1 THE WESTON FIRM LAW OFFICES OF RONALD ... - Cobra Lawsuit

In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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THE WESTON FIRM GREGORY S. WESTON (239944) [email protected] 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (619) 343-2789 Class Counsel

LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (175650) [email protected] MICHAEL T. HOUCHIN (305541) [email protected] 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

IN RE COBRA SEXUAL ENERGY SALES PRACTICES LITIGATION

Case No. 2:13-cv-05942-AB-Ex Pleading Type: Class Action

PLAINTIFF’S NOTICE OF MOTION AND

MOTION FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT AND

MEMORANDUM OF POINTS AND AUTHORITIES

Judge: The Honorable André Birotte, Jr. Date: November 6, 2020 Time: 10:00 a.m. Location: Courtroom 7B

Case 2:13-cv-05942-AB-E Document 287 Filed 10/23/20 Page 1 of 26 Page ID #:7471

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NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on November 6, 2020 at 10:00 a.m., or as soon

thereafter as the case may be heard, in Courtroom 7B of this Court, located at 350 West

First St., Los Angeles, CA 90012, Plaintiff Troy Lambert will, and hereby does, move this

Court for an order granting preliminary approval of his Class Action Settlement

Agreement.

This motion is made pursuant to Federal Rule of Civil Procedure 23(e) and (b)(2)

and is based on this Notice, the accompanying Memorandum of Points and Authorities, the

attached Declarations of Gregory S. Weston and Gajan Retnasaba and exhibits thereto, the

[Proposed] Preliminary Approval Order, the pleadings and papers on file herein, and such

other matters as may be presented to the Court at the time of the hearing.

Dated: October 23, 2020 /s/ Gregory S. Weston

Gregory Weston Class Counsel


i In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex


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TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. iii

I. INTRODUCTION ..................................................................................................... 1

II. FACTUAL AND PROCEDURAL BACKGROUND .............................................. 2

III. TERMS OF THE SETTLEMENT AGREEMENT .................................................. 4

A. The Settlement Class ............................................................................................ 4

B. Monetary Relief .................................................................................................... 5

C. Injunctive Relief ................................................................................................... 5

“Potency Wood” Provision ........................................................ 5

“Virility” Provision .................................................................... 5

D. Class Notice .......................................................................................................... 5

E. Release .................................................................................................................. 7

F. Claims Process ...................................................................................................... 7

G. Opportunity to Opt-Out and Object ...................................................................... 7

H. Attorney Fees and Costs and Incentive Award to Class Representatives ............ 8

IV. LEGAL STANDARD FOR PRELIMINARY APPROVAL .................................... 8

V. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY APPROVAL .............................................................................................................. 9

A. Plaintiff and Class Counsel Have Adequately Represented the Class. ................ 9

B. The Settlement was Negotiated at Arm’s Length. ............................................. 10

C. The Relief Provided to the Class is Adequate .................................................... 10

D. The Costs, Risks, and Delay of Trial and Appeal Support Preliminary Approval ............................................................................................................. 12

E. The Proposed Method of Distributing Relief to the Class Is Effective ............. 13

F. The Proposed Attorneys’ Fee Award is Fair and Reasonable ............................ 14

G. No Side Agreements Were Made in Connection with the Proposed Settlement ........................................................................................................... 14

H. The Proposed Settlement Treats Class Members Equitably Relative to Each Other .......................................................................................................... 14

VI. ADDITIONAL FACTORS SUPPORTING APPROVAL OF SETTLEMENT ................................................................................................................................. 15

A. The Strength of Plaintiff’s Case ......................................................................... 15


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B. The Extent of Discovery Completed and the State of the Proceedings ............. 15

C. The Complexity and Likely Duration of Further Litigation .............................. 16

D. The Experience and Views of Counsel .............................................................. 16

VII. THE PROPOSED FORM AND METHOD OF CLASS NOTICE IS ADEQUATE AND SATISFIES THE REQUIREMENTS OF RULE 23. ............. 17

VIII. PROPOSED SCHEDULE OF EVENTS ................................................................ 18

IX. CONCLUSION ........................................................................................................ 18


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TABLE OF AUTHORITIES

Cases Carlin v. DairyAmerica, Inc., 380 F. Supp. 3d 998 (E.D. Cal. 2019) ....................................................................... 8 Caudle v. Sprint/United Mgmt. Co., 2019 U.S. Dist. LEXIS 216056 (N.D. Cal. Dec. 16, 2019) .................................... 17 Churchill Vill., L.L.C. v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004) ............................................................................... 8, 12 Curtis-Bauer v. Morgan Stanley & Co., Inc., 2008 WL 4667090 (N.D. Cal. Oct. 22, 2008) ......................................................... 13 Fulford v. Logitech, Inc.,

2010 U.S. Dist. LEXIS 29042 (N.D. Cal. Mar. 5, 2010) ........................................ 13 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ............................................................................... 8, 9 Haralson v. U.S. Aviation Servs. Corp., 383 F. Supp. 3d 959 (N.D. Cal. 2019) ..................................................................... 15 Hawkins v. Kroger Co., 906 F.3d 763 (9th Cir. 2018) ................................................................................... 16 Hefler v. Wells Fargo & Co., 2018 WL 6619983 (N.D. Cal. Dec. 18, 2018) .......................................................... 9 In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539 (9th Cir. 2019) ............................................................................... 8, 14 In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ..................................................................................... 9 In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008) ..................................................................... 9 In re Toyota Motor Corp. Unintended Acceleration Mktg. Litig., 2013 WL 3224585 (C.D. Cal. June 17, 2013) ......................................................... 13


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In re Wells Fargo & Co. S’holder Derivative Litig., 445 F. Supp. 3d 508 (N.D. Cal. 2020) ....................................................................... 1 Kroessler v. CVS Health Corp., _ F.3d. _, 2020 U.S. App. LEXIS 32061 (9th Cir. Oct. 9, 2020) .............................. 2 Lambert v. Nutraceutical Corp., 2020 U.S. App. LEXIS 22230 (9th Cir. July 16, 2020) ............................................ 4 Lambert v. Nutraceutical Corp., 2020 U.S. Dist. LEXIS 6391 (C.D. Cal. Jan. 8, 2020) .............................................. 4 Lambert v. Nutraceutical Corp., 783 F. App'x 720 (9th Cir. 2019) .............................................................................. 3 Lambert v. Nutraceutical Corp., 870 F.3d 1170 (9th Cir. 2017) ................................................................................... 3 Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ................................................................................. 15 McGrath v. Wyndham Resort Dev. Corp., 2018 WL 637858 (S.D. Cal. Jan. 30, 2018) ............................................................ 13 Muliane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)................................................................................................. 17 Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) ....................................................................... 10, 12 Nutraceutical Corp. v. Lambert, 138 S. Ct. 2675 (2018) ............................................................................................... 3 Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019) ................................................................................................. 3 Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)................................................................................................. 14 Rodriguez v. Bumblebee Foods, LLC, 2018 U.S. Dist. LEXIS 69028 (S.D. Cal. Apr. 24, 2018) ....................................... 12


v In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex


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Rodriguez v. W. Publ'g Corp., 563 F.3d 948 (9th Cir. 2009) ................................................................................... 10

Zamora Jordan v. Nationstar Mortg., LLC, 2019 WL 1966112 (E.D. Wash. May 2, 2019) ......................................................... 8 Other Authorities NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.) .................................................................. 9 NEWBERG ON CLASS ACTIONS § 13:49 (5th ed.) .................................................................. 9 NEWBERG ON CLASS ACTIONS § 13:51 (5th ed.) .......................................................... 10, 11 NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.) ................................................................ 13 NEWBERG ON CLASS ACTIONS § 13:56 (5th ed.) ................................................................ 14


1 In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex


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I. INTRODUCTION

This case settled during a lengthy mediation before the Honorable Jay C. Gandhi

(Ret.). The settlement is memorialized in the Class Action Settlement Agreement

(“Settlement Agreement”), which is attached as Exhibit 1 to the Declaration of Gregory S.

Weston. Plaintiff respectfully requests the Court grant it preliminary approval.

“The court’s task at the preliminary approval stage is to determine whether the

settlement falls ‘within the range of possible approval.’” In re Wells Fargo & Co. S’holder

Derivative Litig., 445 F. Supp. 3d 508, 517 (N.D. Cal. 2020) (citation omitted). This motion

shows the settlement, combining cash relief and label changes, easily is “within the range

of possible approval” and should be advertised to class members via class notice to obtain

their reaction, as well as served on the United States and California attorneys general, as

provided by the Class Action Fairness Act.

The settlement requires Nutraceutical to make two of the most important changes

Plaintiff demanded in his 2013 Complaint. It also acknowledges that other changes to the

label that occurred after 2013 were catalyzed by this suit. It also provides cash relief equal

to about half of the total amount Plaintiff sought in his affirmative MSJ on behalf of the

Class. Defendant also is paying costs and any attorney fees and incentive award this Court

might approve, but which after a trial might be subtracted from any cash recovery.

Having litigated this case for almost eight years, and all the way to the United States

Supreme Court, through close of discovery and full briefing of summary judgment and

Daubert motions, Class Counsel understands the strengths and weaknesses of their case,

and the risks of proceeding through potential challenges to class certification, summary

judgment motions, trial, and further appeals. They believe the settlement meets the standard

of being fair, reasonable, and adequate. Not only does the settlement serve the interests of

the Parties, but also the public interests embodied in California’s consumer protection laws

and the federal Food Drug & Cosmetic Act (“FDCA”). As the Ninth Circuit noted, in a

published decision earlier this month in another nutrition-supplement label class action,

“the FDCA [has a] stated purpose of promoting public policy by retaining parallel avenues




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for private and public enforcement actions against false or misleading statements.”

Kroessler v. CVS Health Corp., _ F.3d. _, 2020 U.S. App. LEXIS 32061, at *25-26 (9th

Cir. Oct. 9, 2020). Here, the settlement ensures not just that Defendant complies with the

FDCA, but encourages voluntary compliance with the FDCA by other members of the

industry by providing an example of private enforcement.

For these reasons, Plaintiff respectfully requests that the Court grant preliminary

approval of the settlement and approve the Parties’ plan for class notice.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed his Complaint on August 14, 2013, bringing claims on behalf of a

nationwide class. Dkt. 1. Plaintiff’s central allegation in this case is that Cobra was falsely

and unlawfully marketed as an aphrodisiac drug. He argued it violated both the general

statute requiring approval of new drugs, as well as 21 C.F.R. § 310.528, a regulation

dealing specifically with “herbal aphrodisiac” products. Because the FDCA does not

provide private standing, Plaintiff brought his claims under the laws of California.

Plaintiff amended his Complaint on October 25, 2013. Dkt. 24. On November 8,

2013, Nutraceutical moved to dismiss Plaintiff’s First Amended Complaint. Dkt. 35.

Plaintiff opposed on November 18, Dkt. 42, and Nutraceutical submitted its reply brief on

November 25. Dkt. 47. On December 16, the Court granted the motion in part, dismissing

the claims “of class members who are not California residents.” Dkt. 54 at 6. Plaintiff filed

his Second Amended Complaint on December 23, 2013. Dkt. 56. Nutraceutical Answered

the SAC on January 15, 2014. Dkt. 63.

On April 7, 2014, Plaintiff filed a motion for class certification. Dkt. 65. The

Honorable Audrey B. Collins granted the motion on June 19, 2014. Dkt. 80. This action

was transferred to the Honorable André Birotte, Jr. on August 12, 2014. Dkt. 86.

On November 24, 2014, the Parties both submitted summary judgment motions.

Dkts. 125, 129. They submitted their opposition briefs on December 29, Dkts. 148-149.

Nutraceutical submitted its reply brief on January 19, 2015. Dkt. 159. Plaintiff filed his

reply brief on January 26. Dkt. 161. The Court continued the hearing on the dueling MSJs




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on February 2, 2015. Dkt. 166.

Nutraceutical moved to decertify the class on November 17, 2014. Dkt. 111. Plaintiff

opposed on December 1, 2014, Dkt. 141, and Nutraceutical submitted its reply brief on

December 8, 2014. Dkt. 144. The Court granted the motion to decertify on February 20,

2015. Dkt. 175.

During a March 2, 2015 Status Conference, Plaintiff informed the Court of his

intention to file a Motion for Reconsideration of the Decertification Order, and the Court

set a briefing schedule for the motion. Dkt. 177. Plaintiff filed his Motion for

Reconsideration on March 12, 2015. Dkt. 183. Nutraceutical opposed on March 30, Dkt.

