LAW OFFICES OF RONALD A. COHELAN KHOURY & SINGER … · 1 woodard et al. v. labrada et al., no. 5:16-cv-00189-jgb-sp plaintiffs’ notice of motion and motion for final approval of

Woodard et al. v. Labrada et al., No. 5:16-cv-00189-JGB-SP

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (SBN 175650) [email protected] MICHAEL T. HOUCHIN (SBN 305541) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Counsel for Plaintiffs and the Proposed Class

COHELAN KHOURY & SINGER TIMOTHY D. COHELAN (SBN 60827) [email protected] ISAM C. KHOURY (SBN 58759) [email protected] MICHAEL D. SINGER (SBN 115301) [email protected] J. JASON HILL (SBN 179630) [email protected] 605 C Street, Suite 200 San Diego, California 92101 Telephone: (619) 239-8148 Facsimile: (619) 595-3000

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA VEDA WOODARD, TERESA RIZZO-MARINO, and DIANE MORRISON, on behalf of themselves, all others similarly situated, and the general public,

Plaintiffs, vs.

LEE LABRADA; LABRADA BODYBUILDING NUTRITION, INC.; LABRADA NUTRITIONAL SYSTEMS, INC.; DR. MEHMET C. OZ, M.D.; ENTERTAINMENT MEDIA VENTURES, INC. d/b/a OZ MEDIA; ZOCO PRODUCTIONS, LLC; HARPO PRODUCTIONS, INC; SONY PICTURES TELEVISION, INC; NATUREX, INC.; and INTERHEALTH NUTRACEUTICALS, INC.,

Defendants.

CASE NO. 5:16-cv-00189-JGB-SP CLASS ACTION

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal

Case 5:16-cv-00189-JGB-SP Document 300 Filed 09/09/19 Page 1 of 3 Page ID #:6349

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TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT, on October 7, 2019 at 9:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 1 of the United States District Court for the Central District of California, Eastern Division, 3470 Twelfth Street Riverside, California 92501, before the Honorable Jesus G. Bernal, presiding, Plaintiffs Veda Woodard, Teresa Rizzo-Marino, and Diane Morrison (“Plaintiffs”), pursuant to Federal Rule of Civil Procedure 23(e)(2), will and hereby do move the Court for an Order for final approval of a class action settlement with Naturex, Inc. (“Naturex”). This motion is based on this Notice of Motion, the concurrently-filed Memorandum of Points and Authorities, the concurrently-filed Declaration of Ronald A. Marron and Exhibits 1 through 2 attached thereto, the concurrently-filed Declaration of Timothy D. Cohelan and Exhibit 3 attached thereto, the concurrently-filed Declaration of Gajan Retnasaba and Exhibits A through E attached thereto, the concurrently-filed Declaration of Veda Woodard, the concurrently-filed Declaration of Diane Morrison, the concurrently-filed Declaration of Teresa Rizzo-Marino, the concurrently-filed [Proposed] Judgement and Order (1.) Approving Class Action Settlement, (2.) Awarding Class Counsel Fees and Expenses, (3.) Awarding Class Representatives Incentive Awards, and (4.) Dismissing Claims Against Defendant Naturex, Inc. with Prejudice, all prior pleading and proceedings in this matter, and all other evidence and written and oral argument that will be submitted in support of the Motion. DATED: September 9, 2019 Respectfully submitted,

/s/ Ronald A. Marron RONALD A. MARRON




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LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON [email protected] Michael T. Houchin [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

COHELAN KHOURY & SINGER TIMOTHY D. COHELAN [email protected] ISAM C. KHOURY [email protected] MICHAEL D. SINGER [email protected] JAMES J. HILL [email protected] 605 C St #200 San Diego, California 92101 Telephone: (619) 239-8148 Facsimile: (619) 595-3000 Counsel for Plaintiffs and the Proposed Class



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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Plaintiffs, vs.

LEE LABRADA; LABRADA BODYBUILDING NUTRITION, INC.; LABRADA NUTRITIONAL SYSTEMS, INC.; DR. MEHMET C. OZ, M.D.; ENTERTAINMENT MEDIA VENTURES, INC. d/b/a OZ MEDIA; ZOCO PRODUCTIONS, LLC; HARPO PRODUCTIONS, INC; SONY PICTURES TELEVISION, INC; NATUREX, INC.; and INTERHEALTH NUTRACEUTICALS, INC., Defendants.


