Serves em right.
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Mason v. Heel, Inc.
Case No. 12-cv-3056-GPC-KSCU.S. District Court for the Southern District of California
If you purchased a product manufactured or distributed by Heel labeled “homeopathic,”
you may be entitled to a cash refund from a proposed class action settlement.
Please read this website carefully, your legal rights may be affected.
The purpose of this website is to inform qualified purchasers of eligible Heel Homeopathic Products, such as Traumeel and Zeel, of a proposed class action settlement. To qualify as a Class Member, you must have purchased, for personal or household use, any of the listed products, manufactured or distributed by Heel in the United States, between December 21, 2008 and the Opt-Out Date, as designated by the Court in its Preliminary Approval Order.
Detailed information about the Settlement Agreement is available in the frequently asked questions and court documents section of this website. You can also find a copy of the Class Notice issued by the Court.YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT THE CLAIM FORM Submitting a claim form is the only way to get a cash refund. Claim forms must be submitted online or postmarked within ninety (90) calendar days of the date the court enters the final judgment approving the settlement (‘Claim-In Period’). The deadline is forecast to be no earlier than June 5, 2014.
EXCLUDE YOURSELF Exclude yourself by February 5, 2014 and get no refund from the Proposed Settlement. This is the only option that allows you to ever be part of any other lawsuit against Heel about the claims in this case.
OBJECT OR COMMENT Object to the settlement by February 5, 2014. You can write to the Court about why you do, or do not, like any aspect of the Proposed Settlement.
DO NOTHING You will get no cash refund and you give up your rights.
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 products manufactured or distributed by defendants Heel, Inc. was false or deceptive. Heel 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 and may be eligible to receive a settlement benefit if you purchased any homeopathic product manufactured or distributed by Heel labeled as “homeopathic” between December 21, 2008 and the Opt-Out Date, as designated by the Court in its Preliminary Approval Order (the “Products”). You should read the entire website carefully because your legal rights are affected whether you act or not.
What does the settlement provide?
A settlement fund of $1 million 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. Each Class Member may file a claim up to $150, although the exact amount received may be higher or lower than $150 depending on the number of valid claims filed. Heel is also agreeing to make certain changes to the manner in which it labels and advertises the Products. The complete Settlement Agreement is available in the court documents section of this website.
What happens now?
The Court will hold a hearing in this case on March 7, 2014 at 1:30 p.m. at the federal courthouse located at 221 West Broadway, Courtroom 2D, San Diego, CA 92101, to consider final approval of the settlement, payment of attorneys’ fees of up to thirty percent of the Settlement value and costs, incentive award of up to $3,500 for the Class Representative in the lawsuit, and related issues. The motion(s) by Class Counsel for attorneys’ fees and costs and incentive award for the Class Representative are available for viewing on this settlement website on or after January 23, 2014, after they are filed and before the Class Members must decide whether to opt out or object. You may appear at the hearing in person or through your attorney at your own cost, but you are not required to do so.
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Mason v. Heel, Inc.
Case No. 12-cv-3056-GPC-KSC
U.S. District Court for the Southern District of California
Eligible Products
The following products, purchased in the United States, for personal or household use, between December 21, 2008 and the Opt-Out Date, as designated by the Court in its Preliminary Approval Order:1901000 – TRAUMEEL OINTMENT 100 G
1904055 – TRAUMEEL OINTMENT 50G RETAIL
1304585 – TRAUMEEL TABLETS 100CT RETAIL
1904060 – TRAUMEEL GEL 50G RETAIL W/5TH
2201010 – SINUSIN NASAL SPRAY 20ML
2801000 – DETOX KIT OD 3 x 50 ML
1601350 – TRAUMEEL OD 50ML
1304770 – ZEEL TABLET 100CT RETAIL
1904095 – ZEEL OINTMENT 50G RETAIL W/5TH
1001010 – ALLERGY TABLET 100 CT
1001600 – SINUS TABLET 100 CT
1302340 – VERTIGOHEEL RX TABLET 100 CT
1001100 – CALMING TABLET 100 CT
1304395 – NEUREXAN TABLET 60CT RETAIL
2201400 – LUFFEEL NS 20 ML
1001545 – TRAUMEEL EAR DROPS MONODOSE 10
1901800 – TRAUMEEL GEL 250G
2100010 – TRAUMEEL COMBO PACK
1001680 – VIBURCOL MONODOSE 10CT
1701000 – NECTADYN COUGH SYRUP
1302330 – TRAUMEEL TABLET 100 CT
1304065 – CERECOMP TABLET 100CT RETAIL
1302090 – COCCULUS COMP. TABLET 100 CT
1001080 – BRONCHITIS TABLET 100 CT
1001020 – ARTHRITIS TABLET 100 CT
1001271 – FLU-PLUS TABLET 100 CT
1001030 – DISCONTINUED-ASTHMA TABLET 100
1001040 – BACK TABLET 100 CT
1601201 – LYMPHOMYOSOT 50 ML OD
1001320 – HEADACHE II TABLET 100 CT
1001257 – OCULOHEEL MONODOSE 10CT
1903025 – BHI HEMORRHOID RELIEF OINTMENT
1302130 – ENGYSTOL TABLET 100 CT
1001372 – INFLAMMATION TABLET 100CT
1001350 – HEMORRHOID TABLET 100 CT
41015400 – TRAUMEEL RX INJECTABLE 2.2 ML
1304120 – ENGYSTOL TABLET 60 CT RETAIL
1004001 – ADRISIN TABLET 60CT RETAIL
1901500 – TRAUMEEL OINTMENT 50 G
1302211 – NERVOHEEL TABLET 100CT
1001170 – COUGH TABLET 100 CT
1302186 – LYMPHOMYOSOT TABLET 100 CT
1001666 – DISCONTINUED-URI-CONTROL TABLE
1001500 – NAUSEA TABLET 100 CT
1001180 – DIARRHEA TABLET 100 CT
1601122 – GALIUM HEEL OD 50 ML
1601295 – SINUSIN ORAL DROPS
1001640 – STOMACH TABLET 100 CT
2202500 – VINCEEL THROAT SPRAY 20 ML
1001310 – HEADACHE TABLET 100 CT
1001150 – COLD TABLET 100 CT
1302170 – KLIMAKTHEEL TABLET 100 CT
1302280 – SPASCUPREEL TABLET 100 CT
1001630 – SPASM-PAIN TABLET 100 CT
1001160 – CONSTIPATION TABLET 100 CT
1001610 – SKIN TABLET 100 CT
1302216 – NEUREXAN TABLET 100 CT
1302360 – ZEEL TABLET 100 CT
1901555 – TRAUMEEL GEL 50 G
1001195 – ECZEMA TABLET 100 CT
1001240 – EXHAUSTION TABLET 100 CT
1001660 – THROAT TABLET 100 CT
1001665 – DISCONTINUED-URI-CLEANSE TABLE
1903000 – ARNICA OINTMENT 50GR
1001300 – HAIR AND SKIN TABLET 100 CT
1302205 – MUCOSA COMPOSITUM TABLET 100 C
1302095 – COENZYME COMPOSITUM TABLET 100
1302140 – GASTRICUMEEL TABLET 100 CT
1602230 – NUX VOMICA HA OD 50ML
1302025 – ARNICA PC TABLET 100 CT
1302230 – OSTEOHEEL TABLET 100 CT
1302150 – GRIPP-HEEL TABLET 100 CT
1601360 – VALERIANAHEEL OD 50ML
1001065 – BODY PURE TABLET 100 CT
