final certification of the
Settlement Class, and in response to any objections at least seven days before the
date of the Final Approval Hearing. Any Settlement Class Member that fails to file
a timely written objection and to appear and speak at the final approval hearing shall
have no right to file an appeal relating to the approval of this Settlement.
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10.6. Right to Respond to Objections
10.6.1. Class Counsel and Defendant shall have the right, but not
the obligation, to respond to any objection, by filing opposition papers no later than
seven (7) calendar days prior to the Final Approval Hearing. The Party responding
shall file a copy of the response with the Court, and shall serve a copy, by regular
mail, hand or overnight delivery, in the Party’s discretion, to the objector (or counsel
for the objector), with standard notice to Class Counsel and Defense Counsel.
10.7. Opt Outs
10.7.1. Any Class Member who does not wish to participate in
this Settlement must write to the Claims Administrator stating an intention to be
“excluded” from this Settlement. This written Request for Exclusion must be sent
via first class United States mail to the Claims Administrator at the address set forth
in the Class Notice and postmarked no later than thirty (30) days before the date set
for the Final Approval Hearing. The Request for Exclusion must be personally
signed by the Class Member and may only be on behalf of such signing Class
Member. So-called “mass” or “class” opt-outs shall not be allowed.
10.7.2. Any Class Member who does not request exclusion from
the Settlement has the right to object to the Settlement. Any Class Member who
wishes to object must timely submit an objection as set forth in paragraphs 10.5.1 to
10.5.4 above. If a Class Member submits an objection and a written Request for
Exclusion, he or she shall be deemed to have complied with the terms of the opt-out
procedure and shall not be bound by the Agreement if approved by the Court.
However, any objector who has not timely requested exclusion from the Settlement
will be bound by the terms of the Agreement upon Final Approval of the Settlement.
11. ATTORNEYS’ FEES AND EXPENSES AND INCENTIVE AWARDS
11.1. In accord with F.R.C.P. 23(h) and relevant case law, the Representative
Plaintiffs will petition the Court for attorneys’ fees, expenses, and Class
Representative incentive awards. Defendant shall have the option of responding to
any such petition, including by contesting any fees, expenses, or incentive award
requested, to the extent the petition requests (a) more than $2,500 each as incentive
awards for the Class Representatives or (b) reimbursement of an amount up to the
total of Class Counsel’s costs and fees but not to exceed twenty-five percent (25%)
of the total Settlement Amount after excluding costs of Notice and any notice
administration. The total amount of monetary payment from Similasan will be
contingent upon final approval by the Court, but will not exceed $700,000 total
payment. Similasan will only be obligated to pay the amount approved by the Court.
There will be no cy pres or reversion.
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11.2. Upon appropriate Court order so providing, any incentive awards,
attorneys’ fees, and costs awarded to Class Counsel by the Court shall be paid to
Class Counsel by Defendant (“Fee and Incentive Award”), notwithstanding the
existence of any timely filed objections thereto, or appeal (actual or potential)
therefrom, or collateral attack on the Settlement or any part thereof, within 30
business days of the Effective Date.
11.3. If after 60 days after payment of Settlement Claims, attorneys’ fees,
costs and incentive awards, funds still remain in the Fund, the Claims Administrator
will distribute pro rate the remaining funds in the Fund to all Authorized Claimants.
11.4. Defendant shall bear its own attorneys’ fees and costs.
11.5. In the event any person is successful in objecting to the Settlement, as
evidenced in a written Court order, and the Parties subsequently revise the
Settlement in a manner consistent with such successful objection, and the objecting
person thereafter seeks attorneys’ fees relating to that objection and the Court awards
such fees, then such fees shall be paid out of the total amount paid by Defendant to
Class Counsel as set forth in 11.1.
12. MOTION FOR FINAL JUDGMENT AND ORDER
12.1. The Court has set the final approval hearing to be held on August 7,
2017, at 10:30 a.m., as set forth in the Preliminary Approval Order. The Parties shall
file a motion for final approval of the Settlement Agreement by June 23, 2017.
12.2. Defendant shall cooperate in good faith with Plaintiffs’ preparation of
the motion for final approval of the Settlement as necessary, including by providing
Class Counsel with then-available details of the payment of the out-of-pocket costs
of label changes, corrective advertising, and other measures and relief such as
implementing web site changes, and any and all other costs associated with
implementing the provisions of the Settlement Agreement; providing signed
declarations of appropriate corporate officers of Similasan or its parent entities, if
necessary.
12.3. Defendant shall not oppose Plaintiffs’ assertion in papers filed in
furtherance of this Settlement that the Court should affirm its ruling granting
Preliminary Approval of the Settlement.
12.4. The Parties agree to the form and substance of the proposed Final
Judgment and Order, attached hereto as Exhibit G, to be lodged with the Court with
the motion for final approval of the Settlement Agreement.
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13. CONDITIONS FOR EFFECTIVE DATE; EFFECT OF
TERMINATION
13.1. The Effective Date of this Agreement shall be the date the Judgment
has become Final, as defined in Paragraph 2.12.
13.2. If this Agreement is not approved by the Court or the Settlement is
terminated or fails to become effective in accordance with the terms of this
Agreement, the Settling Parties will be restored to their respective positions in the
Litigation as of the date the Motion for Preliminary Approval was filed. In such
event, the terms and provisions of this Agreement will have no further force and
effect with respect to the Settling Parties and will not be used in this Litigation or in
any other proceeding for any purpose, and any Judgment or order entered by the
Court in accordance with the terms of this Agreement will be treated as vacated.
13.3. No order of the Court or modification or reversal on appeal of any order
of the Court concerning any award of attorneys’ fees, expenses, or costs to Class
Counsel will constitute grounds for cancellation or termination of this Agreement.
14. MISCELLANEOUS PROVISIONS
14.1. The Parties acknowledge that it is their intent to consummate this
Agreement, and they agree to cooperate to the extent reasonably necessary to
effectuate and implement all terms and conditions of this Agreement and to exercise
their best efforts to accomplish the foregoing terms and conditions of this
Agreement.
14.2. The Parties intend the Settlement to be a final and complete resolution
of all disputes between them with respect to the Litigation. The Settlement
compromises claims that are contested and will not be deemed an admission by any
Settling Party as to the merits of any claim or defense.
14.3. The Parties agree that the consideration provided to the Class and the
other terms of the Settlement were negotiated at arms’ length, in good faith by the
Parties, and reflect a settlement that was reached voluntarily, after consultation with
competent legal counsel. This Agreement is entered solely to eliminate the
uncertainties, burdens, and expenses of protracted litigation.
14.4. Neither this Agreement nor the Settlement, nor any act performed or
document executed pursuant to or in furtherance of this Agreement or the Settlement
is or may be deemed to be or may be used as an admission of, or evidence of, the
validity of any Released Claims, or of any wrongdoing or liability of Defendant; or
is or may be deemed to be or may be used as an admission of, or evidence of, any
fault or omission of Defendant in any civil, criminal, or administrative proceeding
in any court, administrative agency, or other tribunal. Any party to this Litigation
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may file this Agreement and/or the Judgment in any action that may be brought
against it in order to support any defense or counterclaim, including without
limitation those based on principles of res judicata, collateral estoppel, release, good
faith settlement, judgment bar or reduction, or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.
14.5. All agreements made and orders entered during the course of the
Litigation relating to the confidentiality of information will survive this Agreement.
14.6. Any and all Exhibits to this Agreement are material and integral parts
hereof and are fully incorporated herein by this reference.
14.7. This Agreement may be amended or modified only by a written
instrument signed by or on behalf of all Parties or their respective successors-in-
interest.
14.8. This Agreement and any Exhibits attached hereto constitute the entire
agreement among the Parties, and no representations, warranties, or inducements
have been made to any Party concerning this Agreement or its Exhibits other than
the representations, warranties, and covenants covered and memorialized in such
documents. Except as otherwise provided herein, the Parties will bear their own
respective costs.
14.9. Class Counsel, on behalf of the Class, are expressly authorized by the
Representative Plaintiffs to take all appropriate action required or permitted to be
taken by the Class pursuant to this Agreement to effectuate its terms, and are
expressly authorized to enter into any modifications or amendments to this
Agreement on behalf of the Class that Class Counsel deem appropriate.
14.10. Each counsel or other Person executing this Agreement or any of its
Exhibits on behalf of any Party hereby warrants that such Person has the full
authority to do so.
14.11. This Agreement may be executed in one or more counterparts. All
executed counterparts and each of them will be deemed to be one and the same
instrument. A complete set of original counterparts will be filed with the Court.
14.12. This Agreement will be binding upon, and inure to the benefit of, the
successors and assigns of the Settling Parties.
14.13. The Court will retain jurisdiction with respect to implementation and
enforcement of the terms of this Agreement, and all parties hereto submit to the
jurisdiction of the Court for purposes of implementing and enforcing the Settlement.
14.14. None of the Settling Parties, or their respective counsel, will be
deemed the drafter of this Agreement or its Exhibits for purposes of construing the
provisions thereof. The language in all parts of this Agreement and its Exhibits will
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EXHIBIT A
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SFACTIVE-904004149.2
Exhibit A to Settlement Agreement
This list encompasses the Similasan Corporation homeopathic products included in the Allen v. Similasan Settlement Agreement by name and includes, but is not limited to, the following FDA NDC numbers, which are included for further identification: Product FDA NDC No. Adult Cough Relief 59262-260-25 Adult Mucus Relief 59262-261-25 Aging Eye Relief 59262-360-11 Allergy Eye Relief
59262-364-11; 59262-354-13; 59262-346-11; 59262-353-12; 59262-354-13
Anxiety Relief 59262-602-30 Arnica Active 59262-101-41; 59262-100-41 Baby Gas & Colic Relief Tablets 59262-501-26 Baby Teething + Tooth Support Tablets 59262-500-26 Burn Recovery 59262-400-41 Computer Eye Relief 59262-355-13; 59262-347-11;
59262-355-13 Dry Eye Relief
59262-352-13; 59262-352-13; 59262-345-11; 59262-351-12
Ear Relief
59262-271-11; 59779-900-11; 11673-904-11; 11822-900-27; 0363-9020-11; 0363-9021-11
Ear Wax Relief 59262-272-11 Ear Wax Removal Kit Eye Drops #1 Eye Drops #2 Eye Drops #3 Hay fever Relief Hayfever Drops #1 Irritated Eye Relief
59262-348-11; 59779-901-11; 59262-356-13; 59262-356-13; 11822-5366-40; 11673-905-11; 0363-9031-44
Itch Relief Junior Cold & Mucus Relief 59262-262-26 Junior Cough & Fever Relief 59262-263-26 Junior Immune Support 59262-264-26 Kids Allergy Eye Relief 59262-361-11 Kids Cold & Mucus Relief 59262-257-25 Kids Cold & Mucus Relief + Echinacea 59262-266-25
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SFACTIVE-904004149.2
Kids Cough & Cold Relief + Echinacea, Night
59262-265-25
Kids Cough & Fever Relief 59262-259-25 Kids Ear Relief 59262-274-11 Kids Irritated Eye Relief 59262-362-11 Nasal Allergy Relief 59262-241-20 Redness & Itchy Eye Relief 59262-363-11 Sinus Relief 59262-240-20 Sleeplessness Relief 59262-601-30 Sore Throat Spray Stress & Tension Relief 59262-600-30 Stye Eye Relief 59262-350-11 Throat Drops #1 Throat Relief Tired Eye Relief 59262-357-11
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EXHIBIT B
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QUESTIONS? VISIT WWW.SIMILASANCLASSACTION.COM, OR CALL 1.855.974.6452
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
If You Bought An Eligible Similasan Product At Any Time From February 10, 2008 To XXXX XXX, 2017, You May Be Part of This Lawsuit.