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL

Case 5:16-cv-00189-JGB-SP Document 300-1 Filed 09/09/19 Page 1 of 33 Page ID #:6352

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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 1

II. THE LITIGATION, SETTLEMENT NEGOTIATIONS, AND PRELIMINARY APPROVAL .......................................................................... 2

III. THE SETTLEMENT AGREEMENT ............................................................... 4

IV. NOTICE HAS BEEN FULLY DISSEMINATED TO THE CLASS ............... 5

A. Publication Notice ......................................................................................... 6

B. Social Media Notice ...................................................................................... 6

C. Press Release ................................................................................................. 7

D. Settlement Website, Email, and Phone Line ................................................. 7

E. CAFA Notice ................................................................................................. 8

V. CLAIMS RATE, OPT-OUTS, AND OBJECTIONS ........................................ 8

VI. THE SETTLEMENT SHOULD RECEIVE FINAL APPROVAL ................... 8

A. Plaintiffs and Class Counsel Have Adequately Represented the Class ......10

B. The Settlement was Negotiated at Arm’s Length .......................................12

C. The Relief Provided to the Class is Adequate .............................................13

1. The Costs, Risks, and Delay of Trial and Appeal Support Final Approval 16

2. The Proposed Method of Distribution is Effective ......................................16

3. The Requested Attorneys’ Fees and Incentive Awards are Fair and Reasonable ..................................................................................................18

4. There Are No Side Agreements at Issue ......................................................18

D. The Proposed Settlement Treats Class Members Equitably Relative to Each Other ............................................................................................................19

E. The Absence of Governmental Participation Supports Approval ...............19

F. The Reaction of the Class Members to the Proposed Settlement Has Been Favorable .....................................................................................................19

VII. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED .......20

A. The Class Satisfies Rule 23(a) ....................................................................20


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1. Numerosity ...............................................................................................20

2. Commonality ............................................................................................21

3. Typicality ..................................................................................................22

4. Adequacy ..................................................................................................22

B. The Class Satisfies Rule 23(b)(3) ................................................................23

1. Common Questions of Law and Fact Predominate ....................................23

2. A Class Action Is the Superior Mechanism for Adjudicating this Dispute .25

VIII. CONCLUSION ................................................................................................25


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TABLE OF AUTHORITIES Cases Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ...................................................................................... 20, 23 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) .........................................................................21 Balderas v. Massage Envy Franchising, LLC, 2014 WL 3610945 (N.D. Cal. July 21, 2014) .....................................................15 Churchill Vill., L.L.C. v. Gen. Elec.,

361 F.3d 566 (9th Cir. 2004) ..............................................................................10 Curtis-Bauer v. Morgan Stanley & Co., Inc., 2008 WL 4667090 (N.D. Cal. Oct. 22, 2008) .....................................................16 Downey Surgical Clinic, Inc. v. Optuminsight, Inc., 2016 WL 5938722 (C.D. Cal. May 16, 2016) .....................................................15 Dupler v. Costco Wholesale Corp.,

705 F. Supp. 2d 231 (E.D.N.Y. 2010) .................................................................20 Gallucci v. Gonzales,

603 Fed. Appx. 533 (9th Cir. 2015) .....................................................................13 Garcia v. Pancho Villa's of Huntington Village, Inc., 2012 WL 1843785 (E.D. N.Y. 2012) .................................................................... 6 Garner v. State Farm Mut. Auto. Ins. Co., 2010 WL 1687832 (N.D. Cal. Apr. 22, 2010) .....................................................19 Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. 147 (1982). ............................................................................................22 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) .......................................................... 10, 11, 21, 23 Hefler v. Wells Fargo & Co.,

2018 WL 6619983 (N.D. Cal. Dec. 18, 2018) .............................................. 10, 11


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In re Extreme Networks, Inc. Securities Litigation, 2019 WL 3290770 (N.D. Cal. July 22, 2019) .....................................................10 In re Hyundai & Kia Fuel Econ. Litig.,

