Filing # 43747721 E-Filed 07/11/2016 08:47:21 AM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
Civil Case No.: 2015 CA 010160 (AA)
GREGORY HOLLIDAY, individually and on ::
behalf of all others similarly situated,
::
::
Plaintiff,
::
vs.
::
::
VITACOST.COM, INC.,
::
::
Defendant.
::
::
PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION
SETTLEMENT AND REQUEST FOR ENTRY OF FINAL JUDGMENT AND
INCORPORATED MEMORANDUM OF LAW
TABLE OF CONTENTS
Page
INTRODUCTION ……………………………………………………………………………......2
STATEMENT OF FACTS …………………………………………………………………….....3
I.
Procedural and Factual Background ....................................................................................... 3
II.
The Settlement ........................................................................................................................ 4
a.
The Settlement Class............................................................................................................ 4
b. Vitacost Must Change its Labeling and Marketing of the Products. ................................... 4
c. Vitacost Must Contribute a Substantial Sum to Compensate Those Persons Allegedly
Harmed by its Allegedly Deceptive Labeling, Advertising, and Marketing Practices. .............. 5
d. Defendant Agrees to Class Certification for Settlement Purposes Only ............................. 5
e.
Defendant Will Pay the Cost of the Notice and Claims Administration
……. .......... …..6
f. Defendant Will Pay Plaintiffs’ Incentive Awards and Court-Ordered Attorneys’ Fees and
Litigation Costs ........................................................................................................................... 6
III.
Notice to the Settlement Class ............................................................................................. 6
ARGUMENT ……………………………………………………………………………………. 7
I.
The Court Should Grant Final Approval of the Settlement. ................................................... 7
II.
The Applicable Legal Standard. ............................................................................................. 8
a.
Plaintiff Would Have Faced Significant Obstacles at Trial. .............................................. 10
b. The Benefits Provided are Fair, Reasonable, and Adequate When Considered Against the
Range of Possible Recovery. .................................................................................................... 11
c. The Issues Presented Were Highly Complex, and Settlment Approval Will Save the Class
Years of Extremely Costly Litigation in this Court and on Appeal. ......................................... 14
d. The Opinions of Class Counsel, the Class Represenative, and Absent Class Members
Strongly Favor Settlement Substance and Amount of Opposition to the Settlement. .............. 15
e.
The Stage of the Proceedings at which Settlement was Made.......................................... 16
ii
II.
The Court Should Confirm Certification of the Settlement Class. ....................................... 17
a.
The Criteria for Class Certification under 1.220(a) are Satisfied. ..................................... 17
i.
Joinder of All Members is Impracticable. ...................................................................18
ii.
Common Issues of Law and Fact Exist. ......................................................................18
iii.
The Class Representatives’ Claims Are Typical of the Settlement Class Claims. ......19
iv.
The Class Representatives and their Counsel Have Adequately Represented the
Class.... ...................................................................................................................................19
b. The Settlement Class Meets the Requirements of Rule 1.220(b)(3). ................................ 20
IV.
a.
i.
Common Questions of Law and Fact Predominate Over Individualized Issues. ........20
ii.
A Class Action is the Superior Method to Settle this Controversy. ............................21
The Class Notice Satisfies the Requirements of Rule 1.220(e) and Due Process. ............ 22
The Method of Notice is Appropriate. ............................................................................... 22
b. The Contents of the Notice Are Adequate. ........................................................................ 23
CONCLUSION ……………………………………………………………………………….... 23
CERTIFICATE OF SERIVCE ……………………………………………………………….... 24
SERVICE LIST ………………………………………………………………………………... 24
iii
TABLE OF AUTHORITIES
Cases
Page
Access Now, Inc. v. Claire’s Stores, Inc., No. 00-14017-CIV-MOORE, 2002 U.S. Dist. LEXIS
28975 (May 7, 2002)................................................................................................................. 17
Allapattah Servs., Inc. v. Exxon Corp., No. 91-cv-986, 2006 U.S. Dist. LEXIS 88347 (S.D. Fla.
Apr. 7, 2006) ....................................................................................................................... 15, 21
Appleyard v. Wallace, 754 F.2d 955 (11th Cir. 1985) .................................................................. 19
Behrens v. Wometco Enters., Inc., 118 F.R.D. 543 (S.D. Fla. 1998).................................... 8,11,12
Bennett v. Behring Corp., 737 F.2d 982 (11th Cir. 1984) .................................................... 8, 9, 12
Busby v. JRHBW Realty, Inc., 513 F.3d 1314 (11th Cir. 2008) .............................................. 19, 20
Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)...................................................................... 9, 14
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)..................................................................... 22
Fabricant v. Sears Roebuck, 202 F.R.D. 310 (S.D. Fla. 2001) .................................................... 21
Figueroa v. Sharper Image Co., 517 F. Supp. 2d 1292 (S.D. Fla. 2007) ............................... 11, 12
In re Checking Account Overdraft Litig., 275 F.R.D. 654 (S.D. Fla. 2011) ................................. 12
In re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) ................................. 11
In re Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524 (M.D. Fla. 1996) ...................... 19
In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297 (N.D. Ga. 1993) ....................... 10, 16
In re Mex. Money Transfer Litig., 164 F. Supp. 2d 1002 (N.D. Ill. 2000) ..................................... 9
In re U.S. Oil & Gas Litig., 967 F.2d 489 (11th Cir. 1992) ................................................ 9, 12, 18
In re Wells Fargo Loan Processor Overtime Pay Litig., No. C-07-1841, 2011 U.S. Dist. LEXIS
84541 (N.D. Cal. Aug. 2, 2011) ................................................................................................ 23
Lipuma v. Amer. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005) ............................ 12, 13, 15
iv
Moore v. GNC Holdings, Inc., No. 0:12-cv-61703-WPD (S.D. Fla. Oct. 17, 2013) .................... 21
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)............................................. 22
Nelson v. Wakulla Cnty., 985 So. 2d 564, 570 (Fla. 1st DCA 2008).............................................. 9
Perez v. Asurion Corp., 501 F. Supp. 2d 1360 (S.D. Fla. 2007) .................................................. 17
Poertner v. Gillette Co., 618 F. App’x 624 (11th Cir. 2015)........................................................ 12
Ressler v. Jacobson, 822 F. Supp. 1551 (M.D. Fla. 1992) ............................................... 10, 15, 17
Rodriguez v. West Publishing Corp., 563 F.2d 948 (9th Cir. 2009) ............................................. 23
Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228 (11th Cir. 2000)............................................... 20
Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) ...................................................... 18
Warren v. City of Tampa, 693 F. Supp. 1051 (M.D. Fla. 1988) ................................................... 16
Wilson v. Everbank, No. 14-CV-22264-BLOOM/VALLE, 2016 U.S. Dist. LEXIS 15751 (Feb. 3,
2016) ......................................................................................................................................... 12
Young v. Katz, 447 F.2d 431 (5th Cir. 1971) .................................................................................. 8
Statutes
Fla. R. Civ. P. 1.220 ...................................................................................................................... 17
Fed. R. Civ. P. 1.220(a) ........................................................................................................... 17,18
Fla. R. Civ. P. 1.220(a)(1)............................................................................................................. 18
Fla. R. Civ. P. 1.220(a)(2)............................................................................................................. 18
Fla. R. Civ. P. 1.220(a)(3)............................................................................................................. 19
Fla. R. Civ. P. 1.220(a)(4)............................................................................................................. 19
Fla. R. Civ. P. 1.220(b)(3) ...................................................................................................... 20, 21
Fla. R. Civ. P. 1.220 ](c)(2)(B) ..................................................................................................... 22
v
Other Authorities
Manual for Complex Litig. ........................................................................................................... 22
vi
PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION
SETTLEMENT AND REQUEST FOR ENTRY OF FINAL JUDGMENT
PLEASE TAKE NOTICE THAT Plaintiff hereby respectfully moves the Court,
pursuant to Rule 1.220 of the Florida Rules of Civil Procedure, for the entry of an Order: (i)
granting final approval of the Settlement Agreement filed as Exhibit B to the Unopposed Motion
for Preliminary Approval of Class Action Settlement and For Leave to File Amended Complaint
for Settlement Purposes; (ii) confirming certification of the Settlement Class, and (iii) entering an
Order and Final Judgment in this action. The fairness hearing on this motion is presently set for
August 29, 2016 at 1:30 p.m. in the Courtroom of Honorable Richard L. Oftedal, Circuit Court
Judge, at the 15th Judicial Circuit in and for Palm Beach, County, Florida, 205 N. Dixie
Highway, West Palm Beach, Florida 33401.
This Motion is based on the Memorandum of Law, the Declarations of Class Counsel
Joshua Eggnatz and Richard W. Meirowitz (“Eggnatz Decl.”) (Exhibit A) and corresponding
exhibits, the other papers filed in this action, and such oral and documentary evidence as may be
presented at the fairness hearing on this Motion.
1
MEMORANDUM OF LAW
INTRODUCTION
Plaintiff, on behalf of the Class as defined herein, respectfully applies to this Court for
entry of an order (1) granting final approval of the settlement set forth in the Class Settlement
Agreement (the “Stipulation of Settlement”), (2) confirming certification of the Class for
purposes of such settlement, and (3) entering an Order and Final Judgment in this action (“Final
Judgment”).