READ THIS NOTICE CAREFULLY.
YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT. PLEASE CHECK THE SETTLEMENT WEBSITE AT WWW.SIMILASANCLASSACTION.COM
REGULARLY FOR UPDATES AND FURTHER DETAILS.
A federal court authorized this notice. This is not a solicitation from a lawyer.
• There is a class action Settlement of a lawsuit alleging Similasan made false and misleading representations, and breached express and implied warranties regarding its homeopathic products. Similasan denies that it did anything wrong, denies all of the claims made in this lawsuit, and stands by its products and marketing. The Court did not rule in favor of either party. Instead, the parties agreed to a Settlement in order to avoid the expense and uncertainty of continuing the lawsuit.
• Anyone who bought an eligible Similasan product, referred to as the “Products” and listed below under Question 7, from February 10, 2008 to XXX XX, 2017, is included in the Settlement.
• Your legal rights are affected whether you act or do not act.
Read this notice carefully because it explains decisions you must make and actions you must take now.
SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A CLAIM
FORM The only way to get a payment.
DO NOTHING Get no payment. Give up rights to be a part of any other lawsuit against the Defendant about legal claims released by the Settlement.
EXCLUDE YOURSELF This is the only choice that allows you to be part of any other lawsuit against Similasan about the claims in this case (see Question 12). You must postmark your letter requesting exclusion from the class (a “Request for Exclusion”), as described further below (see Question 11) by XXX XX, 2017.
OBJECT You can write to the Court by XXXX XX, 2017 to explain why you do not agree with any or all aspects of the Settlement (see Question 15).
GO TO A HEARING You can ask by XXXX XX, 2017 to speak in Court about the fairness of the Settlement (see Question 19).
• These rights and options—and the deadlines to exercise them—are explained in this notice. The
deadlines may be moved, cancelled, or otherwise modified, so please check the settlement website at www.SimilasanClassAction.com regularly for updates and further details.
• If you do not exclude yourself from the Class, the Settlement (if approved) will release certain claims and will affect your rights. The Release is set forth in a Settlement Agreement called the “Class Action Settlement Agreement,” which is available at www. SimilasanClassAction.com and has been reprinted in full below (see Question 10).
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WHAT THIS NOTICE CONTAINS
BASIC INFORMATION………………………………………………………………………………….3
1. Why was this notice issued? 2. What is this lawsuit about? 3. Why is this a class action? 4. Why is there a Settlement?
WHO IS PART OF THE SETTLEMENT?…….……………………………………………………….4
5. Who is included in the Settlement? 6. Are there exceptions to being included? 7. Which products are included? 8. What if I’m still not sure if I’m included?
THE SETTLEMENT BENEFITS – WHAT YOU CAN GET…..…..………………...……………….5
9. What does the Settlement provide? 10. What am I giving up if I stay in the Class?
EXCLUDING YOURSELF FROM THE SETTLEMENT.…………………………………………….8 11. How can I get out of the Settlement? 12. If I don’t exclude myself, can I sue Similasan for the same thing later?
THE LAWYERS REPRESENTING THE CLASS….……………………..…………………….…….9
13. Do I have a lawyer in this case? 14. How will the lawyers be paid?
OBJECTING TO THE SETTLEMENT.………………………………………………………..………10
15. How can I tell the Court if I do not like the Settlement? 16. What is the difference between objecting and asking to be excluded?
THE COURT’S FAIRNESS HEARING………..……………………………………………………...11
17. When and where will the Court decide whether to approve the Settlement? 18. Do I have to come to the hearing? 19. May I speak at the fairness hearing?
GETTING MORE INFORMATION…………………………………….………………………………12
20. How can I get more information?
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BASIC INFORMATION
1. Why was this notice issued? The Court ordered that this Notice be provided because you have the right to know about a Settlement of a class action lawsuit, and about your rights and options, before the Court decides whether to approve the Settlement. This Notice explains: (1) the lawsuit; (2) the settlement; and (3) your legal rights. Information about the Settlement is summarized below. The settlement agreement, which is called the “Settlement Agreement,” is available on the Settlement website, www.SimilasanClassAction.com, and provides greater detail on the rights and duties of the parties and Class Members. The persons who sued are called the “Plaintiffs.” Similasan Corporation is the “Defendant.”
2. What is this lawsuit about? Plaintiffs brought a class action lawsuit on behalf of purchasers of over-the-counter Similasan Corporation (“Similasan”) homeopathic drug products. The case alleges that Similasan made false and misleading representations, and breached express and implied warranties regarding its Products. Similasan denies Plaintiff’s allegations and continues to stand by its products and advertising. Before a trial could resolve Plaintiffs’ allegations, Plaintiffs and Similasan reached a settlement. The full settlement agreement and court documents associated with this case can be viewed at www.SimilasanClassAction.com, or by contacting the settlement administrator.
3. Why is this a class action? In a class action, one or more people called “Representative Plaintiffs” sue on behalf of themselves and other people who have similar claims. Together, all of these people are “Class Members” and form a “Class.” One Court resolves the issues for all Class Members in a class action, except for those who exclude themselves from the Class.
4. Why is there a Settlement? The Court has not decided in favor of either the Plaintiffs or Similasan. Instead, both sides have agreed to the Settlement Agreement. By agreeing to the Settlement Agreement, and if the Settlement Agreement is approved by the Court, they avoid the costs and uncertainty of further case proceedings, potentially including a trial, and Class Members receive the benefits described in this notice, in exchange for a release of the claims in this case. The Settlement does not mean that any law was broken or that Similasan did anything wrong, or that the Plaintiffs and the Class would or would not win their case if it were to go to trial. The parties believe that the Settlement Agreement is fair, reasonable, and adequate; will provide substantial benefits to the Class; and is best for all Class Members.
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WHO IS PART OF THE SETTLEMENT?
5. Who is included in the Settlement? “Class Members” means all consumers who purchased Similasan’s Homeopathic Products (listed in Question 7) for household or personal use during the Class Period (February 10, 2008 to XXX X, 2017) in the United States.
6. Are there exceptions to being included? The Settlement Agreement does not include:
• Similasan; • Persons who during or after the Class Period were officers, directors, or employees of Similasan, or
any corporation, trust or other entity in which Similasan has a controlling interest, members of their immediate families or their successors, heirs, assigns and legal representatives;
• Persons or entities who purchased the Products for the purpose of resale or distribution; • Persons who timely and properly exclude themselves from the Class as provided in the Settlement
Agreement (see Question 11); • Any judicial officer hearing the Litigation, as well as his or her immediate family members and
employees; and • Personal injuries that resulted in actual bodily harm
7. Which products are included?
The following Similasan products, in all sizes, are the “Products”:
Product FDA NDC No. Adult Cough Relief 59262-260-25 Adult Mucus Relief 59262-261-25 Aging Eye Relief 59262-360-11 Allergy Eye Relief 59262-364-11; 59262-354-13;
59262-346-11; 59262-353-12; 59262-354-13
Anxiety Relief 59262-602-30 Arnica Active 59262-101-41; 59262-100-41 Baby Gas & Colic Relief Tablets 59262-501-26 Baby Teething + Tooth Support Tablets 59262-500-26 Burn Recovery 59262-400-41 Computer Eye Relief 59262-355-13; 59262-347-11;
59262-355-13 Dry Eye Relief 59262-352-13; 59262-352-13;
59262-345-11; 59262-351-12 Ear Relief 59262-271-11; 59779-900-11;
11673-904-11; 11822-900-27; 0363-9020-11; 0363-9021-11
Ear Wax Relief 59262-272-11 Ear Wax Removal Kit Eye Drops #1
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Product FDA NDC No. Eye Drops #2 Eye Drops #3 Hay fever Relief Hayfever Drops #1 Irritated Eye Relief 59262-348-11; 59779-901-11; 59262-356-
13; 59262-356-13; 11822-5366-40; 11673-905-11; 0363-9031-44
Itch Relief Junior Cold & Mucus Relief 59262-262-26 Junior Cough & Fever Relief 59262-263-26 Junior Immune Support 59262-264-26 Kids Allergy Eye Relief 59262-361-11 Kids Cold & Mucus Relief 59262-257-25 Kids Cold & Mucus Relief + Echinacea 59262-266-25
8. What if I’m still not sure whether I’m included? If you are not sure whether you are a Class Member, or have any other questions about the Settlement Agreement, you should visit the website, www.SimilasanClassAction.com, or call the toll free number, 1.855.974.6452 (1.855.9.SIMILASAN). You may also send questions to interim Class Counsel, Ronald A. Marron, Law Offices of Ronald A. Marron, APLC, 651 Arroyo Drive, San Diego, CA 92103; or call interim Class Counsel, Ronald A. Marron on 619-696-9006.
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THE SETTLEMENT BENEFITS – WHAT YOU CAN GET
9. What does the Settlement provide?
A. Payments to Class Members. Defendant will pay a sum total of $700,000 for (i) valid claims submitted by Class Members, (ii) Class Counsel’s attorneys’ fees and expenses, (iii) an incentive award to Plaintiffs for their efforts in bringing the Action, (iv) costs of notice and claims administration, and (v) any applicable taxes. Any of the $700,000 remaining after payment of all claims, attorneys’ fees and expenses, incentive award, and taxes will be distributed pro rata to Class Member Claimants. If you are a member of the Class (defined in the answer to Question No. 4 above), and you do not exclude yourself from the Class, you can submit a claim to receive a cash payment. Claims Submitted With Proof of Purchase: If you are able to provide proof of purchase from any retailer in the United States (e.g., receipt or packaging) (“Proof of Purchase”), you may submit a claim which will entitle you to a full refund of the purchase price. Claims Submitted Without Proof of Purchase: If you are unable to provide Proof of Purchase but swear or affirm under penalty of perjury that you purchased a Product during the Class Period and it did not provide relief, you may submit a claim and receive an estimated $10.00-$30.00, depending on amount of claims. Process: To be eligible for a payment pursuant to the Settlement, a Class Member must submit a claim that (i) is postmarked (or dated, if submitted online) by the Claim Filing Deadline, which will be thirty (30) days after the date the Court enters a judgment granting final approval, and (ii) contains all of the required information and documentation set forth in the claim form. You can file a claim form online or download a claim form by going to www.SimilasanClassAction.com and following the instructions provided. You can also get a claim form by writing to the Similasan Claims Administrator, c/o Classaura, 1718 Peachtree St #1080, Atlanta, GA 30309. If the aggregate number of claims exceeds the Settlement Fund, payments to Class Members may be subject to pro rata reduction. If funds are available after all Settlement Claims are disbursed, Class Members may be subject to a pro rata increase in their Claim.