926 F.3d 539 (9th Cir. 2019) ...............................................................................24 In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454, 462 (9th Cir. 2000) .......................................................................11 In re Netflix Privacy Litig.,

2013 WL 1120801 at *8 (N.D. Cal. Mar. 18, 2013) ............................................19 In re Omnivision Techs., Inc.,

559 F. Supp. 2d 1036 (N.D. Cal. 2008) ....................................................... 12, 20 In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008) ............................................................................... 8 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, &

Prod. Liab. Litig., 2013 WL 3224585 (C.D. Cal. June 17, 2013) ......................17 LaGarde v. Support.com, Inc.,

2013 WL 1283325 (N.D. Cal. Mar. 26, 2013) ....................................................19 Lambert v. Nutraceutical Corp.,

870 F.3d 1170 (9th Cir. 2017) .............................................................................14 Lo v. Oxnard European Motors, LLC, 2012 WL 1932283 (S.D. Cal. 2012) ...................................................................... 6 Ma v. Covidien Holding, Inc., 2014 WL 360196 (C.D. Cal. Jan. 31, 2014) ........................................................15 Mazza v. Am. Honda Motor Co.,

666 F.3d 581 (9th Cir. 2012) ...............................................................................24 Miller v. Ghirardelli Chocolate Co.,

2015 WL 758094 (N.D. Cal. Feb. 20, 2015) .......................................................18 Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) .................................................................. 13, 20


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Parkinson v. Hyundai Motor Am., 258 F.R.D. 580 (C.D. Cal. 2008) .........................................................................25

Rodriguez v. W. Publ'g Corp., 563 F.3d 948 (9th Cir. 2009) ........................................................................ 12, 16

Slaven v. BP Am., Inc., 190 F.R.D. 649 (C.D. Cal. 2000) .........................................................................21

Stovall-Gusman v. W.W. Granger, Inc., 2015 WL 3776765 (N.D. Cal. June 17, 2015) .....................................................15 Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) .............................................................................18 Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) .............................................................................................21 Wren v. RGIS Inventory Specialists,

2011 WL 1230826 (N.D. Cal. Apr. 1, 2011) .......................................................18 Zamora Jordan v. Nationstar Mortg., LLC, 2019 WL 1966112 (E.D. Wash. May 2, 2019) ................................................9, 10 Zinser v. Accufix Research Inst., Inc.,

253 F.3d 1180 (9th Cir. 2001) .............................................................................23 Statutes 28 U.S.C. § 1715 ........................................................................................................ 8 Cal. Civ. Proc. Code § 877.6 ..................................................................................... 4 Other Authorities 4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.) ..................................................10 4 NEWBERG ON CLASS ACTIONS § 13:49 (5th ed.) ...................................................12 4 NEWBERG ON CLASS ACTIONS § 13:50 (5th ed.) ..................................................12 4 NEWBERG ON CLASS ACTIONS § 13:51 (5th ed.) ...................................................13 4 NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.) ..................................................16 4 NEWBERG ON CLASS ACTIONS § 13:56 (5th ed.) ..................................................19


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Rules Fed. R. Civ. P. 23(a)...................................................................................... 4, 20, 23 Fed. R. Civ. P. 23(a)(1) ............................................................................................21 Fed. R. Civ. P. 23(a)(2) ............................................................................................21 Fed. R. Civ. P. 23(a)(3) ............................................................................................22 Fed. R. Civ. P. 23(a)(4) ............................................................................................22 Fed. R. Civ. P. 23(b) ................................................................................................23 Fed. R. Civ. P. 23(b)(2) .............................................................................................. 1 Fed. R. Civ. P. 23(b)(3) ................................................................................... 1, 4, 23 Fed. R. Civ. P. 23(e)...............................................................................................4, 9 Fed. R. Civ. P. 23(e)(2) ................................................................................... 1, 9, 10 Fed. R. Civ. P.. 23(e)(2)(A) .....................................................................................10 Fed. R. Civ. P. 23(e)(2)(B) ......................................................................................12 Fed. R. Civ. P. 23(e)(2)(C) ......................................................................................13 Fed. R. Civ. P. 23(e)(2)(D) ......................................................................................19 Fed. R. Civ. P. 23(e)(3) ............................................................................................18 Fed. R. Civ. P. 23(g) ................................................................................................10