189, and Plaintiff filed his reply brief on April 13. Dkt. 192. On June 24, the Court denied

Plaintiff’s Motion for Reconsideration. Dkt. 195. Plaintiff filed a petition for permission

to appeal the order pursuant to Fed. R. Civ. P. 23(f), Dkt. 203, which was granted. Dkt.

209.

On September 15, 2017, the Ninth Circuit reversed the decertification order.

Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1184 (9th Cir. 2017). Defendant filed a

Petition for a Writ of Certiorari with the Supreme Court on February 1, 2018. On June 25,

2018, the Supreme Court granted Defendant’s Petition. Nutraceutical Corp. v. Lambert,

138 S. Ct. 2675 (2018). The Supreme Court issued an opinion reversing the Ninth Circuit’s

order and remanding the action for further proceedings on February 26, 2019.

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019).

On April 9, 2019, upon remand from the Supreme Court to the Ninth Circuit,

Lambert filed a Motion for Additional Briefing, which was granted on April 16, 2019.

Plaintiff filed his supplemental brief on May 4, 2019, and Nutraceutical submitted its

supplemental brief on June 13, 2019. The Ninth Circuit issued an order dismissing

Lambert’s appeal on August 27, 2019 and remanded the action for further proceedings.

Lambert v. Nutraceutical Corp., 783 F. App'x 720 (9th Cir. 2019).

On October 4, 2019, the Court held a status conference and set a schedule for

supplemental briefs regarding class certification. Dkt. 253. The Parties submitted their




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supplemental briefs, Dkts. 255, 259, 260, and on January 28, 2020, the Court entered an

order rescinding it prior decertification order and reinstating class certification. Lambert v.

Nutraceutical Corp., 2020 U.S. Dist. LEXIS 6391, at *33 (C.D. Cal. Jan. 8, 2020).

Nutraceutical filed a Rule 23(f) Petition to appeal the Court’s January 8 Order, and

the Court entered an order staying the action during the pendency of the Petition on January

27, 2020. Dkt. 270. The Ninth Circuit denied the Petition on July 16, 2020 with Judge

Christen dissenting from the denial. Lambert v. Nutraceutical Corp., 2020 U.S. App.

LEXIS 22230 (9th Cir. July 16, 2020). The Court lifted the stay in this action on July 20,

2020. Dkt. 274.

The Court held a Case Management Conference on August 28, 2020. During the

conference, the Court suggested that the Parties attend mediation. Dkt. 284. On September

8, 2020, the Parties attended mediation before the Honorable Jay C. Gandhi, which resulted

in a complete, signed term sheet for a class-wide settlement. Dkt. 285. The Parties then

prepared a full agreement and notice plan.

III. TERMS OF THE SETTLEMENT AGREEMENT

The terms of the Settlement Agreement, attached as Exhibit 1 to the concurrently

filed Declaration of Gregory S. Weston, are summarized below.

A. The Settlement Class

The Settlement Class (“Class”) is the same as the certified class, except that it ends

on December 31, 2020.1 Settlement Agreement § 11.

Excluded from the Class are (a) persons or entities who purchased Cobra for the

purpose of resale or distribution; (b) persons who officers and directors of Defendant; (c)

persons who timely and properly exclude themselves from the Class, as provided in the

Settlement Agreement; and (d) any judicial officer hearing this Litigation. Settlement

Agreement § 11.

1 At the last CMC before the settlement was reached, Defendant noted that it believed the class needed to have an end date, and while the Parties disagreed on what the best end date would be, they did not disagree one would be required. The Court seemed to agree and set a schedule for Defendant to file an appropriate motion. Dkt. 284.




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B. Monetary Relief

As a result of the Settlement, Nutraceutical agrees to create a $100,000 cash

settlement fund for the class. Class members will receive $10 for claims not documented

by receipts, and up to $100 if documented by receipts. Notice and administrative expenses

of $19,250 are to be paid out of this $100,000 settlement fund. Settlement Agreement § 6.

The bulk of this will be for Facebook advertising and postage for settlement checks.

If valid claims exceed the total amount to be paid, the payments will be reduced on

a pro rata basis. If valid claims are below the total amount of the fund, the payments will

be increased pro-rata such that the fund is entirely exhausted. Settlement Agreement § 6.

Any funds remaining after the distribution, such as checks that are returned

undeliverable, or that are not cashed within 90 days, shall be paid by the Class Action

Administrator as a cy pres payment to the Legal Aid Foundation of Los Angeles. See Cal.

Civ. Code § 384(b) (expressly approving “nonprofit organizations providing civil legal

services to the indigent” as cy pres recipients in class actions.)

C. Injunctive Relief

In addition to the monetary relief described above, the Settlement provides

injunctive relief for the Class, as set forth below.

“Potency Wood” Provision

Nutraceutical will, within 180 days of the Effective Date, discontinue the use of the

phrase “potency wood” on the packaging of Cobra. Settlement Agreement § 4.

“Virility” Provision

Nutraceutical will, within 180 days of the Effective Date, discontinue the use of the

word “virility” on the packaging of Cobra. Settlement Agreement § 5.

D. Class Notice

The Parties have retained settlement and notice expert Gajan Retnasaba of Classaura

LLC to prepare a plan and disseminate settlement notice, as well as process and pay claims.

See Settlement Agreement § 9 and Retnasaba Decl. ¶¶ 2-15; Weston Declaration Exs. 2-3

(Summary Class Notice and Long Form Class Notice). Should the Court grant preliminary




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approval of the settlement, a settlement website will be created. The website will include

both the summary and long-form versions of the notice, which will describe the describe

the process for making claims, for objecting to the settlement, and for opting out of the

settlement. It will also give notice that an attorney fee application will be made and describe

how class members may obtain a copy of the fee application from the administrator or

online, and how they may oppose the application. Retnasaba Decl. ¶ 6. The website will

also have an online claim form, making claims much easier than settlements requiring

printing out documents and mailing them. The claim form will be secured using 128-bit

encryption, which is the commercial standard. Claim data will be stored in a secure

database. The website will also allow class members to download claim forms that can be

printed and submitted by mail for class members who prefer this method. Retnasaba Decl.

¶ 7.

The website will provide email, phone, and postal contacts for class members to

request further information, hard copies of claim forms or other documents, or help in the

claim filing process. For class members who are unwilling or unable to use the website or

make claims online, the Notice, in both its long and summary forms, and claim forms will

be provided by mail if requested by a toll-free telephone number. Retnasaba Decl. ¶ 8.

The primary method of class notice will be via Facebook, which for several reasons,

the Parties and Classaura believe meets Rule 23’s standard of best method practicable.

Retnasaba Decl. ¶¶ 10-12. First, Facebook is not only the most used website in the United

States, but is also the most popular medium for advertising of any type. Second, Facebook

allows for targeted advertising. Here, the notice will be targeted toward men over 40.

Retnasaba Decl. ¶¶ 3-5, 10-12. Third, Facebook has a feature that allows advertisers to

avoid “duplicate” impressions where the same individual is shown the same advertisement

multiple times. Id. ¶ 12. This allows for the widest possible distribution of notice. Finally,

Defendant has identified a small number of class members who purchased Cobra directly

from the Cobra website. These individuals will all be notified by mail. Id. ¶ 9.




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Further, Classaura will issue a national press release containing information about

the settlement and the address for the dedicated settlement website via PR Newswire.

Retnasaba Decl. ¶¶ 13-14. Press releases sent through PR Newswire often end up as articles

in news media websites such as CNBC.com, MarketWatch.com, Reuters.com, Yahoo.com

and local media affiliates of the major television networks ABC, NBC, and CBS. Id.

Finally, in compliance with Cal. Civ. Code § 1781, Classaura will arrange for

publication of the summary notice in newspaper of general circulation in Los Angeles

County, once a week for four consecutive weeks. Retnasaba Decl. ¶ 15.

Mr. Retnasaba has frequently prepared class notice plans in consumer class actions

that have been approved by the federal District Courts of California. Retnasaba Decl. ¶ 1.

E. Release

Upon entry of a final order approving the Settlement Agreement and the favorable

resolution of any subsequent appeals, every Class Member who has not filed a Request for

Exclusion from the Settlement Class will release all of their economic claims related to

Cobra. Importantly, the release does not extend to any sort of personal injury claim

resulting from either Cobra or its packaging. Settlement Agreement § 10.

F. Claims Process

The Claims process here is intentionally straightforward, easy to understand, and

designed so that Class members can make a claim to their portion of the settlement fund

without complication. Class members will make a claim by submitting a valid and timely

claim form to the Settlement Administrator. A copy of the Claim Form is attached to the

concurrently filed Weston Declaration as Exhibit 4. Claim Forms may be sent in by hard

copy or submitted electronically on the Settlement Website.

G. Opportunity to Opt-Out and Object

The settlement provides Class Members who wish to pursue their own claims against

Defendant, or are otherwise unhappy with its terms, with the opportunity to opt-out.

Settlement Agreement § 12.3. As with the claim form, the opt-out form is simple and can

be completed in less than a minute online.




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Class Members can also object to the settlement. The final approval motion and fee

application the Parties propose be filed thirty-five days before the Fairness Hearing, while

objections are due twenty-seven days before. This ensures that any objector has time to

review these documents before submitting their objection. The procedure is further

described in the Class Notice and Settlement Agreement § 12.

H. Fees, Costs, and an Incentive Award

The Settlement Agreement permits Plaintiff to apply for an incentive award of

$10,000 and for his counsel to seek up to $490,000 in fees and costs. Settlement Agreement

§ 13. Defendant agrees not to oppose such an application, provided that they do not exceed

the agreed-upon amount. Settlement Agreement § 13.

IV. LEGAL STANDARD FOR PRELIMINARY APPROVAL

Public policy “strong[ly] . . . favors settlements, particularly where complex class

action litigation is concerned.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556

(9th Cir. 2019) (en banc) The “2018 amendment to Rule 23(e) establishes core factors

district courts must consider when evaluating a request to approve a proposed settlement.”

Zamora Jordan v. Nationstar Mortg., LLC, 2019 WL 1966112, at *2 (E.D. Wash. May 2,

2019). In evaluating the 23(e) factors, it “is the settlement taken as a whole, rather than the

individual component parts, that must be examined for overall fairness” Carlin v.

DairyAmerica, Inc., 380 F. Supp. 3d 998, 1009 (E.D. Cal. 2019) (citation omitted).

Factors that the Ninth Circuit considers include (1) the strength of plaintiffs’ case;

(2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of

maintaining class action status throughout the trial; (4) the amount offered in settlement;

(5) the extent of discovery completed and the stage of the proceedings; and (6) the

experience and views of counsel. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

1998);2 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).

2 The Ninth Circuit also instructed district courts to consider “the reaction of the class members to the proposed settlement.” Hanlon, 150 F.3d at 1026. This factor can only be evaluated at the final approval stage when the Court can review objections, opt-outs, and class member claims.




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V. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY

APPROVAL

A. Plaintiff and Class Counsel Have Adequately Represented the Class.

Rule 23(e)(2)(A) requires the Court to consider whether “the class representatives

and class counsel have adequately represented the class.” Fed. R. Civ. P. 23(e)(2)(A). This

analysis is “redundant of the requirements of Rule 23(a)(4) and Rule 23(g), respectively.”

4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.). A determination of adequacy of

representation requires that “two questions be addressed: (a) do the named plaintiffs and

their counsel have any conflicts of interest with other class members and (b) will the named

plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re

Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000), as amended (June 19, 2000)

(citing Hanlon, 150 F.3d at 1020); see also Hefler v. Wells Fargo & Co., 2018 WL 6619983

(N.D. Cal. Dec. 18, 2018).

Troy Lambert, the class representative in this action, has no conflicts of interest with

other class members and has prosecuted this action diligently on behalf of the Class. This

has included sitting for a tough deposition, consulting with counsel on other discovery

issues and submitting declarations, and staying up to date on the case over seven years.

Class Counsel have also vigorously represented the Class and have no conflicts of

interest. The Settlement was negotiated by counsel experienced in consumer class action

litigation. Through the discovery process, Class Counsel has obtained sufficient

information and documents to evaluate the strengths and weaknesses of the case. See 4

NEWBERG ON CLASS ACTIONS § 13:49 (5th ed.) (“if extensive discovery has been done, a

court may assume that the parties have a good understanding of the strengths and

weaknesses of their respective cases and hence that the settlement’s value is based upon

such adequate information.”). Based on such discovery and their experience, Class Counsel

believe that the Settlement provides exceptional results for the class while sparing the class

from the uncertainties of even more protracted litigation. Weston Decl.¶ 11. See, e.g., In

re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2007) (“The




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recommendations of plaintiffs’ counsel should be given a presumption of

reasonableness.”); Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 967 (9th Cir. 2009)

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

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

B. The Settlement was Negotiated at Arm’s Length.

Rule 23(e)(2)(B) requires the Court to consider whether “the proposal was

negotiated at arm’s length.” Fed. R. Civ. P. 23(e)(2)(B). Here, the settlement was

negotiated at arm’s length under the supervision of Judge Gandhi after hard-fought

litigation and discovery. Further, the Parties did not settle until after they had briefed class

certification and decertification, submitted summary judgment motions, engaged in a

lengthy appeal process that included a trip to the Supreme Court, and exchanged mediation

briefs. Weston Decl. ¶ 9. Settlement discussions also did not begin until after the Parties

had exchanged written discovery and documents, which speaks to the fundamental fairness

of the process. See Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528

(C.D. Cal. 2004) (“A settlement following sufficient discovery and genuine arms-length

negotiation is presumed fair.”).