The Settlement resolves the claims brought by Plaintiff Gregory Holliday (“Plaintiff”),
individually and on behalf of the Class, against Vitacost.com, Inc. (“Defendant” and/or
“Vitacost”). Through the diligent efforts of Plaintiff and Defendant (collectively, the “Parties”),
the Parties were able to reach the Settlement presently before this Court. Plaintiff’s main
objective in filing this lawsuit was to remedy the alleged deception in Defendant’s marketing and
labeling of the following products: “Vitacost Chelated Magnesium,” “Vitacost Multi-Mineral &
Magnesium,” and “Vitacost Magnesium & Calcium” (the “Products”). Plaintiff alleged that
Defendant misrepresented that the Products’ magnesium content is comprised of 100%
“Magnesium Glycinate,” when in fact, the Products were comprised of “magnesium glycinate”
and “magnesium oxide.”
This Settlement resolves Plaintiff’s claims outlined in the Amended Complaint. As a
result of the Settlement, Defendant will make substantive changes to the labeling and advertising
of the Products, and provide cash monetary relief to consumers for past purchases.
The Settlement was reached after extensive pre-suit investigation and negotiations,
litigation, a full day of mediation with an experienced mediator, and subsequent lengthy and hard
fought post-mediation negotiations, also facilitated by the mediator. The parties engaged in
formal discovery as well as informal and voluntary exchanges of information, including written
2
discovery and document production. On January 13, 2016, the Parties participated in a full-day
mediation session with Rodney A. Max, Esq., but were unable to reach an agreement at that time.
However, through additional, on-going and arm’s length settlement negotiations, the Parties
reached a full settlement of the action. Now, Plaintiff submits his Unopposed Motion for Final
Approval of Class Action Settlement and Request for Entry of Final Judgment to bring closure to
this matter.
STATEMENT OF FACTS
I.
Procedural and Factual Background.
Plaintiff provided a full summary of the allegations in Plaintiff’s Unopposed Motion for
Preliminary Approval of Class Action Settlement and Request for Entry of Final Judgement, and
Incorporated Memorandum of Law. The facts provided therein are incorporated here, and the
following merely provides a brief background for the Court’s convenience.
This case was originally filed in the United States District Court, Southern District of
Florida on October 22, 2014. On June 9, 2015, the Federal Court action was dismissed without
prejudice for failure to meet the $5,000,000.00 Class Action Fairness Act jurisdictional
threshold. As a result, on September 8, 2015, Plaintiff re-filed the instant State Court action.
Plaintiff alleged that Magnesium Oxide is not listed in the supplement facts panel on the label, in
contravention of the law, and therefore such practice is false, deceptive, misleading and sold
pursuant to unfair business practices.
Plaintiff’s Amended Complaint seeks to end Defendant’s alleged deceptive labeling and
marketing of its blended magnesium Products to purchasers nationwide.
The Parties have engaged in formal discovery as well as informal and voluntary
exchanges of information, including written discovery and document production. Prior to
undergoing additional, extensive and costly discovery and protracted litigation, the Parties
3
agreed to attend a mediation in an attempt to reach a resolution of the Action. The Parties
extensive settlement negotiations, including through consultation with the mediator, has resulted
in this settlement. At all times, the Parties’ negotiations were adversarial, non-collusive, and at
arms’ length. Ultimately, the Parties reached a settlement in principle, as evidenced by the
Stipulation of Settlement.
II.
The Settlement.
a.
The Settlement Class.
The Settlement Class includes:
All Persons who, for personal or household use, purchased
Vitacost Chelated Magnesium, Vitacost Multi-Mineral &
Magnesium, and Vitacost Magnesium & Calcium from October
22, 2010 through and including the June 6, 2016. Excluded from
the Settlement Class are: (a) all Persons who purchased or acquired
the Products for resale; (b) Vitacost and its employees, principals,
affiliated entities, legal representatives, successors and assigns, and
its parents and/or subsidiaries; (c) any Person who files a valid,
timely Request for Exclusion; (d) federal, state, and local
governments (including all agencies and subdivisions thereof, but
excluding employees thereof) and (e) the judges to whom this
Action is assigned and any members of their immediate families.
b.
Vitacost Must Change its Labeling and Marketing of the Products.
The injunctive relief component of the Settlement requires Defendant to make
prospective revisions to its advertising and marketing statements related to the Products that
entirely addresses and resolves the allegations in the Amended Complaint. Specifically, within
sixty (60) calendar days after entry of the Final Judgment and Order Approving Settlement,
Vitacost will ensure that its blended magnesium Products disclose the presence of Magnesium
Oxide, and must cease only listing “Magnesium Glycinate” on the labels of the Products and in
connection with all other advertising of the Products. Further, Vitacost shall first obtain
certification from its suppliers to verify the presence of all ingredients in the Products, and it
4
shall ensure that the presence of all listed ingredients are disclosed on the Products’ labels and
other advertising. (Eggnatz Decl. ¶ 29.)
c.
Vitacost Must Contribute a Substantial Sum of Money to Compensate
Those Persons Harmed by its Allegedly Deceptive Labeling,
Advertising, and Marketing Practices.
The monetary relief component of the Settlement is substantial and reasonable under the
circumstances. Pursuant to the Stipulation of Settlement, Defendant will provide compensation
to Class Members who submit valid claims forms. Specifically, Defendant will provide claimants
who purchased Products online a cash refund in the amount of 30% of the purchase price for
each of the Products they purchased. Additionally, Defendant will provide claimants who
purchased Products in-store “over the counter” without proof of purchase a cash refund in the
amount of 30% of the average retail sale price for up to 2 total purchases of the Products. Last,
claimants who purchased in-store and provide proof of purchase may seek compensation of up to
30% of the purchase price for each of the Products they purchased. To satisfy these claims,
Defendant has agreed to provide a guaranteed commitment to pay all costs associated with the
Settlement is an amount up to up to Five Hundred Fifty-Seven Thousand Five-Hundred and
No/100 Dollars ($557,500.00) – including a guaranteed cash benefit payout available exclusively
to pay class member claims in an amount up to Three Hundred Sixty Thousand and No/100
Dollars ($360,000.00). (Eggnatz Decl. ¶¶ 30-31.)
d.
Defendant Agrees to Class Certification for Settlement Purposes
Only.
Plaintiff seeks final certification of the Settlement Class pursuant to Florida Rule of Civil
Procedure 1.220, and Defendant agrees to certification of the Settlement Class only for purposes
of achieving settlement. Defendant has reserved all of its objections to class certification for
litigation purposes and has reserved all rights to challenge certification of a class in this case in
5
the event final approval of the Settlement does not occur.
e.
Defendant Will Pay the Cost of the Notice and Class Administration
The settlement provides that Defendant will pay for the costs of Class Notice and claims
administration, including any third-party costs to secure performance of the settlement
obligations, up to a maximum of $35,000.00. (Eggnatz Decl. ¶ 32.)
f.
Defendant Will Pay Plaintiff’s Service Award and Court-Ordered
Attorneys’ Fees and Litigation Costs.
The Settlement agreement provides that Class Counsel may apply for an award of
attorneys’ fees and expenses in an amount not to exceed $160,000.00. The Settlement also
provides for a $2,500.00 class representative service award to Plaintiff Holliday. The costs
associated with Notice and Administration, the Fee Award and the Service Award shall be paid
separate and apart from the Settlement Award, and shall not take away from or otherwise reduce
the monetary relief available to the Settlement Class. (Eggnatz Decl. ¶ 33.)
III.
Notice to the Settlement Class
The Court approved Notice Plan was implemented in accordance with the Court’s Order
Granting Preliminary Approval of Class Action Settlement, and Leave to File Amended
Complaint. The Notice Plan was developed using targeted methods universally employed,
including: (1) Direct e-mail notice to all Class Members who purchased online; (2) creation of
the Settlement Website; (3) creation of a settlement toll-free number; and (4) in-store publication
notice.
On June 6, 2016 KCC implemented a direct e-mail notice campaign. Additionally, on
June 6, 2016, the Settlement Website went live (http://vitacostmagnesiumsettlement.com/) The
settlement website contains general information about the Settlement, Court documents,
including the Long-Form Notice, and important dates and deadlines pertinent to this Settlement.
6
The settlement website also has a “Contact Us” page whereby potential Settlement Class
Members can send an email to a dedicated email address to update their address or submit
additional questions regarding the Settlement. Settlement Class Members can also submit their
Settlement Claims online via the settlement website.
In addition, KCC implemented a toll-free hotline devoted to this case. The toll-free
hotline utilizes an interactive voice response (“IVR”) system to provide potential Settlement
Class Members with responses to frequently asked questions and important information
regarding the Settlement. Potential Settlement Class Members also have the option to request
Settlement Claim Form and/or Long-Form Notice through the toll-free hotline. The claims data
reflects the success of the Notice Plan: as of July, 2016, 1,957 claims have been submitted.1
ARGUMENT
I.
The Court Should Grant Final Approval of the Settlement.
To conclude the settlement, the Florida Rules of Civil Procedure require that there be
notice to the Settlement Class, a fairness hearing, and this Court’s final approval. Settlement
“has special importance in class actions with their notable uncertainty, difficulties of proof, and
length. Settlements of complex cases contribute greatly to the efficient utilization of scarce
judicial resources, and achieve the speedy resolution of justice[.] Turner v. Gen. Elec. Co., No.
2:05-CV-186-FTM-99DNF, 2006 WL 2620275, at *2 (M.D. Fla. Sept. 13, 2006). Analysis of
Rule 1.220 should be informed by this policy “as well as the realization that compromise is the
essence of settlement.” In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir.