10. What am I giving up in exchange for the Settlement benefits? If the Settlement becomes final, Class Members will be releasing Similasan and related people and entities from all of the claims asserted in this lawsuit, including monetary relief and injunctive relief, as described in the Settlement Agreement. Unless you exclude yourself from the Settlement Agreement, you cannot sue Similasan or be part of any other lawsuit against Similasan about the issues in this case. (As noted above, see Question 6, this lawsuit does not involve claims for Personal Injuries that resulted in actual bodily harm arising out of the consumption of the Products.) Unless you exclude yourself, all of the decisions by the Court will bind you. By staying in the Class, you become a Class Member, and you will automatically release Similasan from any claims set forth below, which includes your right to sue Similasan for injunctive relief beyond the relief that has been agreed to in the Settlement Agreement, or any form of monetary relief other than personal injury claims, and you will give up your rights to pursue or continue any action against Similasan based on the “Released Claims.”
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The Settlement Agreement is available at www.SimilasanClassAction.com. Section 8 of the Settlement Agreement describes the released claims with specific descriptions, in necessarily accurate legal terminology, so you should read it carefully. A word-for-word copy of the release sections from the Settlement Agreement is provided below. Please carefully read the following sections regarding the “Released Claims”:
2.26. “Released Claims” means, with the exception of claims for personal injury, any and all claims, demands, rights, suits, liabilities, and causes of action of every nature and description whatsoever, known or unknown, matured or unmatured, at law or in equity, existing under federal and/or state law, including without limitation a waiver of all rights under Section 1542 of the California Civil Code, that the Representative Plaintiffs and/or any Class Member has or may have against the Released Persons arising out of, in connection with, or related in any way, directly or indirectly, to Defendant’s advertising, marketing, packaging, labeling, promotion, sale, or distribution of the Products, that have been brought, could have been brought, or are currently pending, by any Class Member against Released Persons, in any forum in the United States (including territories and Puerto Rico). 2.27. “Released Persons” means Defendant, its respective parent companies, subsidiary companies, affiliated companies, past, present, and future officers (as of the Effective Date), directors, shareholders, employees, predecessors, principals, insurers, administrators, agents, accountants, consultants, advisers, independent contractors, distributors, subcontractors, vendors, buyers, experts, servants, successors, trustees, co-conspirators, buyers, attorneys, representatives, heirs, executors, and assigns of all of the foregoing persons and entities. . 8.2. After entering into this Settlement Agreement, the Representative Plaintiffs or the Class Members may discover facts other than, different from, or in addition to, those that they know or believe to be true with respect to the Released Claims. The Representative Plaintiffs and the Class Members expressly waive and fully, finally, and forever settle and release any known or unknown, suspected or unsuspected, contingent or noncontingent equitable claim, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such other, different, or additional facts.. 8.3. All Parties to this Settlement Agreement, including the Representative Plaintiffs and the Class Members, specifically acknowledge that they have been informed of Section 1542 of the California Civil Code by their legal counsel via the Notice, and they expressly waive and relinquish any rights or benefits available to them under this statute. California Civil Code § 1542 provides: 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.. 8.4. Notwithstanding California Civil Code § 1542, or any other federal or state statute or rule of law of similar effect, this Agreement shall be given full force and effect according to each and all of its expressed terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands, or causes of action which are based on, arise from or are in any way connected with the Litigation.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you want to keep the right to sue or continue to sue Similasan on your own about the legal issues in this case, then you must take steps to exclude yourself from this Settlement. This is called “opting out” of the Class.
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11. How can I get out of the Settlement?
To exclude yourself from the Class, you must send, by U.S. mail, a letter or written request to the Class Action Administrator. You cannot ask to be excluded over the phone or through the Internet. Your Request for Exclusion must include all of the following:
1. Your full name and current address; 2. A clear statement that you wish to be excluded from the Class; 3. The case name and case number (Allen v. Similasan Corp., No. No. 3:12-cv-00376); and 4. Your signature (you must personally sign the letter).
Your Request for Exclusion must be postmarked no later than XXX XX, 2017 and addressed as follows:
Similasan Settlement Classaura Class Action Administration
1718 Peachtree St #1080 Atlanta, GA 30309
“Mass” or “Class” opt-outs are not permitted.
12. If I don’t exclude myself, can I sue Similasan for the same thing later? No. If the Court approves the Settlement Agreement and you do not exclude yourself from the Class, you give up (or “release”) all claims that have been made in this lawsuit. This means that you are agreeing to fully, finally, and forever release, relinquish, and discharge all Released Claims against the Released Parties, as set forth above in response to Question 10. As part of this Settlement, the Court has preliminarily stopped all Class Members and/or their representatives (who do not timely exclude themselves from the Class) from receiving any benefits from any other lawsuit relating to the claims being resolved in this case. Upon final approval of the Settlement Agreement, Plaintiffs and Similasan will ask the Court to enter a permanent ruling forbidding all Class Members and/or their representatives and/or personnel from engaging in the activities described above. All Class Members will be bound by this order.
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THE LAWYERS REPRESENTING THE CLASS
13. Do I have a lawyer in this case? You have been represented by a number of lawyers that have prosecuted this case together. The Court has appointed the following lawyers to represent you and other Class Members as Class Counsel. You will not be charged for the services of these lawyers. You may contact Class Counsel as follows:
Ronald A. Marron Law Office of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103 [email protected] Tel: 619.696.9006
You have the right to retain your own lawyer to represent you in this case, but you are not obligated to do so. If you do hire your own lawyer, you will have to pay his or her fees and expenses. You also have the right to represent yourself before the Court without a lawyer.
14. How will the lawyers be paid? Class Counsel, on behalf of themselves and other lawyers who have worked on this case, will ask the Court for reimbursement of their expenses and costs and will also ask the Court for attorney’s fees not to exceed $175,000. Class Counsel will also ask for a payment not to exceed $2500 for each of the named Class Members who helped the lawyers on behalf of the entire Class by acting as Representative Plaintiffs. The Court has to approve any attorneys’ fees and expenses or payments to the Representative Plaintiffs before they can be awarded in this case. The attorneys’ motion(s) for fees, costs, and expenses, and for payments to the Representative Plaintiffs, will be filed on or before XXX XX, 2017. The motion(s) will be posted on the website at www.SimilasanClassAction.com.
OBJECTING TO THE SETTLEMENT You have the right to tell the Court that you do not agree with Settlement Agreement or any or all of its terms.
15. How can I tell the Court if I do not like the Settlement Agreement? If you choose to remain a Class Member, you have the right to object to any part of the Settlement Agreement. The Court will consider your views. To object, you must file a timely, written objection with the Court no later than, and also send the written objection by U.S. mail to Class Counsel and the Court postmarked no later than XXX XX, 2017. Members of the Class who fail to file and serve timely written objections as described here and in the Settlement Agreement shall be deemed to have waived all objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement. Your written objection must include:
(1) your full name, address, and telephone number;
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(2) the name, address, and telephone number of your lawyer, if you have one; (3) the factual and legal grounds for your objection(s); (4) documents sufficient to establish the basis for you standing as a Class Member, i.e., verification
under oath as to the approximate date(s) and location(s) of your purchase(s) of the Products; (5) your signature; (6) the signature of your lawyer, if you have one; (7) the case name and case numbers (Allen v. Similasan Corp., No. No. 3:12-cv-00376); and (8) a specific list of any other objection you or your lawyer have made to any class action settlement
submitted to any court in the United States in the previous five years. If you choose to object, in order to be considered by the Court, your written objection(s) must be filed with the Court and sent by U.S. Mail to Class Counsel, Defense Counsel, and the Class Action Administrator no later than XXXXXXX. Objections that are served on the Parties, but not filed with the Court, will not be received or considered by the Court at the Fairness Hearing. Objections must be served:
On Class Counsel (who will share objections with co-counsel and defense counsel): Ronald A. Marron Law Office of Ronald Marron 651 Arroyo Drive San Diego, CA 92103 Telephone: 619-696-9006 For the Court: Clerk of the Court United States District Court Southern District of California 333 West Broadway, Suite 420 San Diego, CA 92101 Telephone: 619-557-5600
16. What is the difference between objecting and asking to be excluded?
Objecting is simply a way of telling the Court that you do not like something about the Settlement Agreement. You can object only if you stay in the Class. You will also be bound by any subsequent rulings in this case, and (if the Settlement Agreement is approved) you will not be able to file or participate in any other lawsuit asserting a Released Claim. If you object to the Settlement Agreement, you will remain a Class Member. Excluding yourself is telling the Court that you do not want to be a part of the Class. If you exclude yourself, you have no basis to object to the Settlement Agreement and/or appear at the Fairness Hearing because it no longer affects you.
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THE COURT’S FAIRNESS HEARING The Court will hold a hearing (called a Fairness Hearing) to decide whether to finally approve the Settlement Agreement. If you have filed and mailed an objection on time, you may submit a notice to seek permission to speak at the Fairness Hearing. You do not have to speak.
17. When and where will the Court decide whether to approve the Settlement Agreement? On August 7, 2017 at 10:30 p.m. the Court will hold a Fairness Hearing at the United States District Court for the Southern District of California, before the Honorable Cynthia A. Bashant, District Judge, in Courtroom 4B (4th floor – Schwartz) of the Courthouse located at 221 West Broadway, San Diego, CA 92101. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check www.SimilasanClassAction.com for updates. At the Fairness Hearing, the Court will consider whether the Settlement Agreement is fair, reasonable, and adequate. The Court will also decide whether to award attorneys’ fees and costs, as well as any payment to the Representative Plaintiffs. If there are objections, the Court will consider them at that time if they were properly filed and mailed by the deadline. After the hearing, the Court will decide whether to approve the Settlement Agreement. We do not know how long these decisions will take.
18. Do I have to come to the Fairness Hearing? No. Class Counsel will answer any questions that the Court may have at the Fairness Hearing. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. Please note that the Court has the right to change the date and/or time of the Fairness Hearing without further notice, so it is a good idea to check the settlement website (www.SimilasanClassAction.com) for updates. If you are planning to attend the hearing, you should confirm the date and time on the above website before going to the Court.
19. May I speak at the Fairness Hearing? Yes, you may ask the Court for permission to speak at the hearing, but only if you filed a written objection as described above. To speak at the hearing, you must file a “Notice of Intent to Appear.” If you or your attorney wants to appear and speak at the Fairness Hearing, you (or your attorney) must, in addition to filing a Notice of Intent to Appear with the Court, mail or e-mail copies of the Notice of Intent to Appear to Class Counsel and Defense Counsel, whose addresses are listed above in Question 15. Your Notice of Intent to Appear must be filed and received by the Court, and mailed and/or e-mailed to Defense Counsel and Class Counsel, no later than XXX XX, XXXX.