C. The Relief Provided to the Class is Adequate

Rule 23(e)(2)(C) requires that the Court consider whether

the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).

Fed. R. Civ. P. 23(e)(2)(C). “Before the Rule arrives at the articulation of sub-factors, its

general directive asks whether the class’s relief is adequate.” 4 NEWBERG ON CLASS

ACTIONS § 13:51 (5th ed.). “In evaluating the value of the class members’ claims, the court

need not decide the merits of the case nor substitute its judgment of what the case might be

worth for that of class counsel; however, ‘the court must at least satisfy itself that the class




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settlement is within the ‘ballpark’ of reasonableness.’” Id. (citation omitted).

As a result of the Settlement, Nutraceutical will both revise the packaging of Cobra

to remove the two label claims Plaintiff found most objectionable and misleading and

establish a non-reversionary settlement fund of $100,000, which includes $19,250 in

Notice and administrative expenses. Settlement Agreement §§ 3-7. Class members who

submit receipts for their purchases may claim up to $100, and class members lacking

receipts may still obtain $10. This compares favorably to the roughly $15 purchase price

of Cobra. Settlement Agreement § 6. In lieu of taking this matter to trial with the possibility

of obtaining no relief, this is an excellent result for the Class. The $100,000 monetary relief

is over half of the total restitution Plaintiff sought for the Class at summary judgment based

on his “full restitution” model. See Dkt. 129 at 24 (memo in support of Plaintiff’s MSJ);

Dkt 129-2 (Plaintiff’s proposed order granting MSJ) (“The Class is awarded $176,999.28

in restitution”)

The amount of recovery per claimant is also adequate, considering that Class

Members can claim up to $100 in cash from the settlement fund for documented purchases,

and Class Members who do not have receipts will still get an estimated $10 from the

settlement fund. Settlement Agreement § 6.

Any funds remaining after the distribution, such as checks that are not cashed within

90 days, will be paid as a cy pres payment to the Legal Aid Foundation of Los Angeles.

Settlement Agreement § 6.

This recovery is significant considering that Defendant sells a 30-count bottle of

Cobra for $15.39 on their website, and at times the price was lower.3 Thus the monetary

recovery represents a large fraction of total damages alleged by Plaintiff and that Plaintiff

believed could be recoverable at trial, whether examined in aggregate or compared to each

individual claim.

3 See https://naturalbalance.com/catalogsearch/advanced/result/?name=cobra (last visited October 19, 2020).




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Also strong is the injunctive relief provision. Again looking back to Plaintiff’s MSJ,

the proposed order asked the Court to order seven changes to the label. The settlement

imposes two of those changes, the “potency wood” and “virility” claims. Settlement

Agreement §§ 4-5. Of the remaining five changes Plaintiff sought in his MSJ, three were

made after the case was filed,4 and Defendant stipulates the case was a catalyst for the

changes. See Dkt. 129 at 2; Dkt. 129-2; Settlement Agreement § 7. Thus, the injunctive

relief was even more successful than the monetary relief, with Plaintiff securing five of the

seven things he demanded in his summary judgment motion. Of the remaining two claims,

one was a difficult challenge to the very name of the product, and the other remains, but

was toned down, from “intended to provide … blood flow” to “thought to provide … blood

flow.”

D. The Costs, Risks, and Delay of Trial and Appeal Support

Preliminary Approval

The costs, risks, and delay of trial and appeal further support preliminary approval.

Proceeding in this litigation in the absence of settlement poses various risks. The

Settlement provides relief to the Class without the risks, costs, and delays inherent in

continued litigation, all of which are important factors in considering the reasonableness

of the Settlement. Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575-76 (9th Cir. 2004);

see also Rodriguez v. Bumblebee Foods, LLC, 2018 U.S. Dist. LEXIS 69028, at *8 (S.D.

Cal. Apr. 24, 2018) (“It has been held proper to take the bird in hand instead of a

prospective flock in the bush.”) (internal quotation marks omitted); Nat’l Rural Telecomms.

Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004) (same).

The risks of proceeding in this litigation include, by way of example, jurisdictional

challenges, statute of limitations challenges, potential difficulties arising from different

product packaging over the course of the Class Period, and the fact that the Class Members

did not pay a uniform price. Class Counsel is also mindful of the inherent problems of

4 The “Powerful Men’s Formula” “aphrodisiac plants” and “perform your best” language was removed.




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proof related to the claims and defenses to the claims asserted in the Litigation.

Such considerations have been found to weigh heavily in favor of settlement. See

Rodriguez, 563 F.3d at 966; Curtis-Bauer v. Morgan Stanley & Co., Inc., No. C 06-3903

TEH, 2008 WL 4667090, at *4 (N.D. Cal. Oct. 22, 2008) (“Settlement avoids the

complexity, delay, risk and expense of continuing with the litigation and will produce a

prompt, certain, and substantial recovery for the Plaintiff class.”). The Settlement

eliminates these risks by ensuring Class Members a recovery that is “certain and

immediate, eliminating the risk that class members would be left without any recovery . . .

at all.” Fulford v. Logitech, Inc., 2010 U.S. Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5,

2010).

E. The Proposed Method of Distributing Relief to the Class Is

Effective

“[T]he goal of any distribution method is to get as much of the available damages

remedy to class members as possible and in as simple and expedient a manner as possible.”

4 NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.). Here, the claims process is

straightforward and allows Settlement Class members to make a claim by submitting a

valid and timely Claim Form to the Settlement Administrator without complication. See In

re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab.

Litig., No. 8:10ML 02151 JVS, 2013 WL 3224585, at *18 (C.D. Cal. June 17, 2013) (“The

requirement that class members download a claim form or request in writing a claim form,

complete the form, and mail it back to the settlement administrator is not onerous.”).

Further, if valid claims are below the total amount of the fund, the payments will be

increased pro-rata such that the fund is exhausted. Settlement Agreement § 6. Any funds

remaining after the distribution, such as checks that are returned for incorrect addresses, or

that are not cashed within 90 days, shall be paid by the Class Action Administrator as a cy

pres payment to the Legal Aid Foundation of Los Angeles, 1550 W. 8th Street, Los

Angeles, CA 90017. Settlement Agreement § 6. See also McGrath v. Wyndham Resort

Dev. Corp., 2018 WL 637858, at *6 (S.D. Cal. Jan. 30, 2018) (finding a non-reversionary




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settlement fund to be “fair, reasonable, and adequate.”). Accordingly, the Court should find

the proposed method of distribution of class funds to be effective.

F. The Proposed Attorneys’ Fee Award is Fair and Reasonable

As discussed above, the Settlement Agreement provides that Class Counsel may

request an award of attorneys’ fees and out-of-pocket expenses of up to $490,000.

Settlement Agreement § 13. Further, the Settlement is not contingent on an attorney fee

award, and any such award will not be paid from the settlement fund. Settlement

Agreement § 13.

As the Ninth Circuit and Supreme Court have noted, “the lodestar method yields a

fee that is presumptively [reasonable].” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d

539, 571 (9th Cir. 2019) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552

(2010). Here, the fees requested by Class Counsel amount to approximately 26% of Class

Counsel’s lodestar to date, and Class Counsel will devote additional work to the action in

obtaining final approval of the Settlement. Weston Decl. ¶ 10.

G. No Side Agreements Were Made in Connection with the Proposed

Settlement

Rule 23(e)(3) requires that the Parties “must file a statement identifying any

agreement made in connection with the [settlement] proposal.” Fed. R. Civ. P. 23(e)(3).

No agreements were made in connection with the settlement aside from the Settlement

Agreement itself. Weston Decl. ¶ 7.

H. The Proposed Settlement Treats Class Members Equitably

Relative to Each Other

Rule 23(e)(2)(D) requires the Court to consider whether the Settlement Agreement

“treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “A

distribution of relief that favors some class members at the expense of others may be a red

flag that class counsel have sold out some of the class members at the expense of others,

or for their own benefit.” 4 NEWBERG ON CLASS ACTIONS § 13:56 (5th ed.). Here, the

settlement treats each class member equally. As discussed above, each class member can




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make a claim for $10 in cash from the settlement fund. Settlement Agreement § 6. Because

each class member is treated equally, the Court should approve the settlement as fair,

reasonable, and adequate.

VI. ADDITIONAL FACTORS SUPPORTING APPROVAL OF SETTLEMENT

In addition to the factors set forth in Rule 23(e), courts may consider additional

factors in contemplating preliminary approval, such as the “strength of the plaintiff’s case,”

“the complexity and likely duration of further litigation,” “the extent of discovery

completed and the stage of the proceedings,” and “the experience and views of counsel”

Haralson v. U.S. Aviation Servs. Corp., 383 F. Supp. 3d 959, 967 (N.D. Cal. 2019). See

also Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (same).

A. The Strength of Plaintiff’s Case

While Plaintiff maintains that his claims are valid and that he would prevail at trial,

he acknowledges that he would face challenges to both to the Court’s class certification

order and to the merits of his claims. Plaintiff is mindful of the challenges he would face

in maintaining class certification. These challenges include, by way of example, potential

jurisdictional and statute of limitations challenges, and that the Class Members did not pay

a uniform price for Cobra.

Further, Plaintiff is mindful of the potential problems of proof bearing on the claims

asserted in the Litigation, and that, like most class members, he did not retain proof of his

purchases. These issues, in particular those arising from consumer class action damages

models, have resulted in many consumer class actions being denied class certification.

Plaintiff believes that some aspects of his case are quite strong. Defendant, however,

points out that some of challenged statements from Cobra’s label may constitute non-

actionable puffery. Further, Nutraceutical believes Plaintiff would have trouble

demonstrating an injury sufficient to confer standing.

B. The Extent of Discovery Completed and the State of the

Proceedings

Prior to the close of discovery, the Parties produced documents and information and




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exchanged expert reports. Further, prior to engaging in serious settlement discussions, the

Parties fully briefed summary judgment. Dkts. 125, 129, 148, 149, 159, 161. Thus, the

Parties were well-informed in negotiating the Settlement.

Further, the Settlement comes after seven years of protracted litigation, including

multiple appeals and a trip to the Supreme Court. Thus, the Parties negotiated the

Settlement with an understanding of the strengths and weaknesses of the Class’s claims.

C. The Complexity and Likely Duration of Further Litigation

With regard to the complexity of this action, in 2018 a Ninth Circuit panel criticized

the FDA for the complexity of its labeling regulations in another class action brought by

Plaintiff’s counsel. Specifically, in Hawkins v. Kroger Co., the Ninth Circuit used the

phrases “somewhat confusingly,” “inconsistent and incomprehensive,” and “mind-

bogglingly complex and confusing,” and noting “the degree of difficulty in sorting out and

tracking down the applicable regulations” and the resulting “large amount of judicial

resources” needed to interpret the FDA regulations before it. 906 F.3d 763, 766 n.1 and

771-72 (9th Cir. 2018).

Further, the likely duration of further litigation weighs in favor of settlement

approval. This action was filed on August 14, 2013—more than seven years ago—and was

the work of substantial pre-filing investigation and a pre-filing demand letter. Dkt. 1. The

action has been hard fought, including multiple appeals and a trip to the Supreme Court.

Plaintiff is mindful proceeding with the action may result in further delay in an action

which has already been pending for seven years.

D. The Experience and Views of Counsel

The Class is represented by Gregory Weston of The Weston Firm and Ronald A.

Marron of the Law Office of Ronald A. Marron. They are experienced in consumer fraud

litigation involving food and drugs, including FDA regulated supplements. The Court

previously found them to be adequate when it appointed them Class Counsel. In Class

Counsel’s view, the Settlement provides a substantial benefit to the Class. Weston Decl. ¶

11.




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VII. THE PROPOSED FORM AND METHOD OF CLASS NOTICE IS

ADEQUATE AND SATISFIES THE REQUIREMENTS OF RULE 23.