1982); see Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 538 (S.D. Fla. 1988) (“When
exercising its discretion, a court should always review the proposed settlement in light of the
1.
Since the claims period is not completed, this data is preliminary and incomplete.
Plaintiff will provide the Court with updated claims data together with their reply papers.
7
strong judicial policy that favors settlements.”) (citations omitted).2
Here, the Settlement is fair, adequate, and reasonable as it accomplishes the exact relief
sought in this action, in requiring Defendant to change its labeling and marketing practices and
securing just compensation for the Settlement Class Members. (Eggnatz Decl. ¶ 28.) The
Settlement accomplishes this while avoiding both the uncertainty and the delay that would be
associated with further litigation. It represents a fair compromise of the Parties’ respective
positions in the litigation and enables each Party to end the litigation, thus avoiding its costs and
risks. Importantly, the Settlement provides Settlement Class Members with monetary relief they
may not otherwise be entitled to if this case were litigated to its conclusion. Finally, the
Settlement was reached through arm’s-length negotiations as part of a supervised mediation
process. Class Counsel, whom have significant experience in litigating class actions, support the
Settlement as fair and providing reasonable relief to the Settlement Class Members.
II.
The Applicable Legal Standard.
The approval of a proposed class action settlement is a matter within the Court’s broad
discretion and will not be overturned unless it “clearly abused its discretion in approving the
settlement.” Young v. Katz, 447 F.2d 431, 432 (5th Cir. 1971). In making this determination the
Court should evaluate the settlement’s fairness in its entirety. Bennett v. Behring Corp., 737 F.2d
982, 986 (11th Cir. 1984). Settlements of class actions prior to trial are strongly favored. Nelson
v. Mead Johnson & Johnson Co., 484 Fed. Appx. 429, 434 (11th Cir. 2012) (“[o]ur judgment is
informed by the strong judicial policy favoring settlements as well as by the realization that
2.
Given the similarity between Florida Rule 1.220 and Federal Rule 23, Florida Courts
look to federal case law for guidance in class actions. See Barnhill v. Fla. Microsoft Anti-Trust
Litig., 905 So. 2d 195, 198 (Fla. 3d DCA 2005) (“Florida courts often look to federal cases for
guidance as persuasive authority on issues regarding class actions.”); Myers v. State, 866 So. 2d
103, 104 (Fla. 1st DCA 2004) (“We have thus found it useful to consider federal case law
wherein courts have construed Federal Rule of Civil Procedure 23(e).”)
8
compromise is the essence of settlement”); In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th
Cir. 1992) (“Public policy strongly favors the pretrial settlement of class action lawsuits”).
On final approval, after notice to the class and time and opportunity for absent class
members to object or otherwise be heard, the Court considers whether the settlement “is fair,
adequate, and reasonable and is not the product of collusion between the parties.” Bennett v.
Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (citation omitted); Nelson v. Wakulla Cnty.,
985 So. 2d 564, 570 (Fla. 1st DCA 2008).
The court is “not called upon to determine whether the settlement reached by the parties
is the best possible deal, nor whether class members will receive as much from a settlement as
they might have recovered from victory at trial.” In re Mex. Money Transfer Litig., 164 F. Supp.
2d 1002, 1014 (N.D. Ill. 2000) (citations omitted); Cotton, 559 F.2d at 1330-31 (“In performing
this balancing task, the trial court is entitled to rely upon the judgment of experienced counsel for
the parties. Indeed, the trial judge, absent fraud, collusion, or the like, should be hesitant to
substitute its own judgment for that of counsel.”) (citations omitted). Rather, courts evaluate the
following factors in determining whether to approve a class action settlement:
(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the
point over or below the range of possible recovery at which a settlement is fair,
adequate, and reasonable; (4) the complexity, expense and duration of the
litigation; (5) the substance and amount of opposition to the settlement; and (6)
the stage of the proceedings at which the settlement was achieved
Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (the “Bennett Factors); See also
Nelson, 985 So. 2d 564, 570 (Fla. 1st DCA 2008).
“In assessing these factors, the Court ‘should be hesitant to substitute . . . her own
judgment for that of counsel.”’ LiPuma v. American Express Co., 406 F. Supp. 2d 1298, 1315
(S.D. Fla. 2005) (quoting In re Smith, 926 F.2d 1027, 1028 (11th Cir. 1991)).
9
Here, analysis of these factors compels the conclusion that the Court should finally
approve the settlement.
a.
Plaintiff Would Have Faced Significant Obstacles at Trial
Any evaluation of the benefits of settlement must be tempered by the recognition that any
compromise involves concessions by all settling parties. Indeed, “the very essence of a
settlement is compromise, a yielding of absolutes and an abandoning of highest hopes.” Officers
for Civil Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9 th Cir. 1982) (internal citations
omitted). “[T]he likelihood and extent of any recovery from the defendants absent . . .
settlement” must be considered in assessing the reasonableness of a settlement.
See In re
Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 314 (N.D. Ga. 1993); see also Ressler,
822, F. Supp. At 1555 (“a court is to consider the likelihood of the plaintiffs’ success on the
merits of his claims against the amount and form of relief offered in the settlement before
judging the fairness of the compromise”).
Class Counsel and Plaintiff believe they have a compelling case but also recognize that
Defendant has raised significant defenses to Plaintiff’s claims, and additional obstacles remained
which Defendant could have, and would have, raised in later stages of the proceedings. (Eggnatz
Decl. ¶¶ 35-37.) Although Plaintiff and Class Counsel maintain that these defenses lack merit,
had litigation continued, Plaintiff and the putative Class Members would have faced the risk of
not prevailing on their claims. Id.; Kunzelmann v. Wells Fargo Bank, N.A., Case No. 9:11-cv81373 2013 WL 139913 (S.D. Fla. Jan. 10, 2013) (noting obstacles created by application of
multistate law, among others).
Indeed, Plaintiff’s claims have been fraught with risk since their inception, both as to
merits and class related issues. Should the case have proceeded to the certification and merits
10
stage, the parties and their respective experts would have battled over the Rule 23 requirements,
including the implicit ascertainability requirement, and merits related issues. The results of those
efforts, while unknown, would be fraught with risk. Had litigation continued, Plaintiff and Class
Members would have faced the risk of not prevailing on their claims.
The settlement saves Plaintiff and the Class from facing these substantial obstacles, and
eliminates the significant risk that they would recover nothing at all after several more years of
litigation. Despite these risks, the Settlement provides robust prospective injunctive relief and
cash monetary relief – relief that may not have otherwise been achieved had this action
proceeded to trial.
b.
The Benefits Provided Are Fair, Reasonable, and Adequate When
Considered Against the Range of Possible Recovery
As explained above, the settlement offers direct monetary and other relief to the class as
well as separately paid attorneys’ fees and costs. See Behrens, 118 F.R.D. at 542 (“the fact that a
proposed settlement amounts to only a fraction of the potential recovery does not mean the
settlement is unfair and inadequate . . . .”)
As in most litigation, “[t]he range of potential recovery ‘spans from a finding of nonliability through varying levels of injunctive relief,’ in addition to any monetary benefits to class
members.” Figueroa v. Sharper Image Co., 517 F. Supp. 2d 1292, 1326 (S.D. Fla. 2007)
(quoting Lipuma, 406 F. Supp. 2d at 1322). When considering the question of a possible
recovery, the focus is on the possible recovery at trial. In re Corrugated Container Antitrust
Litig., 643 F.2d at 212. However, “[a] settlement can be satisfying even if it amounts to a
hundredth or even a thousandth of single percent of the potential recovery.” Behrens, 118 F.R.D.
at 542; see also Bennett, 737 F.2d at 986 (where range of possible recovery is zero to
$12,000,000, a settlement fund of $675,000.00 (or 5.6%) is a fair and adequate sum in view of
11
the risks of further litigation and the fact that damages are not the primary goal of this lawsuit);
“[T]he Court’s role is not to engage in a claim-by-claim, dollar-by-dollar evaluation, but rather,
to evaluate the proposed settlement in its totality.” Figueroa, 517 F. Supp. 2d at 1326.
“Moreover, the existence of strong defenses to the claims presented makes the possibility of a
low recovery quite reasonable.” Lipuma, 406 F. Supp. 2d at 1323 (citing Bennett, 737 F.2d at
986)).
Furthermore, courts consider the value of both injunctive and monetary relief in
evaluating whether a settlement provides sufficient relief to the class. Wilson, 2016 U.S. Dist.
LEXIS 15751, at *35-36 (citing Poertner v. Gillette Co., 618 F. App’x 624, 630 (11th Cir.
2015)).
For example, in LiPuma, the court found that a settlement that recovered 8.1% of the
possible damages was fair, adequate, and reasonable. When valuing the total recovery obtained,
the court included the cash fund, the proposed value of the injunctive relief, and the costs of
notice and administration. LiPuma, 406 F. Supp. 2d at 1322. The court focused on “the possible
recovery at trial” and evaluated the settlement in its “totality” and not on a “claim-by-claim” or
“dollar-by-dollar” basis. Id. Further, the presence of “strong defenses to the claims” makes lower
recoveries more reasonable, id; see also Checking Account Overdraft Litig., 2011 WL 5873389,
at *10 (“[S]tanding alone, nine percent or higher constitutes a fair settlement even absent the
risks associated with prosecuting these claims.”), and “when settlement assures immediate
payment of substantial amounts to class members, even if it means sacrificing speculative
payment of a hypothetically larger amount years down the road, settlement is reasonable[.]”