1903020 – BHI VARICOSE RELIEF OINTMENT 5
1302338 – UBICHINON COMPOSITUM TABLET 10
1001410 – LIGHTHEADED TABLET 100 CT
1001360 – INFECTION TABLET 100 CT
5007901 – TRAUMEEL OV 2.2 ML 10 CT
2601100 – DISPLAY TRAUMEEL 50 G 12 PK
1001670 – VARICOSE TABLET 100 CT
1903010 – CALENDULA OINTMENT 50GR
1001510 – NEURALGIA TABLET 100 CT
1001285 – GASTRO-CLEANSE TABLET 100 CT
1001070 – BONE TABLET 100 CT
5002105 – CEREBRUM COMPOSITUM OV 2.2 ML
1302155 – HEPAR COMPOSITUM TABLET 100 CT
1601020 – ARNICA-HEEL OD 50ML
1001223 – ENZYME TABLET 100CT
1302217 – NEURO-HEEL TABLET 100 CT
1902000 – ZEEL OINTMENT 50G
5002701 – COENZYME COMP OV 2.2 ML 10 CT
1001491 – PMS MULIMEN 100CT TABS
5005401 – LYMPHOMYOSOT OV 1.1 ML 10 CT
1601150 – HORMEEL OD 50ML
1302160 – HEPEEL TABLET 100 CT
1302084 – CERECOMP TABLET 100CT
1001000 – ALERTNESS TABLET 100 CT
1302165 – HISTAMIN TABLET 100 CT
1602190 – IGNATIA HA OD 50ML
5008001 – UBICHINON COMP OV 2.2 ML 10 CT
2502000 – VIBURCOL SUPP. 12 CT
1602180 – HAMAMELIS HA OD 50ML
1001380 – INJURY TABLET 100 CT
1302277 – SOLIDAGO COMPOSITUM TABLET 10
1601000 – AESCULUS COMP OD 50ML
5004702 – HEPAR COMPOSITUM OV 2.2 ML 10
1302328 – THUJA FORTE TABLET 100 CT
1302326 – TONICO HEEL TABLET 100 CT
5006601 – PLACENTA COMP OV 2.2 ML 10 CT
1602040 – BERBERIS HA OD 50ML
1602150 – GELSEMIUM HA OD 50ML
1302107 – DISCUS COMPOSITUM RX TABLET 10
1001390 – INTESTINE TABLET 100 CT
1001110 – CHAMOMILLA COMPLEX TABLET 100
1302220 – OCULOHEEL TABLET 100 CT
1302255 – PLACENTA COMPOSITUM TABLET 100
1001120 – CHELIDONIUM TABLET 100 CT
1601080 – COCCULUS COMP OD 50ML
1601320 – SYZYGIUM COMP RX OD 50ML
1302327 – TONSILLA COMPOSITUM TABLET 100
1302323 – TESTIS COMPOSITUM TABLET 100 C
2601104 – DISPLAY ADRISIN BLISTER POCKET
5008502 – ZEEL OV 2.0 ML 10 CT
1602110 – COLOCYNTHIS HA OD 50ML
5007002 – SOLIDAGO COMP OV 2.2 ML 10 CT
1001260 – FEMININE TABLET 100 CT
1302345 – VISCUM COMPOSITUM FORTE TABLET
1601380 – VOMITUSHEEL OD 50ML
1302125 – ECHINACEA COMPOSITUM FORTE RX
1602170 – GRAPHITES HA OD 50ML
2601101 – TRAUMEEL GEL 50 G 12 PK
1602030 – BELLADONNA HA OD 50ML
1001560 – RENDIMAX TABLET 100 CT
1302320 – SULPHUR HEEL TABLET 100 CT
1001210 – ECHINACEA PC TABLET 100 CT
1001060 – BLEEDING TABLET 100 CT
1302260 – RENEEL RX TABLET 100 CT
1601100 – CRALONIN RX OD 50ML
1302235 – OVARIUM COMPOSITUM TABLET 100
2601108 – DISPLAY TRAUMEEL OINTMENT 100
5005901 – MUCOSA COMP OV 2.2 ML 10 CT
1302102 – CUTIS COMPOSITUM TABLET 100 CT
1601340 – TARTEPHEDREEL OD 50ML
1602140 – FERRUM HA OD 50ML
1601070 – CAUSTICUM COMP OD 50ML
5003701 – ENGYSTOL OV 1.1 ML 10 CT
5004101 – GALIUM HEEL OV 1.1 ML 10 CT
1001250 – DISCONTINUED-EYE TABLET 100 CT
1602269 – SABAL HOMACCORD OD 50ML
1302215 – NEURALGO RHEUM TABLET 100 CT
1302322 – TARTEPHEDREEL TABLET 100 CT
1302190 – MERCURIUS HEEL TABLET 100 CT
1901810 – LYMPHOMYOSOT GEL 250 G
1601330 – TANACET-HEEL OD 50ML
1601221 – NASO-HEEL OD 50ML
1302257 – PULSATILLA COMPOSITUM TABLET 1
1602061 – CHELIDONIUM HA OD 50ML
1302350 – YPSILOHEEL TABLET 100 CT
1302325 – THYREOIDEA COMPOSITUM RX TABLE
1601290 – SCHWEF-HEEL OD 50ML
1602290 – VERATRUM HA OD 50ML
41013851 – ZEEL RX INJ 2.0 ML 10 CT AMP
5006401 – OVARIUM COMP OV 2.2 ML 10 CT
1602020 – APIS HA OD 50ML
1602280 – SELENIUM HA OD 50ML
1602120 – DROSERA HA OD 50ML
1302060 – BRONCHALIS-HEEL TABLET 100 CT
1601370 – VERTIGOHEEL RX OD 50ML
1601260 – PSORINOHEEL RX OD 50ML
1302145 – GLYOXAL COMPOSITUM TABLET 100
1302120 – DUODENOHEEL TABLET 100 CT
1301000 – DIARRHEEL TABLET 100 CT
1001530 – DISCONTINUED-PERSPIRATION TABL
1601130 – GINSENG COMP OD 50ML
5008201 – VISCUM COMP FORTE OV 2.2 ML 10
1601141 – GYNACOHEEL 50ML OD
5003205 – DISCUS COMP OV RX 2.2 ML 10 CT
1302180 – LITHIUMEEL TABLET 100 CT
1601160 – HUSTEEL OD 50ML
1602260 – RANUNCULUS HA OD 50ML
1602240 – PHOSPHOR HA OD 50ML
1302300 – SPIGELON TABLET 100 CT
1601190 – LEPTANDRA COMP OD 50ML
41012701 – SPASCUPREEL RX INJ 1.1ML 10CT
1601010 – AESCULUS-HEEL OD 50ML
1602080 – CIMICIFUGA HA OD 50ML
1601030 – AURUMHEEL RX OD 50ML
1302040 – BARIJODEEL TABLET 100 CT
1001667 – BHI URI CONTROL RX TABLET 100C
1001031 – BHI ASTHMA RX TABLET 100CT
5004301 – GLYOXAL COMP OV 2.2 ML 10 CT
5003605 – ECHINACEA COMPOSITUM FORTE RX
5006201 – NEURO HEEL OV 1.1 ML 10 CT
5003102 – CUTIS COMPOSITUM OV 2.2 ML 10
1601180 – LAMIOFLUR OD 50ML
41012852 – LYMPHOMYOSOT RX INJ. 1.1 ML 10
5006801 – PULSATILLA COMP OV 2.2 ML 10
1602201 – MELILOTUS HA RX OD 50ML
1601051 – CANTHARIS COMPOSITUM OD 50ML
1602070 – CHINA HA OD 50ML
1302259 – RAUWOLFIA COMPOSITUM RX TABLET
1302200 – MOLYBDAN COMPOSITUM TABLET 100
1601270 – RHODODENDRONEEL OD 50ML
1001290 – DISCONTINUED-GINKGO COMPLEX TA
5007301 – TESTIS COMP OV 2.2 ML 10 CT
1602210 – MEZEREUM HA OD 50ML
1601300 – SPIGELON OD 50ML
1302270 – RHEUMA-HEEL TABLET 100 CT
5006301 – NUX VOMICA HA OV 1.1 ML 10 CT
5003510 – ECHINACEA COMPOSITUM RX OV 2.2
1302000 – ABROPERNOL TABLET 100 CT
1601170 – KALMIA COMP OD 50ML
1001585 – DISCONTINUED-SAW PALMETTO COMP
5007701 – TONICO HEEL OV 1.1 ML 10 CT
1001130 – DISCONTINUED-CHEST TABLET 100
5007802 – DISCONTINUED-TONSILLA COMP P O
1001664 – BHI URI CLEANSE RX TABLET 100C
1302110 – DROPERTEEL TABLET 100 CT
1602000 – ACONITUM HA OD 50ML
5007801 – TONSILLA COMPOSITUM OV 2.2 ML
5007101 – SPASCUPREEL OV 1.1 ML 10 CT
1302080 – CALCOHEEL TABLET 100 CT
1302311 – STRUMEEL RX TABLET 100 CT
1601230 – PODOPHYLLUM COMP OD 50ML
5005501 – MELILOTUS HA RX OV 1.1 ML 10 C
1302321 – THALAMUS COMP RX TABLET 100CT
41012070 – MUCOSA COMPOSITUM RX INJ 2.2 M
5004501 – GRIPP HEEL OV 1.1 ML 10 CT
1302070 – BRYACONEEL TABLET 100 CT
1001450 – DISCONTINUED-MASCULINE TABLET
5006851 – RAUWOLFIA COMP RX OV 2.2 ML 10
1601311 – STRUMEEL FORTE RX OD 50ML
5008301 – VISCUM COMP MEDIUM OV 2.2 ML 1
1601209 – MOMORDICA COMPOSITUM RX OD 50
1001470 – DISCONTINUED-MENSTRUAL TABLET
1302275 – DISCONTINUED-RHUS TOX PC TABLE
1302089 – CIRCULO HEEL TABLET 100 CT
1302240 – PAEONIA-HEEL TABLET 100 CT
5002203 – CHELIDONIUM-HOMACCORD OV 1.1ML
5004801 – HEPEEL OV 1.1 ML 10 CT
5006901 – SELENIUM HA OV 1.1 ML 10 CT
1302050 – BELLADONNA COMP. TABLET 100 CT
1001555 – DISCONTINUED-RECUPERATION TABL
5008050 – VERATRUM HA OV 1.1 ML 10 CT
1601280 – SECALE COMP OD 50ML
5001700 – CANTHARIS COMPOSITUM OV 2.2 ML
5005101 – IGNATIA HA OV 1.1 ML 10 CT
5002902 – COR COMP RX OV 2.2 ML 10 CT
1302010 – ALETRIS-HEEL TABLET 100 CT
1302020 – APIS COMPOSITUM TABLET 100 CT
5001401 – BELLADONNA HA OV 1.1 ML 10 CT
5005802 – MOMORDICA RX OV 2.2 ML 10 CT
5003902 – EUPHORBIUM COMP OV 2.2 ML 10 C
1302030 – ARSURANEEL TABLET 100 CT
1302100 – CRUROHEEL TABLET 100 CT
1602010 – ANACARDIUM HA OD 50ML
1302037 – ATROPINUM COMPOSITUM RX TABLET
5004601 – HAMAMELIS HA OV 1.1 ML 10 CT
5007601 – THYREOIDEA COMPOSITUM RX OV 2.