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I. INTRODUCTION On April 25, 2019, this Court entered an Order preliminarily approving a Class Action Settlement (“Settlement”) between Plaintiffs Veda Woodard, Diane Morrison, and Teresa Rizzo-Marino (“Plaintiffs”), on behalf of the Class, and Defendant Naturex, Inc. (“Naturex.”) (Dkt. No. 294). The Parties reached the Settlement after protracted discussions over the course of several months, including with the assistance of the Honorable Leo S. Papas (Ret.) as a mediator. The Settlement is memorialized in the Class Action Settlement (“Agreement”) filed with this Court on February 15, 2019 (ECF No. 284-3), and resolves all claims against Naturex in the litigation.1 As Plaintiffs explained to the Court in their motion for preliminary approval, the settlement provides meaningful monetary and other equitable relief to the Class. Although Naturex continues to deny Plaintiffs’ allegations, it has agreed under the Agreement to pay $1,300,000 into a non-reversionary settlement fund. Agreement at § 2.1(II). In addition, the Agreement contains representations by Naturex regarding the statements it has not and will not make about its ingredient Svetol®. Agreement at ¶ 6.2 (2). The Settlement should now receive the Court’s final approval because it is demonstrably “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e)(2). For the reasons below, and those stated in Plaintiffs’ Motion for Preliminary Approval of Settlement (ECF No. 284-1), Plaintiffs ask that the Court certify the Class for Settlement purposes under Rules 23(b)(2) and 23(b)(3), find that the Settlement is fair, reasonable and adequate under Rule 23(e)(2), and thus grant final approval of the Settlement.

1 Unless otherwise noted, capitalized terms in this Memorandum of Points and Authorities have the same meaning as in the Settlement Agreement.




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II. THE LITIGATION, SETTLEMENT NEGOTIATIONS, AND PRELIMINARY APPROVAL

On February 2, 2016, Plaintiff Veda Woodard filed this putative class action alleging violations of consumer protections laws against Naturex, Lee Labrada, Labrada Bodybuilding Nutrition, Inc., Labrada Nutritional Systems, Inc., (“Labrada Defendants”); InterHealth Nutraceuticals Inc., (“InterHealth”), Zoco Productions, LLC, Harpo Productions, Inc., and Dr. Mehmet C. Oz, M.D. (the “Media Defendants”). (ECF No. 1). The complaint alleged claims arising from the Defendants’ alleged misrepresentations surrounding the effectiveness of the weight-loss supplement products, including the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract (the “Labrada Green Coffee Bean Extract Product”). Svetol® is produced by Naturex, Inc. On April 4, 2016, the Media Defendants filed a motion to dismiss, (ECF No. 45), which Plaintiff Woodard opposed on April 18, 2016. (ECF No. 61). On May 12, 2016, the Court granted in part and denied in part the Media Defendants’ motion to dismiss. (ECF No. 85). Then on June 2, 2016, Plaintiffs filed the operative First Amended Complaint (“FAC”). (ECF No. 88). On July 15, 2016, Naturex filed a Motion to Dismiss Plaintiffs’ First Amended Complaint and a Motion to Strike portions of Plaintiffs’ First Amended Complaint. (ECF Nos. 101, 102). On July 31, 2017, the Court issued an Order Denying Naturex’s Motion to Dismiss the First Amended Complaint and Denying Naturex’s Motion to Strike portions of Plaintiffs’ First Amended Complaint. (ECF No. 190). Plaintiffs and Naturex have engaged in substantial discovery. All Parties to this litigation have collectively produced approximately 30,000 pages of documents and have exchanged approximately 20 sets of formal written discovery. See Declaration of Ronald A. Marron filed concurrently herewith (“Marron Decl.”), ¶ 4; Declaration of Timothy D. Cohelan filed concurrently herewith (“Cohelan Decl.”), ¶¶ 5-7. In addition, the Defendants have deposed each of the