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12 QUESTIONS? VISIT WWW.SIMILASANCLASSACTION.COM, OR CALL 1.855.974.6452
GETTING MORE INFORMATION
20. How can I get more information? Class Members can ask questions and review court documents associated with this case at www.SimilasanClassAction.com, or by writing the “Claims Administrator” at [Classaura, 1718 Peachtree St #1080, Atlanta GA 30309] or by calling 1-855-974-6452 (1-855-9-SIMILASAN).
PLEASE DO NOT CONTACT THE COURT OR CLERK’S OFFICE REGARDING THIS NOTICE.
Dated: XXX XX, 2017 Clerk of the Court for the United States District Court for
the Southern District of California
Ex. 1, Pg. 038
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EXHIBIT C
Ex. 1, Pg. 039
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LEGAL NOTICE
A federal court authorized this notice. This is not a solicitation from a lawyer.
1-855-974-6452 www.SimilasanClassAction.com
DO NOT CALL SIMILASAN OR THE COURT
If you purchased a product manufactured by Similasan Corporation, your rights may be affected by a proposed class
action settlement WHAT IS THIS CASE ABOUT?
A proposed settlement has been reached in a class
action lawsuit. The lawsuit claims that labeling and
marketing on homeopathic over-the-counter drugs
manufactured or distributed by defendant Similasan
Corporation (“Similasan”) was false or deceptive.
Similasan stands by its advertising and denies it did
anything wrong. The Court has not decided which side
was right. Instead, the parties have decided to settle
the case.
ARE YOU A CLASS MEMBER?
You are a class member if you purchased any over-
the-counter Similasan homeopathic drug, in all sizes
and package iterations, for personal or household use
between February 10, 2008 and [DATE] (the
“Products”). Excluded from the Class are Similasan,
its employees, parents, subsidiaries, affiliates, officers
and directors, and those who purchased the Products
for resale.
WHAT DOES THIS SETTLEMENT PROVIDE?
A settlement fund of $700,000 is being set up to pay
claims to eligible class members, attorneys’ fees and
costs, incentive award to the named plaintiff, and the
notice and claims administration costs. Similasan has
also agreed to make certain changes to the manner in
which it labels and advertises the Products, and has
also agreed to provide dilution disclaimers on its
websites. The complete Settlement Agreement is
found at www.SimilasanClassAction.com.
WHAT HAPPENS NOW?
The Court will hold a hearing in this case on February
7, 2017 at 10:30 at the federal courthouse located at
Courtroom 4B (4th Floor - Schwartz), 221 West
Broadway, San Diego, CA 92101, to consider final
approval of the settlement, payment of attorneys’ fees,
costs incentive awards of up to $2,500 for the Class
Representative in the lawsuit, and related issues. The
motion(s) by Class Counsel for attorneys’ fees and
costs and incentive awards for the Class
Representative will be available for viewing on the
settlement website after they are filed. You may appear
at the hearing in person or through your attorney at
your own cost, but you are not required to do so.
WHAT ARE YOUR OPTIONS?
SUBMIT A CLAIM FORM
The only way to get a payment.
To receive a payment, you must
file a claim (online for via mail)
no later than {DATE}.
EXCLUDE YOURSELF
Get out of the lawsuit and the
settlement. Get no payment. If
you do not want to be bound by
the settlement, you must send a
letter to the Claims Administrator
at the address below requesting
to be excluded. The letter must
be postmarked by [DATE]. If
you exclude yourself, you cannot
receive a benefit from this
settlement, but you can sue the
manufacturer of the Products for
the claims alleged in this lawsuit.
OBJECT OR COMMENT
Write the Court about why you
do, or do not, like the settlement.
If you want to object to the
settlement you must file a
written statement with the
Court by [DATE].
DO NOTHING If you do not exclude yourself
from the settlement, you will be
bound by the Court’s decisions.
You will get no payment.
Your rights and options – and the deadlines to exercise
them – are only summarized in this notice. The
Detailed Notice describes, in full, how to file a claim,
object, or exclude yourself and provides other
important information. For more information and to
obtain a Detailed Notice, claim form or other
documents, visit www.SimilasanClassAction.com,
call toll-free [1-855-974-6452], or write to: Similasan
Class Action, c/o Classaura, 1718 Peachtree St #1080,
Atlanta, GA 30309.
Ex. 1, Pg. 040
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EXHIBIT D
Ex. 1, Pg. 041
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Allen v. Similasan Corporation, Case No. 3:12-cv-00376
CLAIM FORM
YOU MUST SUBMIT YOUR CLAIM FORM NO LATER THAN SEPTEMBER 7, 2017.
PERSONAL INFORMATION. Please legibly print or type the following information:
Name (first, middle, and last):
Residential Street Address:
City, State, and ZIP code:
Telephone Number: (______) Email Address (optional):
The above information will be used to send you your Settlement Payment and to communicate with you if any
additional information is needed for or problems arise with your claim.
CONFIRMATION OF CLASS MEMBERSHIP
I declare the following (choose one):
□ I purchased a Similasan Product between February 10, 2008 and [the date of entry of the Preliminary Approval
Order] and the Product I purchased did not provide relief. I do not have a receipt for my purchase.
□ I purchased a Similasan Product between February 10, 2008 and [the date of entry of the Preliminary Approval
Order] and the Product I purchased did not provide relief. I am attaching documentation of my purchase in the form
of a receipt or itemized credit card or itemized bank statement.
IF SUBMITTED BY ELECTRONIC SUBMISSION:
I agree that by submitting this Claim Form I certify under penalty of perjury of the laws of the United States
of America that the foregoing is true and correct to the best of my knowledge and that checking this box
constitutes my electronic signature on the date of its submission.
IF SUBMITTED BY U.S. MAIL:
I declare under penalty of perjury under the laws of the Unites States of America that the foregoing is true and
correct to the best of my knowledge.
Dated: Signature:
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EXHIBIT E
Ex. 1, Pg. 043
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Classaura LLC 1718 Peachtree St NW #1080 Atlanta GA 30309 Phone: (404) 500 3356 EIN: 46-4825672
ESTIMATE
Please make checks payable to Classaura LLC. If you have any questions or concerning, please contact Gajan Retnasaba at (214) 502 9376 or [email protected].
March 3, 2017
SIMILASAN NOTICE
TO: Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103
Description Amount Press Release (PR Newswire) $1,500 Website & Maintenance $5,000 Phone IVR $2,000 CAFA Notice $1,500 Facebook –Targeted to Likely Homeopathy Users (10 MM impressions) $20,000 SD Tribune (4 insertions) (Metro Only – Early Week) $5,000
Total $35,000
Ex. 1, Pg. 044
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EXHIBIT F
Ex. 1, Pg. 045
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Allen, et al. v. Similasan Corp., Case No. 3:12-CV-00376 CAB PRELIMINARY APPROVAL ORDER
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant.
Case No. 3:12-cv-00376-CAB CLASS ACTION ORDER PRELIMINARILY
APPROVING CLASS ACTION
SETTLEMENT, CERTIFYING THE
CLASS, APPOINTING CLASS
REPRESENTATIVES AND CLASS
COUNSEL, APPROVING NOTICE
PLAN, AND SETTING FINAL
APPROVAL HEARING
After arms-length settlement discussions between Plaintiffs Lainie Rideout and
Kathleen Hairston and Defendant Similasan Corporation (the “Parties”), the Parties have
entered into a Settlement Agreement (“Agreement”) with respect to the above captioned
matter, which, if approved, would resolve this certified class action (“the Litigation”).
The capitalized terms used in this Preliminary Approval Order shall have the
meanings and/or definitions given to them in the Agreement, or if not defined therein, the
meanings and/or definitions given to them in this Preliminary Approval Order.
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During the pendency of the Litigation, Class Counsel conducted an extensive
examination and evaluation of the relevant facts and law to assess the merits of the
named Plaintiffs’ and Class’ claims to determine how best to serve the interests of
Plaintiffs and the Class. In the course of this extensive examination, Class Counsel
reviewed numerous documents, which consisted of marketing data, label and package
mechanicals, sales figures, unit sales, promotional materials, package materials, and
detailed financial information produced by Defendant. Class Counsel has conducted a
thorough review of the federal Food, Drug and Cosmetic Act (“FDCA”), its numerous
changes over the years, and the FDCA’s implementing regulations with respect to dietary
supplements. Class Counsel propounded interrogatories, requests for admission, and
requests for production of documents on Defendant, to which Defendant responded.
Class Counsel has carefully considered the merits of Plaintiffs’ and the Class’ claims,
and the defenses raised by Defendant.
The proposed settlement was reached only after extensive investigation and
discovery in the matter, and was the result of protracted negotiations conducted by the
Parties, including with the assistance of the Honorable Jill Burkhardt, Magistrate Judge
in this action, through numerous in-person and telephonic settlement conferences. In
addition, the Parties engaged in numerous settlement discussions between the Parties’
counsel after the settlement conferences with Judge Burkhardt in order to reach the terms
of the Agreement, over the course of several months. Based on the negotiations between
counsel for the Parties, the Parties fully understood the nature, strength, and weaknesses
of each other’s claims and defenses.
Plaintiffs and Class Counsel maintain that the Litigation and the claims asserted
therein are meritorious but admit that Plaintiffs and the Class may not have prevailed at
trial given the recent defense verdict in Allen v. Hyland’s, Inc. Plaintiffs and Class
Counsel have therefore agreed to settle the Litigation pursuant to the provisions of the
Agreement, after considering, among other things: (i) the substantial benefits to Plaintiffs
and the Class under the terms of this Agreement; (ii) the uncertainty of being able to
Ex. 1, Pg. 047
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3
prevail at trial; (iii) the uncertainty relating to Defendant’s defenses and the expense of
additional motion practice in connection therewith; (iv) the issues relating to proving
damages on an individual Class Member basis; (v) the attendant risks of litigation,
especially in complex actions such as this, as well as the difficulties and delays inherent
in such litigation; and (vi) the desirability of consummating this Settlement promptly in
order to provide effective relief to Plaintiffs and the Class.
Plaintiffs and Class Counsel agree that this Agreement is fair, reasonable, and
adequate because it provides substantial benefit to the Class, is in the best interests of the
Class, and fairly resolves the claims alleged in this Litigation.
Defendant expressly denies any wrongdoing alleged in the pleadings in the
Litigation, and does not admit or concede any actual or potential fault, wrongdoing, or
liability in connection with any facts or claims that have been or could have been alleged
against it in the Litigation. Defendant nonetheless considers it desirable for the
Litigation to be settled and dismissed, because the proposed settlement will: (i) avoid
further expense and disruption of the management and operation of Defendant’s business
due to the pendency and defense of the Litigation; (ii) finally put Plaintiffs’ and the
Class’ claims and the underlying matters to rest; and (iii) avoid the substantial expense,
burdens, and uncertainties associated with a potential finding of liability and damages for
Plaintiffs and the Class on the claims alleged in the Complaint in the Litigation.
The Court has read and considered the Agreement and all exhibits thereto,
including the proposed notices and claim form, and finds there is sufficient basis for: (1)
granting preliminary approval of the Agreement; (2) certifying a class for settlement
purposes; (3) appointing Plaintiffs Kathleen Hairston and Lainie Rideout as Class
Representatives and their counsel as Class Counsel; (4) directing that Notice be
disseminated to the Class; and (5) setting a hearing at which the Court will consider
whether to grant final approval of the Agreement.