5001201 – APIS HA OV 1.1 ML 10 CT
1601040 – CACTUS COMP RX OD 50ML
5007391 – THALAMUS COMP RX OV 2.2 ML 10C
1602220 – NATRIUM HA OD 50ML
1601090 – COLNADUL OD 50ML
5004901 – HISTAMIN OV 1.1 ML 10 CT
5006754 – PSORINOHEEL RX OV 1.1 ML 10CT
5006101 – DISCONTINUED-NEURALGO RHEUM O
5004401 – GRAPHITES HA OV 1.1 ML 10 CT
5001602 – CACTUS COMP RX OV 2.2 ML 10 CT
5001501 – BERBERIS HA OV 1.1 ML 10 CT
1602160 – GLONOIN HA RX OD 50ML
1902010 – ZEEL OINTMENT RX ONLY
5001901 – CAUSTICUM COMP OV 2.2 ML 10 CT
5006890 – SABAL HOMACCORD RX OV 1.1ML 10
5002501 – DISCONTINUED-CIRCULO INJEEL OV
1302135 – ERIGOTHEEL TABLET 100 CT
41011997 – DISCUS COMPOSITUM RX INJ 2.2 M
41012110 – PLACENTA COMPOSITUM RX INJ 2.2
5002301 – CHINA HA OV 1.1 ML 10 CT
41012003 – ENGYSTOL RX INJ 1.1 ML 10 CT A
5005002 – HORMEEL RX OV 1.1 ML 10 CT
5007201 – SPIGELON OV 1.1 ML 10 CT
41012050 – HEPAR COMPOSITUM RX INJ 2.2 ML
41012020 – GALIUM-HEEL RX INJ 1.1 ML 10CT
41012080 – NEURALGO RHEUM RX INJ 1.1 ML 1
41011993 – COENZYME COMPOSITUM RX INJ 2.2
41011990 – CERECOMP RX INJ 2.2 ML 10 CT A
5002502 – CIRCULOHEEL OV 1.1 ML 10CT
41012210 – UBICHINON COMPOSITUM RX INJ 2.
5004001 – FERRUM HA OV 1.1 ML 10 CT
5003001 – CRALONIN RX OV 1.1 ML 10 CT
5002440 – CIMICIFUGA HA OV 1.1 ML 10 CT
5002801 – COLOCYNTHIS HA OV 1.1 ML 10 CT
1001547 – DISCONTINUED-TRAUMEEL EAR DROP
5003301 – DROSERA HA OV 1.1 ML 10 CT
5004201 – GELSEMIUM HA OV 1.1 ML 10 CT
3101130 – DISCONTINUED-BOOK PRINCIPLES O
5009000 – DISCONTINUED-ALLERGY OV 2.2 ML
3101145 – BOOK PRACTITIONERS HANDBOOK OF
41012030 – GLYOXAL COMPOSITUM RX INJ 2.2
41011995 – CUTIS COMPOSITUM RX INJ 2.2 ML
1602130 – DULCAMARA HA OD 50ML
5006102 – NEURALGO RHEUM RX OV 1.1 ML 10
5008101 – VERTIGOHEEL RX OV 1.1 ML 10 CT
3101095 – DISCONTINUED-BOOK MATERIA MEDI
1001654 – TRAUMED ORAL DROPS
5007501 – DISCONTINUED-THUJA FORTE OV 1.
3101120 – DISCONTINUED-BOOK MEDICINA ANT
3101042 – DISCONTINUED-BOOK FUNDAMENTALS
6004020 – PIPETTE ORAL VIAL
3107509 – DISCONTINUED-JOURNAL BT SPANIS
3160015 – ORDER FORM-HFS
3106365 – LITERATURE CONSUMER/PATIENT TR
5705013 – SAMPLE SACHET TRAUMEEL OINT HF
5006701 – PODOPHYLLUM COMP OV 2.2 ML 10
3108231 – DISCONTINUED-TRAUMEEL FLOOR DI
3110050 – CATALOG RETAILER HEEL PRODUCTS
3110005 – DISCONTINUED-BROCHURE CPG RETA
5701026 – NEUREXAN SAMPLE TABLET 15CT
3140104 – BUSINESS CARD DANIELA
3106018 – LITERATURE CARD CONSUMER/PATIE
3140117 – BUSINESS CARDS-CHANEL DESJARDI
5701005 – TRAUMEEL BLISTER SAMPLE TAB 15
3106042 – LITERATURE TRAUMEEL COMBO PACK
3160012 – ORDER FORM RETAIL PHARMACY
5701004 – ADRISIN BLISTER SAMPLE TAB 15
5701025 – CERECOMP TABLET 15 CT SAMPLE
3106019 – SELL SHEET ADRISIN RETAIL
3108501 – TRAUMEEL COMBO PACK BUTTONS RE
5701060 – SPASCUPREEL SAMPLE TABLET 15 C
5701030 – MUCOSA COMP SAMPLE TABLET 15 C
5702350 – SINUS SAMPLE TABLET 15 CT
5701021 – LYMPHOMYOSOT SAMPLE TABS 15CT
3140101 – BUSINESS CARD MORGAN ROUNTREE
3106317 – LITERATURE CONSUMER/PATIENT EN
5702361 – ZEEL SAMPLE TABLET 100CT
5705004 – SAMPLE SACHET TRAUMEEL OINT P
3108056 – SELLSHEET SINUSIN RETAIL
5701022 – GRIPP HEEL SAMPLE TABLET 15CT
3108050 – SELLSHEET ENGYSTOL RETAIL
5701024 – ENGYSTOL RETAIL SAMPLE TABLET
3110033 – LITERATURE CONSUMER/PATIENT VI
6004011 – AMPULE CRACKERS 10CT
3108054 – SELLSHEET NEUREXAN RETAIL
3108049 – SELLSHEET ZEEL RETAIL
3106080 – BROCHURE-SPASCUPREEL DOCTOR
5701040 – COENZYME COMP SAMPLE TABLET 15
3106055 – BROCHURE PATIENT DETOX BOOKLET
3106036 – DISCONTINUED-BROCHURE QUARTERL
3108015 – FORM-HEEL/BHI CREDIT APP
3106072 – SELL SHEET LUFFEEL
3106058 – DISCONTINUED-BROCHURE DETOX KI
3108057 – SELLSHEET TRAUMEEL RETAIL
3106345 – BROCHURE CONSUMER/PATIENT NEUR
3108004 – SHELF FLAG HOLDER 3/4″ W CLEAR
5701050 – ENGYSTOL SAMPLE TABLET 15 CT
3160010 – ORDER FORM-PRACTITIONER
5702370 – ALLERGY SAMPLE TABLET 15 CT
5702310 – FLU PLUS SAMPLE TABLET 15 CT
3106307 – BROCHURE CERECOMP PATIENT RETA
3106083 – LITERATURE CONSUMER/PATIENT SI
5702330 – DISCONTINUED-TRAUMEEL SAMPLE T
5701003 – NEUREXAN BLISTER SAMPLE TAB 30
3107508 – DISCONTINUED-JOURNAL-MEDICINA
3108053 – LITERATURE CONSUMER/PATIENT LU
3103218 – DISCONTINUED-BROCHURE WINTER W
5701002 – DISPLAY NEUREXAN BLISTER SAMPL
3110020 – LYMPHOMYOSOT DOCTOR BROCHURE
3106093 – BROCHURE PATIENT TRAUMEEL SING
3108008 – SHELF DIVIDER 1″H X 10″ L STMI
3106132 – BROCHURE PATIENT ZEEL SINGLE
3108009 – RETAIL SHELF TALKERS TRAUMEEL
5702305 – DISCUS COMPOSITUM RX TABLET SA
3108029 – POSTER TRAUMEEL P&P
5702320 – BRONCHITIS SAMPLE TABLET 15 CT
3106029 – LITERATURE CONSUMER/PATIENT OC
3108134 – DISCONTINUED-PROTOCOL-PAIN MAN
3140111 – BUSINESS CARD CINDY VAN LIEROP
3110040 – BROCHURE-ZEEL DOCTOR
3201112 – DISCONTINUED-STUDY ZEEL RHEUMA
3108059 – SELLSHEET VINCEEL RETAIL
3201134 – STUDY TRAUMEEL OINT DOUBLE BLI
3106127 – DISCONTINUED-BROCHURE- WOMEN’S
3201138 – DISCONTINUED-STUDY ENS DOUBLE
3140103 – BUSINESS CARDS CLIFF VAN BLARI
3201152 – DISCONTINUED-STUDY ENGYSTOL CO
57012900 – SPASCUPREEL RX INJ SAMPLE 1.1
3201163 – DISCONTINUED-STUDY AMA OTOLARY
3108108 – PRODUCT PROFILE DETOX AND DRAI
3201175 – DISCONTINUED-REPRINT PODIATRY
3108140 – DISCONTINUED-SUMMER CARE INDIC
3106508 – DISCONTINUED-CURRENT KERSSCHOT
3110030 – DISCONTINUED-BROCHURE-TRAUMEEL
3106700 – CATALOG RX CLUB PROTOCOLS 2
3130023 – BAGS RETAIL TRAUMEEL
3106701 – CATALOG RX CLUB PROTOCOLS 1
3140105 – BUSINESS CARDS-LAURI PARENT
3106702 – CATALOG HEEL FEATURED PROF PRO
3106364 – DISCONTINUED-BROCHURE DPM TRAU
3106703 – CATALOG RX CLUB PROTOCOLS 3
3201047 – DISCONTINUED-STUDY MULT PRODUC
3107278 – DISCONTINUED-BT JOURNAL 2007 I
3108067 – SELL SHEET TRAUMEEL COMBO PACK
3107279 – DISCONTINUED-BT JOURNAL 2008 D
3108129 – DISCONTINUED-SLEEP & STRESS RE
3107280 – DISCONTINUED-BT JOURNAL 2008 V