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Class Representatives and Class Counsel has deposed Naturex’s Fed. R. Civ. P. 30(b)(6) designee, David Yvergniaux. Marron Decl., ¶¶ 6, 8; Cohelan Decl., ¶¶ 6-7. In addition to deposing the representative of Naturex, Plaintiffs’ counsel has also taken several depositions of the non-settling parties in this action relating to, among other topics, their relationship with Naturex. Marron Decl. ¶ 7. Plaintiff and Naturex have also exchanged initial expert reports. Marron Decl., ¶ 9. On September 26, 2017, all the Parties herein engaged in confidential, extensive, arm’s-length negotiation and mediation with the Hon. Leo Papas (Ret.). Marron Decl., ¶ 10. Judge Papas is a retired Magistrate Judge of the United States District Court for the Southern District of California and an experienced and highly regarded mediator who served as a Magistrate Judge for the U.S. District Court, Southern District of California from 1991 to 2009, including a tenure as the Presiding Judge from 2002 to 2007. Marron Decl., ¶ 10. The Parties were unable to reach a resolution at the mediation. Marron Decl., ¶ 11. Plaintiffs and Naturex engaged in an additional mediation session with Judge Papas on August 30, 2018. Marron Decl., ¶ 11. They submitted mediation statements, supplemental statements and supporting documents in connection with the mediation. Judge Papas’ guidance with the negotiations between Class Counsel and Naturex resulted in an agreement in principle which was reduced to a written memorandum of understanding (“MOU”). Marron Decl., ¶ 11. The MOU was superseded by a written Joint Settlement Agreement executed by Plaintiffs and Naturex. Marron Decl., ¶ 11. The mediator’s continued involvement over several months to work out significant details and vigorous disagreements between the parties demonstrate that this proposed resolution was the product of heavily disputed and arm’s length negotiation. Marron Decl., ¶ 11. On February 15, 2019, Plaintiffs filed a Motion for Preliminary Approval of the class action settlement with Naturex. (ECF No. 284). On February 15, 2019, Naturex also filed a Motion for Determination of Good Faith Settlement. (ECF No.




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283). On April 25, 2019, the Court entered an Order Granting Plaintiffs’ Motion for Preliminary Approval and Granting Naturex’s Motion for Good Faith Settlement Determination. (ECF No. 294). In its preliminary approval order, the Court conditionally certified the nationwide settlement class noting that the requirement of Federal Rules of Civil Procedure 23(a) and 23(b)(3) had been satisfied. (ECF No. 294 at 5-9). The Court also preliminarily approved the settlement noting that the relevant factors weighed in favor of approval. (ECF No. 294 at 11-15). Additionally, the Court found that the settlement was in good faith and “is fair, reasonable, and adequate, satisfying the criteria for Rule 23(e) and California Code of Civil Procedure Section 877.6.” (ECF No. 294 at 18-19). III. THE SETTLEMENT AGREEMENT The Settlement is memorialized in the Class Action Settlement filed with this Court on February 15, 2019 (ECF No. 284-3). The proposed Settlement establishes a Settlement Class comprised of:

All persons in the United States who purchased the Naturex Ingredient2 or any Green Coffee Bean Extract Product3 for personal or household use and not for resale, from February 2, 2012 until the date Notice is made to the Settlement Class Members.

Agreement at ¶ 2.1(JJ). The Settlement Agreement provides that Naturex will pay $1,300,000.00 into a non-reversionary settlement fund. Agreement at § 2.1(II). As part of the Settlement, Naturex agreed to the following representations: (1) Naturex does not and will not represent that Svetol® will help users lose weight without diet and exercise; (2) Naturex does not and will not represent that Svetol® has

2 The term “Naturex Ingredient” is defined in the Settlement Agreement as “the green coffee bean extract Svetol® made or sold by Naturex, whether or not it was sold under or using the Svetol® trademark.” Agreement at ¶ 2.1(JJ). 3 The term “Green Coffee Bean Extract Product” is defined in the Settlement Agreement as “any product containing the Naturex Ingredient, including but not limited to the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract.” Agreement at ¶ 2.1(DD).