The Court now GRANTS the motion for preliminary approval and makes the
following findings and orders:
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4
1. Pursuant to Federal Rule of Civil Procedure 23, the Court hereby certifies
this Litigation as a class action on behalf of the following certified Class:
All purchasers of all Similasan Corporation homeopathic Products
nationwide for personal or household use and not for resale, as listed in
Exhibit A to the Settlement Agreement, from February 10, 2008 to the
Opt Out Deadline. Excluded from the Class are governmental entities,
Defendant, any entity in which Defendant has a controlling interest, its
employees, officers, directors, legal representatives, heirs, successors
and wholly or partly owned subsidiaries or affiliated companies,
including all parent companies, and their employees; and the judicial
officers, their immediate family members and court staff assigned to this
case.
2. The Court finds that the Class meets the requirements of Rule 23(a),
(b)(2), and (b)(3) of the federal Rules of Civil Procedure. Joinder of all Class Members
in a single proceeding would be impracticable, if not impossible, because of their
numbers and dispersion. Common issues exist among Class Members and predominate
over questions affecting individual Class Members only. In particular, each Class
Member’s claim depends on whether the representations made by Defendant on the
packaging, labeling, and marketing of the Products, which were uniform throughout the
United States, were misleading to a reasonable consumer. Plaintiffs’ claims are typical
of, indeed identical, to those of the Class, as Plaintiffs were exposed to Defendant’s
claims and purchased the Product(s) in reliance on those claims. Plaintiffs and their
counsel will fairly and adequately protect the interests of the Class, as Plaintiffs has no
interests antagonistic to the Class, and has retained counsel who are experienced and
competent to prosecute this matter on behalf of the Class. Finally, a class settlement is
superior to other methods available for a fair resolution of the controversy.
3. The Court approves Plaintiffs Kathleen Hairston and Lainie Rideout as
Class Representatives.
4. Having considered the factors set forth in Rule 23(g)(1) of the Federal
Rules of Civil Procedure, the Court appoints Plaintiffs’ counsel, the Law Offices of
Ex. 1, Pg. 049
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5
Ronald A. Marron, APLC, Gomez Trial Attorneys, and Law Offices of Dean Goetz, to
serve as Class Counsel.
5. The Court preliminarily approves the Agreement, finding that its terms
appear sufficient, fair, reasonable, and adequate to warrant dissemination of Notice of the
proposed settlement to the Class. The Agreement contains no obvious deficiencies and
the Parties have entered into the Agreement in good faith, following arms-length
negotiation between their respective counsel. The Court’s approval of this Agreement is
made subject to further consideration at the Final Approval Hearing Date.
6. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court
will hold a final approval hearing (the “Final Approval Hearing Date”) on August 7,
2017 at 10:30 a.m., in the Courtroom of the Honorable Cynthia A. Bashant, United States
District Court for the Southern District of California, for the following purposes:
a. finally determining whether the Class meets all applicable
requirements of Federal Rules of Civil Procedure 23(a) and (b), and,
thus, the Class’ claims should be certified for purposes of
effectuating the Settlement;
b. determining whether the proposed Settlement of the Litigation on
the terms and conditions provided for in the Agreement is fair,
reasonable, and adequate and should be approved by the Court;
c. considering the application of Class Counsel for an award of
attorneys’ fees and costs, as provided for in the Agreement;
d. considering the application of the named Plaintiffs for a class
representative incentive award, as provided for in the Agreement;
e. considering whether the Court should enter the [Proposed]
Judgment, Final Order and Decree;
f. considering whether the release by the Class Members of the
Released Claims as set forth in the Agreement should be provided;
and
g. ruling upon such matters as the Court may deem just and
appropriate.
Ex. 1, Pg. 050
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7. Class Members must file and serve any objections to the proposed
settlement no later than thirty (30) calendar days prior to the Final Approval Hearing
Date, including any memoranda and/or submissions in support of the objections, which
deadline will be set forth in the Class Notice.
8. All papers in support of the Agreement must be filed with the Court and
served at least fourteen (14) calendar days prior to the Final Approval Hearing date. Any
response to an objection must be filed and served at least seven (7) days prior to the Final
Approval Hearing date.
9. Any application for an award of attorneys’ fees and costs and class
representative incentive award must be filed with the Court and served at least forty-five
(45) days prior to the Final Approval Hearing date. After filing, the application for fees
and costs, and incentive award shall be posted on the Settlement Website for review by
Class Members.
10. The Court approves the form and procedure for disseminating Notice of
the proposed Settlement to the Class as set forth in the Agreement. This Litigation
concerns retail products for which the Parties do not have direct notice information for
class members. Accordingly, the Notice Plan provides for notice to the Class by
publication. The Court finds that the Notice Plan submitted by the Parties constitutes the
best notice practicable under the circumstances, and constitutes valid and sufficient
notice to the Class in full compliance with the requirements of applicable law, including
Rule 23 of the Federal Rules of Civil Procedure and the Due Process Clause of the
United States Constitution.
11. Within thirty (30) days after the date of entry of this Order, Defendant
shall disseminate the Class Notice in the form attached to the Agreement as Exhibit B.
The manner and form of such dissemination shall be as set forth in the Notice Plan
attached as Exhibits E to the Agreement.
12. The Court approves the designation of Classaura LLC (“Classaura”) to
serve as the Court-Appointed Class Action Administrator for the settlement. The Class
Ex. 1, Pg. 051
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7
Action Administrator shall disseminate Class Notice and supervise and carry out the
Notice Plan, and other administrative functions, and shall respond to Class Member
inquiries under the direction and supervision of the Court.
13. The Court directs the Class Action Administrator to establish a Class
Settlement Website, making available copies of this Order, Class Notice, the Settlement
Agreement and all exhibits thereto, a toll-free hotline, and such other information as may
be of assistance to Class Members or required under the Agreement. The Class
Settlement Website shall be made available to Class Members no later than fifteen (15)
calendar days after the date of this Order, and continuously thereafter until thirty (30)
days after the Final Approval Hearing (defined below).
14. As set forth in the Agreement, all fees, costs, and expenses of the Notice
and Claims Administrator related to this Settlement will be paid out of the Settlement
Amount, which shall be used for costs and expenses associated with the Class Notice,
creating and maintaining the Class Settlement Website, and all other Class Notice
expenses. The Parties shall jointly retain the services of Classaura as their Class Action
Administrator.
15. No later than fourteen (14) days prior to the Final Approval Hearing Date,
Defendant, through the Class Action Administrator, shall file an affidavit and serve a
copy on Class Counsel, attesting that notice was disseminated as required by the terms of
the Notice Plan or as ordered by the Court.
16. All Class Members shall be bound by all determinations and judgments in
the Litigation concerning the settlement, whether favorable or unfavorable to the Class.
17. Any person falling within the definition of the Class may, upon his or her
request, be excluded from the Class. Any such person must submit a completed request
for exclusion to the Clerk of the Court postmarked or delivered no later than thirty (30)
calendar days before the Final Approval Hearing date (“Opt-Out and Objection
Deadline”), as set forth in the Class Notice. Requests for exclusion purportedly filed on
behalf of groups of persons are prohibited and will be deemed void.
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18. Any Class Member who does not send a completed, signed request for
exclusion to the Clerk of the Court postmarked or delivered on or before the Opt-Out and
Objection Deadline will be deemed to be a Class Member for all purposes and will be
bound by all further orders of the Court in this Litigation and by the terms of the
settlement, if finally approved by the Court. The written request for exclusion must
request exclusion from the Class, must be signed by the potential Class Member and
include a statement indicating that the person is a member of the Class. All persons who
submit valid and timely requests for exclusion shall not be bound by the Agreement or
the Final Judgment and Order.
19. Any person falling within the definition of the Class may object to the
Agreement. Objections purportedly filed on behalf of groups of persons are prohibited
and will be deemed void. To be considered, all objections must be timely, in writing,
signed and dated by the objector (or his or her attorney, if applicable), must reference the
abbreviated name and case number of the Litigation, and must contain the following
information: (i) the objector’s name, address, and telephone number; (ii) the name,
address, and telephone number of any attorney for the objector with respect to the
objection; (iii) the factual basis and legal grounds for the objection; (iv) identification of
the case name, case number, and court for any prior class action lawsuit in which the
objector has objected to a proposed class action settlement, the general nature of such
prior objection(s), and the outcome of said prior objection(s); (v) identification of the
case name, case number, and court for any prior class action lawsuit in which the
objector and the objector’s attorney (if applicable) has objected to a proposed class action
settlement, the general nature of such prior objection(s), and the outcome of said prior
objection(s); (vi) the payment terms of any fee agreement between the objector and the
objector’s attorney with respect to the objection; and (vii) any attorneys’ fee sharing
agreement or referral fee agreement between or among the objector, the objector’s
attorney, and/or any third party, including any other attorney or law firm, with respect to
the objection.
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20. A request for exclusion or an objection that does not include all of the
foregoing information, that is sent to an address other than the one designated in the
Class Notice, or that is not received within the time specified, shall be invalid and the
person serving such a request shall be deemed a member of the Class, and shall be bound
as a Class Member by the Agreement. The Class Action Administrator shall promptly
forward copies of all requests for exclusion and objections to Class Counsel and counsel
for Defendant.
21. If a Class Member hires an attorney to represent him or her in support of a
timely and properly submitted objection, and the attorney wishes to appear at the Final
Approval Hearing, in addition to the foregoing requirements, that attorney must (1) file
both an entry of appearance and a notice of intention to appear and participate at the
Final Approval Hearing with the Clerk of the Court no later than thirty (30) calendar
days before the Final Approval Hearing, and (2) mail copies of the entry of appearance
and the notice of intention to appear and participate at the Final Approval Hearing to
Counsel for Defendant and Class Counsel, postmarked no later than thirty (30) calendar
days before the Final Approval Hearing.
22. A Class Member who appears at the Final Approval Hearing, either
personally or through counsel, will be permitted to argue only those matters that were set
forth in the timely and validly submitted written objection filed by such Class Member.
No Class Member shall be permitted to raise matters at the Final Approval Hearing that
the Class Member could have raised in his/her written objection, but failed to do so, and
all objections to the Agreement that are not set forth in a timely and validly submitted
written objection are deemed waived.
23. If a Class Member wishes to present witnesses or evidence at the Final
Approval Hearing in support of a timely and validly submitted objection, all witnesses
must be identified in the objection, and true and correct copies of all supporting evidence
must be appended to, or filed and served with, the objection. Failure to identify
witnesses or provide copies of supporting evidence in this manner waives any right to
Ex. 1, Pg. 054
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introduce such testimony or evidence at the Final Approval Hearing. While the
declaration described above is prima facie evidence that the objector is a member of the
Class, Plaintiffs or Defendant or both may take discovery regarding the matter, subject to
Court approval.