3108136 – DISCONTINUED-PROTOCOL COLD COU
3107281 – DISCONTINUED-BT JOURNAL 2008 V
3108500 – DISCONTINUED-DETOX WATER BOTTL
3107282 – DISCONTINUED-BT JOURNAL 2008 V
3110014 – BROCHURE DOCTOR SINUSIN
3107285 – DISCONTINUED-BT JOURNAL VOL. 4
3110037 – DISCONTINUED-BROCHURE-HEEL VER
3107286 – DISCONTINUED-BT JOURNAL 2010 E
3130020 – BAGS-HEEL TRAUMEEL
3107287 – DISCONTINUED-BT JOURNAL VOL 5
3106063 – DISCONTINUED-BROCHURE HEEL ESS
3107500 – DISCONTINUED-JOURNAL MEDICINA
3201031 – STUDY DPM POST SURGERY
3107506 – DISCONTINUED-JOURNAL MEDICINA
3140109 – BUSINESS CARD ANNA BLOCK
3107507 – DISCONTINUED-JOURNAL MEDICINA
3140114 – BUSINESS CARD SANDRA BERNSTEIN
3140140 – DISCONTINUED-BUSINESS CARD TRA
57012080 – NEURALGO RHEUM RX INJ SAMPLE 3
3106075 – BROCHURE CONSUMER COLD/FLU
57015402 – TRAUMEEL RX SAMPLE INJECTABLE
3108001 – DISPLAY STAND PRACTITIONERS
3108058 – SELLSHEET VIBRUCOL RETAIL
3108002 – CARTON GABLE KIT
3108060 – DISCONTINUE HEEL DIARY 2011
3106077 – DISCONTINUED-BROCHURE RETAILER
3108100 – DISCONTINUED-PDR PAGE-HEEL TRA
3108005 – RETAIL SHELF TALKERS ADRISIN
3108119 – DISCONTINUED-PROTOCOL ALLERGY
3108006 – RETAIL SHELF TALKERS ENGYSTOL
3108133 – DISCONTINUED-PROTOCOL WOMENS C
3108007 – RETAIL SHELF TALKERS NEUREXAN
3108135 – DISCONTINUED-PRODUCT PROFILE N
3106059 – BROCHURE- GRIPP HEEL/ENGYSTOL
3108137 – DISCONTINUED-PROTOCOL DPM TRAU
3106388 – LITERATURE CONSUMER/PATIENT ZE
3201010 – DISCONTINUED-STUDY VIBURCOL AG
3108013 – SHELF TALKER ALLERGY $9.95
3106095 – DISCONTINUED BROCHURE – VIRAL
3106079 – BROCHURE NEUREXAN PATIENT P&P
3110010 – DISCONTINUED-ALLERGIES BROCHUR
3108017 – Poster-Zeel P&P
3201011 – DISCONTINUED-STUDY SPASCUPREEL
3108019 – DISCONTINUED-Poster-Zeel HFS
3201030 – DISCONTINUED-STUDY-VIBURCOL TR
3108023 – COUPON HEALTH FOOD STORE SINUS
3110039 – DISCONTINUED-BROCHURE DETOXIFI
3108026 – DISCONTINUED-SHELF TALKER ZEEL
3140128 – BUSINESS CARD-JAMIN BUSICK
3108027 – POSTER DETOX P&P
3130022 – BAGS-HEEL PAPER
3201006 – DISCONTINUED-STUDY TRAUMEEL TH
3140005 – BINDER RX CLUB EMPTY
3108030 – POSTER DET
3140102 – BUSINESS CARDS EMILY HORN
3108031 – POSTER ALLERGY PRACTITIONER
3106068 – BROCHURE CONSUMER/PATIENT PAI
3108032 – POSTER COLD FLU PRACTITIONER
3140147 – DISCONTINUED-PENS-HEEL TRAUMEE
3108036 – DISCONTINUED-INFOPAKS PODIATRI
3140108 – BUSINESS CARDS KEVIN MONTOYA
3106060 – BROCHURE DISCUS RX DOCTOR
3140110 – BUSINESS CARDS JESUS PAEZ
3106081 – DISCONTINUED-BROCHURE DC TRAUM
3140113 – BUSINESS CARD MARTIN KATZ
3108051 – SELLSHEET CERECOMP RETAIL
3140116 – DISCONTINUED-BUSINESS CARD NAN
3108052 – SELLSHEET DETOX KIT RETAIL
57012004 – ENGYSTOL RX INJ SAMPLE 1.1 ML
3140129 – DISCONTINUED-BUSINESS CARD TAN
57012853 – LYMPHOMYOSOT RX INJ SAMPLE 1.1
3160006 – DISCONTINUED-ORDER FORM DPM
57013851 – ZEEL RX SAMPLE INJ 2.0 ML 1 CT
3140118 – BUSINESS CARDS ANGELO VALDEZ
5701550 – SAMPLE SACHET TRAUMEEL OINT EV
6002081 – CARTON DISPENSER TRAUMEEL OINT
3201053 – DISCONTINUED-STUDY VERTIGOHEEL
3106092 – DISCONTINUED-BROCHURE VINCEEL
3140119 – BUSINESS CARDS MAGGIE DEVLYN
5702340 – VERTIGOHEEL RX SAMPLE TABLET 1
3140130 – BUSINESS CARD FREDDY ROBLETO
3106056 – BROCHURE DOCTOR DETOX KIT
3140124 – BUSINESS CARDS THOMAS PELLEGRI
3140123 – DISCONTINUED-BUSINESS CARD MAR
3140125 – BUSINESS CARD COREY STONE
6002080 – DISCONTINUED-RETAIL POP DISPLA
3140126 – BUSINESS CARD CELESTE LINTON
3140131 – BUSINESS CARDS JOAN SULLIVAN
3140127 – BUSINESS CARD AIMEE OLIVAS
3108055 – SELLSHEET OCULOHEEL RETAIL
3106091 – BROCHURE VINCEEL DOCTOR
3106022 – DISCONTINUED-BROCHURE TRAUMEEL
1001544 – TRAUMEEL EAR DROPS MONODOSE RX
3103219 – BROCHURE ENGYSTOL DOCTOR
3106000 – DISCONTINUED-BROCHURE CURRENT
3106016 – TRAUMEEL INJECTION BROCHURE
3106002 – DISCONTINUED-BROCHURE TRAUMEEL
3106020 – BROCHURE NEUREXAN DOCTOR
3106003 – DISCONTINUED-BROCHURE DET MANU
3106024 – DISCONTINUED-BROCHURE TRAUMEEL
3106004 – DISCONTINUED-BROCHURE PATIENT
3106031 – BROCHURE DOCTOR INJECTIONS
3106005 – BROCHURE NUX VOMICA DOCTOR
3101127 – DISCONTINUED-BOOK PDR FOOTCARE
3106006 – DISCONTINUED-BROCHURE GI PATIE
3106017 – DISCONTINUED-BROCHURE TRAUMEEL
3106007 – DISCONTINUED-BROCHURE TECHNICA
2601109 – DISPENSER OINTMENT SACHETS 50C
3106008 – DISCONTINUED-BROCHURE RX FLYER
3106021 – BROCHURE AID TRAUMEEL DOSAGE F
3106009 – DISCONTINUED-BROCHURE CHILDREN
3106023 – DISCONTINUED-BROCHURE AID TRAU
3106010 – DISCONTINUED-BROCHURE AID TRAU
3106028 – DISCONTINUED-BROCHURE TRAUMEEL
3106011 – DISCONTINUED-BROCHURE IMMUNE G
3106030 – DISCONTINUED-TRAUMEEL POP SELL
3106035 – DISCONTINUED-BROCHURE PATIENT
3106033 – BROCHURE TRAUMEEL AND ZEEL INJ
1601200 – DISCONTINUED – LYMPHOMYOSOT OD
3106038 – BROCHURE DETOX QUESTINONAIRE S
3106037 – DISCONTINUED-BROCHURE INJ. PRA
3106041 – BROCHURE ZEEL MOA
3106039 – BROCHURE DETOX QUESTIONNAIRE
3106045 – BROCHURE PRACTITIONER TRAUMEEL
3101010 – DISCONTINUED-BIOPUNCTURE SPRTS
3106013 – BROCHURE AID TRAUMEEL MOA
3106052 – BROCHURE CERECOMP PATIENT
3106014 – DISCONTINUED-BROCHURE TRAUMEEL
3106015 – DISCONTINUED-BROCHURE TRAUMEEL
3106012 – DISCONTINUED-BROCHURE TRAUMEEL
3140148 – PENS-HEEL
3160005 – DISCONTINUED-ORDER FORM PHARMA
5701020 – ADRISIN SAMPLE TABLET 15CT
3108061 – DISCONTINUED-SELL SHEET TRAUME
3108090 – NOTEPAD-HEEL
3106027 – DISCONTINUED-BROCHURE NEUREXAN
1903021 – DISCONTINUED-BHI VARICOSE RELI
3140115 – BUSINESS CARD-JENNY SCHLICHTE
3140107 – BUSINESS CARDS KATHLEEN NOBILE
3108048 – SELLSHEET NECTADYN RETAIL
1004005 – ADRISIN BONUS PACK 100CT
1304390 – NEUREXAN BONUS PACK 100CT
1601353 – TRAUMEEL ORAL DROPS 50ML RED
1901510 – TRAUMEEL X OINTMENT4 PANEL PRA
2601105 – DISPENSER OINTMENT SACHETS 50C
41012130 – PULSATILLA COMPOSITUM RX INJ 2
[*/quote*]
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Mason v. Heel, Inc.