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weight loss benefits that are not supported by clinical studies; and (3) Naturex does not have control over the representations of third parties (for example, distributors, manufacturers, or retailers) regarding Svetol®; however, in its communications with third parties, Naturex will not inform any third party that Svetol® will help users lose weight without diet and exercise or that Svetol® has weight loss benefits that are not supported by clinical studies. Agreement at ¶ 6.2 (2). The release in the Settlement Agreement is narrowly tailored to include only Naturex and its related entities. Agreement at ¶ 2.1(FF). The release specifically excludes the Non-Settling Defendants and will not preclude the Class’s ability to pursue claims against the manufacturers, marketers, distributors, and retailers of Green Coffee Bean Extract Products. Agreement at ¶ 2.1(FF). IV. NOTICE HAS BEEN FULLY DISSEMINATED TO THE CLASS The Parties developed a notice program with the assistance of Classaura Class Action Administration (“Classaura”), a firm that specializes in the development, design, and implementation of class-action notice plans. The program was executed in accordance with its design and the terms approved by the Court. In consultation and collaboration with the parties, Classaura has taken steps to provide the Court-ordered Notice to Class Members. These notice procedures are consistent with the class-action notice plan that was approved by this Court as being the best notice practicable under the circumstances. The costs of providing notice to the class members totals $123,181.4 See Declaration of Gajan Retnasaba filed concurrently herewith (“Retnasaba Decl.”), ¶ 22. The cost of notice and administration account for just 9.47% of the total settlement fund. The Court should find that these notice and administration costs

4 The costs incurred to provide notice of the settlement via publication, settlement website, Press Release, Online Notice, and CAFA is $50,500. The costs to administer the settlement, and process claims is $9,599 (assuming 95,993 claims). The cost to distribute payment to class members is $63,082 (assuming 84,110 approved claims). This brings the total cost to $123,181. Retnasaba Decl., ¶ 20.




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are reasonable and can be properly deducted from the Settlement Fund.5 Below is a summary of the notice that was provided to the class members.

A. Publication Notice Notice was published in Prevention, a national magazine with a circulation of approximately 1,800,000 and a reach of approximately 5,300,000 readers. Retnasaba Decl., ¶ 3 & Ex. A. The notice was published in the July 2019 edition, which began distribution on June 1, 2019. Retnasaba Decl., ¶ 3 & Ex. A. Prevention often focuses on topics related to supplements and weight loss. For example, 50% of the magazine issues for 2019 will feature a weight loss headline on the cover. Retnasaba Decl., ¶ 3. Assuming 27% of these readers have used green coffee bean supplements (the rate of green coffee bean supplement usage among users of weight loss supplements), Classaura estimates that this publication has reached 1.4 million people in the target audience. Retnasaba Decl., ¶ 3.

B. Social Media Notice On May 9, 2019, Classaura began an online advertising campaign on the social media website Facebook.com. Retnasaba Decl., ¶ 4. The advertising targeted adults residing in the United States who were identified as having an interest in weight loss, weight loss supplements, Vitamin Shoppe, GNC, or Green Coffee. Retnasaba Decl., ¶ 4 & Ex. B. 5. The Facebook advertising campaign generated 31,986,673 impressions.6 Retnasaba Decl., ¶ 5. The Facebook advertising

5 See Lo v. Oxnard European Motors, LLC, 2012 WL 1932283, *1 n.1 (S.D. Cal. 2012) (deducting the cost of notice from the settlement fund created by defendant); Garcia v. Pancho Villa's of Huntington Village, Inc., 2012 WL 1843785, *2 (E.D. N.Y. 2012) (approving a settlement fund that included the costs of settlement notice). 6 An “impression” (in the context of online advertising) is the number of times an ad was displayed to an individual on any given site. The impression is displayed and gives an individual the opportunity to click on the advertisement and be directed to the Settlement Website for more information. Each time an ad is displayed to a visitor, it is counted as one impression. Retnasaba Decl., ¶ 5.




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campaign also had a reach7 of 18,922,191 unique users. Retnasaba Decl., ¶ 6. The online advertising campaign also made submissions to Consumer Class Action Websites, which are websites used by consumers to stay informed of class action settlements that may apply to them. Consumer class action websites that displayed a summary of the settlement included ClassActionRebates.com and TopClassActions.com. Retnasaba Decl., ¶ 7.