24. Any Class Member who fails to comply with the applicable provisions of
the preceding paragraphs concerning their objection shall waive and forfeit any and all
rights he or she may have to object, appear, present witness testimony, and/or submit
evidence, shall be barred from appearing, speaking, or introducing any testimony or
evidence at the Final Approval Hearing, and shall be bound by all the terms of the
Agreement and by all proceedings, orders, and judgments in the Litigation.
25. All objections must be filed with the Clerk and served on the Parties’
counsel no later than the Opt-Out and Objection Deadline. Objections received after the
Opt-Out and Objection Deadline will not be considered at the Final Approval Hearing.
A Class Member’s failure to submit a written objection within the Opt-Out and Objection
Deadline, in conformance with the procedures set forth in the Class Notice, and above,
waives any right the Class Member may have to object to the settlement, the Agreement,
attorneys’ fees and costs, the Class Representative’s incentive award, or to appeal or seek
other review of the Final Judgment and Order.
26. Class Members who do not oppose the settlement, the applications for
attorneys’ fees and costs, or Class Representatives’ incentive awards need not take any
action to indicate their approval.
27. Class Members are preliminarily enjoined from filing, commencing,
prosecuting, intervening in, participating in, maintaining as class members or otherwise,
directly or indirectly through a representative or otherwise, or receiving any benefits
from, any lawsuit, arbitration, government action, administrative or regulatory
proceeding or order in any jurisdiction, forum or tribunal asserting any Released Claims.
In addition, all persons are preliminarily enjoined from filing, commencing, or
prosecuting a lawsuit as a class action (including by seeking to amend a pending
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complaint to include class allegations or by seeking class certification in a pending action
in any jurisdiction) on behalf of Class Members, or asserting any Released Claims.
Nothing herein shall require any Class Member to take any affirmative action with regard
to other pending class action litigation in which he or she may be an absent class
member.
28. The Agreement and the proceedings and statements made pursuant to the
Agreement or papers filed relating to the approval of the Agreement, and this Order, are
not and shall not in any event be construed as, offered in evidence as, received in
evidence as, and/or deemed to be evidence of a presumption, concession, or an admission
of any kind by any of the Parties of (i) the truth of any fact alleged or the validity of any
claim or defense that has been, could have been, or in the future might be asserted in the
Litigation, any other litigation, court of law or equity, proceeding, arbitration, tribunal,
investigation, government action, administrative proceeding, or other forum, or (ii) any
liability, responsibility, fault, wrongdoing, or otherwise of the Parties. Defendant has
denied and continues to deny the claims asserted by Plaintiff. Nothing contained herein
shall be construed to prevent a Party from offering the Agreement into evidence for the
purposes of enforcement of the Agreement.
29. The certification of the Class shall be binding only with respect to the
settlement of this Litigation. In the event that the Agreement is terminated pursuant to its
terms or is not finally approved by the Court, or such approval is reversed, vacated, or
modified in any material respect by this or any other Court, the Litigation shall proceed
as if the Settlement had never been reached, and no reference to the Agreement, or any
documents, communications, or negotiations related in any way thereto shall be made for
any purpose.
IT IS SO ORDERED.
DATED: ____________________ ___________________________
Hon. Cynthia A. Bashant
UNITED STATES DISTRICT JUDGE
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EXHIBIT G
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant.
Case No. 3:12-cv-00376-CAB CLASS ACTION FINAL JUDGMENT AND ORDER:
(1) APPROVING CLASS ACTION
SETTLEMENT, (2) AWARDING
CLASS COUNSEL FEES AND
EXPENSES, (3) AWARDING CLASS
REPRESENTATIVE INCENTIVE
AWARD, (4) PERMANENTLY
ENJOINING PARALLEL
PROCEEDINGS, AND (5)
DISMISSING ACTION WITH
PREJUDICE
I. PROCEDURAL HISTORY
Plaintiffs Lainie Rideout and Kathleen Hairston filed a complaint against
Defendant Similasan Corporation (the “Parties”) in this action as styled above (the
“Litigation”), alleging violations of California’s Unfair Competition Law ([“UCL”] Cal.
Bus. & Prof. Code §§ 17200, et seq.), False Advertising Law ([“FAL”] Cal. Bus. &
Prof. Code §§ 17500, et seq.), the Consumers Legal Remedies Act ([“CLRA”] Cal. Civ.
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Code §§ 1750, et seq.), and breach of express and implied warranties. Defendant
distributes, markets, and sells in the United States certain homeopathic products at issue
in this Settlement (“the Products”). Plaintiffs allege that Defendant’s labeling and
marketing of its Products is false and misleading.
After arms-length settlement discussions between Plaintiffs and Defendant, the
Parties have entered into a Settlement Agreement (“Agreement”) with respect to the
Litigation, which, if approved, would resolve this certified class action.
After consideration of the Parties’ briefs and the briefs submitted by the
objectors to the Settlement, this Court hereby GRANTS Final Approval of the
Settlement.
On ______________, 2017, the Court entered its Order (1) Preliminarily
Approving Class Action Settlement, (2) Certifying Class, (3) Appointing Class
Representatives and Class Counsel, (4) Approving Notice Plan, and (5) Setting Final
Approval Hearing (“Preliminary Approval Order”), in which it preliminarily approved
the Settlement Agreement. The Court also scheduled a hearing to determine whether the
Settlement is fair, reasonable, adequate, in the best interests of the Class, and free from
collusion, such that the Court should grant Final Approval of the Settlement, and to
consider Plaintiffs’ motion for an award of attorneys’ fees, costs and litigation expenses,
and incentives for the Class Representatives (“Fairness Hearing”).
The Court has considered:
The points and authorities submitted by Plaintiffs in support of the motion
for final approval of the Settlement (“Final Approval Motion”);
The points and authorities submitted by Plaintiffs in support of the motion
for an award of attorneys’ fees and litigation expenses, and approval of
incentive awards for the Class Representatives (“Fee Motion”);
Defendant’s memorandum in support of final approval of the Settlement;
The declarations and exhibits submitted in support of said motions;
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The Settlement Agreement;
The entire record in this proceeding, including but not limited to the points
and authorities, declarations, and exhibits submitted in support of
preliminary approval of the Settlement;
The Notice Plan, providing full and fair notice to the Class;
The existence of only ___ objections to and only ___ exclusions from the
Settlement, and the substance of those objections, if any;
The absence of any objection or response by any official after the
provision of all notices required by the Class Action Fairness Act of 2005,
28 U.S.C. §1715;
The oral presentations of Class Counsel, Counsel for Defendant, and
objector(s) at the Fairness Hearing, if any;
This Court’s experiences and observations while presiding over this
matter, and the Court’s file herein; and
The relevant law.
Based upon these considerations and the Court’s findings of fact and conclusions
of law as set forth in the Preliminary Approval Order and in this Final Judgment and
Order (1) Approving Class Action Settlement, (2) Awarding Class Counsel Fees and
Expenses, (3) Awarding Class Representatives Incentive Awards, (4) Permanently
Enjoining Parallel Proceedings, and (5) Dismissing Action with Prejudice (“Final
Approval Order”), and good cause appearing, IT IS HEREBY ORDERED AND
DECREED:
1. Definitions. The capitalized terms used in this Final Approval Order shall
have the meanings and/or definitions given to them in the Settlement Agreement or, if
not defined therein, the meanings and/or definitions given to them in the Preliminary
Approval Order and this Final Approval Order.
2. Incorporation of Documents. This Final Approval Order incorporates the
Settlement Agreement, filed as Exhibit 1 to the Declaration of Deborah S. Dixon in
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support of preliminary settlement approval on April ___, 2017, including all exhibits
thereto, and the Court’s findings and conclusions contained in its Preliminary Approval
Order.
3. Jurisdiction. The Court has personal jurisdiction over the Parties, the
Class Members, including objectors, and Defendant. The Court has subject matter
jurisdiction over this action, including, without limitation, jurisdiction to approve the
Settlement, to settle and release all claims alleged in the action and all claims released
by the Settlement, including the Released Claims, to adjudicate any objections
submitted to the proposed Settlement, and to dismiss this action with prejudice. All
Class Members who did not exclude themselves according to the Court’s prior orders
and the terms of the Class Notices have consented to the jurisdiction of this Court for
purposes of this action and the Settlement of this action.
Findings and Conclusions
4. Definition of the Class and Class Members. The Court’s Preliminary
Approval Order defines the “Class,” which is comprised of the “Class Members,” as
follows:
All purchasers of all Similasan Corporation homeopathic Products
nationwide for personal or household use and not for resale, as
listed in Exhibit A to the Settlement Agreement, from February
10, 2008 to the Opt Out Deadline. Excluded from the Class are
governmental entities, Defendant, any entity in which Defendant
has a controlling interest, its employees, officers, directors, legal
representatives, heirs, successors and wholly or partly owned
subsidiaries or affiliated companies, including all parent
companies, and their employees; and the judicial officers, their
immediate family members and court staff assigned to this case.
The Court affirms its certification of the Class, as set forth in the Preliminary
Approval Order. All Class Members are subject to this Final Approval Order and the
Final Judgment to be entered by the Clerk of Court in accordance herewith.
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5. Class Certifications (Rule 23)
A. Numerosity
Defendant’s sales in the United States number in the thousands annually. See
Decl. of _________ in Supp. of Final Approval ¶ __. For the purposes of this
Settlement, no party or objector contests numerosity. The Court finds that the Class is
sufficiently numerous that joinder of all class claims is impracticable. Fed. R. Civ. P.
23(a)(1).
B. Commonality
The Court finds that there are questions of law and fact common to the Class, as
to whether Defendant made false or deceptive marketing claims about its Products. All
Class Members allege the same injury: loss of money spent purchasing the allegedly
deceptively-labeled Products. All Class Members were exposed to the same or
substantially similar contested labeling claims regarding the properties and benefits of
the Products. Resolution of the common questions about whether Defendant’s labeling
claims were deceptive would resolve all of the claims in one stroke. Accordingly, the
Court affirms its prior ruling under Rule 23(a)(2).
C. Typicality
The Court finds that Plaintiffs’ claims are reasonably co-extensive with those of
the other Class Members so as to meet Rule 23(a)(3)’s requirements. Typicality is a
“permissive” standard under which “representative claims are ‘typical’ if they are
reasonably co-extensive with those of absent class members; they need not be
substantially identical.” Hanlon v. v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.
1998). For the purposes of this Settlement, the Parties and objectors do not contend the
Class lacks typicality. The Court therefore affirms its prior order, finding that the
Plaintiffs’ claims are reasonably coextensive with those of the Class.
D. Adequacy of Class Representative
Having considered the factors set forth in Rule 23(g)(1), the Court finds that
Plaintiffs and Class Counsel are adequate class representatives. For the purposes of this
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Settlement, the Parties and objectors do not contend the Class lacks adequate
representation. Class Counsel has fully and competently prosecuted all causes of action,
claims, theories of liability, and remedies reasonably available to the Class Members.
The Court hereby affirms its appointment of the Law Offices of Ronald A. Marron,
APLC, Gomez Trial Attorneys, and Law Offices of Dean Goetz as Class Counsel. The
Court also affirms its appointment of Plaintiffs Lainie Rideout and Kathleen Hairston as
Class Representatives, finding that they possess no interests adverse to the Class and are
adequate to represent the Class.