Class notice must be “‘reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections.’” Caudle v. Sprint/United Mgmt. Co., 2019 U.S. Dist. LEXIS 216056, at

*12 (N.D. Cal. Dec. 16, 2019) (quoting Muliane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 314 (1950)); see also Fed. R. Civ. P. 23(e)(1). Class notice also must satisfy Rule

23(c)(2)(B), which provides that the notice must clearly and concisely state the following

in plain, easily understood language:

(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).

The proposed class notice, modeled on others that have been approved by California

federal courts, does each of these. Here, because the product is sold at retail, a complete

list of class members does not exist to notify directly by name. Settlement Agreement § 9.

Therefore, the Parties agreed to and propose that it will be publicized through Facebook

advertisements, targeted at the demographics most likely to purchase Cobra. Class Notice

will also be published in a newspaper of general circulation over four consecutive weeks

in Los Angeles County, where the Plaintiff resides, as required by Section 1781 of the

Consumer Legal Remedies Act. Retnasaba Decl. ¶ 15.

The Proposed Notice Plan shall further include a class notice website, which will

include (1) links to the Class Notice, (2) the Settlement Agreement, (3) this Motion for

Preliminary Approval, (4) if and when issued, the Court’s Order granting preliminary

approval, (5) the fee motion, and (6) instructions on opting out and filing of objections.

Retnasaba Decl. ¶¶ 6-8. The Class Notice is written in plain language and contain the

information required by Rule 23(c)(2)(B), as well as a user-friendly “Frequently Asked




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Questions” format. See Weston Decl. Ex. 3. Both Class Counsel and Classaura, LLC, an

experienced class action settlement administrator, will be available to further explain the

settlement to class members. Accordingly, the Notice and Notice Plan should, respectfully,

be approved.

VIII. PROPOSED SCHEDULE OF EVENTS

In connection with preliminary approval of the Settlement Agreement, the Parties

propose a schedule described in the table below based on the date the Court sets for the

Fairness hearing. It order to comply with CAFA’s rule that notice be sent to state attorneys

general 90 days before the Fairness Hearing to allow them to comment on or object to the

settlement, the Parties request the Court set the Fairness Hearing about 104 days after its

preliminary approval order, allowing two weeks for such notice to be mailed and received.

Event Date Motion for Final Approval January 15, 2021Motion for Attorney Fees and Incentive Award

January 15, 2021

Deadline for Opt-Outs or Objections

January 23, 2021

Deadline for notice of intent to appear at the Fairness Hearing

January 23, 2021

Parties’ Response to Objections February 12, 2021Filing a List of Timely Requests for Exclusion

February 12, 2021

Certification of Service of CAFA Notice to Attorneys General

February 18, 2021

IX. CONCLUSION

The proposed Settlement is fair, reasonable, and adequate, and falls well within the

range for possible final approval. For these reasons the Court should, respectfully, grant

preliminary approval.




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Dated: October 23, 2020 Respectfully submitted,

/s/ Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON 1405 Morena Blvd., Suite 201 San Diego, CA 92110

LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON MICHAEL T. HOUCHIN 651 Arroyo Drive San Diego, CA 92103 Class Counsel


In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex DECLARATION OF GREGORY S. WESTON

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] MICHAEL T. HOUCHIN (305541) [email protected] 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665




Case No: 2:13-cv-05942-AB-Ex DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFF’S

MOTION FOR PRELIMINARY APPROVAL

OF CLASS ACTION SETTLEMENT Judge: The Honorable André Birotte, Jr.Date: November 6, 2020 Time: 10:00 a.m. Location: Courtroom 7B

Case 2:13-cv-05942-AB-E Document 287-1 Filed 10/23/20 Page 1 of 39 Page ID #:7497

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I, Gregory S. Weston, declare:

1. I am a member in good standing of the Bar of California and of this Court. I

make this declaration in support of Plaintiff’s Motion for Preliminary Approval of Class

Action Settlement.

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

proposed class-wide Settlement Agreement dated October 22, 2020.

3. Attached hereto as Exhibit 2 is a true and correct copy of the proposed

Summary Class Notice.


complete or “long form” Class Notice.


Claim Form.

6. Defendant took the deposition of Plaintiff Troy Lambert on April 4, 2014.

7. No side agreements were made in connection with the settlement aside from

the Settlement Agreement itself.

8. Through the discovery process, Class Counsel has obtained sufficient

information and documents to evaluate the strengths and weaknesses of the case.

9. The Parties did not engage in serious settlement discussions until after they

had briefed class certification and decertification, submitted summary judgment motions,

engaged in a lengthy appeal process that included a trip to the Supreme Court, and

attended mediation before the Honorable Jay C. Gandhi.

10. Pursuant to the Settlement Agreement, Class Counsel may apply for an

award of attorneys’ fees and costs of up to $490,000. This amount is approximately 26%

of Class Counsel’s lodestar to date, which we estimate to be approximately $1.9 million.

Further, we will devote additional work to the action in obtaining final approval of the

Settlement.

11. Based on my experience, I believe the settlement is fair and provides an


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exceptional outcome for the Class while sparing the class from the uncertainties of

continued and protracted litigation.

Executed on October 23, 2020 in San Diego, California.

/s/ Gregory S. Weston

DATED: October 23, 2020 Respectfully Submitted,

/s/Gregory S. Weston Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (619) 343-2789 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON MICHAEL T. HOUCHIN 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Class Counsel


EXHIBIT 1


1

In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex CLASS ACTION SETTLEMENT AGREEMENT

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Case No: 2:13-cv-05942-AB-Ex

CLASS ACTION SETTLEMENT AGREEMENT

Judge: The Honorable André Birotte, Jr.


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and entered into by and between Plaintiff Troy Lambert, on behalf of himself and the

Defendant Nutraceutical Corporation Nutraceutical

d compromise this Litigation, and settle,

resolve, and discharge the Released Claims, as defined below, according to the terms

and conditions herein.

RECITALS

PROCEDURAL BACKGROUND

WHEREAS, this action, entitled In re Cobra Sexual Energy Sales Practices Litig.,

2:13-cv-5942-AB-Ex (C.D. Cal.), was filed in the U.S. District Court for the Central

District of California against Nutraceutical

Consumer Legal Remedies Act (Civ. Code § 1750, et seq.

Competition Law (Bus. & Prof. Code § 17200, et seq.

Law (id. § 17500, et seq s marketing and sale of

Nutraceutical Cobra products , as defined below ;

WHEREAS, based upon extensive discovery, investigation, and evaluation of the

facts and law relating to the matters alleged in the pleadings of the Litigation, plus the

risks and uncertainties of continued litigation and all factors bearing on the merits of

settlement, the parties -length negotiations both before and during

a formal mediation, and have agreed to settle the claims asserted in the Litigation

pursuant to the provisions of this Settlement Agreement;

NOW THEREFORE, subject to the final approval of the Court as required

herein and by applicable law and rules, the Settling Parties hereby agree, in

consideration of the mutual promises and covenants contained herein, and for other good

and valuable consideration, the sufficiency of which is hereby acknowledged, that any

Released Claims, as defined below, against any Released Parties, as defined below, shall

be settled, compromised and forever released upon the following terms and conditions.


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TERMS AND CONDITIONS OF THE SETTLEMENT

1. DEFINITIONS

As used herein, the following terms have the meanings set forth below.

state officials in the United States, as provided by the Class Action Fairness Act of 2005,

28 U.S.C. § 1715.

means those individuals who purchased Cobra products from August 14,

2009 through December 31, 2020 as defined in Section 12 of this Agreement.

The Weston Firm and The Law Offices of Ronald A.

Marron.

of this Class and who do(es) not validly and timely request exclusion from the Class, in

accordance with the provisions of the Notice Plan.

August 14, 2009 through December 31, 2020.

U.S. District Court for the Central District of California.

Nutraceutical Corporation.

John C.

Hueston, Steven N. Feldman, and Joseph A. Reiter of Hueston Hennigan LLP.

Approval Order and after Notice is distributed pursuant to the Notice Plan for purposes

of determining (1) whether the terms and conditions of the Settlement Agreement are

fair, reasonable, and adequate, and therefore the Settlement Agreement should be finally

approved with entry of the Final Judgment and Order; and (2) whether a judgment

should be entered dismissing the Litigation on the merits and with prejudice in favor of

Defendant and against Plaintiff pursuant and subject to the terms of the Settlement

Agreement.


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Settlement Agreement and a separate judgment to be entered by the Court, pursuant to

Federal Rule of Civil Procedure 58(a), dismissing the Litigation with prejudice.

In re Cobra Sexual Energy Sales

Practices Litig., 2:13-cv-5942-AB-Ex (C.D. Cal.).

Exhibit A hereto,

with substantial changes requiring the mutual consent of the Settling Parties or the order

or instruction or conditional approval of the Court, to be disseminated in accordance

with Preliminary Approval Order, informing the Class of, among other things, the

pendency of the Litigation, the material terms of the Settlement Agreement, and their

options with respect thereto.

Settlement.

Troy Lambert.

preliminary approval of the Settlement and dissemination of the Notice to the Class

according to the Notice Plan.

Cobra Cobra Sexual Energy, the dietary supplement manufactured by

Nutraceutical at issue in the Litigation, in all packaging sizes and iterations.

who does not wish to participate in the Settlement to the Class Action Administrator,

stating an intent -

and incorporated herein, including all subsequent amendments agreed to in writing by

the Settling Parties and any exhibits to such amendments.


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that opt out of the Settlement in the manner provided herein) and Nutraceutical.

2. DENIAL OF WRONGDOING AND LIABILITY

Nutraceutical denies the material factual allegations and legal claims asserted in

the Litigation, including any and all charges of wrongdoing or liability arising out of any

of the conduct, statements, acts, or omissions alleged, or that could have been alleged, in

the Litigation. Similarly, this Settlement Agreement provides for no admission of

wrongdoing or liability by any of the Released Persons. This Settlement is entered into

solely to eliminate the uncertainties, burdens, and expenses of protracted litigation.

3. THE BENEFITS OF SETTLEMENT

Class Counsel and the Representative Plaintiff recognize and acknowledge the

expense and length of continued proceedings that would be necessary to prosecute the

Litigation through trial and further appeals. Class Counsel also has taken into account

the uncertain outcome and the risk of any litigation, especially in complex actions such

as the Litigation, as well as the difficulties and delays inherent in such litigation. Class

Counsel is mindful of the challenges it will face in maintaining class certification. These

challenges include, by way of example, jurisdictional challenges, statute of limitations

challenges, potential difficulties arising from different product packaging over the

course of the Class Period, and the fact that the Class Members did not pay a uniform

price. Class Counsel is also mindful of the inherent problems of proof related to the

claims and defenses to the claims asserted in the Litigation. Class Counsel believes that

the proposed Settlement confers substantial benefits upon the Class and provides much

of the relief sought in the Litigation, both monetary and injunctive. Based on their

evaluation of all of these factors, following briefing on the sufficiency of the complaint

and the evaluation of documents produced, the Representative Plaintiff and Class

Counsel have determined that the Settlement is in the best interests of the Representative

Plaintiff and the Class.

4. INJUNCTIVE RELIEF POTENCY WOOD


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Nutraceutical agrees to, within 180 days of the Effective Date, discontinue the use

potency wood Cobra. This term does not require a

recall or destruction of existing product or packaging stock.

5. INJUNCTIVE RELIEF VIRILITY

Nutraceutical agrees to, within 180 days of the Effective Date, discontinue the use

of the word virility Cobra. This term does not require a recall or

destruction of existing product or packaging stock.

6. MONETARY RELIEF SETTLEMENT FUND

Nutraceutical to pay $100,000 cash settlement to the class. Class members will

receive $10 for claims not documented by receipts, and $100 if documented by receipts.

Notice and administrative expenses of $19,250 are to be paid out of this $100,000

settlement fund. Nutraceutical will not have any responsibility for the allocation of the

settlement proceeds or the review of claims of class members.

If valid claims exceed the total amount to be paid, the payments will be reduced

on a pro rata basis. If valid claims are below the total amount of the fund, the payments

will be increased pro-rata such that the fund is exhausted. Any funds remaining after the

distribution, such as checks that are returned for incorrect addresses, or that are not

cashed within 90 days, shall be paid by the Class Action Administrator as a cy pres

payment to the Legal Aid Foundation of Los Angeles, 1550 W. 8th Street, Los Angeles,

CA 90017.

7. MISCELLANEOUS RELIEF STIPULATION OF CATALYST

Solely for purposes of settlement, and without any admission of wrongdoing,

Defendant stipulates this action was the catalyst for the removal from the label of Cobra,

8. SUBMISSION OF THE SETTLEMENT TO THE COURT FOR REVIEW

AND APPROVAL

As soon as practicable, within 30 days following the signing of this Settlement


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Agreement, Class Counsel shall seek preliminary approval of this agreement because it

is within the range of reasonableness such that Notice should be provided pursuant to

this Settlement Agreement.