C. Press Release Classaura crafted a neutral informational press release, providing a summary of the settlement. Retnasaba Decl., ¶ 8. On May 9, 2019, the press release was released using the PR Newswire’s US1 National Newsline. Retnasaba Decl., ¶ 8 & Ex. C. US1 National Newsline provides the press release to thousands of media outlets across the country, including national and local newspapers, websites, and television and radio stations. Retnasaba Decl., ¶ 8. The press release was picked up and republished by 139 media outlets. Retnasaba Decl., ¶ 8.

D. Settlement Website, Email, and Phone Line The Settlement Website (www.GCBEProducts.com) was set up on May 8, 2019, providing information on the lawsuit and access to case documents. Retnasaba Decl., ¶ 11. The website includes a summary of the case, a list of important dates, answers to frequently asked questions, key case filings (the operative complaint, joint motion for preliminary approval, preliminary approval order, long and short form notice of class action settlement, as well as the settlement agreement), and contact information. Retnasaba Decl., ¶ 11. The Settlement Website also displayed the claim filing deadline; the deadline to opt-out of the class settlement; the deadline to submit an objection; and the date of the

7 “Reach” is defined as the number of different people that the advertisement was exposed to. Each time an ad is displayed to a user that has not previously been exposed to the advertisement through that medium, it is counted as adding one to the reach. Retnasaba Decl., ¶ 6.




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Fairness Hearing. Retnasaba Decl., ¶ 11. The website address was set forth in all of the public notices described above, as well as on the Claim Form. Retnasaba Decl., ¶ 11. To date the website has been visited 108,443 times. Retnasaba Decl., ¶ 11. A dedicated email address ([email protected]) was also set up on April 24, 2019 to answer questions from potential class members. Retnasaba Decl., ¶ 12. To date, Classuara has received and answered 158 emails. Retnasaba Decl., ¶ 12. In addition, a dedicated toll-free number (888-663-5378) was set up on May 9, 2019, providing pre-recorded information and allowing class members to leave a voicemail requesting further information. Retnasaba Decl., ¶ 10. To date, Classaura has received and answered 59 calls. Retnasaba Decl., ¶ 10.

E. CAFA Notice In accordance with the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715, Classuara compiled a CAFA Notice Packet containing a CD-ROM with the necessary case documents as well as cover letter. Retnasaba Decl., ¶¶ 13-14 & Ex. B. On February 20, 2019, CAFA Notice was mailed via United States Postal Service (USPS), Priority Mail Service, to the U.S. Attorney General, the Attorneys General of each of the 50 States and the District of Columbia, and the Attorneys General of the 5 recognized U.S. Territories. Retnasaba Decl., ¶ 15.

V. CLAIMS RATE, OPT-OUTS, AND OBJECTIONS To date, Classuara has received 95,993 claims. Retnasaba Decl., ¶ 17. Out of the total claims received, Classuara has determined to date that 84,110 claims are valid. Retnasaba Decl., ¶ 18. In addition, there have only been six requests for exclusion from the settlement (Retnasaba Decl., ¶ 21) and no class members have objected to the settlement. VI. THE SETTLEMENT SHOULD RECEIVE FINAL APPROVAL “[T]here is a strong judicial policy that favors settlements, particularly where complex class action litigation is concerned.” In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008). Approval of a proposed class action settlement is




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governed by Federal Rule of Civil Procedure 23(e). “[T]he 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, No. 2:14-CV-0175-TOR, 2019 WL 1966112, at *2 (E.D. Wash. May 2, 2019). Rule 23(e) now provides that the Court may approve a class action settlement “only after a hearing and only on a finding that it is fair, reasonable, and adequate after considering whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm's length; (C) 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); and (D) the proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2). “Under Rule 23(e), both its prior version and as amended, fairness, reasonableness, and adequacy are the touchstones for approval of a class-action settlement.” Zamora, 2019 WL 1966112, at *2. “The purpose of the amendment to Rule 23(e)(2) is [to] establish a consistent set of approval factors to be applied uniformly in every circuit, without displacing the various lists of additional approval factors the circuit courts have created over the past several decades.” Id. Factors that the Ninth Circuit have typically considered 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; (6) the experience and views of counsel; and (7.) the reaction of the class members to the proposed settlement. Hanlon v. Chrysler Corp., 150