Johnson v. Brennan, No. 10-cv-4712, 2011 WL 4357376, at *12 (S.D.N.Y. Sept. 16, 2011)
(citation and internal quotations omitted).
12
Moreover, under FDUTPA, generally the measure of damages the difference in the
market value of the product in the condition in which it was delivered and its market value in the
condition in which it should have been delivered according to the contract of the parties,
otherwise known as a “price premium.” See Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d
DCA 2006); see also Smith v. WM. Wrigley Jr. Company, 663 F. Supp. 2d 1336, 1339 (S.D. Fla.
2009).
Here, Class Members are entitled to a 30% reimbursement of their purchase price for all
purchases of the Products. Based on Class Counsel’s investigation and information obtained in
discovery, a 30% refund represents nearly the entire “premium” charged to consumers for the
Products. (Eggnatz Decl. ¶ 31.) Therefore, the monetary relief obtained for the Class is at the top
range of possible recovery if this action had proceeded to trial, if not more. Moreover, the
injunctive relief obtained cures the precise alleged deceptive labeling at issue. (Eggnatz Decl. ¶¶
28-29.)
The proposed Settlement is fair, reasonable, and adequate within the range of
possibilities, because it squarely addresses and resolves the issues raised by Plaintiffs in this
litigation by providing monetary compensation to Settlement Class Members and injunctive
relief. Id. Additionally, Defendant will be required to implement concrete labeling and
advertising changes regarding the Products, as well as pay for the costs of notice and
administration. These are meaningful benefits to the Settlement Class. See Lipuma, 406 F. Supp.
2d at 1323 (approving settlement providing monetary payments and injunctive relief).
Moreover, by reaching this Settlement the Parties have established a means for prompt
resolution of the claims against Defendant, while avoiding protracted and expensive litigation
that could lead to little or no recovery at all. (Eggnatz Decl. ¶ 36-37.) Given the clarification of
13
the labels through the agreed-upon injunctive relief, as well as monetary relief, the Settlement
provides substantial benefits to the Class while avoiding the risk and expense of further
litigation. Thus, these factors weigh in favor of final approval.
c.
The Issues Presented Were Highly Complex, and Settlement Approval
Will Save the Class Years of Extremely Costly Litigation in this Court
and on Appeal.
This case involves complex legal claims and defenses brought on behalf of thousands of
Class Members and includes claims for complex common law and statutory unfair trade
practices. Litigating these claims would have undoubtedly proven difficult and consumed
significant time, money, and judicial resources. Even if Plaintiff were ultimately to have
prevailed in this litigation (which Defendant contests), that success would likely have borne fruit
for the class only after years of trial and appellate proceedings and the expenditure of hundreds
of thousands of dollars by both sides. (Eggnatz Decl. ¶ 36.)
The complexity, expense, and future duration of the litigation all weigh in favor of final
approval. This class action, as with most class actions, this litigation is complex. Cotton, 559
F.2d at 1331 (“class action suits have a well-deserved reputation as being most complex”). That
a settlement would eliminate the delay and expenses strongly weighs in favor of approval. See
Milstein v. Huck, 600 F. Supp. 254, 267 (E.D.N.Y. 1984). This is particularly true in this case,
given the interplay of the consumer protection laws of multiple jurisdictions and the potentially
preemptive effect of federal law. Determining whether Defendant engaged in unfair and
deceptive acts and practice, and whether the Labeling on the Products was false and misleading
would require additional expert expenses and extensive briefing by both Parties before the issues
could be presented to a factfinder. These benefits come without the expense, uncertainty, and
delay of continued and indefinite litigation. In light of the costs, uncertainties, and delays of
14
litigating through trial—to say nothing of appeal—“the benefits to the class of the present
settlement become all the more apparent.” See Ressler v. Jacobson, 822 F. Supp. 1551, 1555
(M.D. Fla. 1992).
At a minimum, absent the Settlement, litigation would likely continue for years before
Plaintiffs or the Settlement Class might see any recovery. By contrast, this settlement eliminates
the delay in obtaining recovery and the expenses of continued litigation. Given the complexity,
expense, and duration of this litigation, the fourth factor weighs strongly in favor of final
approval.
d.
The Opinions of Class Counsel, the Class Representative, and Absent
Class Members Strongly Favor Settlement Substance and Amount of
Opposition to the Settlement
Class Counsel and the class representative supports the Settlement. The overwhelmingly
positive response from absent Class members further confirms the Settlement is fair. To date, no
Settlement Class Members have objected or opted-out.3 The fact that there have been no
objections demonstrates that Class Members find the Settlement reasonable and fair, which
strongly favors approval. See Lipuma, 406 F. Supp. 2d at 1324 (“a low percentage of objections
points to the reasonableness of a proposed settlement and supports its approval.”); Allapattah
Servs., Inc. v. Exxon Corp., No. 91-cv-986, 2006 U.S. Dist. LEXIS 88347, at *44 (S.D. Fla. Apr.
7, 2006) (“I infer from [the] absence of a significant number of objections that the majority of the
Class found [the settlement agreement] reasonable and fair.”).
Also, Class Counsel and the class representative advocate for final approval. Class
Counsel’s opinion is based on significant experience with consumer class action litigation. Class
3.
The deadline for objections and requests for exclusions is July 29, 2016. If timely
objections or requests for exclusions are received, Plaintiffs will file supplemental briefing on or
before the Court’s August 22, 2016, deadline for submitting supplemental briefs to address any
objections filed by Settlement Class Members.
15
Counsel’s reputation, diligence, ability, expertise, and skill is reflected in the significant results
achieved on behalf of their clients. (Eggnatz Decl. ¶ 38.) As a testament to the efficiency, skill,
and expertise of Class Counsel’s efforts, this Actions was resolved with substantial and
meaningful results provided to the Settlement Class. Furthermore, this Court found that Class
Counsel “are competent and capable of exercising their responsibilities as Class Counsel.” See,
Order Granting Preliminary Approval of Class Action Settlement, and Leave to File Am. Compl.
(“Approval Order”) (May 5, 2016).
Furthermore, the opinions of Class Counsel strongly favor approval of the Settlement.
Courts give “great weight to the recommendations of counsel for the parties, given their
considerable experience in this type of litigation.” Warren v. City of Tampa, 693 F. Supp. 1051,
1060 (M.D. Fla. 1988); In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 312-13
(N.D. Ga. 1993) (“In determining whether to approve a proposed settlement, the Court is entitled
to rely upon the judgment of the parties’ experienced counsel. The trial judge, absent fraud,
collusion, or the like, should be hesitant to substitute its own judgment for that of counsel.”
(internal quotations omitted)). Here Class Counsel deem the Settlement to be fair and equitable
to the Settlement Class. (Eggnatz Decl. ¶ 4) Given that there has been no opposition to the
Settlement and Class Counsel and the class representative support the settlement, this factor
weighs in favor of final approval.
e.
The Stage of the Proceedings at which Settlement was Made
The stage of proceedings at which the settlement was achieved also supports final
approval. The purpose of this factor is “to ensure that the plaintiffs have access to sufficient
information to adequately evaluate the merits of the case and weigh the benefits of the settlement
against further litigation.” Perez, 501 F. Supp. 2d at 1383; Access Now, Inc. v. Claire’s Stores,
16
Inc., No. 00-14017-CIV-MOORE, 2002 U.S. Dist. LEXIS 28975 (May 7, 2002). At the same
time, “[t]he law is clear that early settlements are to be encouraged, and accordingly, only some
reasonable amount of discovery should be required to make these determinations.” See Ressler
v. Jacobson, 822 F. Supp. 1551, 1555 (M.D. Fla. 1992).
Here, the Settlement was reached only after Class Counsel had extensively investigated
the factual allegations giving rise to the Complaint; analyzed confidential information and
documents Defendant provided regarding its practices, including its advertising, labels, contents,
and sales of the Products; and engaged in extensive negotiations with Defendant over a
substantial period of time. (Eggnatz Decl. ¶¶ 10-17.) Class Counsel ensured they had sufficient
information necessary to meaningfully evaluate the strengths and weaknesses of the Settlement
Class’s claims to weigh the benefits of the Settlement. Id. The combination of the access to
important data and the mediation process provided Class Counsel with ample information to
evaluate the merits of Plaintiff’s claims and the range of a fair, adequate, and reasonable
settlement under the circumstances of this case. Therefore, the state of proceedings at which the
Settlement was reached weighs in favor of final approval.
III.
The Court Should Confirm Certification of the Settlement Class.
For settlement purposes only, Plaintiffs request that the Court confirm the certification of
the Settlement Class pursuant to Rule 1.220 of the Florida Rules of Civil Procedure.
a.
The Criteria for Class Certification under Rule 1.220(a) are Satisfied.
To justify class certification under Rule 1.220(a), Plaintiffs must show: (1) the class is so
numerous that joinder is impracticable; (2) questions of law or fact are common to the class; (3)
the claims of the representative plaintiffs are typical of the claims of the class; and (4) the class
representatives will fairly and adequately protect the interests of the class. FLA. R. CIV. P.
17
1.220(a). Each of these criteria is satisfied here. Furthermore, courts recognize the strong public
policy favoring the pretrial settlement of class action lawsuits. See In re U.S. Oil & Gas Litig.,
967 F.2d 489, 493 (11th Cir. 1992).
i.
Joinder of All Members is Impracticable.