Case No. 12-cv-3056-GPC-KSC
U.S. District Court for the Southern District of California
Court Documents
This page contains several key documents associated with this case. Click on the title of each document to open it as a Adobe PDF file. Date Document Title
March 13, 2014 Judgment in a Civil Case
March 13, 2014 Final Order: Approving Settlement, Fees & Expenses, Inventive Award, Enjoining Parallel Proceedings, and Disarming Action
January 24, 2014 Order Granting Ex Parte Motion to Seal
January 21, 2014 Points & Authorities in Support of Motion for Attorney’s Fees, Costs, & Incentive Award
January 21, 2014 Declaration of Class Counsel in Support of Attorney’s Fees, Costs, & Inventive Award
January 21, 2014 Declaration of Class Representative in Support of Attorney’s Fees, Costs, & Inventive Award
January 21, 2014 Declaration of Class Administrator in Support of Attorney’s Fees, Costs, & Inventive Award
January 21, 2014 Proof of Service for Motion for Attorney’s Fees, Costs, & Incentive Award
January 21, 2014 Notice of Motion for Attorney’s Fees, Costs, & Incentive Award
January 21, 2014 Ex Parte Motion to File Under Seal
January 21, 2014 Proof of Service for Motion to File Under Seal
January 21, 2014 Declaration of Class Counsel in Support of Motion to File Under Seal
November 13, 2013 Claim Form
November 6, 2013 Short Form Notice of Proposed Settlement
November 6, 2013 Detailed Notice of Proposed Settlement
October 30, 2013 Order Granting Preliminary Approval of Class Action Settlement
August 14, 2013 Settlement Agreement
August 14, 2013 Memorandum in Support of Preliminary Approval
August 14, 2013 Declaration of Matthew G. Ball in Support of Preliminary Approval
August 14, 2013 Declaration of Ronald A. Marron in Support of Preliminary Approval (redacted)
August 8, 2013 Order Granting Motion to File Under Seal Certain Documents
August 6, 2013 Motion to File Under Seal Certain Documents
December 12, 2012 Complaint
[*/quote*]
https://www.heelclassactionsettlement.com/pdfs/final_order.pdf[*quote*]
Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 1 of 19
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
ROBERT A. MASON, on behalf of
himself, all others similarly situated and
the general public,
13
14 Plaintiff,
15 v.
16
17
18
19
20
21
HEEL, INC., a New Mexico
Corporation,
Defendant.
Case No. 3:12-cv-03056-GPC-KSC
FINAL ORDER:
(1) APPROVING
CLASS ACTION SETTLEMENT,
(2) AWARDING CLASS COUNSEL
PARTIAL FEES AND EXPENSES,
(3) AWARDING CLASS
REPRESENTATIVE INCENTIVE
AWARD,
(4) PERMANENTLY
ENJOINING PARALLEL
PROCEEDINGS, AND
(5) DISMISSING ACTION WITH PREJUDICEPROCEDURAL HISTORY
On December 21, 2012, plaintiff Robert A. Mason (“Plaintiff”) filed a
22 complaint against defendant Heel, Inc. (“Defendant”), alleging: (1) violations of
23 California’s Unfair Competition Law (“UCL”), California Business and Professions
24 Code Section 17200 et seq.; (2) violations of California’s False Advertising Law
25 (“FAL”), California Business and Professions Code Section 17500 et seq.; (3)
26 violations of California’s Consumer Legal Remedies Act (“CLRA”), California Civil
27 Code Section 1750 et seq.; (4) breach of express and implied warranties; and (5)
28 violation of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq.
29
30
1
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 2 of 19
1 (ECF No. 1, Compl.)
2
Defendant manufactures, markets, and sells certain homeopathic products in the
3 United States. Plaintiff alleges “Defendant’s marketing and promotion of its products
4 was supported by false and misleading claims containing material omissions and
5 misrepresentations.” (Compl. ¶ 76.) Defendant denies these allegations.
6
After arms-length settlement discussions, the parties entered into a Settlement
7 Agreement dated July 24, 2013 (“Agreement” or “Settlement Agreement”). Currently
8 pending before the Court is Plaintiff’s Motion for Final Approval of the Settlement
9 Agreement, along with Plaintiff’s Motion for Attorneys’ Fees and Incentive Award for
10 the Class Representative. Having considered the parties’ submissions, and having
11 received no objections to any terms contained in the Settlement Agreement, the Court
12 will GRANT Plaintiff’s Motion for Final Approval of Class Action Settlement.
13
On October 30, 2013, the Court entered its Order (1) Preliminarily Approving
14 Class Action Settlement, (2) Certifying Class, (3) Appointing Class Representative
15 and Lead Class Counsel, (4) Approving Notice Plan, and (5) Setting Final Approval
16 Hearing (“Preliminary Approval Order”), in which it preliminarily approved the
17 Settlement. (ECF No. 27.) The Court also scheduled a hearing to determine whether
18 the Settlement is fair, reasonable, adequate, in the best interests of the Class, and free
19 from collusion, such that the Court should grant Final Approval of the Settlement, and
20 to consider Plaintiff’s motion for an award of attorneys’ fees, costs, and litigation
21 expenses, and incentive for the Class Representative (“Fairness Hearing”).
22 The Court has considered:
23 Plaintiff’s Motion for Final Approval of Class Action Settlement, along with
24 the memorandum of points and authorities, declarations, and exhibits
25 submitted therewith (“Final Approval Motion”), (ECF No. 34);
26
Defendant’s Notice of Non-opposition to the Final Approval Motion, along
27
28
with the declaration submitted therewith, (ECF No. 35);
Plaintiff’s Motion for Attorneys’ Fees, Costs and Incentive Award, along
29
30
2
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 3 of 19
1 with the declarations and exhibits submitted therewith (“Fee Motion”), (ECF
2 No. 30);
3 the Settlement Agreement, (ECF Nos. 25-1 (sealed), 26-2 (redacted));
4 the entire record in this matter, including, but not limited to, the parties’
5 submissions in support of their Joint Motion for Preliminary Approval of
6 Class Action Settlement, (ECF Nos. 25, 26);
7
the Notice Plan, providing full and fair notice to the Class, (ECF No. 26-2 at
8
9
80-84);
the absence of any objections to the Settlement Agreement by Class
10
Members;
11 the absence of any requests to opt-out of the Settlement by Class Members;
12 the absence of any objection or response by any official after the provision
13 of all notices required by the Class Action Fairness Act of 2005, 28 U.S.C.
14 §1715;
15
the oral presentations of Class Counsel and Counsel for Defendant at the
16
17
Fairness Hearing;
this Court’s experiences and observations while presiding over this matter;
18
and
19 the relevant law.
20 Based upon these considerations and the Court’s findings of fact and
21 conclusions of law as set forth in the Preliminary Approval Order and in this Final
22 Approval Order (1) Approving Class Action Settlement, (2) Awarding Class Counsel
23 Partial Fees and Expenses, (3) Awarding Class Representative Incentive, (4)
24 Permanently Enjoining Parallel Proceedings, and (5) Dismissing Action with
25 Prejudice (“Final Approval Order”), and good cause appearing, IT IS HEREBY
26 ORDERED:
27
1.
Definitions. The capitalized terms used in this Final Approval Order
28 shall have the meanings and/or definitions given to them in the Settlement Agreement
29
30
3
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 4 of 19
1 or, if not defined therein, the meanings and/or definitions given to them in this Final
2 Approval Order.
3
2.
Incorporation of Documents. This Final Approval Order incorporates
4 the Settlement Agreement, including all exhibits thereto, and the Court’s findings and
5 conclusions contained in its Preliminary Approval Order.
6
3.
Jurisdiction. The Court has personal jurisdiction over the Parties, the
7 Class Members, including objectors, and Defendant. All Class Members who have
8 not excluded themselves according to the procedures set forth in the Court’s
9 Preliminary Approval Order are deemed to have consented to the personal jurisdiction
10 of this Court for purposes of this action, including the final approval of the Settlement
11 Agreement. The Court has subject-matter jurisdiction over this action, including,
12 without limitation, jurisdiction to approve the Settlement, to dispose of all claims
13 alleged in this action (including the Released Claims), to resolve any objections to the
14 Settlement, and to dismiss this action with prejudice.
15
16
Findings and Conclusions
4.
Definition of the Class and Class Members. The Court’s Preliminary
17 Approval Order defines the “Class,” which is comprised of the “Class Members,” as
18 follows:
All U.S. consumers who purchased the Products listed in Exhibit D to the
19
Agreement, for household or personal use, during the Class Period (as
20
defined by Paragraph 1.7 of the Agreement) are included. Excluded from
the Class are: Heel; persons who during or after the Class Period were
21
officers or directors of Heel, or any corporation, trust or other entity in
22
which Heel has a controlling interest; Heel employees; the members of the
immediate families of Heel employees or their successors, heirs, assigns
23
and legal representatives; and any judicial officer hearing this Litigation, as
24
well as their immediate family members and employees.
25 As set forth in the Preliminary Approval Order and in the following section, the Court
26 finds the requirements for certifying a Rule 23(b)(2) and (b)(3) class are satisfied. All
27 Class Members are therefore subject to this Final Approval Order.
28 / / /
29
30
4
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 5 of 19
1
2
3
5.
Class Certification (Rule 23)
A. Numerosity
Defendant’s relevant sales in the United States are in the millions of dollars
4 annually, meaning Defendant has presumably sold its products to thousands of
5 individuals nationwide. (See ECF No. 25-4, Decl. Christian Grimm ¶ 5.) The Court
6 therefore continues to finds the Class is sufficiently numerous under Rule 23(a)(1).
7
8
B. Commonality
The Court finds the primary question of fact in this case—to wit, whether the
9 uniform labeling of Defendants’ Products was false or deceptive—is common to the
10 Class. All Class Members allege the same injury: loss of money spent purchasing the
11 Products that Plaintiff alleges were deceptively labeled. All Class Members were
12 exposed to the same labeling materials, which material made claims regarding the
13 level of dilution in the Products, as represented by an “X” in the ingredients list.