9. ADMINISTRATION AND NOTICE

Class Counsel shall arrange for providing Notice to the Class in conjunction with

the Class Action Administrator. Nutraceutical has agreed to pay $100,000 cash

settlement to the Class. Notice and administrative expenses are to be paid out of this

$100,000 settlement fund.

Appointment and Retention of Class Action Administrator

The Class Action Administrator shall be Classaura LLC.

The Class Action Administrator shall be responsible for providing the Settling

Parties with assistance, as necessary, such as by preparing affidavits of work it has

performed with respect to implementing the Notice Plan, and providing regular updates

Defendant shall pay $19,250 to the Class Action

Administrator within five court days of an order granting preliminary approval to this

settlement. Defendant shall pay the balance of $80,750 to the Class Action

Administrator within five court days of the later of (1) an order granting final approval

to the settlement, if there are no objections to the settlement; (2) the time to file a timely

appeal of the denial of objections has passed, if there are objections; (3) the day the

Ninth Circuit affirms the order granting final approval if there are both objections and

appeals of the denial of the objections.

Class Settlement Website

The Class Action Administrator will create and maintain a class settlement

of its receipt of the Preliminary Approval Order. The Class Settlement Website will

contain Settlement information and case-related documents such as this Settlement

Agreement, the Prelimi

Costs and Incentive Award, the Final Approval Motion, and notices from the Court. In


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addition, the Class Settlement Website will include procedural information regarding the

status of the Court-approval process, such as an announcement of the Fairness Hearing

date, when the Final Judgment and Order has been entered, and when the Effective Date

has been reached, including any appeal(s).

The Class Settlement Website will terminate (be removed from the internet) and

no longer be maintained by the Class Action Administrator on either (a) the Effective

Date or (b) the date on which the Settlement Agreement is terminated or otherwise not

approved by a court, whichever is later.

CAFA Notice

Defendant shall serve notice of the Settlement Agreement that meets the

requirements of CAFA, 28 U.S.C. § 1715, on the appropriate federal and state officials

approval of settlement with the Court.

Defendant will file a certification with the Court stating the date or dates on which

the CAFA Notice was sent. Alternatively, Defendant may separately arrange for the

Class Action Administrator to perform this task and either party may file the declaration

certifying CAFA notice to attorneys general has been provided.

Notice Plan

The Notice Plan, attached hereto as Exhibit B, shall conform to all applicable

requirements of the Federal Rules of Civil Procedure, the United States Constitution

(including the Due Process Clauses), and any other applicable law, and shall otherwise

be in the manner and form agreed upon by the Settling Parties and approved by the

Court.

The Class Action Administrator shall commence providing Notice to the Class

according to the Notice Plan as attached in Exhibit B, as ordered by the Court in its

Preliminary Approval Order.

The Settling Parties agree to the content of the Notice, substantially in the form

attached to this Settlement Agreement as Exhibit A, and as approved by the Court.


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The Class Action Administrator shall be responsible for receiving all opt-out and

other requests and correspondence from the Class Members to exclude themselves from

the Settlement and provide to Class Counsel and Defense Counsel a copy thereof within

three (3) days of receipt. The Class Action Administrator shall also receive and maintain

all other correspondence from any Class Member regarding the Settlement and promptly

provide such correspondence to Class Counsel and Defense Counsel. No later than seven

(7) calendar days before the date of the Fairness Hearing, the Class Action Administrator

shall provide to the Settling Parties and file with the Court a list of those persons who

have submitted a valid Request for Exclusion, as described in Section 13 of this

Settlement Agreement.

10. RELEASES AND DISMISSAL OF ACTION

Upon the Effective Date, Plaintiff and all members of the Class, except for those

that have opted out, will be deemed to have, and by operation of the Final Judgment and

Order will have, fully, finally, and forever released, relinquished, and discharged the

Released Persons from all Released Claims, meaning, with the exception of claims for

Personal Injury, any and all causes of action, claims, suits, debts, damages, judgments,

liabilities, demands, and controversies of every nature and description whatsoever

whether now known or unknown, asserted or not asserted, matured or unmatured,

liquidated or unliquidated, at law or in equity, for injunctive relief or damages, whether

before a local, state or federal court, or state or federal administrative agency,

commission, arbitrator(s) or otherwise that such Plaintiffs now have or may have, and

for all times up to and including the Effective Date of the Settlement, for all claims that

were or could have been asserted relating to the manufacturing, preparation, handling,

distribution, advertising, marketing, packaging, sale, labeling, promotion, and

ingredients of Cobra. Plaintiffs (except for those that have opted out in the manner

provided for herein) also knowingly, expressly, and voluntarily waives all rights under

Section 1542 of the California Civil Code (or similar laws of other States) which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE


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CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS

OR HER SETTLEMENT WITH THE DEBTOR.

This Release includes all claims that such Plaintiffs and their heirs, successors,

and assigns have, has, or may have against the Released Persons arising out of, in

manufacturing, preparation, handling, distribution, advertising, marketing, packaging,

sale, labeling, promotion, and ingredients of Cobra, that have been brought, or could

have been brought, in the Litigation against the Released Persons.

After entering into this Settlement Agreement, Plaintiffs may discover facts other

than, different from, or in addition to, those that they know or believe to be true with

respect to the Released Claims. Plaintiffs expressly waive and fully, finally, and forever

settle and release any known or unknown, suspected or unsuspected, contingent or non-

contingent claim, whether or not concealed or hidden, without regard to the subsequent

discovery or existence of such other, different, or additional facts. Notwithstanding

Section 1542 of the California Civil Code, or any other federal or state statute or rule of

law of similar effect, this Settlement Agreement shall be given full force and effect

according to each and all of its expressed terms and provisions, including those related

to any unknown or unsuspected claims, liabilities, demands, or causes of action which

are based on, arise from or are in any way connected with the Litigation.

The Settling Parties shall agree to continued jurisdiction over the Settling Parties to

this Settlement with respect to the future performance of the terms of this Settlement

Agreement. In the event that any applications for relief are made, such applications shall

be made to the Court.

Upon the Effective Date: (a) this Settlement shall be the exclusive remedy for any

and all Released Claims of Plaintiffs (except for those that opt out in the manner

provided herein), and (b) Plaintiffs (except for those that opt out in the manner provided


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herein) stipulate to be and shall be permanently barred and enjoined by Court order from

initiating, asserting, or prosecuting against the Released Persons in any federal or state

court or tribunal any and/or all Released Claims.

Personal Injury

resulting from a defect in Cobra or packaging are specifically not included in the

Released Claims.

11. MODIFICATION OF CLASS DEFINITION

The current class is defined as ext

purposes of settlement only, the parties stipulate to and move the Court to modify the

class definition to end on 12/31/20, such that the settlement class definition is:

All individuals who purchased Cobra Sexual Energy for personal or household use and not for resale or distribution from August 14, 2009 to December 31, 2020. Excluded from the class are officers and directors of Nutraceutical and any judicial officer hearing the case. Defendant does not consent to certification of such Settlement Class (or to the

propriety of class treatment) for any purpose other than to effectuate the settlement of

the Litigation.

12. PROCEDURES FOR OBJECTING TO OR REQUESTING EXCLUSION

FROM THE SETTLEMENT

Subject to modification by the Court, the Settling Parties agree and stipulate to the

following procedures:

12.1. Procedures for Objecting to the Settlement

Class Members shall have the right to appear and show cause, if they have any

reason why the terms of this Settlement Agreement should not be given final approval,

subject to each of the sub-provisions contained in this section. Any objection to the

Settlement or Settlement Agreement, including any of its terms or provisions, should be

in writing, filed with the Court, with a copy served on Class Counsel, Defense Counsel,

and the Class Action Administrator at the addresses set forth in the Notice, and

postmarked no later than thirty (30) calendar days prior to the Fairness Hearing date.


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Class Members may object either on their own or through an attorney hired at their own

expense.

If a Class Member hires an attorney to represent him or her at the Fairness

Hearing, he or she must do so solely at his or her own expense unless the Court orders

otherwise. No Class Member represented by an attorney should be deemed to have

objected to the Settlement Agreement unless an objection signed by the Class Member is

also filed with the Court and served upon Class Counsel and Defense Counsel at the

addresses set forth in the Notice thirty (30) days before the Fairness Hearing.

Any objection regarding or related to the Settlement Agreement should contain (a)

telephone number of any attorney for the objector with respect to the objection; (c) the

factual and legal grounds for the objection(s); (d) documents sufficient to establish the

basis for his or her standing as a Class Member, i.e., verification under oath as to the

approximate date(s) and location(s) of his or her purchase(s) of Cobra; (e) his or her

number (In re Cobra Sexual Energy Sales Practices Litig., 2:13-cv-05942-AB-Ex (C.D.

Cal.)); and (g) a list, including case names and numbers, of any other objections by the

objector, as well as by the o

to any state or federal court in the previous two years. Any objection should also contain

information sufficient to identify and contact the objecting Class Member (or his or her

attorney, if any). Any objections not containing the required information and/or not

submitted to the Court at least thirty (30) days prior to the Fairness Hearing may be

deemed waived and may not be considered by the Court. If an objecting party chooses to

appear at the hearing, that party should, in addition to filing his or her objection, file

with the Court, at least thirty (30) days before the Fairness Hearing, a notice of intent to

appear and that notice must list the name, address and telephone number of the attorney,

if any, who will appear on behalf of that party.

12.2. Response to Objections


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Class Counsel and Defendant may respond to any objection, by filing opposition

papers no later than seven calendar days prior to the Fairness Hearing, or on such other

date as set forth in the Preliminary Approval Order, or any subsequent Court order(s)

modifying the briefing schedule for the Fairness Hearing. The Party responding shall file

a copy of the response with the Court, and shall serve a copy to the objector (or counsel

for the objector) to the extent the objector or their counsel do not receive notice of

12.3. Opt-Outs

Any Class Member who does not wish to participate in the Settlement must

submit a Request for Exclusion to the Class Action Administrator, stating an intent to be

Settlement. The written Request for Exclusion must be sent via

first class United States mail to the Class Action Administrator at the address set forth in

the Notice and postmarked no later than thirty (30) calendar days before the date set for

the Fairn -

signed by the Class Member and may only be on behalf of such signing Class Member.

So- - -

not release their claims pursuant to the Settlement Agreement. Members of the Class

who fail to submit a valid and timely Request for Exclusion on or before the date

specified in the Notice shall be bound by all terms of the Settlement Agreement and

Final Judgment and Order. Every Request for Exclusion must contain his or her (a) full

name, (b) current address, (c) a clear statement communicating that he or she elects to be

excluded from the Class, (d) his or her signature, and (e) the case name and case number

(In re Cobra Sexual Energy Sales Practices Litig., 2:13-cv-05942-AB-Ex (C.D. Cal.)).

Any Class Member who requests exclusion from the Settlement does not have the

right to object to the Settlement. If a Class Member submits an objection and a written

Request for Exclusion, he or she shall be deemed to have complied with the terms of this

opt-out procedure. His objection will be considered void and he or she shall not be

bound by the Settlement Agreement if approved by the Court. However, any objector


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who has not submitted a proper Request for Exclusion from the Settlement will be bound

by the terms of the Settlement Agreement upon final approval of the Settlement.

13.

In accord with Federal Rule of Civil Procedure Rule 23(h) and relevant case law,

490,000,

and a Representative Plaintiff incentive award not to exceed $10,000. Defendant shall

not object to or oppose any such petition, provided it does not exceed these limits, nor

take any steps to encourage objectors to do so. For avoidance of doubt, the above-

, expenses, and incentive award is a material term of

the Settlement Agreement and, as such, if Plaintiff petitions the Court for an amount in

excess of that limit, this Settlement Agreement will be void.

awarded to Class Counsel by the Court shall be paid by Defendant within 30 calendar

days of the Effective Date.

The incentive payment, if awarded,

and costs in the form of a check sent in the care of Class Counsel made payable to the

Representative Plaintiff.

14. MOTION FOR FINAL APPROVAL AND ORDER

Defendant shall cooperate in good faith with the preparation of the motion for

final approval of the Settlement Agreement.

15. CONDITIONS FOR EFFECTIVE DATE; EFFECT OF TERMINATION

The Effective Date of this Settlement Agreement shall be the date the Court grants

final approval of this agreement.