Rule 1.220(a)(1) requires Plaintiff show that “the class is so numerous that joinder of all
members is impractical.” The Product is popular nationally with approximately 35,000 unique
purchasers; thus, the numerosity requirement is met.
ii.
Common Issues of Law and Fact Exist.
The commonality requirement is met if there is at least one question of law or fact
common to the members of the Class.
FLA. R. CIV. P. 1.220(a)(2). The commonality
requirement is a “relatively light burden” that “does not that all questions of law and fact raised
by the dispute be common.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009)
(citations omitted). The commonality requirement is satisfied if the common or general interest
of the class members is in the object of the action, the result sought, or the general question
implicated in the action. See Imperial Towers Condo., Inc. v. Brown, 338 So. 2d 1081, 1084 (Fla.
4th DCA 1976) (citing Port Royal, Inc. v. Conboy, 154 So. 2d 734, 737 (Fla. 2d DCA 1963)).
Here, the case involves the labeling of Defendant’s Products. The uniform “Magnesium
Glycinate” labeling is similar such that Defendant’s conduct should be considered standardized.
Further, because the Plaintiff and the Class Members as a whole allegedly were deceived as a
result of the similar language in substantially the same manner, i.e., by purchasing the Product, it
is clear that the commonality requirement has been met.
18
iii.
The Class Representative’s Claims Are Typical of the
Settlement Class Claims.
The Rule 1.220(a)(3) typicality requirement ensures that the class representative has the
same interests as the class. That is, “typicality measures whether a sufficient nexus exists
between the claims of the named representatives and those of the class at large.” Busby v.
JRHBW Realty, Inc., 513 F.3d 1314 (11th Cir. 2008). The typicality requirement, like
commonality, is not demanding. See In re Disposable Contact Lens Antitrust Litig., 170 F.R.D.
524, 532 (M.D. Fla. 1996). Similarly, typicality does not require that all putative class members
share identical claims. Rather, all that is required is that the claims of the named plaintiff have
the same essential characteristics as the class at large. “[A] strong similarity of legal theories
will satisfy the typicality requirement despite substantial factual differences.” Appleyard v.
Wallace, 754 F.2d 955, 958 (11th Cir. 1985).
Here, the Plaintiff and Class Members’ claims arise from the same course of conduct
(Defendant’s misleading Product labels), which allegedly led to Plaintiff’s and Class Members’
purchases of the Products, and the resultant economic injury they allege to have suffered.
iv.
The Class Representatives and their Counsel Have Adequately
Represented the Class.
Finally, Rule 1.220(a)(4) requires a showing that the representative party will fairly and
adequately protect the interests of the class. The requirement has two components: (1) the
proposed representative has interest in common with, and not antagonistic to, the interests of the
class; and (2) the plaintiff’s attorneys are qualified, experienced, and generally able to conduct
the litigation. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987).
Adequacy is plainly met in this case. The proposed Class Representative is not
antagonistic to the claims of the Class Members, and Plaintiff’s counsel are experienced in
19
complex class actions, similar to this one.
b.
The Settlement Class Meets the Requirements of Rule 1.220(b)(3).
In addition to the requirements set forth in Rule 1.220(a), Plaintiffs must also satisfy the
requirements set forth in Rule 1.220(b)(3). Specifically, Rule 1.220(b)(3) requires that common
questions of law or fact predominate over individual questions and that class action treatment is
superior to other available methods of adjudication. FLA. R. CIV. P. 1.220(b)(3).
i.
Common Questions of Law and Fact Predominate Over
Individualized Issues.
Rule 1.220(b)(3) requires that questions of law or fact common to the class must
predominate over questions affecting individual members. Common questions of law or fact
predominate over individual questions when the issues in the class action are subject to
generalized proof that applies to the case as a whole. Rutstein v. Avis Rent-A-Car Sys., 211 F.3d
1228, 1233 (11th Cir. 2000). “[I]t is not necessary that all questions of fact or law be common,
but only that some questions are common that they predominate over individual questions.”
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1354 (11th Cir. 2008).
Here, common questions of law and fact predominate over individual inquiries with
respect to liability and damages. The Class representatives and the Class members were all
subjected to identical representations on the Product labeling that the Products were 100%
“Magnesium Glycinate.” Therefore, the central issue for every Class member is whether
Defendant’s claims that the Products were 100% “Magnesium Glycinate” was likely to deceive a
reasonable consumer. With regard to damages, “numerous courts have recognized that the
presence of individualized damages issues does not prevent a finding that the common issues in
the case predominate.” Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir.
2003), aff’d sub nom. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).
20
Individualized damages issues do not predominate in this settlement class, in which the primary
issues of liability is whether a reasonable consumer would have been deceived by a
misrepresentation on Defendant’s Products. See Moore v. GNC Holdings, Inc., No. 0:12-cv61703-WPD (S.D. Fla. Oct. 17, 2013. Therefore, the predominance requirement is satisfied.
ii.
A Class Action is the Superior Method to Settle this
Controversy.
A class action is also the superior method of adjudicating this dispute. In determining
whether a class action is superior, courts consider (A) the class members’ interests individually
controlling the prosecution or defense of separate actions, (B) the extent and nature of any
litigation concerning the controversy already commenced by or against class members, (C) the
desirability or undesirability of concentrating the litigation of the claims in a particular forum,
and (D) the likely difficulties in managing a class action. FLA. R. CIV. P. 1.220(b)(3). “[T]he
improbability that large numbers of class members would possess the initiative to litigate
individually” further compels a finding of superiority. Fabricant v. Sears Roebuck, 202 F.R.D.
310, 318 (S.D. Fla. 2001).
Here, a class action is the superior method of adjudicating this controversy. There are
thousands of class members whose claims all raise the same issues of law and fact. No one Class
Member has any particular unique reason to individually control the prosecution of his or her
case. The threat of inconsistent adjudication will be permanently avoided if the Class is certified.
Yet if the Class is not certified and individual consumers are left to pursue their own remedies,
the alleged conduct will go unaddressed or, alternatively, multiple suits will be brought in
various jurisdictions with a concomitant threat of inconsistent adjudications. Class Counsel was
able to ascertain and organize the necessary information regarding Class members such that they
were able to evaluate this case and reach a compromise with Defendant. Therefore, the Class
21
should be certified under Rule 1.220.
IV.
The Class Notice Satisfies the Requirements of Rule 1.220(e) and Due
Process.
“Rule 1.220(e)(1)(B) requires the court to ‘direct notice in a reasonable manner to all
class member who would be bound by a proposed settlement, voluntary dismissal, or
compromise’ regardless of whether the class was certified under Rule 1.220(b)(1), (b)(2), or
(b)(3).” Manual for Complex Litig. § 21.312. The Settlement Agreement provides for notice that
satisfies 1.220(e) and due process considerations.
a.
The Method of Notice is Appropriate.
“For any class certified under Rule 1.220(b)(3), the court must direct to class members
the best notice practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.” FLA. R. CIV. P. 1.220(c)(2)(B). This requires
that the means employed to distribute notice must be reasonable calculated to apprise the class of
the pendency of the action, of the proposed settlement, and of the Class Members’ rights to opt
out or object. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)..
The Settlement Administrator provided notice to the Class via four methods: (1) Direct
email notice to all online purchasers; (2) in-store publication notice.; (3) establishing a toll-free
Settlement helpline; and (4) creating a Settlement website.
This Court approved the notice and found that “the notice to be given constitutes the best
notice practicable under the circumstances, and constitutes valid, due, and sufficient notice to the
Settlement Class in full compliance with the requirements of applicable law, including the Due
Process Clause of the United States Constitution. (See Preliminary Approval Order ¶ 7.)
Therefore, the method used to provide notice to the Settlement Class Members was
22
reasonable and practicable under the circumstances and should be approved.
b.
The Contents of the Notice Are Adequate.
The contents of the notice were also adequate. The Class Notice provided Class Members
with sufficient information to make an informed and intelligent decision whether to participate in
the Settlement. Specifically, the notices defined the Settlement Class, explained all Settlement
Class Member rights, releases, and applicable deadlines, and described in detail the injunctive
and monetary terms of the settlement, including the procedures for allocating and distributing
Settlement Funds. They plainly indicated the time and place of the hearing to consider approval
of the Settlement, the ability to appear through individual counsel, and the method for objecting
to or opting out of the Settlement. Finally, the notices detailed the provisions for payment of
attorneys’ fees and incentive awards to the class representatives, as well as provided contact
information for Class Counsel.
Furthermore, the content of the notice in this case comports with settlement notices
upheld in other cases. See, e.g., In re Wells Fargo Loan Processor Overtime Pay Litig., No. C07-1841, 2011 U.S. Dist. LEXIS 84541, at *13 (N.D. Cal. Aug. 2, 2011); see also Rodriguez v.
West Publishing Corp., 563 F.2d 948, 962-63 (9th Cir. 2009).
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request the Court grant final approval of
the Settlement, confirm certification of the Settlement Class, and enter an Order and Final
Judgment in this action, which is attached hereto as Exhibit “B.”
Dated: July 11, 2016
By:
/s/ Joshua H. Eggnatz
Joshua H. Eggnatz, Esq.
Fla. Bar. No.: 0067926
Michael J. Pascucci, Esq.
23
Fla. Bar No.: 0083397
EGGNATZ, LOPATIN & PASCUCCI, LLP
5400 S. University Drive, Ste. 413
Davie, FL 33328
Tel:
(954) 889-3359
Fax:
(954) 889-5913
jeggnatz@ ELPLawyers.com
mpascucci@ ELPLawyers.com
Richard W. Meirowitz
Admitted Pro Hac Vice
Meirowitz@aol.com
THE LAW OFFICES OF
RICHARD W. MEIROWITZ
10 Muncy Ave
Suite 606
West Babylon, NY 11704.