14 Resolving the common question of whether Defendant’s labeling claims were
15 deceptive would resolve a substantial portion of Plaintiff’s claims in one stroke. No
16 party or objector contests commonality. Accordingly, the Court continues to find the
17 commonality requirement under Rule 23(a)(2) satisfied.
18
19
C. Typicality
The Court finds Plaintiff’s claims are reasonably co-extensive with, and indeed
20 identical to, those of the Class. The Court thus continues to find Rule 23(a)(3)’s
21 typicality requirement satisfied.
22
23
D. Adequacy of Class Representative
Having considered the factors set forth in Rule 23(g)(1), the Court finds that
24 Plaintiff and Class Counsel are adequate class representatives. Class Counsel has
25 fully and competently prosecuted all causes of action, claims, theories of liability, and
26 remedies reasonably available to the Class Members. The Court therefore continues
27 to find it appropriate for the Law Offices of Ronald A. Marron to serve as Class
28 Counsel. The Court also continues to find it appropriate for Robert A. Mason to serve
29
30
5
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 6 of 19
1 as Class Representative, finding that he possesses no interests adverse to the Class and
2 that he has demonstrated his willingness and ability to adequately represent the Class.
3
4
E. Rule 23(b) Has Been Satisfied
For purposes of this Settlement, the Court finds the requirements of subsections
5 (b)(2) and (b)(3) of Rule 23 have been met. The Court continues to find 23(b)(2)’s
6 requirements satisfied because the labeling of Defendant’s products applied generally
7 to the Class, and a significant portion of the relief provided to Class Members under
8 the Settlement Agreement consists of injunctive relief in the form changes to the
9 labels of Defendant’s Products.
The Court also continues to find 23(b)(3)’s
10 requirements satisfied. The Court finds the common question of whether the uniform
11 labeling of Defendant’s Products was false or deceptive predominates over any
12 individualized questions. The Court also finds that resolution on a class-wide basis is
13 superior than alternative options for purposes of judicial efficiency and to provide a
14 forum for absent Class Members, who are unlikely to bring individual suits to recover
15 the sum of approximately $25.00 per Product.
16
6.
The Settlement. The Court finds the Settlement is fair, reasonable, and
17 adequate to the Class, in light of the complexity, expense, and likely duration of the
18 Litigation, and the risks involved in establishing liability, damages, and in maintaining
19 the action as a class action, through trial and appeal. See Rodriguez v. West Publ’g
20 Corp., 563 F.3d 948, 963 (9th Cir. 2009). The Settlement is the result of arms-length
21 negotiations, and there is no evidence of collusion or other conflicts of interest
22 between Plaintiff, Class Counsel, and the Class. In re Bluetooth Headset Prods. Liab.
23 Litig., 654 F.3d 935, 946 (9th Cir. 2011).
24
A.
The Parties reached the proposed Settlement only after proceeding
25 with voluntary investigation and discovery in this action, and following several
26 months of negotiations before a capable and well-respected mediator, the Honorable
27 Leo S. Papas (Ret.) of Judicate West. Between February 2013 and July 2013, the
28 parties engaged in extensive negotiations, including joint and individual mediation
29
30
6
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 7 of 19
1 sessions with Judge Papas, and the parties’ own follow-up negotiations, in order to
2 reach agreement over the specific terms of the Settlement.
3
Plaintiff and Class Counsel maintain that this action and the claims asserted
4 herein are meritorious and that Plaintiff and the Class would have prevailed at trial.
5 Notwithstanding this position, Plaintiff and Class Counsel have agreed to settle the
6 Litigation pursuant to the provisions of the Settlement Agreement, after considering,
7 among other things: (i) the substantial benefits to Plaintiff and the Class under the
8 terms of the Settlement Agreement; (ii) the uncertainty of being able to prevail at trial;
9 (iii) the uncertainty relating to Defendant’s defenses and the expense of additional
10 motion practice in connection therewith; (iv) the issues related to proving damages on
11 an individual basis; (v) the attendant risks, difficulties, and delays inherent in
12 litigation; and (vi) the desirability of consummating this Settlement promptly in order
13 to provide effective relief to Plaintiff and the Class. Plaintiff and Class Counsel agree
14 the Settlement is fair, reasonable, and adequate because it provides substantial benefits
15 to the Class, is in the best interests of the Class, and fairly resolves the claims alleged
16 in this action.
17
Defendant expressly denies any wrongdoing alleged in Plaintiff’s Complaint,
18 and does not admit or concede any actual or potential fault, wrongdoing, or liability in
19 connection with any facts or claims which have been or could have been alleged
20 against it in the action. Defendant asserts that it sells, manufactures, and markets its
21 Products in accordance with well-recognized and widely-accepted homeopathic
22 principles that have been adopted by the Food and Drug Administration (“FDA”).
23 The FDA polices and enforces federal rules and regulations regarding homeopathic
24 drug labels—rules and regulations with which Defendant avows it is in compliance.
25 Defendant nonetheless considers it desirable for the action to be settled and dismissed
26 because the proposed Settlement will: (i) avoid further expense and disruption of the
27 management and operation of Defendant’s businesses due to the pendency and
28 defense of the action; (ii) finally put the claims of Plaintiff and the Class to rest; and
29
30
7
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 8 of 19
1 (iii) avoid the substantial expense, burdens, and uncertainties associated with a
2 potential finding of liability and damages on the claims alleged in the Complaint.
3
The parties also fully briefed an extensive motion to dismiss in this action,
4 which included, inter alia, claims and defenses with regard to the Food, Drug and
5 Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., including whether the FDCA
6 preempts the consumer-fraud claims asserted by Plaintiff and whether Plaintiff may
7 claim that Defendant lacks clinical proof supporting its claims about the Products. As
8 noted above, the parties also engaged in voluntary discovery and mediation efforts.
9 Moreover, Class Counsel and Counsel for Defendant are experienced civil litigators
10 with general knowledge of complex class-action litigation and the ability to assess the
11 risks, expenses, and duration of such litigation.
Class Counsel and Counsel for
12 Defendant also possess specialized knowledge of food-and-drug labeling issues in
13 particular. It may thus be said that the parties were fully informed of the legal bases
14 for the claims and defenses asserted herein and were thus capable of balancing the
15 risks of continued litigation and the benefits of the Settlement.
16
B.
The Settlement provides for fair, reasonable, and adequate cash
17 payments and/or other monetary benefits to every Class Member, with a common
18 fund of $1 million and payments of up to $150 for each Class Member that submits
19 proof(s) of purchase for the Products with a Claim Form, and up to $100 for each
20 Class Member that does not submit receipts or evidence of purchase (such as
21 packaging), but who signs a Claim Form under penalty of perjury. No portion of the
22 substantial Settlement relief will revert to Defendant. Any excess monies in the
23 Settlement Fund, after payment of all Valid Claims, attorneys’ fees and expenses,
24 incentive award, claims administrator fees and expenses, and taxes shall be distributed
25 as follows: (i) 50% as a pro rata supplemental cash payment to all Class Members that
26 submitted a Valid Claim Form, and (ii) 50% as a cy pres award to Consumers Union,
27 a non-profit organization dedicated to enhancing consumer understanding in the realm
28 of drug labeling.
29
30
8
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 9 of 19
1
The Settlement also affords meaningful injunctive relief. First, in order to
2 address concerns that consumers may not be aware that homeopathic products have
3 not been subject to the same FDA scrutiny as allopathic drugs, Defendant has agreed
4 to provide the following FDA Disclaimer to inform consumers with regard to the
5 Products’ claims of efficacy: “These statements have not been evaluated by the Food
6 and Drug Administration.” (Settlement Agreement ¶ 4.1.2.)
7
Second, to address Plaintiff’s concern that homeopathic labels do not
8 sufficiently explain the concept of a homeopathic dilution, Defendant has agreed to
9 provide a Dilution Disclaimer in close proximity to the Drug Facts panel on each of its
10 labels, which shall state: “‘X’ is a homeopathic dilution: see www.[link created
11 pursuant to ¶ 4.1.4 of the Settlement] for details.” (Id. ¶ 4.1.3.) The identified
12 webpage shall provide consumers a more detailed explanation of the dilutions. (Id. ¶
13 4.1.4.) For consumers wishing more information about homeopathy, Defendant shall
14 also include a link to the FDA website’s Compliance Policy Guide § 400.400 for
15 homeopathic drugs on all websites Defendant owns or operates in a reasonably
16 accessible location. (Id. ¶ 4.1.4.4.)
17
Third, Defendant has agreed that it shall not use the words “Natural,” “All
18 Natural,” “100% Natural,” or similar language on any of the Products unless
19 Defendant qualifies that language by referring only to those ingredients that are
20 natural. (Id. ¶ 4.1.7.)
21
Fourth, Defendant shall not use the words “Clinically Proven,” on any of the
22 Products for which it does not possess two, independent, randomized, double-blind,
23 placebo-controlled human clinical trials. (Id. ¶ 4.1.8.)
24
Fifth, Defendant shall not use the words “Doctor Recommended,” or similar on
25 any of the Products unless Defendant qualifies whether any doctors that recommend
26 the Products are homeopathic practitioners or allopathic physicians.
27
The Court has considered the realistic range of outcomes in this matter,
28 including the amount Plaintiff might receive if he prevailed at trial on behalf of
29
30
9
12cv3056Case 3:12-cv-03056-GPC-KSC Document 37 Filed 03/13/14 Page 10 of 19
1 himself and/or the Class, the strengths and weaknesses of the case, the novelty and
2 number of complex legal issues involved, and the risk that Plaintiff and the Class
3 would receive less than the relief provided under the Settlement Agreement or take
4 nothing at trial. The relief offered under the Settlement is fair, reasonable, and
5 adequate in view of these factors.
6
C.