If this Settlement Agreement is not approved by the Court or the Settlement

Agreement is terminated or fails to become effective in accordance with the terms of this

Settlement Agreement, the Settling Parties will be restored to their respective positions

in the Litigation as of the day before the Motion for Preliminary Approval was filed. In


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provisions of this Settlement Agreement will have no further force and effect with

respect to the Settling Parties and will not be referenced or used in the Litigation or in

any other proceeding for any purpose, and any Judgment or order entered by the Court in

accordance with the terms of this Settlement Agreement will be treated as vacated. If for

whatever reason the Settlement Agreement fails to become effective, the Settling Parties

16. MISCELLANEOUS PROVISIONS

The Settling Parties acknowledge that it is their intent to consummate this

Settlement Agreement, and they agree to cooperate to the extent reasonably necessary to

effectuate and implement all terms and conditions of this Settlement Agreement and to

exercise their best efforts to accomplish the foregoing terms and conditions of this

Settlement Agreement.

The Settling Parties intend the Settlement to be a final and complete resolution of

all disputes between them with respect to the Litigation. The Settlement compromises

claims that are contested and will not be deemed an admission by any Settling Party as

to the merits of any claim or defense.

The Settling Parties agree that the consideration provided to the Class and the

-length, in good faith by the

Settling Parties, and reflect a settlement that was reached voluntarily, after consultation

with competent legal counsel. The Litigation was filed in good faith, was not frivolous

and was in compliance with Rule 11 of the Federal Rules of Civil Procedure. This

Settlement Agreement is entered into to eliminate the uncertainties, burdens and

expenses of protracted litigation.

Neither this Settlement Agreement nor the Settlement, nor any act performed or

document executed pursuant to or in furtherance of this Settlement Agreement or the

Settlement is or may be deemed to be or may be used as an admission of, or evidence of,

the validity of any Released Claims, or of any wrongdoing or liability of Defendant or


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any other Released Person; or is or may be deemed to be or may be used as an admission

of, or evidence of, any fault or omission of Defendant or any other Released Person in

any civil, criminal, or administrative proceeding in any court, administrative agency or

other tribunal. Any party to the Litigation or any other Released Person may file this

Settlement Agreement and/or the Judgment in any action that may be brought against it

in order to support any defense or counterclaim, including without limitation those based

on principles of res judicata, collateral estoppel, release, good faith settlement, judgment

bar or reduction, or any other theory of claim preclusion or issue preclusion or similar

defense or counterclaim.

All agreements made and orders entered during the course of the Litigation

relating to the confidentiality of information will survive this Settlement Agreement.

This Settlement Agreement and any exhibits attached hereto constitute the entire

agreement among the Settling Parties, and no representations, warranties, or

inducements have been made to any Party concerning this Settlement Agreement or its

exhibits other than the representations, warranties, and covenants covered and

memorialized in such documents. Except as otherwise provided herein, the Settling

Parties will bear their own respective costs.

Class Counsel, on behalf of the Class, is expressly authorized by the

Representative Plaintiff to take all appropriate action required or permitted to be taken

by the Class pursuant to this Settlement Agreement to effectuate its terms, and is

expressly authorized to enter into any modifications or amendments to this Settlement

Agreement on behalf of the Class that Class Counsel deems appropriate.

Each counsel or other person executing this Settlement Agreement or any of its

Exhibits on behalf of any Party hereby warrants that such person has the full authority to

do so.

This Settlement Agreement may be executed in one or more counterparts. A faxed

or electronic signature shall have the same force and effect as an original signature. All

executed counterparts and each of them will be deemed to be one and the same


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instrument. A complete set of original counterparts will be filed with the Court.

This Settlement Agreement will be binding upon, and inure to the benefit of, the

successors and assigns of the Settling Parties.

None of the Settling Parties, or their respective counsel, will be deemed the drafter

of this Settlement Agreement or its exhibits for purposes of construing the provisions

thereof. The language in all parts of this Settlement Agreement and its exhibits will be

interpreted according to its fair meaning, and will not be interpreted for or against any of

the Settling Parties as the drafter thereof.

Plaintiff and Class Counsel agree not to make disparaging public statements

fense Counsel. Defendant and

Defense Counsel agree not to make disparaging public statements about Plaintiff, Class

Counsel, or the Settlement.

IN WITNESS WHEREOF, the Settling Parties have executed and caused this

Agreement to be executed by themselves, approved as to form and content by their

respective attorneys, dated as of ___________________, 2020.

Dated: __________________ __________________________________ Plaintiff Troy Lambert

Dated: __________________ ___________________________________ Jeff Burchfield

Chief Legal Officer, on behalf of Nutraceutical Corp.

APPROVED AS TO FORM AND CONTENT: Dated: __________________ _________________________ Gregory S. Weston or Ronald Marron




CLASS ACTION SETTLEMENT AGREEMENT

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Class Counsel

Dated: __________________ _________________________ Steven N. Feldman HUESTON HENNIGAN LLP Counsel for Nutraceutical Corp.


EXHIBIT 2


ATTENTION CALIFORNIA BUYERS OF COBRA SEXUAL ENERGY

LEGAL NOTICE OF PROPOSED CLASS LITIGATION SETTLEMENT

In re Cobra Sexual Energy Sales Practices Litig., No. 2:13-cv-05942-AB-Ex (C.D. Cal.)

If you purchased any Cobra Sexual Energy product in California between August 9, 2014 and December 31, 2020, please read this notice. A class action settlement gives you certain rights, including the right to make a claim for your share of a cash settlement fund, and also has certain deadlines. The class action claims the herbal supplement Cobra Sexual Energy is falsely advertised and an unapproved aphrodisiac in violation of California law. The defendant strongly denies this, and the Court has made no decision on these issues. The case was litigated for seven years, and rather than continue litigating the case in court, the two sides have agreed to a class action settlement. In addition to the cash relief, the defendant has also agreed to make certain changes to Cobra’s label. You now have the following options. First, the attorneys who filed the case and were appointed to represent you recommend that you go to the settlement website (CobraLawsuit.com) and file a claim form, and then receive a payment if the Court approves the settlement. Second, you can ignore this notice and do nothing. You will not get a settlement payment, but you will give up the right to sue over claims related to Cobra’s labels and advertising, though not for personal injury. Third, you can exclude yourself. If you exclude yourself, you get no settlement payment but keep the right to sue over these claims at your own expense. Finally, you can object to the settlement and tell the judge why you do not want the settlement to be approved. You can make a claim at CobraLawsuit.com, as well as get more detailed information about this case, the settlement, and your options, as this is a summary only. If you need help and cannot access the Internet, you can also ask questions by mail by writing to Cobra Sexual Energy Litigation, c/o Classaura, 1718 Peachtree St NW #1080, Atlanta, GA 30309 or call 1-888-977-3554. If possible, please consult the website CobraLawsuit.com.com before calling. Do not contact Nutraceutical or the Court, except if you are serving and filing an objection. The deadline to file a claim form is January 23, 2021, but your appointed attorneys recommend that you file a claim now if you are eligible so you don’t forget later, and to help them plan the cash distribution and estimate the settlement claims rate.


EXHIBIT 3


Questions? Call 1-888-977-3554 or visit www.CobraLawsuit.com

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NOTICE OF PROPOSED CLASS LITIGATION SETTLEMENT

In re Cobra Sexual Energy Sales Practices Litig.., Case No. 2:13-cv-05942-AB-Ex

United States District Court for the Central District of California

THIS NOTICE CONCERNS YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.

A federal court authorized this Notice. It is not a solicitation from a lawyer. YOU ARE NOT BEING SUED.

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IF YOU ARE A CALFIORNIA RESIDENT WHO purchased, in California, Cobra Sexual Energy, between August 14, 2009 and before December 31, 2020 (the “Class Period”), for personal or household use and not for resale or distribution, YOU MAY BE ENTITLED TO A CASH PAYMENT.

This settlement resolves a lawsuit against Nutraceutical Corporation (“Nutraceutical” or “Defendant”) alleging that Cobra Sexual Energy was falsely advertised. Nutraceutical denies the allegations and any wrongdoing. Nonetheless, it has agreed to settle to avoid the cost and uncertainty of litigation. The parties have reached a settlement that provides a payment in exchange for a waiver and release of your claims. By participating in the settlement, you waive and release any claims against Nutraceutical concerning the marketing and labeling of Cobra Sexual Energy.



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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

SUBMIT A CLAIM FORM

BY JANUARY 23, 2021

The only way to get a monetary payment. Postmark or submit your claim form online.

EXCLUDE YOURSELF

FROM THE SETTLEMENT

CLASS BY JANUARY 23, 2021

If you ask to be excluded, you will not get a settlement payment. You also will not be bound by this case and keep any right you might have to sue related to the claims in this lawsuit.

OBJECT OR COMMENT

BY JANUARY 23, 2021

You may file a written objection no later than JANUARY 23, 2021

and/or appear at the final approval hearing to tell the Court why you believe the proposed settlement is unfair, unreasonable, or inadequate. If you ask to be excluded, you cannot also file an objection.

DO NOTHING

If you do nothing, you will receive no portion of the settlement fund and, if the settlement is approved, you will also give up any right you maye have to sue regarding any claims that are part of the settlement.

These rights and options, and the deadlines to exercise them, are further explained in this

notice.

The Court is in charge of this litigation and still has to decide whether to approve the settlement. The settlement benefits will be paid as soon as possible after the Court approves the settlement and after any appeals are resolved.

If you have any questions, then please read on and visit www.CobraLawsuit.com.



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1. Why did I receive this notice? If you are a California resident who purchased Cobra Sexual Energy in any packaging size or iteration (“Cobra”) during the Class Period, for personal or household use and not for resale or distribution, then you should know about a settlement in this class action and your options. You also may have received this notice because you requested more information after reading the summary notice about the settlement. If the Court approves the settlement, and any objections and appeals are resolved, an administrator approved by the Court will distribute settlement payments. This notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

2. What is this lawsuit about? The lawsuit alleges that Cobra was falsely advertised as an aphrodisiac drug because of certain statements made on the label. It also alleges Cobra was an “unapproved new drug” (a legal term for a drug the FDA has not approved for sale). Nutraceutical denies these allegations, and the Court has made no decision on their merit.

3. What is a class action and who is involved? In a class action lawsuit, one or more people, called class representatives (in this case Troy Lambert) represent the interests of similarly situated people who have the same claims, but have not filed a lawsuit. Together these people are a class. The person who filed the lawsuit is called the plaintiff and class representative. The company they sue is called the defendant. One court resolves the issues for everyone in the class – except for those people who choose to exclude themselves from the class.

4. Why is there a proposed settlement? The Court has not decided in favor of either side. Nutraceutical denies all allegations in the lawsuit. Nutraceutical is settling simply to avoid the expense, inconvenience, and inherent risk of litigation, as well as the related disruption to its business. The plaintiff and his attorneys assert that the proposed settlement is in the best interests of the class because it provides an appropriate recovery now while avoiding the risk, expense, and delay of pursuing a lawsuit through trial and any appeals. There would be no guarantee of success for either side if the lawsuit were pursued through trial and any appeals, but both would have to deal with expenses and delays.



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WHO IS COVERED BY THE PROPOSED SETTLEMENT

To see if you are entitled to file a claim for part of the settlement fund, you first have to determine if you are a member of the settlement class.

5. How Do I Know If I Am Part of the Proposed Settlement? You are a part of the settlement class if you are a California resident who purchased Cobra, in any packaging size or iteration, during the Class Period of August 14, 2009 to December 31, 2020. The product must have been purchased for personal or household use and not for resale or distribution. You are not a part of the settlement class if you are (1) any judicial officer presiding over the lawsuit, (2) officers and directors of Nutraceutical, or (3) any person who properly executes and files a timely request for exclusion. If you are unsure whether you are included in the settlement class, you can go to www.CobraLawsuit.com, or you can call 1-888-977-3554, and ask for free help.

THE PROPOSED SETTLEMENT BENEFITS

6. What does the proposed settlement provide? Settlement Fund The proposed settlement will provide for $100,000.00 to be paid into a settlement fund. Notice and administrative expenses of $19,250 are to be paid out of this $100,000 settlement fund. Payments to settlement class members who submit a valid claim form Settlement class members who submit a timely and valid claim will receive a projected $10 for claims which are not documented by receipts, and up to $100 if documented by receipts. The amount will be adjusted upward or downward so the whole amount is paid out to class members who submit valid claims. Class members who submit valid claims, but who do not cash the settlement check within 90 days, will have the funds donated to a legal charity providing free legal representation to low income individuals. Specifically, the Legal Aid Foundation of Los Angeles. Non-Monetary Relief Nutraceutical has agreed to remove certain words from the Cobra label that Plaintiff challenged in his lawsuit, specifically “potency wood” and “virility.”