917-612-3409
Fax: 631-661-1761
Attorneys for Plaintiff
and the Certified Class
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 11, 2016 I served this document on all counsel of
record on the attached Service List in the manner specified, via e-mail:
/s/ Joshua H. Eggnatz
Joshua H. Eggnatz, Esq.
Fredrick H.L. McClure
Florida Bar No. 147354
fredrick.mcclure@dlapiper.com
sheila.hall@dlapiper.com
DLA PIPER LLP (US)
100 North Tampa Street
Suite 2200
Tampa, FL 33602-5809
Phone: (813) 229-2111
Fax: (813) 229-1447
Attorney for Defendant, Vitacost.com, Inc.
24
EXHIBIT A
JOINT DECLARATION IN SUPPORT OF
FINAL APPROVAL
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
Civil Case No.: 2015 CA 010160 (AA)
GREGORY HOLLIDAY, individually and on ::
behalf of all others similarly situated,
::
::
Plaintiff,
::
vs.
::
::
VITACOST.COM, INC.,
::
::
Defendant.
::
::
JOINT DECLARATION IN SUPPORT OF FINAL APPROVAL
We, Joshua H. Eggnatz and Richard W. Meirowitz, pursuant to 28 U.S.C. § 1746, declare
under penalty of perjury, that the following is true and correct to the best of my knowledge and
belief:
1.
Joshua H. Eggnatz is a partner with Eggnatz, Lopatin & Pascucci, LLP, and a
member in good standing of the bar of the State of Florida. Richard W. Meirowitz is a single
practitioner and a member in good standing of the bar of the State of New York. We respectfully
submit this declaration in support of Plaintiff’s Unopposed Motion for Final Approval of Class
Action Settlement and Request for Entry of Final Judgment. Except as otherwise noted, we have
personal knowledge of the facts set forth in this declaration, and could testify competently to
them if called upon to do so.
I.
INTRODUCTION
2.
We are two of the lead attorneys representing Plaintiff and the certified Class in
this matter. Eggnatz, Lopatin & Pascucci, LLP (“ELP”) and The Law Office of Richard W.
Meirowtiz (“Meirowitz”) (collectively, “Class Counsel”) has been responsible for the
prosecution of this Action and for overseeing the Settlement process. The Court has appointed
ELP and Meirowitz as Class Counsel for the Settlement Class. Class Counsel has considerable
experience in class action litigation, and has vigorously represented the interests of the
Settlement Class Members through the course of the litigation and settlement process.
3.
ELP, along with Meirowtiz, has continued to co-lead the settlement negotiations
and litigation on behalf of Plaintiff throughout this matter.
4.
As described below, ELP and Meirowitz performed extensive work identifying
and investigating potential claims, negotiating the settlement, drafting and filing the Complaint
and Amended Complaint, as well as overseeing the administration of the Settlement. Class
Counsel’s hard work resulted in an excellent Settlement for the Class that is fair, reasonable, and
adequate.
II.
THE FILING
MEDIATION
OF
COMPLAINTS,
DISCOVERY,
NEGOTIATION
AND
A. Pre-Litigation Investigation
5.
This Action arises out of Defendant’s manufacturing, advertising, selling, and
distributing of the following products throughout the United States: “Vitacost Chelated
Magnesium,” “Vitacost Multi-Mineral & Magnesium,” and “Vitacost Magnesium & Calcium”
(the “Products”). Plaintiff alleged that Defendant misrepresented that the Products’ magnesium
content is comprised of 100% “Magnesium Glycinate,” when in fact, the Products were
comprised of “magnesium glycinate” and “magnesium oxide.”
6.
Before filing this action, Class Counsel conducted a thorough investigation of the
claims, ingredients, manufacturing process, and the regulatory framework surrounding dietary
supplements.
Specifically, Class Counsel examined the chemical structure and production
process of the different ingredients found in the Products—as available in publicly-available
sources.
7.
In addition, Class Counsel thoroughly analyzed the legal landscape to determine
if, and in what manner, to approach remedying the misleading labeling. In particular, Class
Counsel examined the multiple state consumer protection laws, the legal precedents developed
through voluminous dietary supplement and magnesium product litigation, as well as various
other intricacies associated with consumer class action litigation. All of this was done to assess
the merits of the potential claims to determine the strength of both the defenses and liabilities in
this Action.
8.
Plaintiff provided Defendant with pre-suit notice of his intent to file a class action
on August 5, 2014.
9.
Moreover, prior to litigation, Class Counsel undertook an initial legal and factual
investigation that included interviewing Plaintiff, reviewing the Products’ labels and ingredients
at issue, conducting independent investigation in to the source ingredients contained in the
Products, consulting with industry experts, and conducting legal and factual research into
Plaintiff’s claims on behalf of a putative class of similarly situated consumers. Because
Defendant was initially unwilling to provide class-wide relief to the putative class, Plaintiff filed
his original Complaint on October 22, 2014.
B. Litigation, Discovery and Settlement Negotiations
10.
On October 22, 2014, Plaintiff filed his initial Complaint in the United States
District Court for the Southern District of Florida.
11.
After conducting preliminary discovery in the Federal Court action, as well as full
briefing on Defendant’s Motion to Dismiss, on June 9, 2015, the Federal Court action was
dismissed without prejudice for failure to meet the $5,000,000.00 Class Action Fairness Act
jurisdictional threshold.
12.
As a result, on September 8, 2015, Plaintiff re-filed the instant State Court action
in Palm Beach County, Florida, alleging that the Defendant misrepresents that the Products’
Magnesium contents are comprised of 100% “Magnesium Glycinate,” when in fact, the Products
are comprised of “Magnesium Glycinate” and “Magnesium Oxide.”
13.
Plaintiff has asserted four (4) causes of action: (1) violation of Florida’s
Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201, et seq.; (2)
Breach of Express Warranty; (3) Unjust Enrichment; and (4) Negligent Misrepresentation, based
on Defendant’s labeling, marketing, advertising, sale and distribution of their Blended
Magnesium Products to purchasers nationwide.
14.
The Parties have engaged in formal discovery as well as informal and voluntary
exchanges of information, including written discovery and document production. Prior to
undergoing additional, extensive and costly discovery and protracted litigation, the Parties
agreed to attend a mediation in an attempt to reach a resolution of the Action. Before
conducting any mediation, the Parties were aware of the claims and possible defenses. All Parties
agreed that mediation represented the most practical means of achieving a resolution of the
dispute.
15.
Prior to the mediation, however, Plaintiff insisted that Defendant respond to
targeted discovery requests and provide confidential and sensitive financial information to
Plaintiff necessary for Plaintiff to engage in meaningful settlement discussions. Class
Counsel obtained a full understanding of the claims and defenses involved in the Action. It was
with this solid groundwork that Class Counsel negotiated at arm’s length, had productive and
difficult negotiations, and ultimately were able to reach a settlement that provides significant
relief for the Class.
16.
On January 13, 2016, the Parties participated in an intensive full-day mediation
session with the highly capable assistance of Rodney A. Max, Esq., but were unable to reach an
agreement at that time. Although a full agreement was unable to be reached at mediation, the
Parties continued to engage in extensive settlement negotiations, including through consultation
with the mediator. At all times, the Parties’ negotiations were adversarial, non-collusive, and at
arms’ length. Ultimately, the Parties reached a settlement in principle, which was memorialized
in the Stipulation of Settlement dated April 13, 2016.
17.
As a result of the Parties’ efforts, a settlement was finally reached that provides
meaningful monetary and injunctive relief to a nationwide class of consumers of Defendant’s
Products.
18.
Class Counsel have adequately represented the interests of Plaintiff and the
Settlement Class Members in this litigation. Class Counsel have conducted legal and factual
investigation into Plaintiff’s claims and the claims of a putative class of similarly situated
consumers, prepared discovery and analyzed Defendant’s internal documents and financial
records, worked with consulting experts in connection with Plaintiff’s claims, attended mediation
and engaged in months of arm’s-length negotiations, and worked with Defendant and a
professional claims administrator to reach an unopposed motion for preliminary approval of the
class action Settlement, as well as the notice and administration plan.
19.
The documents Defendant produced in discovery revealed that Defendant sold
approximately 89,000 units of the Products nationwide throughout the Class Period, to
approximately 35,000 unique purchasers.
20.
Through the discovery process, Class Counsel continued to examine and re-
examine the legal landscape to determine the most appropriate resolution of the dispute. In
doing so, Class Counsel thoroughly balanced the risks associated with continued litigation
against the benefits of a possible class-wide settlement.
21.
It was only subsequent to the negotiation of the Class relief that the Parties
negotiated the Attorneys’ Fees and Expenses.
22.
Several drafts of the Stipulation of Settlement were exchanged and modified.
Accordingly, the settlement is the product of arm’s-length and hard-fought negotiations.
23.
These efforts resulted in substantial improvements to the marketing, advertising,
and labeling of the Products, as well as a cash settlement available to all Class Members who
submit claims.
24.
On April 20, 2016, Plaintiff submitted his Unopposed Motion for Preliminary
Approval of Class Action Settlement and for Leave to File Amended Complaint for Settlement
Purposes, and Incorporated Memorandum of Law.
25.