E. Rule 23(b) Has Been Satisfied
For the purposes of this Settlement, the Parties contend that the elements of
Rules 23(b)(2) and (b)(3) have been met. The Court finds that Defendant has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief
is appropriate respecting the class as a whole, Fed. R. Civ. P. 23(b)(2); that questions of
law and fact as to whether a reasonable consumer would find the Products’ packaging
deceptive predominate over individual questions. Plaintiffs allege a common injury on
behalf of the Class, specifically the loss of the purchase price of the Products, and the
Products’ respective packaging was standard across the United States and consistent
throughout the Class Period. The Court also finds that resolution on a class-wide basis
is superior for purposes of judicial efficiency and to provide a forum for absent Class
Members, who are unlikely to bring individual suits to challenge the Products’
packaging. The Court therefore affirms its prior ruling that the Class satisfies Rule
23(b)(3). The Court also affirms its prior ruling that the Class satisfies Rule 23(b)(2).
6. The Settlement. The Court finds that the Settlement is fair, reasonable,
and adequate to the Class, in light of the complexity, expense, and likely duration of the
litigation (including appellate proceedings), and the risks involved in establishing
liability, damages, and in maintaining the action as a class action, through trial and
appeal. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009). The
Settlement is the result of arms-length negotiation and there is no evidence of collusion
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or other conflicts of interest between Plaintiff, Class Counsel, and the Class. See In re
Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011).
A. The Parties reached the proposed Settlement only after proceeding
with voluntary investigation and discovery in this action, and following protracted
negotiations before a capable and well-respected jurist, the Honorable Jill Burkhardt of
this Court and then right before trial, the Parties engaged in extensive negotiations,
including joint and individual mediation sessions with Judge Burkhardt, and the Parties’
own follow-up negotiations, in order to reach agreement over the specific terms of the
proposed Settlement.
Plaintiffs and Class Counsel maintain that this action and the claims asserted
herein are meritorious and that Plaintiffs and the Class might have prevailed at trial.
Notwithstanding, Plaintiffs and Class Counsel have agreed to settle the action pursuant
to the provisions of the Settlement, after considering, among other things: (i) the
substantial benefits to Plaintiffs and the Class under the terms of the Settlement; (ii) the
uncertainty of being able to prevail at trial; (iii) the uncertainty relating to Defendant’s
defenses and the expense of additional motion practice in connection therewith; (iv) the
issues relating to proving damages on an individual Class Member basis; (v) the
attendant risks, difficulties, and delays inherent in litigation, especially in complex
actions such as this; and (vi) the desirability of consummating this Settlement promptly
in order to provide effective relief to Plaintiffs and the Class. Plaintiffs and Class
Counsel agree that the Settlement is fair, reasonable, and adequate because it provides
substantial benefits to the Class, is in the best interests of the Class, and fairly resolves
the claims alleged in this action.
Defendant expressly denies any wrongdoing alleged in the pleadings in the
action, and does not admit or concede any actual or potential fault, wrongdoing, or
liability in connection with any facts or claims that have been or could have been
alleged against it in the action. Defendant asserts that it sells, manufactures, and
markets the Products in accordance with the Food, Drug, and Cosmetic Act. Defendant
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nonetheless considers it desirable for the action to be settled and dismissed because the
proposed Settlement will: (i) avoid further expense and disruption of the management
and operation of Defendant’s businesses due to the pendency and defense of the action;
(ii) finally put Plaintiffs’ and the Class’ claims and the underlying matters to rest; and
(iii) avoid the substantial expense, burdens, and uncertainties associated with a potential
finding of liability and damages on the claims alleged in the Complaint.
The Parties engaged in thorough formal and informal discovery, which included,
inter alia, claims and defenses on the issue of the federal Food, Drug, and Cosmetic Act
([“FDCA”] 21 U.S.C. § 301, et seq.), and whether the Products complied with the
FDCA, and California-specific rules pertaining to the Products. Accordingly, the Parties
were well-versed in the merits, risks, and likelihood of success, should this action have
been litigated through trial.
Based upon the stage of litigation reached concerning relevant legal issues and
the Parties’ exchange of information through the discovery process, Plaintiffs and
Defendant were fully informed of the legal bases for the claims and defenses herein, and
capable of balancing the risks of continued litigation and the benefits of the Settlement.
Class Counsel and Defendant’s counsel are highly experienced civil litigation attorneys
with specialized knowledge in food and drug labeling issues, and complex class action
litigation generally. Class Counsel and Defendant’s counsel are capable of properly
assessing the risks, expenses, and duration of continued litigation.
B. The Settlement affords meaningful relief to the class members.
Pursuant to the Settlement Agreement, each class member is entitled to receive a
Settlement Payment by declaration under penalty of perjury that the class member
purchased a Product and did not obtain any relief from use of the Product. Class
members are entitled to a full refund with proof of purchase and there is no cap on
claims with proof of purchase. If the class member does not have proof of purchase, a
class member may still declare under penalty of perjury that the class member purchased
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a Product and did not receive relief and will be entitled to an estimated fifty percent
refund, depending on the number of claims. Similasan will establish a Fund, not to
exceed seven hundred thousand dollars ($700,000.00), out of which all claims, costs,
and fees associated with the Agreement will be had, including but not limited to
Settlement Payments, incentive awards, attorneys’ fees and costs, and costs of Notice
and Notice administration.
In addition, Similasan has agreed that it will change and has changed its
advertising practices, in part, because of the lawsuit. It has agreed to make labeling
changes and will direct consumers to the FDA website from a link on its website.
The Court has considered the realistic range of outcomes in this matter, including
the amount Plaintiffs might receive if they prevailed at trial, the recent defense verdict
on identical labeling and effectiveness issues in Allen v. Hyland’s, Inc., the strength and
weaknesses of the case, the novelty and number of the complex legal issues involved,
and the risk that Plaintiffs and the Class would receive less than the Settlement relief or
take nothing at trial. The relief offered by the Settlement is fair, reasonable, and
adequate in view of these factors.
C. The Court has found no evidence of collusion between Plaintiffs and
Defendant or their respective counsel. The Settlement resulted from extensive arms-
length, adversarial negotiation. Up to and through Settlement, both Parties have
vigorously litigated and negotiated this action, as evidenced by the docket in this action,
which includes multiple motions challenging the claims, motions to dismiss, motions for
summary judgment, motions challenging the experts, and a motion to decertify the class.
Further, the Court has evaluated the factors set forth by the Ninth Circuit and
determined that there was no collusion. See In re Bluetooth Headset Prods. Liab. Litig.,
654 F.3d 935, 947 (9th Cir. 2011) (the three factors are: “(1) when counsel receive a
disproportionate distribution of the settlement, … (2) when the parties negotiate a ‘clear
sailing’ arrangement providing for the payment of attorneys’ fees separate and apart
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from class funds, … and (3) when the parties arrange for fees not awarded to revert to
defendants …”).
D. The response of the Class to this action, the certification of a class,
and the Settlement, including Class Counsel’s application for an award of attorneys’
fees, litigation expenses, and the Class Representative’s incentive awards, after full, fair,
and effective notice thereof, strongly favors final approval of the Settlement. Out of the
estimated hundreds of thousands who received Notice, only ______ class members
submitted valid requests for exclusion. Moreover, ____ objections were filed, which the
Court has considered.
7. Notice to the Class. The Class has received the best practicable notice in
light of the fact that Defendant does not collect or maintain information sufficient to
identify Class Members. The Parties’ selection and retention of Classaura LLC
(“Classaura”) as the Claims Administrator was reasonable and appropriate. Based on
the Declaration of _____________ of Classaura, the Court hereby finds that the
Settlement Notices were published to the Class Members in the form and manner
approved by the Court in its Preliminary Approval Order. The Settlement Notices
provided fair, effective, and the best practicable notice to the Class of the Settlement and
the terms thereof. The Notices also informed the Class of Plaintiffs’ intent to seek
attorneys’ fees, costs, and incentive payments, and set forth the date, time, and place of
the Fairness Hearing and Class Members’ rights to object to the Settlement or Fee
Motion and to appear at the Fairness Hearing. The Court further finds that the
Settlement afforded Class Members a reasonable period of time to exercise such rights.
See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *82 (C.D. Cal. Nov. 23,
2011) (class members’ deadline to object or opt out must arise after class counsel’s fee
motion is filed); In re Mercury Interactive Corp. Secs. Litig., 618 F.3d 988, 994 (9th
Cir. 2010) (same). The Settlement Notices fully satisfied all notice requirements under
the law, including the Federal Rules of Civil Procedure, the requirements of the
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California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under
the U.S. Constitution and California Constitutions.
8. Notices Pursuant to 28 U.S.C. § 1715. The Court finds that Defendant
has satisfied all notice requirements of the Class Action Fairness Act of 2005
(“CAFA”), 28 U.S.C. § 1715, as attested to by the ______ Declaration. On
________________, 2017, at Defendant’s direction, Classaura served the notices
required by 28 U.S.C. § 1715(b), which included a copy of the Settlement Agreement
and other required documents, as well as notice of the date, time, and place of the
Fairness Hearing. The Court has received no objection or response to the Settlement
Agreement by any federal or state official, including any recipient of the foregoing
notices. This fact further supports the fairness of the Settlement.
9. Implementation of Settlement. The Parties are directed to implement the
Settlement according to its terms and conditions.
10. Appeal after Implementation. Any Class Member who failed timely and
validly to object to the Settlement has waived any objection. Any Class Member
seeking to appeal the Court’s rulings must: (a) move to intervene upon a representation
of inadequacy of counsel (if they did not object to the proposed Settlement under the
terms of the Settlement); (b) request a stay of implementation of the Settlement; and (c)
post an appropriate bond. Absent satisfaction of all three requirements, Defendant is
authorized, at its sole option and in its sole discretion, to proceed with the
implementation of the Settlement, including before the Effective Date, even if such
implementation would moot any appeal.
11. Release. The Release set forth in the Settlement Agreement is expressly
incorporated herein in all respects, is effective as of the date of the entry of this Final
Order, and forever discharges the Released Parties from any claims or liabilities released
by the Settlement, including the Released Claims, and including without limitation a
waiver of all rights under Section 1542 of the California Civil Code. This Release
covers, without limitation, any and all claims for attorneys’ fees and expenses, costs or
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disbursements incurred by Class Counsel, the Settlement of this Action, the
administration of such Settlement, and the Released Claims, except to the extent
otherwise specified in this Order and the Settlement Agreement.