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Incentive Award to the Plaintiff Subject to Court approval, class counsel is seeking a $10,000 incentive award for the class representative, Troy Lambert.

HOW TO GET A PAYMENT- SUBMITTING A CLAIM FORM

7. How can I obtain a portion of the settlement? Settlement class members who wish to receive a portion of the settlement fund must fully complete and submit a claim form, along with any supporting documentation, by January 23, 2021. You can obtain a claim form on the internet at www.CobraLawsuit.com Read the instructions carefully, fully complete the form, and submit it online at www.CobraLawsuit.com on or before January 23, 2021. Alternatively, you may submit your claim form by mailing it to the following address:

Cobra Sexual Energy Litigation c/o Classaura Class Action Administration 1718 Peachtree St NW #1080, Atlanta, GA 30309

Claim forms must be postmarked no later than January 23, 2021. Settlement class members who have complied with the instructions, requirements, and deadline for submitting a claim, and whose claims have been reviewed and validated by the settlement administrator, will be paid from the settlement fund within forty five (45) days of the effective date of the settlement.

TO BE VALID, ALL CLAIM FORMS MUST BE POSTMARKED OR SUBMITTED ONLINE BY NO LATER THAN JANUARY 23, 2021

8. How Can I Obtain a Claim Form?

You can obtain a claim form in one of three ways:

i. Online: You can download the claim form at www.CobraLawsuit.com. You can also submit a claim form online through the same website.

ii. By phone: call toll-free, 1-888-977-3554 to arrange for a claim form to be sent to you by either U.S. mail or e-mail.



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iii. By U.S. Mail: you may write to Cobra Sexual Energy Litigation, c/o Classaura Class Action Administration, 1718 Peachtree St NW #1080, Atlanta, GA 30309. Be sure to include your name and mailing address.

YOUR RIGHTS AND CHOICES - EXCLUDING YOURSELF FROM THE PROPOSED SETTLEMENT If you do not want to receive the settlement payment and wish to preserve the right you may have to sue about Cobra’s labeling on your own, then you must take affirmative steps to opt out of the settlement.

9. How do I exclude myself from the settlement? To exclude yourself from the settlement class, you must either: (1) send a written request for exclusion that must be received no later than January 23, 2021, to: Cobra Sexual Energy Litigation, c/o Classaura Class Action Administration, 1718 Peachtree St NW #1080, Atlanta, GA 30309, or (2) submit a request for exclusion online through the settlement website no later than January 23, 2021. Your Request for Exclusion must contain: (1) the name of the lawsuit, “In re Cobra Sexual Energy Sales Practices Litig., Case Number: 2:13-cv-13-05942-AB-Ex”; (2) your full name, current address, and telephone number; (3) a clear statement of intention to exclude yourself such as “I wish to be excluded from the Settlement Class”; and (4) your signature. You may also get an exclusion request form at www.CobraLawsuit.com. You cannot exclude yourself by telephone or by e-mail. Your request for exclusion must be on behalf of yourself. You may not include multiple persons on a single request for exclusion. If you ask to be excluded, you will not get a settlement payment and cannot object to the settlement. You may be able to sue (or continue to sue) Nutraceutical in the future.

10. If I don’t exclude myself, can I sue Nutraceutical later? If you do not properly and timely submit a Request for Exclusion, you waive your right to opt out, you will be deemed to be a member of the settlement class, you give up any right you may have to sue for the claims the settlement resolves, and you will be bound by the terms of the settlement agreement. If you have a pending lawsuit against Nutraceutical, other than this lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this settlement class to continue your own lawsuit. Remember, any request for exclusion must be signed, mailed, and postmarked or submitted online by no later than January 23, 2021. Excluded from the settlement and release is anything to do with a personal injury claim.

11. If Iexclude myself, can I get a payment from the settlement fund? No. If you exclude yourself, you are not eligible for any payment from the settlement fund.



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YOUR RIGHTS AND CHOICES - OBJECTING TO THE PROPOSED SETTLEMENT

12. How do I tell the court that I object to the settlement? If you are a member of the Settlement Class, you may object to the settlement. In doing so, you must give reasons why you think the Court should not approve it, and the Court will consider your views. The objection must contain the following:

(i) a reference, to the name of number of the lawsuit, which is In re Cobra Sexual Energy Sales Practices Litig., No. 2:13-cv-13-05942-AB-Ex;

(ii) your full, legal name, residential address, telephone number, and email address (and your

lawyer’s name, business address, telephone number and email address if you are objecting through counsel);

(iii) a statement describing your membership in the settlement class, including a verification

under oath as to the time and place of your purchase, and name of the retailer from whom you purchased Cobra;

(iv) a written statement of all grounds for the objection, accompanied by any legal support for

such objection; (v) copies of any documents upon which the objection is based and exhibits you will offer at

the final approval hearing;

(vi) a statement of whether you intend to appear at the final approval hearing, and if you are objecting through counsel, you must also state the identity of all attorneys who will appear at the final approval hearing on your behalf;

(vii) a list of any other objections you or your counsel have submitted to class actions, whether

in state or federal court, in the previous two years; and (viii) your signature.

If you do not have access to Electronic Case Filing (“ECF”), your objection must be signed and submitted to the Court, along with any supporting documents, so that it is received no later than January 23, 2021 by the Court. Information on how to file case documents is at the Court website at www.cacd.uscourts.gov. A copy of your objection must also be signed and mailed, along with any supporting documents to the settlement administrator and each of the following two addresses, so that it is received by



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January 23, 2021: Counsel for Plaintiff and the Settlement Class

Gregory S. Weston THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Email: [email protected] Ronald A. Marron LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Email: [email protected]

Counsel for Nutraceutical Corp.

John C. Hueston Steven Feldman HUESTON HENNIGAN LLP 523 West 6th Street, Suite 400 Los Angeles, CA 90014 Email: [email protected], [email protected]

13. What’s the difference between objecting and excluding? Objecting is explaining to the Court why it should deny approval to the settlement, while keeping you a part of the Class. Excluding yourself simply removes you from the Class. If you exclude yourself, you will not be eligible to file an objection or to appear at the final approval hearing.

14. What happens if I do nothing at all? If you do nothing, you will get no payment from the settlement fund. But unless you timely excluded yourself, you also will not be able to start a new lawsuit, continue with a lawsuit, or be part of any other lawsuit against Nutraceutical about the subject matter of this lawsuit ever again.

THE LAWYERS REPRESENTING YOU

15. Do I have a lawyer in this case? The Court has appointed The Weston Firm and Law Offices of Ronald A. Marron as legal counsel for the settlement class. The law firms are called Class Counsel.

16. How will the lawyers be paid? Class Counsel has not yet received any payment for prosecuting this lawsuit, nor have they been reimbursed for any out-of-pocket expenses they have incurred. When they ask the Court to approve the settlement, class counsel will also make a motion to the Court to approve and award fees and



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expenses of up to $490,000. This amount, if the Court approves it, will be paid by the Defendant. No matter what the Court decides, the attorneys will not be asking you to pay them money. Class counsel will seek final approval of the settlement on behalf of all members of the settlement class. You may hire your own lawyer to represent you in this lawsuit if you wish, but it will be at your own expense.

THE COURT’S FINAL APPROVAL HEARING

17. When and where will the court decide whether to approve the settlement?

The Court overseeing this case will hold a final approval hearing at the federal courthouse located at the U.S. District Court for the Central District of California, 350 West First St., Los Angeles, CA 90012 in Courtroom 7B on February 19, 2021 to decide whether the settlement is fair, reasonable, and adequate, as well as to determine the amount of attorney fees and costs and incentive award. If there are objections, the Court will consider them at the final approval hearing. After the final approval hearing, the Court will decide whether to approve the settlement and whether to grant class counsel’s request for attorneys’ fees and expenses. We do not know how long it will take the Court to make these decisions.

18. Do I Have to Come to the Hearing? You are not required to attend the hearing, but you are welcome to attend at your own expense. If you support the settlement, the best way to show this is by submitting a valid claim for a settlement payment on the settlement website. If you send an objection, you do not have to appear in Court to present it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend.

FINAL SETTLEMENT APPROVAL

19. What is the effect of final settlement approval? If the Court grants final approval of the settlement and all appeals have been exhusted, the Released Parties (as defined in the Settlement Agreement) will be released of and from any and all claims asserted or which could have been asserted in the litigation, including all claims relating to the manufacturing, preparation, handling, distribution, advertising, marketing, packaging, sale, labeling, promotion, and ingredients of Cobra. Class Members’ claims of a personal injury resulting from a defect in Cobra or packaging are specifically not included in the Released Claims. If the Court does not approve the settlement, this lawsuit will proceed as if no settlement had been attempted. If the settlement is not approved and litigation resumes, there is no guarantee of payment to the settlement class.



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GETTING MORE INFORMATION

20. Are there more details about the settlement? This Notice is only intended to provide a summary of the proposed Settlement. You may obtain the complete text of the settlement agreement at www.CobraLawsuit.com. The settlement website located at www. CobraLawsuit.com also has the settlement payment claim form, the request for exclusion form, and several of the key documents from the case such as the Class Action Complaint. You may also contact the Settlement Administrator by email at: Contact@ CobraLawsuit.com, or by writing to Cobra Sexual Energy Litigation, c/o Classaura Class Action Administration, 1718 Peachtree St NW #1080, Atlanta, GA 30309.

PLEASE DO NOT CALL OR DIRECT ANY INQUIRIES TO THE COURT.

This notice is given with the approval and at the direction of the Court.


EXHIBIT 4


In re Cobra Sexual Energy Sales Practices Litig.

SETTLEMENT CLAIM FORM

INSTRUCTIONS

To be eligible to receive a payment from the settlement fund in the above-captioned action, you must file a Claim Form as described below.

1. Please review the Notice of Class Action Settlement (the “Notice”). A copy of the Notice is available at CobraLawsuit.com.

2. Accurately complete and sign the Claim Form. The easiest way is to do it online at CobraLawsuit.com, but you can also print and mail this form.

3. By signing and submitting this Claim Form, you certify that you are a resident

of California who purchased Cobra Sexual Energy between August 14, 2009 and December 31, 2020, in California, for your personal and household use, and not for resale or distribution.

4. You further certify that you have not filed a Request for Exclusion and that you

are not excluded from the class by virtue of being (1) a judicial officer presiding over the action, (2) a current or former officer, director, or employee of Nutraceutical Corporation or any of its subsidiaries, parent companies, successors, or predecessors, or (3) a legal representative, successor, or assign of any such excluded person.

5. To receive a cash payment, you must complete and submit a completed form

online at CobraLawsuit.com. or mail the completed and signed Claim Form by U.S. Mail, postmarked no later than January 23, 2021 to:

Cobra Sexual Energy Litigation c/o Classaura Class Action Administration 1718 Peachtree St #1080 Atlanta, Georgia 30309

6. Your failure to complete and submit the Claim Form online or postmarked mail by January 23, 2021 may preclude you from receiving any payment in this Settlement.


In re Cobra Sexual Energy Sales Practices Litig.

Your Name: ______________________________ Your Full Mailing Address, Including Zip Code: ________________________________________________________________ ________________________________________________________________ Your Phone Number: ____________________________________________

Your Email Address: _____________________________________________ Are you a California resident who purchased, between August 14, 2009 and December 31, 2020, Cobra Sexual Energy for personal or household use and not for resale or distribution?

__________YES __________NO

If you have receipt or order confirmation from your purchase of Cobra, please attach it. Receipts are not required to make claims, but your payment will be higher if you attach your receipts.

I hereby certify under penalty of perjury under the laws of the United States that the foregoing is true and correct. Signature: ______________________ Date: _________________


In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex DECLARATION OF GAJAN RETNSABA

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] MICHAEL T. HOUCHIN (305541) [email protected] 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665




Case No: 2:13-cv-05942-AB-Ex DECLARATION OF GAJAN RETNASABA

IN SUPPORT OF PLAINTIFF’S MOTION

FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT Judge: The Honorable André Birotte, Jr.Date: November 6, 2020 Time: 10:00 a.m. Location: Courtroom 7B


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I, Gajan Retnasaba, declare:

1. I am a Partner at Classaura LLC, a class action administration firm. I have

been the project lead on cases including Mason v. Heel, Hilsley v. Ocean Spray

Cranberries, and In re Quaker Oats Labeling Litigation. I founded the popular class

action advocacy website ClassActionRebates.com. My prior experience includes being

a litigation associate at Jones Day and a senior associate at McKinsey & Company. I

hold a J.D. from Harvard Law School and a Bachelor of Engineering from the

University of New South Wales.

2. I have been asked by Class Counsel in this action to prepare a plan for

class notice and distribution, should judgment for a plaintiff class create a common fund

for the class.