On May 5, 2016, the Court entered an Order Granting Preliminary Approval of
the Class Action Settlement, and Leave to File Amended Complaint, preliminary certifying the
Class for settlement purposes, naming Plaintiffs as Class Representatives, and naming ELP and
Meirowitz as Class Counsel.
26.
Since the preliminary approval of the Settlement, Class Counsel have worked
diligently to ensure the full and proper administration of the Settlement.
27.
Class Counsel seek now final approval of the Settlement on behalf of their client
and the certified Class.
III.
SETTLEMENT NEGOTIATIONS
A. Settlement Agreement and Recognition of the Difficulties Associated with
Litigation
28.
Plaintiff’s objective in this Action was to end Defendant’s alleged false labeling
and advertising practices regarding the Products and to obtain financial relief for the similarly
situated class of consumers who purchased the Products. The Settlement is an excellent result as
it provides the comprehensive injunctive and monetary relief sought by Plaintiff in the Amended
Complaint.
29.
Specifically, the injunctive relief component requires Vitacost to provide
prospective relief relating to the Products, including revising its advertising and marketing
statements. Within sixty (60) calendar days after entry of the Final Judgment and Order
Approving Settlement, Vitacost shall ensure that its blended magnesium Products disclose the
presence of Magnesium Oxide, and must cease only listing “Magnesium Glycinate” on the labels
of the Products and in connection with all other advertising of the Products. Further, Defendant
shall first obtain certification from its suppliers to verify the presence of all ingredients in the
Products, and it shall ensure that the presence of all listed ingredients are disclosed on the
Products’ labels and other advertising.
30.
Furthermore, the Settlement includes Defendant’s commitment to pay all costs
associated with the Settlement is an amount up to up to Five Hundred Fifty-Seven Thousand
Five-Hundred and No/100 Dollars ($557,500.00) – including a guaranteed cash benefit to class
members who submit claims, costs of notice and administration, and payment of attorneys’ fees,
expenses, and a service award. Of this amount, Defendant has agreed to provide a guaranteed
cash benefit payout available exclusively to pay class member claims in an amount of up to
Three Hundred Sixty Thousand and No/100 Dollars ($360,000.00).
31.
Defendant will provide claimants who purchased Products online a cash refund in
the amount of 30% of the purchase price (less taxes and shipping costs) for each of the Products
they purchased. Additionally, Defendant will provide claimants who purchased Products in-store
“over the counter” without proof of purchase a cash refund in the amount of 30% of the average
retail sale price for up to 2 total purchases of the Products. Last, claimants who purchased instore and provide proof of purchase may seek compensation of up to 30% of the purchase price
(less taxes and shipping costs) for each of the Products they purchased. Based on Class
Counsel’s investigation and information obtained in discovery, a 30% refund represents nearly
the entire “premium” charged to consumers for the Products.
32.
The settlement provides that Defendant shall pay for the costs of Class Notice and
claims administration up to $35,000.00.
33.
Defendant also agrees not to oppose Class Counsels’ application for reasonable
attorneys’ fees, expenses and costs in an amount not to exceed $160,000.00, and also provides
for a $2,500.00 class representative service award to Plaintiff.
34.
The costs associated with Notice and Administration, the Fee Award and the
Service Award will be paid separate and apart from the Settlement Award to Class Members, and
shall not take away from or otherwise reduce the monetary relief available to the Settlement
Class.
35.
Plaintiff remains convinced his case has merit, but recognizes that substantial risk
is involved in continued litigation. Based on extensive investigation and discovery, Plaintiff
believes he could obtain class certification, defeat all dispositive motions filed by Defendant, and
proceed to trial on the merits.
36.
However, all complex class actions are uncertain in terms of ultimate outcome,
difficulties of proof, and duration, and this Actions are no different.
possibility Plaintiff may not prevail if this Action continues.
There is always the
Plaintiff and Class Counsel
recognize the expense and length of continued proceedings necessary to prosecute the claims
through trial and appeal. They have taken into account the uncertain outcome and risk of
litigation, as well as difficulties and undue delay inherent in such litigation. Continued protracted
litigation will be costly, and certainly further litigation would be complex and time consuming.
Such litigation could include further dispositive motions, contested class certification
proceedings and appeals; costly nationwide discovery, including dozens of depositions,
interrogatories, requests for admissions, and voluminous document production; costly merits and
class certification expert reports and discovery; and trial. Each step towards trial would likely be
subject to Defendant’s vigorous opposition and appeal. One of the hotly contested issues in this
Action would be the materiality and deceptiveness of Defendant’s labeling, and the resultant
impact on market value in in the consumer marketplace. Such issues would likely be the subject
of competing expert testimony subject to Daubert motions.
Further litigation presents no
guarantee for recovery, let alone a recovery greater than that provided by the Settlement. The
Parties would likely spend significant time and resources on damage calculations. Furthermore,
both Parties would spend significant additional resources in expert discovery producing
competing damage analyses. In the end, it is likely that Settlement Class Members would only
be entitled to some percentage of the purchase price of the Products. The costs and risks
associated with continuing to litigate this Action would require additional extensive resources
and Court time. Class Counsel believe the Settlement confers substantial benefits upon the
Settlement Class Members, and have determined the Settlement is fair, reasonable, and adequate
and in the best interests of the Settlement Class.
37.
Defendant has denied, and continues to deny, any liability and maintains that its
current labeling is truthful and not misleading. Defendant also maintains that its labeling is in
compliance with Food and Drug Administration (“FDA”) labeling requirements, and as result,
Plaintiff’s claims may be pre-empted or within the primary jurisdiction of the FDA. Absent
settlement, Defendant will also vigorously oppose class certification on the grounds of
ascertainability, individual reliance, predominance, as well as overall merits. Defendant will
argue, among other things, that individualized issues related to damages predominate because the
Settlement Class Members purchased the Products for varying reasons, had varying
interpretations of the statements on the Products’ labeling, and purchased the Products at various
prices over time. Defendant has denied, and continues to deny, any and all fault, wrongdoing,
and liability for Plaintiffs’ claims.
IV.
CLASS COUNSEL’S BACKGROUND
38.
Class Counsel are recognized law firms specializing in complex consumer class
actions. They have significant experience representing consumers in class action cases alleging
that products were falsely advertised. A true and correct copy of ELP and Meirowitz’s firm
resumes are being submitted with Plaintiff’s Unopposed Motion for Attorneys’ Fees, Litigation
Expenses, and Service Award.
V.
CONCLUSION
39.
For the reasons set forth in this Declaration as well as Plaintiffs’ Unopposed
Motion for Award of Attorneys’ Fees, Litigation Expenses, and Incentive Awards, and
Incorporated Memorandum of Law in Support of, Class Counsel respectfully requests that the
Court grant final approval of the Settlement, confirm certification of the Settlement Class, and
enter an Order and Final Judgment in the Actions.
I declare under the penalty of perjury under the laws of the United States of America that
the foregoing is true and correct.
Executed on this __11th_ day of July, 2016, in Davie, Florida.
By: /s/ Joshua H. Eggnatz
Joshua H. Eggnatz, Esq.
Fla. Bar. No.: 0067926
EGGNATZ, LOPATIN & PASCUCCI, LLP
5400 S. University Drive, Ste. 417
Davie, FL 33328
Tel:
(954) 889-3359
Fax:
(954) 889-5913
JEggnatz@ ELPLawyers.com
Executed on this _11th_ day of July, 2016, in New York, New York.
By: /s/ Richard W. Meirowitz
Richard W. Meirowitz, Esq.
New York Bar. No.: 1023621
10 Muncy Avenue, Suite 606
West Babylon, New York 11704
Tel:
(917) 612-3409
Fax:
(631) 661-1761
Meirowitz@aol.com
Court Appointed Class Counsel
EXHIBIT B
PROPOSED FINAL JUDGMENT AND ORDER
APPROVING SETTLEMENT
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
Civil Case No.: 2015 CA 010160 (AA)
GREGORY HOLLIDAY, individually and on ::
behalf of all others similarly situated,
::
::
Plaintiff,
::
vs.
::
::
VITACOST.COM, INC.,
::
::
Defendant.
::
::
FINAL JUDGMENT AND ORDER APPROVING SETTLEMENT
On May 5, 2016, the Court granted preliminary approval to the Stipulation of Class Action
Settlement (the “Agreement”). The Court also provisionally certified a nationwide Settlement
Class for settlement purposes, approved the procedure for giving notice and forms of notice, and
set a final approval hearing to take place on August 29, 2016.
On August 29, 2016 the Court held a duly noticed Final Approval Hearing to consider: (1)
whether the terms and conditions of the Agreement are fair, reasonable, and adequate; (2) whether
a judgment should be entered dismissing the Action with prejudice; and (3) whether and in what
amount to award Class Counsel as attorneys’ fees and expenses and whether and in what amount
to award a service award payment to the Class Representative.
Based upon the submissions of the Parties and all matters submitted to the Court at the
hearing and otherwise,
IT IS ORDERED, ADJUDGED, AND DECREED:
1.
The Agreement, including the definitions contained therein, is incorporated by
reference into, and is a part of, this Final Judgment and Order Approving Settlement. All
1
capitalized terms used herein shall have the same meanings as set forth in the Agreement unless
set forth differently herein.
2.