12. Binding Affect and Permanent Injunction. The Settlement and this
Final Order and Judgment shall be forever binding on the Plaintiffs and all other Class
Members, as well as their heirs, executors and administrators, successors and assigns,
and shall have res judicata and other preclusive effect in all pending and future claims,
lawsuits, or other proceedings maintained by or on behalf of any such persons, to the
fullest extent allowed by law. The Court hereby permanently enjoins all Class Members
from filing, commencing, prosecuting, intervening in, maintaining, participating (as
class members or otherwise) in, or receiving any benefits from, any lawsuit (including
putative class action lawsuits), arbitration, administrative or regulatory proceeding or
order in any jurisdiction asserting any claims released by this Order; and from
organizing Class Members into a separate class to pursue as a purported class action any
lawsuit (including by seeking to amend a pending complaint to include class allegations,
or seeking class certification in a pending action) asserting any claims released by this
Order. Nothing in this paragraph, however, shall require any Class Member to take any
affirmative action with regard to other pending class action litigation unrelated to this
action in which they may be absent class members. Defendant has reserved the right to
file motions or to take other actions to enforce the release provisions of the Settlement
Agreement and of this injunction, as they may deem appropriate. The Court finds that
issuance of this permanent injunction is necessary and appropriate in the aid of the
Court’s jurisdiction over the action and its judgments.
13. Attorneys’ Fees and Litigation Expenses. The Court orders that Class
Counsel is entitled to reasonable attorneys’ fees and litigation expenses incurred in
connection with the action and in reaching this Settlement in the amount of
$_____________, to be paid at the time and in the manner provided in the Settlement
Agreement. The fee award sought in the present case is reasonable when judged by the
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standards of this circuit, represents Class Counsel’s lodestar with a negative multiplier,
and is thus well within the range Courts have allowed in the Ninth Circuit. The Parties
also agreed to the terms of the Settlement before discussing attorneys’ fees, another
factor which weighs against a finding of collusion. See, e.g., Weeks v. Kellogg Co.,
2011 U.S. Dist. LEXIS 155472, at *83 (C.D. Cal. Nov. 23, 2011).
Even though not necessary since Class Counsel’s actual lodestar before briefing
final approval exceeded the negotiated award amount, a small multiplier would have
been justified here, based on the excellent results obtained, the experience and skill of
Counsel, the complexity of issues, the risk of non-payment and preclusion of other
work, and the reaction of the Class. The fee award requested is also reasonable in light
of similar lodestar awards, as set forth in the Fee Motion. Courts have approved
multipliers ranging from 2-4 (and higher) in comparably complex litigation and under
such circumstances. See, e.g., Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255
(2001); Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988). As
reflected in these cases, the requested fee multiplier falls on the low end of the
reasonable range, based on typical multipliers approved in comparable litigation. The
Court also finds that an award of reasonable attorneys’ fees and litigation expenses is
appropriate based on the private attorney general doctrine and Code of Civil Procedure §
1021.5, and the Court’s equitable powers under California law.
No Named Plaintiff, or any other Class Member, shall have any obligation to pay
Class Counsel any further amounts for attorneys’ fees, costs, or litigation expenses in
the Action. As none of the objections was sustained, the Court further finds that no
Class Member is entitled to seek or receive any further payment of attorneys’ fees or
litigation expenses in connection with the action.
The Court finds the following hourly billing rates reasonable in light of the
complexity of this litigation, the work performed, Class Counsel’s reputation,
experience, competence, and the prevailing billing rates for comparably complex work
by comparably-qualified counsel in the relevant market:
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1. For Ronald A. Marron, $745 per hour;
2. For Beatrice Skye Resendes and Alexis Wood, $475 per hour; and
3. For Kas Gallucci, $450 per hour; and for Marshall Lurtz and William
Richards, $440 per hour;
4. For future attorney time (time expended after the fee motion was filed), a
blended rate of $_____ per hour.
5. Gomez Trial Attorney’s rates: _____________
6. Dean Goetz’s rate: ________
Two other courts – one federal and one state - have recently approved these same
hourly rates for cases brought and settled on nearly identical bases. See Marron Decl.,
Exs. _____. The hourly billing rates for work performed by paralegals and law clerks,
requested by the Marron Firm, is likewise reasonable. Paralegal time, which is normally
billed to fee-paying clients, is properly included and reimbursable under a lodestar
analysis. See, e.g., United Steelworkers v. Phelps Dodge Corp., 896 F. 2d 403, 407-408
(9th Cir. 1990). None of Mr. Marron’s law clerks or other staff members are volunteers;
each are paid an hourly rate or salary. Marron Decl. ¶ ___. Accordingly, Mr. Marron
put his own resources at risk for over a year this case has been pending, enhancing the
appropriateness of the fee award sought. See id.
The time declared to have been expended by Class Counsel is reasonable in
amount in view of the complexity and subject matter of this litigation, the skill and
diligence with which it has been prosecuted and defended, and the quality of the result
obtained for the Class.
Based on the declaration of Class Counsel submitted in support of the Fee
Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation
expenses (paid and un-reimbursed, or currently due) at the time the fee motion was filed
(exclusive of costs to brief and attend final approval) in the amount of $____________,
that said expenses were of a nature typically billed to fee-paying clients, and that said
expenses are recoverable or were reasonable and necessary to the prosecution of this
Ex. 1, Pg. 071
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action in light of the extent of proceedings both on and off the Court’s docket, the
complexity of the legal and factual issues in the case, the amount at stake in this
litigation, and the vigorous efforts of counsel for all Parties herein. The Court finds
these expenses are reasonable in this case, and shall be included as part of the Fee
Award awarded to Class Counsel, to be paid at the time and in the manner provided in
the Settlement Agreement.
14. Class Representatives’ Incentive. The named Plaintiffs in this action,
who the Court appointed as Class Representatives in its Preliminary Approval Order,
have actively participated in and assisted Class Counsel with this litigation for the
substantial benefit of the Class despite facing significant personal limitations. Ms.
Rideout and Ms. Hairston waived their right to pursue potential individual claims or
relief in the Action. Both were deposed and completed substantial discovery. Both
personally attended the initial Settlement Conference in this case at significant expense
of time and effort as both reside outside the forum; and both were on telephonic standby
for subsequent settlement negotiations. Apart from the requested incentive, Ms. Rideout
and Ms. Hairston will receive no settlement payments or benefits of any nature, other
than the injunctive relief available to the Class generally. The Court hereby approves
incentive awards for Ms. Rideout and Ms. Hairston, to be paid at the time and in the
manner provided in the Settlement Agreement. The amount of the incentive award shall
be $2,500 to each. Ms. Rideout and Ms. Hairston were actively involved throughout the
Litigation and contributed significant time and expense in seeing this action to fruition.
The Court approves these incentive payments to compensate the Class Representatives
for the burdens of their active involvement in the Litigation and their commitment and
effort on behalf of the Class.
15. Class Member Objections. Having considered the lack of any written
objections, oral argument at the Fairness Hearing, the Parties’ written and oral response,
and the documents and record on file in this Action, the Court need not overrule any
objections.
Ex. 1, Pg. 072
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Even if there had been any objection, the Court finds no evidence of collusion.
Taking into account the weaknesses in Plaintiffs’ case along with the strengths of
Defendant’s defenses and the obstacles to class-wide recovery, the Court has no
concerns about the adequacy of relief the Settlement provides. Further, Defendant’s
agreement to modify the Products’ label and packaging, website, and marketing in a
number of ways adequately addresses the very claims raised in Plaintiffs’ Complaint and
provides substantial value to the Class.
The Court has found that the Notice was fair, reasonable, and adequate, and
provided the best practicable notice to the Class in compliance with all applicable laws.
The fact that the chosen Administrator could effectuate notice in a manner widely
approved for classes such as this one, where names of individual class members are
unknown, for a cost less than other more expensive administrators, is a benefit to the
Class, and not objectionable. The Notice in this case also included statutory newspaper
publication within the State of California pursuant to California Civil Code § 1781.
The Court also received zero objections concerning the Fee Motion. Any
objection would be refuted by the lodestar analysis and the good results achieved on
behalf of the Class. The Court therefore need not overrule any objections as to the Fee
Motion.
16. Modification of Settlement Agreement. The Parties are hereby
authorized, without needing further approval from the Court, to agree to and adopt such
amendments to, and modifications and expansions of, the Settlement Agreement, if such
changes are consistent with this Order and do not limit the rights of any person or Class
Member entitled to relief under this Agreement.
17. Enforcement of Settlement. Nothing in this Final Order shall preclude
any action to enforce or interpret the terms of the Settlement. Any action to enforce or
interpret the terms of the Settlement shall be brought solely in this Court.
18. Retention of Jurisdiction. The Court expressly retains continuing
jurisdiction as to all matters relating to the Settlement, and this Final Order, and for any
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other necessary and appropriate purpose. Without limiting the foregoing, the Court
retains continuing jurisdiction over all aspects of this case including but not limited to
any modification, interpretation, administration, implementation, effectuation, and
enforcement of the Settlement, the administration of the Settlement and Settlement
relief, including notices, payments, and benefits thereunder, the Settlement Notice and
sufficiency thereof, any objection to the Settlement, any request for exclusion from the
certified Class, the adequacy of representation by Class Counsel and/or the Class
Representatives, the amount of attorneys’ fees and litigation expenses to be awarded
Class Counsel, the amount of any incentives to be paid to the Class Representatives, any
claim by any person or entity relating to the representation of the Class by Class
Counsel, to enforce the release and injunction provisions of the Settlement and of this
Order, any remand after appeal or denial of any appellate challenge, any collateral
challenge made regarding any matter related to this litigation or this Settlement or the
conduct of any party or counsel relating to this litigation or this Settlement, and all other
issues related to this action and Settlement. Further, the Court retains continuing
jurisdiction to enter any other necessary or appropriate orders to protect and effectuate
the Court’s retention of continuing jurisdiction provided that nothing in this paragraph is
intended to restrict the ability of the Parties to exercise their rights under the Settlement
Agreement.
19. No Admissions. This Final Order and Judgment and the Settlement, all
provisions herein or therein, all other documents referred to herein or therein, any
actions taken to carry out this Final Order and Judgment and the Settlement, and any
negotiations, statements, or proceedings relating to them in any shall not be construed
as, offered as, received as, used as, or deemed to be evidence of any kind, including in
this Action, any other action, or in any other judicial, administrative, regulatory, or other
proceeding, except for purposes of obtaining approval of the Settlement and the entry of
judgment in the Action, enforcement or implementation of the Settlement, or to support
any defense by Defendant based on principles of res judicata, collateral estoppel,
Ex. 1, Pg. 074
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release, waiver, good-faith settlement, judgment bar or reduction, full faith and credit,
setoff, or any other theory of claim preclusion, issue preclusion, release, injunction, or
similar defense or counterclaim to the extent allowed by law. Neither the Settlement
Agreement nor any related negotiations, statements, mediation positions, notes, drafts,
outlines, memoranda of understanding, or Court filings or proceedings relating to the
Settlement or Settlement approval, shall be construed as, offered as, received as, used as,
or deemed to be evidence or an admission or concession by any person, including but
not limited to, of any liability or wrongdoing whatsoever on the part of Defendant or as
a waiver by Defendant of any applicable defense, including without limitation any
applicable statute of limitation.
20. Dismissal of Action. This action, including all individual and Class
claims resolved in it, shall be dismissed on the merits and with prejudice, without an
award of attorneys’ fees or costs to any party except as provided in this Order.
IT IS SO ORDERED.
DATED: ____________________ ___________________________
Hon. Cynthia A. Bashant
UNITED STATES DISTRICT JUDGE
Ex. 1, Pg. 075
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