CLASS SIZE AND DEMOGRAPHICS

3. Because a record of all California buyers of Cobra Sexual Energy does not

exist, I recommend that notice be disseminated to the state’s residents that are most

likely to be users of the product: men over 40 years old.

4. The Massachusetts Male Aging Study published in the Journal of Urology

in 1994 found that erectile dysfunction is most prevalent in men over the age of 40, with

age being the variable most strongly associated with erectile dysfunction. Similarly, a

more recent 2004 study of the usage of Viagra, a prescription drug commonly used in

the treatment of erectile dysfunction, found that usage rises with age with men 46 to 55

years old being 7 times more likely to use Viagra than men 18 to 45 (Patterns of Use of

Sildenafil Among Commercially Insured Adults in the United States: 1998-2002,

International Journal of Impotence).

5. The United States Census Bureau estimates the 2019 population of

California to be 39.5 million. Of all Californians 8.6 million are in our target group of

male, ages 40 or older.


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SETTLEMENT WEBSITE

6. Should the court grant preliminary approval of the settlement, a website

would be set up to include both the summary and long-form versions of the Judgment

Notice, that will describe the judgment, describe the process for making claims, for

objecting to the settlement, and for opting out of the settlement. It will also give notice

that an attorney fee application will be made and describe how class members may

obtain a copy of the fee application from the administrator or online, and how they may

oppose the application.

7. The website would allow claims to be made entirely online with a form

where class members can file their claim, including uploading proof of purchase if

applicable. The claim form will be secured using 128-bit encryption, which is the

commercial standard. Claim data will be stored in a secure database. The website will

also allow class members to download claim forms that can be printed and submitted by

mail.

8. The website will provide email, phone, and postal contacts for class

members to request further information, hard copies of information, or help in the claim

filing process. The website will be updated as needed. For class members who are

unwilling or unable to use the website or make claims online, the Judgment Notice, in

both its long and summary forms, and claim forms will be provided via a toll-free

telephone number.

DIRECT NOTICE

9. Counsel have informed me that there were a small number of class

members who purchased Cobra directly from the Cobra website and that they will

provide me with this list of class members. These class members will be notified of the

settlement via email, if an email address is available. If an email address is not

available, they will be notified via postal mail.


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ONLINE NOTICE

10. Facebook is the media outlet where Californians spend the most time, with

approximately 29 million registered users in the state who use the site at least once per

month. Of these registered users, 5.4 million are in the target population of California

men over 18.

11. I recommend that Facebook ads providing a brief notice that a class has

been certified of California buyers of specified Cobra Sexual Energy be published 3

million times on Facebook, limited to California users of Facebook, and targeted to

users who are men over 40. The notice will also include a link to the class website

where consumers can learn more about the lawsuit.

12. Facebook enables advertising to be published to unique individuals so that

duplicate advertisements are not shown to the same person. Thus, the campaign will

reach 3 million, of Facebook’s registered California users in the target group.

PRESS RELEASE

13. PR Newswire is a national press release service used by journalists as a

source for news. Press releases sent through PR Newswire often end up as articles in

news media websites such as CNBC.com, MarketWatch.com, Reuters.com, Yahoo.com

and local media affiliates of the major television networks ABC, NBC, and CBS. The

press release will contain information about the class settlement and the address for the

dedicated settlement website. I recommend the publication of a national press release on

PR Newswire.

14. I further recommend that details of the settlement be forwarded to class

action advocacy websites (such as TopClassActions.com and ClassActionRebates.com)

that are frequently used by members of the public interested in keeping updated on their

eligibility for settlements.


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CLRA NOTICE

15. California's Consumers Legal Remedies Act (CLRA §1781) requires

published notice in a newspaper of general circulation in the county of the transaction,

once a week for four consecutive weeks. Accordingly, I propose publication over four

consecutive weeks in the Daily Commerce, a newspaper in Los Angeles County—the

county where Plaintiff alleges his transactions took place.

METHODS FOR PREVENTING PAYMENT OF ERRONEOUS,

DUPLICATIVE, AND FRAUDULENT CLAIMS

16. I would undertake several methods of preventing payment of invalid

claims.

17. To prevent duplication, all online claims would be loaded into an

electronic database. Claims received by mail would be manually entered into the same

database. An algorithm would then be run to identify duplicate entries, including those

that are not exact duplicates, but involve small variations in names or addresses.

18. One type of erroneous claim is an incomplete claim. To the extent

possible, the information contained within the incomplete claims will be used to notify

the submitter of the incomplete claim. A second type of erroneous claim is one that

does not match with a database of United States addresses. Where possible, these

addresses will be corrected, or individuals will be contacted and encouraged to resubmit

a correct claim.

19. Fraudulent claims are less significant in cases such as this where monetary

payments are relatively small. Moreover, merely requiring claims forms be submitted

under “penalty of perjury” substantially deters fraud. Nonetheless, fraud can be further

reduced by utilizing fraud detection techniques and rejecting fraudulent claims. The

claims database will be queried to report signs of fraud such as: (1) multiple online

claims made from the same Internet Protocol (“IP”) address; (2) multiple highly similar

claims, (3) claims requesting payment be sent to penal institutions, and (4) requiring


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claims that request payment be sent to an address outside California provide proof of

their residence in California during the class period.

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

foregoing is true and correct.

Executed on October 23, 2020, in Atlanta, GA.

Gajan Retnasaba

DATED: October 23, 2020 Respectfully Submitted,

/s/ Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON MICHAEL T. HOUCHIN 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Class Counsel


In re Cobra Sexual Energy Sales Practices Litig., Case No. 2:13-cv-13-05942-AB-Ex

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case No. 2:13-cv-05942-AB-Ex [PROPOSED] ORDER GRANTING

PLAINTIFF’S MOTION FOR PRELIMINARY

APPROVAL OF CLASS ACTION

SETTLEMENT Judge: The Honorable André Birotte, Jr. Date: November 6, 2020 Time: 10:00 a.m. Location: Courtroom 7B




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Plaintiff Troy Lambert, individually and on behalf of the Class defined below,

moves for preliminary approval of the class action settlement negotiated with the

defendant in this action. Now, having considered the record and the requirements of law,

this Court orders that the Motion for Preliminary Approval is GRANTED as set forth

below. The settlement is PRELIMINARILY APPROVED. The Court further

preliminarily finds and orders as follows:

1. The Court finds that the Settlement Agreement is the product of arms-length

negotiation conducted by experienced legal counsel after extensive discovery and

settlement negotiations. The Settlement Agreement is not the result of collusion.

2. The Court finds that the proceedings that occurred before the Parties reached

the Settlement Agreement gave counsel and the Parties an opportunity to adequately

assess the strengths and weaknesses of their respective positions in this case, and,

therefore, to structure the settlement in a way that adequately accounts for those strengths

and weaknesses.

3. The Court finds that, subject to the Final Approval hearing, the Settlement

Agreement is fair, reasonable, adequate, and in the best interests of the Settlement Class.

The Court further finds that the settlement falls well within the range of reason and has

no obvious deficiencies.

4. Because the settlement meets the standards for preliminary approval, the

Court preliminarily approves all terms of the settlement, including the Settlement

Agreement and all of its exhibits.

5. The Court previously found that all requirements of Federal Rules of Civil

Procedure 23(a), 23(b)(3), and 23(b)(2) have been satisfied. Lambert v. Nutraceutical

Corp., 2020 U.S. Dist. LEXIS 6391 (C.D. Cal. Jan. 8, 2020). The Court finds that all

requirements of Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(b)(2) have been

satisfied with respect to the Settlement Class, which is the same class that the Court

certified, except that it now has a definite end date of December 31, 2020.




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6. The Settlement Class is defined as follows:

All individuals who purchased Cobra Sexual Energy for personal or household use and not for resale or distribution from August 14, 2009 to December 31, 2020. Excluded from the class are officers and directors of Nutraceutical and any judicial officer hearing the case.

7. The Court has reviewed the content of the Parties’ proposed notice plan, the

long-form and short-form notices, and the claim form and finds that they satisfy the

requirements of F.R.C.P 23(c)(2), (e)(1), and the Due Process Clause of the U.S.

Constitution. Accordingly, the Court approves the notices and the claim form.

8. The Court further approves the methods for giving notice of the settlement

to the members of the Settlement Class, as reflected in the Settlement Agreement and

Plaintiff’s Motion for Preliminary Approval, and the supporting Declaration of Gajan

Retnasaba of Classaura, LLC. In addition to the Notices, the Court has also reviewed the

notice procedures and finds that the members of the Settlement Class will, thereby,

receive the best notice practicable under the circumstances. The Court also approves

payment of the costs of notice as provided for in the Settlement Agreement. The Court

finds that the notice procedures, carried out with reasonable diligence, will constitute the

best notice practicable under the circumstances as required by Rule 23.

9. The Court further approves the appointment of Classaura LLC to administer

and oversee, among other things, the processing, handling, reviewing, and approving of

claims made by claimants; communicating with claimants; and distributing payments to

authorized claimants whose claim forms have been accepted and validated.

10. The Court directs that, pursuant to Federal Rule of Civil Procedure 23(e)(2),

a hearing will be held on February 19, 2021, at 10:00 a.m. to consider final approval of

the settlement (“Fairness Hearing”) including, but not limited to, the following issues: (1)

the fairness, reasonableness, and adequacy of the settlement; (2) Class Counsel’s

application for an award of fees and costs; and (3) approval of an incentive award to the

Class Representative. Any member of the Settlement Class wishing to object (an




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“Objector”) to the proposed settlement and/or be heard at the Final Approval Hearing

shall comply with the following procedures:

a. To object, a member of the Settlement Class, individually or through

counsel, must file a written objection with the Court, with a copy delivered to Class

Counsel and Defendant’s Counsel at the addresses set forth below:

Gregory S. Weston THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Email: [email protected] Ronald A. Marron LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Email: [email protected] Class Counsel John C. Hueston Steven Feldman HUESTON HENNIGAN LLP 523 West 6th Street, Suite 400 Los Angeles, CA 90014 Email: [email protected] Counsel for Defendant

b. A written objection filed with the Court regarding or related to the

settlement shall contain all of the following information: (a) a reference, to the name of

number of the lawsuit, which is In re Cobra Sexual Energy Sales Practices Litig., No.

2:13-cv-13-05942-AB-Ex; (b) the objector’s legal name, residential address, telephone

number, and email address (and the objector’s lawyer’s name, business address,

telephone number and email address if objecting through counsel); (c) a statement

describing the objector’s membership in the settlement class, including a verification




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under oath as to the time and place of the objector’s purchase, and name of the retailer

from whom he or she purchased Cobra; (d) a written statement of all grounds for the

objection, accompanied by any legal support for such objection; (e) copies of any papers,

briefs, or other documents upon which the objection is based; (f) a statement indicating

whether the objector intends to appear at the final approval hearing, and if objecting

through counsel, a statement providing the identity of all attorneys who will appear at the

final approval hearing on the objector’s behalf; (g) a list of any other objections the

objector and the objector’s counsel have made in the prior two years; and (h) the

objector’s signature.

c. Any member of the Settlement Class who files and serves a timely

written objection in accordance with this order may also appear at the Fairness Hearing,

either pro se or through an attorney hired at the objector’s expense, to object to the

fairness, reasonableness, or adequacy of the proposed settlement.

11. Members of the Settlement Class who elect not to participate in the

settlement (i.e., “opt-out”) must submit a written Request for Exclusion that is

postmarked no later than January 23, 2021.

12. The deadlines for key events are as follows:

EVENT DEADLINE

Motion for Final Approval of

Settlement

January 15, 2021

Fee, Expense, and Incentive Award

Application

January 15, 2021

Deadline to submit online claims or

postmark mail claims

January 23, 2021

Deadline to opt-out or object January 23, 2021

Response to Objections February 12, 2021

Fairness Hearing February 19, 2021

13. In the event the settlement does not become effective for any reason, the

Parties shall be restored to their respective pre-settlement positions in the action.




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14. Upon final approval of the Settlement, all Class Members who do not timely

and validly exclude themselves from the Class shall be forever enjoined and barred from

asserting any of the matters, claims, or causes of action released pursuant to the

Settlement Agreement against any of the Released Parties, and any such Class Member

shall be deemed to have forever released any and all such matters, claims, and causes of

action against any of the Released Parties as provided for in the Agreement.

15. The Court shall retain continuing jurisdiction over the Parties and the

implementation and enforcement of the terms of the Settlement Agreement, and to assure

that all payments and other actions required of any of the Parties by the Settlement

Agreement are properly made or taken.

IT IS SO ORDERED.

Dated: __________________, 2020 __________________________ The Honorable André Birotte Jr. United States District Court Judge


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