The Court has found no evidence of collusion between Plaintiff
7 and Defendant or their respective counsel. The Settlement resulted from arms-length,
8 adversarial negotiations. Up to and through Settlement, the parties litigated and
9 negotiated this action as the Court would expect of adversarial parties. 1 Further, the
10 Court has evaluated the factors set forth by the Ninth Circuit for determining whether
11 the parties have colluded, finding no evidence of collusion. See In re Bluetooth
12 Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) (the three factors are:
13 “(1) when counsel receive a disproportionate distribution of the settlement, . . . (2)
14 when the parties negotiate a ‘clear sailing’ arrangement providing for the payment of
15 attorneys’ fees separate and apart from class funds, . . . and (3) when the parties
16 arrange for fees not awarded to revert to defendants . . . .”).
17
Class Counsel has requested 30% of the Settlement Fund, which the Court finds
18 is above the benchmark for class-counsel fee awards in a common-fund settlement,
19 though still within the range of fees awarded by other courts in the Ninth Circuit. See
20 Fischel v. Equitable Life Assurance Society of U.S., 307 F.3d 997, 1006 (9th Cir.
21 2002) (“We have established a 25 percent ‘benchmark’ in percentage-of-the-fund
22 cases that can be ‘adjusted upward or downward to account for any unusual
23
24
25
26
27
28
1
Class Counsel examined and evaluated the relevant facts and law to assess the merits of the
instant claims and to determine how best to serve the interests of Plaintiff and the Class. In doing
so, Class Counsel reviewed a substantial amount of evidence produced by Defendant consisting of
marketing data, label and package mechanicals, sales figures, unit sales, detailed advertising
information, scientific studies, lists of recommending doctors, and detailed financial information.
Class Counsel is also experienced in prosecuting claims alleging deceptive advertising by
homeopathic drug manufacturers, along with food and diet supplement class actions in general.
(See ECF No. 26-2, Marron Decl. ¶¶ 7-8, 13-20.)
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1 circumstances involved in [the] case.’” (citation omitted)). Defendant also retained
2 the right to oppose the Fee Motion to the extent Plaintiff’s Fee Application exceeded
3 five percent over the benchmark common fund percentage in the Ninth Circuit. No
4 portion of the Settlement Fund reverts to Defendant. The Parties also agreed to the
5 terms of the Settlement before discussing attorneys’ fees, another factor which weighs
6 against a finding of collusion. See, e.g. Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS
7 155472, at *83 (C.D. Cal. Nov. 23, 2011).
8
D.
The response of the Class to this action, the certification of a class,
9 and the Settlement, including Class Counsel’s application for an award of attorneys’
10 fees, litigation expenses, and the Class Representative’s incentive, after full, fair, and
11 effective notice thereof, strongly favors final approval of the Settlement. Out of the
12 estimated millions who received Notice, no class members submitted valid requests
13 for exclusion. Moreover, no objections were filed. These Court has considered these
14 results as favoring final approval of the Settlement.
15
7.
Notice to the Class. The Class has received the best practicable notice in
16 light of the fact that Defendant does not collect or maintain information sufficient to
17 identify Class Members. The Parties’ selection and retention of SEOmap as the
18 Settlement Administrator was reasonable and appropriate. Based on the Declaration
19 of Gajan Retnasaba of SEOmap, the Court hereby finds that the Settlement Notices
20 were published to the Class Members in the form and manner approved by the Court
21 in its Preliminary Approval Order. (ECF No. 34-2.) The Settlement Notices provided
22 fair, effective, and the best practicable notice to the Class of the Settlement and the
23 terms thereof. The Notices also informed the Class of Plaintiff’s intent to seek
24 attorneys’ fees, costs, and an incentive payment, and set forth the date, time, and place
25 of the Fairness Hearing and Class Members’ rights to object to the Settlement or Fee
26 Motion and to appear at the Fairness Hearing. The Court further finds that the
27 Settlement afforded Class members a reasonable period of time to exercise such
28 rights. See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *82 (C.D. Cal.
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1 Nov. 23, 2011) (class members’ deadline to object or opt out must arise after class
2 counsel’s fee motion is filed); In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
3 988, 994 (9th Cir. 2010) (same). The Settlement Notices fully satisfied all notice
4 requirements under the law, including the Federal Rules of Civil Procedure, the
5 requirements of the California Legal Remedies Act, Cal. Civ. Code § 1781, and all
6 due process rights under the U.S. Constitution and California Constitutions.
7
8.
Notices Pursuant to 28 U.S.C. § 1715. The Court finds Defendant has
8 satisfied all notice requirements of the Class Action Fairness Act of 2005 (“CAFA”),
9 28 U.S.C. § 1715, as attested to by the Declaration of Matthew G. Ball. (ECF No. 35-
10 1.) On October 29 and 30, 2013, Defendant served the notices required by 28 U.S.C.
11 § 1715(b), which included a copy of the Settlement Agreement and other required
12 documents, as well as notice of the date, time, and place of the Fairness Hearing. The
13 Court has received no objection or response to the Settlement agreement by any
14 federal or state official, including any recipient of the foregoing notices. This fact
15 further supports the fairness of the Settlement.
16
9.
Implementation of Settlement. The Parties are directed to implement
17 the Settlement according to its terms and conditions.
18
10.
Appeal after Implementation. Any Class Member who failed timely
19 and validly to object to the Settlement has waived any objection. Any Class Member
20 seeking to appeal the Court’s rulings must: (a) move to intervene upon a
21 representation of inadequacy of counsel (if they did not object to the proposed
22 Settlement under the terms of the Settlement); (b) request a stay of implementation of
23 the Settlement; and (c) post an appropriate bond. Absent satisfaction of all three
24 requirements, Defendant is authorized, at its sole option and in its sole discretion, to
25 proceed with the implementation of the Settlement, including before the Effective
26 Date, even if such implementation would moot any appeal.
27
11.
Release. The Release set forth in the Settlement Agreement is expressly
28 incorporated herein in all respects, is effective as of the date of the entry of this Final
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1 Approval Order, and forever discharges the Released Parties from any claims or
2 liabilities released by the Settlement, including the Released Claims, and including
3 without limitation a waiver of all rights under Section 1542 of the California Civil
4 Code. This Release covers, without limitation, any and all claims for attorneys’ fees
5 and expenses, costs or disbursements incurred by Class Counsel, the Settlement of this
6 Action, the administration of such Settlement, and the Released Claims, except to the
7 extent otherwise specified in this Order and the Settlement Agreement.
8
12.
Binding Affect and Permanent Injunction. The Settlement and this
9 Final Approval Order shall be forever binding on the Plaintiff and all other Class
10 Members, as well as their heirs, executors and administrators, successors and assigns,
11 and shall have res judicata and other preclusive effect in all pending and future
12 claims, lawsuits or other proceedings maintained by or on behalf of any such persons,
13 to the fullest extent allowed by law. The Court hereby permanently enjoins all Class
14 Members from filing, commencing, prosecuting, intervening in, maintaining,
15 participating (as class members or otherwise) in, or receiving any benefits from, any
16 lawsuit (including putative class action lawsuits), arbitration, administrative or
17 regulatory proceeding or order in any jurisdiction asserting any claims released by this
18 Order; and from organizing Class Members into a separate class to pursue as a
19 purported class action any lawsuit (including by seeking to amend a pending
20 complaint to include class allegations, or seeking class certification in a pending
21 action) asserting any claims released by this Order.
Nothing in this paragraph,
22 however, shall require any Class Member to take any affirmative action with regard to
23 other pending class action litigation unrelated to this action in which they may be
24 absent class members. Defendant has reserved the right to file motions or to take
25 other actions to enforce the release provisions of the Settlement Agreement and of this
26 injunction, as they may deem appropriate. The Court finds that issuance of this
27 permanent injunction is necessary and appropriate in the aid of the Court’s jurisdiction
28 over the action and its judgments.
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Attorneys’ Fees and Litigation Expenses.
1 13.
2 The Court orders that Class Counsel is entitled to an award of reasonable
3 attorneys’ fees and litigation expenses incurred in connection with the action and in
4 reaching this Settlement, to be paid at the time and in the manner provided in the
5 Settlement Agreement. The fee award sought in the present case is reasonable when
6 judged by the standards of this circuit.
7
In common-fund cases, such as this, courts have discretion to use either a
8 percentage or lodestar method when evaluating class counsel’s request for attorneys’
9 fees. Hanlon, 150 F.3d at 1029. Applying the percentage of the common fund
10 method is appropriate in this case, as there exists a common fund in an amount
11 certain. The Ninth Circuit “has established 25% of the common fund as a benchmark
12 award for attorney fees.” Id. Class Counsel asserts a 30% fee award is justified here
13 per the results obtained, the experience and skill of Counsel, the complexity of issues,
14 the risk of non-payment and preclusion of other work, the reaction of the Class, and
15 the fact that Defendant is required to provide greater disclosure regarding
16 homeopathic products than the FDA now requires.
17
The Court disagrees that a deviation from the benchmark is appropriate in this
18 case. Even considering the parties’ out-of-court investigative, discovery, mediation,
19 and negotiation efforts, the Court finds nothing takes this case out of the ordinary
20 realm of consumer class actions involving deceptive marketing. Indeed, the fact that
21 this case settled before the pleadings were settled and before Plaintiff even moved for
22 class certification distinguishes this case from those circumstances where a deviation
23 from the benchmark might be justified.
The Court thus finds an award that is
24 consistent with the 25% benchmark to be reasonable. The Court therefore awards
25 Class Counsel $250,000.00 in attorneys’ fees.
26
The reasonableness of the fee award is supported by a lodestar cross-check
27 analysis.