The Court has personal jurisdiction over the Parties and the Settlement Class
Members, and it has subject matter jurisdiction to approve the Agreement, including all exhibits
thereto, and enter this Final Judgment and Order Approving Settlement. Without in any way
affecting the finality of this Final Judgment and Order Approving Settlement, this Court hereby
retains jurisdiction as to all matters relating to administration, consummation, enforcement, and
interpretation of the Agreement and of this Final Judgment and Order Approving Settlement, and
for any other necessary purpose.
3.
The Court finds, for settlement purposes only and conditioned upon the entry of
this Final Judgment and Order Approving Settlement and upon the occurrence of the Effective
Date, that the requirements of Rule 1.220 of the Florida Rules of Civil Procedure are met by the
Settlement Class: (a) the number of Settlement Class Members is so numerous that joinder of all
members thereof is impracticable, if not impossible; (b) there are questions of law and fact
common to the Settlement Class; (c) Gregory Holliday’s (“Holliday”) claims are typical of the
claims of the Settlement Class he seeks to represent; (d) Holliday has fairly and adequately
represented, and will continue to fairly and adequately represent the interests of the Settlement
Class; (e) the questions of law and fact common to the Settlement Class Members predominate
over any questions affecting any individual Settlement Class Member; (f) Vitacost.com, Inc.
(“Vitacost”) has acted on grounds that apply generally to the Settlement Class, such that final
injunctive relief is appropriate respecting the Settlement Class as a whole; (g) a class settlement is
superior to other available methods for a fair resolution of the controversy.
2
4.
Pursuant to Florida Rule of Civil Procedure 1.220, this Court hereby finally
certifies, for settlement purposes only, a Settlement Class defined as:
All Persons who, for personal or household use, purchased Vitacost
Chelated Magnesium, Vitacost Multi-Mineral & Magnesium, and
Vitacost Magnesium & Calcium from October 22, 2010 through and
including the [Notice Date]. Excluded from the Settlement Class are:
(a) all Persons who purchased or acquired the Products for resale; (b)
Vitacost and its employees, principals, affiliated entities, legal
representatives, successors and assigns, and its parents and/or
subsidiaries; (c) any Person who files a valid, timely Request for
Exclusion; (d) federal, state, and local governments (including all
agencies and subdivisions thereof, but excluding employees thereof)
and (e) the judges to whom this Action is assigned and any members of
their immediate families.
5.
The Court reaffirms the appointment of Holliday as Class Representative, and finds
that he has adequately represented the Settlement Class for purposes of entering into and
implementing the Agreement. The Court reaffirms the appointment of Joshua H. Eggnatz, Esq.
and Michael J. Pascucci, Esq. of Eggnatz, Lopatin & Pascucci, LLP, and Richard W. Meirowitz
of The Office of Richard W. Meirowitz, as Class Counsel and finds that Class Counsel have
adequately represented the Settlement Class for purposes of entering into and implementing the
Agreement.
6.
The Court finds that notice was given to Settlement Class Members pursuant to the
Notice Plan and the Court’s Order Granting Preliminary Approval of Class Action Settlement (the
“Preliminary Approval Order”), and that said notice was appropriate under the circumstances, and
constitutes valid, due, and sufficient notice to the Settlement Class in full compliance with the
requirements of applicable law, including the Due Process Clause of the United States
Constitution. The Settlement Class Members received notice of (a) the pendency of the Action;
(b) the terms of the proposed Settlement, including the Release; (c) their rights under the proposed
Settlement; (d) their right to exclude themselves from the Settlement Class and the proposed
3
Settlement; (e) their right to object to any aspect of the proposed Settlement; (f) their right to
appear at the Final Approval Hearing; (g) Class Counsel’s request for attorneys’ fees and expenses
and an incentive award to the Class Representatives; and (h) the binding effect of this Final
Judgment and Order Approving Settlement on all Persons who did not timely exclude themselves
from the Settlement Class.
7.
The terms and provisions of the Agreement have been entered into in good faith
and are hereby fully and finally approved as fair, reasonable, and adequate as to, and in the best
interests of, each of the Parties and the Settlement Class Members. [There were no objections filed
in this Action] or [The Court has considered all objections to the Settlement and overrules them as
without merit]. Accordingly, the Court hereby directs that the Settlement shall be effected in
accordance with the terms of the Agreement (all of which terms and definitions are adopted and
incorporated herein by reference).
8.
The terms of the Agreement, and of this Final Judgment and Order Approving
Settlement, shall be forever binding on, and shall have res judicata and preclusive effect in, all
pending and future lawsuits maintained by Plaintiff and all other Settlement Class Members who
did not timely exclude themselves from the Settlement Class, as well as their heirs, executors, and
administrators, successors, and assigns.
9.
Vitacost is ordered to implement the terms and conditions of the Agreement,
including payment to all Settlement Class Members who have not excluded themselves from this
Settlement and who submit a timely, valid Claim pursuant to the Agreement, and making the
following changes with respect to the Products within sixty (60) days after entry of this Final
Judgment and Order Approving Settlement:
4
a.
Vitacost shall ensure that its blended magnesium Products disclose the
presence of Magnesium Oxide in its blended magnesium Products, and must cease only
listing “Magnesium Glycinate” on the labels of its blended magnesium Products and in
connection with all other advertising and of the Products. Further, Defendant shall first
obtain certification from its suppliers to verify the presence of all ingredients in the
Products, and it shall ensure that the presence of all listed ingredients are disclosed on the
Products’ labels and other advertising.
10.
Vitacost will provide a report to the Court at the end of the sixty (60) day period
following entry of this Final Judgment and Order Approving Settlement regarding its compliance
with the injunctive relief provisions contained in Paragraph 10 of this Final Judgment and Order
Approving Settlement.
11.
Vitacost shall satisfy all valid Claims made, with a cap on cash payments to the
Settlement Class of $360,000.00, which will satisfy all Approved Claims.
12.
Upon the occurrence of the Effective Date, Holliday and the Settlement Class
Members, and the Releasing Parties shall be deemed to have, and by operation of the Final
Judgment and Order Approving Settlement shall have, provided Vitacost and the Released Parties
with the Release set forth in Section XI of the Agreement. By this Final Judgment and Order
Approving Settlement and upon the occurrence of the Effective Date, Plaintiff, the Settlement
Class Members, and the Releasing Parties shall be deemed to have, and by operation of the Final
Judgment and Order Approving Settlement shall have, fully, finally, and forever released,
relinquished, and discharged all Released Claims, which include:
Any individual, class, representative, group or collective action,
claim, liability, right, demand, suit, matter, obligation, damage, loss,
action, or cause of action, of every kind and description that a
Releasing Party has or may have, including assigned claims,
5
whether known or Unknown, asserted or un-asserted, latent or
patent, that is, has been, could reasonably have been or in the future
might reasonably be asserted under any body of law by the
Releasing Party either in a court or any other judicial or other forum,
regardless of legal theory or relief claimed, and regardless of the
type of relief or amount of damages claimed, against any of the
Released Parties arising from, or in any way relating to Labeling,
sales, marketing, or advertising, regardless of medium, of any of the
Products, including but not limited to any claim that the Labeling is
false or misleading in any way. For purposes of this Agreement, the
term “Unknown Claim” means any all Released Claims that any
member of the Settlement Class, or anyone acting on behalf of or in
their interest, does not know or suspect to exist against any of the
Released Parties which, if known, might have affected his or her
decision regarding the settlement of the Action. Notwithstanding
the provisions of this paragraph or of any other paragraph in this
Agreement, this Agreement shall not be deemed to release any claim
that a Releasing Party has or may have for personal injury.
13.
The Court awards Class Counsel attorneys’ fees and expenses in the amount of
$160,000.00 to be paid by Vitacost within 10 calendar days of the Effective Date of the Stipulation
of Settlement.
14.
The Court finds and determines that a service award of $2,500.00 is due and
payable to Holliday for his services and efforts in the representation of the Settlement Class, to be
paid within 10 calendar days of the Effective Date of the Stipulation of Settlement.
15.
The Fee Award and the Service Award shall be paid separate and apart from the
Settlement Award, and shall not take away from or otherwise reduce the monetary relief available
to the Settlement Class.
16.
Neither this Final Judgment and Order Approving Settlement, nor the Agreement,
nor any act performed or document executed pursuant to or in furtherance of the 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 Vitacost or any other
Released Party; or is or may be deemed to be or may be used as an admission of, or evidence of,
6
any fault or omission of Vitacost or any other Released Part in any civil, criminal, or administrative
proceeding in any court, administrative agency, or other tribunal. However, any Released Party
may file the Agreement and/or the Final Judgment and Order Approving Settlement 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.
17.
This Action (and any and all claims asserted herein at any time) is dismissed in its
entirety, on the merits, with prejudice and without leave to amend, with each Party to bear
his/her/its own costs and attorneys’ fees (except as otherwise expressly provided herein), and all
Settlement Class Members who did not timely and properly execute and submit a Request for
Exclusion shall be forever barred and permanently enjoined from starting, continuing, or
participating in, litigating, or receiving any benefits or relief from any other lawsuit, arbitration, or
administrative or regulatory proceeding or order based on or relating to the claims, facts, or
circumstances in this Action and/or the Released Claims except claims relating to the enforcement
of the Settlement of the Action.
18.
In the event that the Effective Date does not occur, certification of the Settlement
Class shall be automatically vacated and this Final Judgment and Order Approving Settlement,
and all other orders entered and releases delivered in connection herewith, shall be vacated and
shall become null and void.
IT IS SO ORDERED.
Dated: ________________
THE HONORABLE RICHARD L. OFTEDAL
CIRCUIT COURT JUDGE
7