To determine the lodestar amount, “the number of hours reasonably
28 expended on the litigation [is] multiplied by a reasonable hourly rate.” Hensley v.
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1 Eckerhart, 461 U.S. 424, 433 (1983). This figure may then be adjusted upward or
2 downward after considering the Kerr factors. 2
3
Assuming the hours Class Counsel expended were reasonable (Class Counsel
4 does not provide any billing records) and Class Counsel’s hourly rates were
5 reasonable (the Court finds they are slightly inflated), the Court calculates a lodestar
6 amount of $268,851.50. (See ECF No. 30-1 at 37, Fee Mot., App. 1.) This amount
7 includes 150 additional hours that Class Counsel estimates it will expend on post-Fee
8 Application hours.
9
The Court is not inclined to increase the lodestar amount under the Kerr factors.
10 While the Court notes the excellent results for the Class, along with Class Counsel’s
11 experience, reputation, and ability to litigate class actions of this nature, the Court
12 finds this is not an exceptional case in terms of the time and labor required, the
13 novelty and difficulty of the questions involved, or the skill required to represent
14 Plaintiff and the Class. The customary (i.e., benchmark) fee for common-fund cases
15 such as this is 25% of the common fund, and awards in similar cases are consistent
16 with this benchmark. The Court is unaware of anything that would make this case
17 more “undesirable” than other consumer class actions involving allegations of
18 deceptive marketing/labeling. Class Counsel does not provide in its Fee Motion
19 information about any applicable fee agreements, the time limitations imposed by this
20 case, or the nature and length of Class Counsel’s relationship with Plaintiff. The
21
22
23
24
25
26
27
28
2
The twelve Kerr factors bearing on the reasonableness are:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved,
(3) the skill requisite to perform the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the experience,
reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the
nature and length of the professional relationship with the client, and (12) awards in
similar cases.
Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951 (1976).
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1 Court thus finds no reason to adjust the lodestar amount. An award of $250,000 is
2 therefore only slightly below the generous lodestar amount of $268,851.50. This
3 confirms that an award of 25% of the Settlement Fund is a reasonable amount. 3
As for expenses, the Court has reviewed Class Counsel’s out-of-pocket costs
4
5 and litigation expenses (paid and un-reimbursed, or currently due). (ECF No. 30-1 at
6 38.) The Court finds Class Counsel’s costs and expenses were of a nature typically
7 billed to fee-paying clients and that said expenses were reasonable and necessarily
8 incurred in light of the extent of proceedings both in and out of court, the complexity
9 of the legal and factual issues in the case, the amount at stake in this litigation, and the
10 efforts of all counsel and parties to this action. The Court thus awards Class Counsel
11 $3,997.72 in costs and expenses, to be paid from the Settlement Fund as set provided
12 in the Settlement Agreement.
In further support of the Court’s fee and expense awards, the Court notes that
13
14 neither Plaintiff nor any Class Member is obligated to pay Class Counsel any further
15 amounts for attorneys’ fees, costs, and litigation expenses in the Action. As no Class
16 Member objected to Class Counsel’s request attorneys’ fees, costs, and litigation
17 expenses were made, the Court concludes that no Class Member is entitled to seek or
18 receive any further payment of attorneys’ fees, costs, or litigation expenses in
19 connection with this action.
20
14.
Class Representative’s Incentive. Plaintiff, whom the Court appointed
21 Class Representative in its Preliminary Approval Order, has actively participated in
22 and assisted Class Counsel with this litigation for the substantial benefit of the Class
23
24
25
26
27
28
3
The Court is not inclined to increase the value of the Settlement Fund based on Defendant’s costs
of implementing injunctive relief. While it is true that future customers will have the benefit of
more information on Defendant’s packaging, the value of this benefit is not necessarily
commensurate with Defendant’s implementation costs. See Staton v. Boeing Co., 327 F.3d 938,
974 (9th Cir. 2003) (“[O]nly in the unusual instance where the value to individual class members of
benefits deriving from injunctive relief can be accurately ascertained may courts include such relief
as part of the value of a common fund for purposes of applying the percentage method of
determining fees.”).
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1 despite facing significant personal limitations. Mr. Mason waived his right to pursue
2 potential individual claims or relief in this action. Apart from the requested incentive
3 and his share of the Settlement Fund as will be distributed to the Class in general, Mr.
4 Mason will receive no settlement payments or benefits of any nature. The Court
5 therefore awards $3,500 to Mr. Mason as Class Representative, to be paid at the time
6 and in the manner provided in the Settlement Agreement. Mr. Mason was actively
7 involved throughout the Litigation and contributed significant time and expense in
8 seeing this action to fruition.
The Court approves this incentive payment to
9 compensate Mr. Mason for the burdens of his active involvement in the Litigation and
10 his commitment and effort on behalf of the Class.
11
15.
Class Member Objections. The Court has received no objections to, or
12 requests to opt out of, the Settlement. The Class Action Administrator has similarly
13 received no objections to, or requests to opt out of, the Settlement. (ECF No. 34-2,
14 Retnasaba Decl. ¶¶ 17-19.) To the contrary, the Class Action Administrator has
15 received over 10,600 claims under the terms of the Settlement and anticipates
16 receiving a total of 18,000 claims by the June 5, 2014 claims deadline.
17
16.
Modification of Settlement Agreement.
The Parties are hereby
18 authorized, without needing further approval from the Court, to agree to and adopt
19 non-substantive amendments to, modifications of, and/or expansions of the Settlement
20 Agreement, if such changes are consistent with this Order and do not limit the rights
21 of any person or Class Member entitled to relief under this Agreement.
All
22 substantive amendments, modifications, and/or expansions shall be submitted to the
23 Court in the form of a joint motion for approval. An example of a non-substantive
24 amendment, modification, and/or expansion includes the need to extend a deadline
25 contained in the Settlement Agreement for administrative purposes.
26
17.
Enforcement of Settlement. Nothing in this Final Approval Order shall
27 preclude any action to enforce or interpret the terms of the Settlement Agreement.
28 Any action to enforce or interpret the terms of the Settlement Agreement shall be
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1 brought solely in this Court.
2
18.
Retention of Jurisdiction.
The Court expressly retains continuing
3 jurisdiction as to all matters relating to the Settlement, and this Final Approval Order,
4 and for any other necessary and appropriate purpose. Without limiting the foregoing,
5 the Court retains jurisdiction over all aspects of this case including but not limited to
6 any modification, interpretation, administration, implementation, effectuation, and
7 enforcement of the Settlement, the administration of the Settlement and Settlement
8 relief, including notices, payments, and benefits thereunder, the Settlement Notice and
9 sufficiency thereof, any objection to the Settlement, any request for exclusion from the
10 certified Class, the adequacy of representation by Class Counsel and/or the Class
11 Representative, the amount of attorneys’ fees and litigation expenses to be awarded
12 Class Counsel, the amount of any incentives to be paid to the Class Representative,
13 any claim by any person or entity relating to the representation of the Class by Class
14 Counsel, to enforce the release and injunction provisions of the Settlement and of this
15 Order, any remand after appeal or denial of any appellate challenge, any collateral
16 challenge made regarding any matter related to this litigation or this Settlement or the
17 conduct of any party or counsel relating to this litigation or this Settlement, and all
18 other issues related to this action and Settlement.
Further, the Court retains
19 jurisdiction to enter any other necessary or appropriate orders to protect and effectuate
20 the Court’s retention of jurisdiction provided that nothing in this paragraph is intended
21 to restrict the ability of the Parties to exercise their rights under the Settlement
22 Agreement.
23
19.
No Admissions.
This Final Approval Order and the Settlement, all
24 provisions herein or therein, all other documents referred to herein or therein, any
25 actions taken to carry out this Final Approval Order and the Settlement, and any
26 negotiations, statements, or proceedings relating to them in any shall not be construed
27 as, offered as, received as, used as, or deemed to be evidence of any kind, including in
28 this action, any other action, or in any other judicial, administrative, regulatory, or
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1 other proceeding, except for purposes of obtaining approval of the Settlement and the
2 entry of judgment in this action, enforcement or implementation of the Settlement, or
3 to support any defense by Defendant based on principles of res judicata, collateral
4 estoppel, release, waiver, good-faith settlement, judgment bar or reduction, full faith
5 and credit, setoff, or any other theory of claim preclusion, issue preclusion, release,
6 injunction, or similar defense or counterclaim to the extent allowed by law. Neither
7 the Settlement Agreement nor any related negotiations, statements, mediation
8 positions, notes, drafts, outlines, memoranda of understanding, or Court filings or
9 proceedings relating to the Settlement or Settlement approval, shall be construed as,
10 offered as, received as, used as, or deemed to be evidence or an admission or
11 concession by any person, including but not limited to, of any liability or wrongdoing
12 whatsoever on the part of Defendant or as a waiver by Defendant of any applicable
13 defense, including without limitation any applicable statute of limitation.
14
20.
Conclusion and Order. IT IS HEREBY ORDERED that:
15 a. The Fee Motion, (ECF No. 30), is GRANTED IN PART and
16 DENIED IN PART with respect to Class Counsel’s request for
17 attorneys’ fees and GRANTED with respect to Class Counsel’s
18 request for costs, litigation expenses, and Mr. Mason’s incentive
19 payment;
20 b. The Final Approval Motion, (ECF No. 34), is GRANTED;
21 c. This action, including all individual and Class claims resolved in it, is
22 DISMISSED WITH PREJUDICE, without an award of attorneys’
23 fees, costs, litigation expenses, or incentive payments to any party
24 except as provided in this Final Approval Order. The Clerk of Court
25 is directed to enter FINAL JUDGMENT accordingly.
26
27 DATED: March 13, 2014
28
___________________________
HON. GONZALO P. CURIEL
United States District Judge
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