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F.3d 1011, 1026 (9th Cir. 1998); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004).8 “While the Ninth Circuit has yet to address the amendment to Rule 23(e)(2)….the factors in amended Rule 23(e)(2) generally encompass the list of relevant factors previously identified by the Ninth Circuit.” Zamora, 2019 WL 1966112, at *2 (alteration in original). Indeed, “[t]he goal of this amendment is not to displace any factor, but rather to focus the court and the lawyers on the core concerns of procedure and substance that should guide the decision whether to approve the proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendment. “Accordingly, the Court applies the framework set forth in Rule 23 with guidance from the Ninth Circuit’s precedent, bearing in mind the Advisory Committee’s instruction not to let ‘[t]he sheer number of factors’ distract the Court and parties from the ‘central concerns’ underlying Rule 23(e)(2).” In re Extreme Networks, Inc. Securities Litigation, No. 15-CV-04883-BLF, 2019 WL 3290770, at *6 (N.D. Cal. July 22, 2019); see also Hefler v. Wells Fargo & Co., No. 16-CV-05479-JST, 2018 WL 6619983, at *4 (N.D. Cal. Dec. 18, 2018).

A. Plaintiffs 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.” Final approval criteria—Rule 23(e)'s multifactor test, 4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.). A determination of adequacy of representation requires that “two questions be addressed: (a) do the

8 Plaintiffs previously addressed the Hanlon factors in their Motion for Preliminary Approval. (ECF No. 284). For purposes of Final Approval, Plaintiffs have focused on the factors set forth in Federal Rule of Civil Procedure 23(e)(2). Plaintiffs note that the Hanlon factors largely overlap with the Rule 23(e)(2) factors. See Zamora, 2019 WL 1966112, at *2.




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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, 2018 WL 6619983, at *6. The proposed class representatives in this action have no conflicts of interest with other class members and each have prosecuted this action vigorously on behalf of the Class.9 Each of the named Plaintiffs have suffered the same alleged injuries as the absent class members because each purchased a Green Coffee Bean Extract product containing Svetol®, for personal and household use, in reliance on the purported weight-loss labeling statements. FAC ¶¶ 30-35. Each of the named Plaintiffs have been dedicated to vigorously pursuing this action on behalf of the class and each have kept themselves informed about the status of the proceedings. Woodard Decl., ¶¶ 3-13; Morrison Decl., ¶¶ 3-13; Rizzo-Marino Decl., ¶¶ 3-13. Moreover, each of the named Plaintiffs have participated in discovery and each have sat for depositions. Woodard Decl., ¶¶ 4-8; Morrison Decl., ¶¶ 4-8; Rizzo-Marino Decl., ¶¶ 4-8. Accordingly, the named Plaintiffs have adequately represented the Class. Class Counsel has also vigorously represented the Class and have no conflicts of interest. The Settlement was negotiated by counsel with extensive experience in consumer class action litigation. Marron Decl., ¶¶ 24-42 & Ex. 2 (firm resume of the Law Offices of Ronald A. Marron); Cohelan Decl., ¶¶ 14-20 & Ex. 3 (firm resume of Cohelan, Khoury, and Singer). Through the discovery process, Class Counsel has obtained sufficient information and documents to evaluate the strengths and weaknesses of the case. Marron Decl., ¶ 17. See Final

9 See Declarations of Veda Woodard (“Woodard Decl.”), Diane Morrison (“Morrison Decl.”) and Teresa Rizzo-Marino (“Rizzo-Marino Decl.”) filed concurrently herewith.




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approval criteria—Rule 23(e)(2)(A): Adequate representation, 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.”). The information reviewed by class counsel includes sales information for the Labrada Products and the Svetol® ingredient during the class period, the labels for the Labrada products and other products that contain Svetol® during the class period, and scientific articles produced by Naturex purporting to show the efficacy of the Svetol® ingredient. Marron Decl., ¶ 17. Based on their experience, Class Counsel has concluded that the Settlement provides exceptional results for the class while sparing the class from the uncertainties of continued and protracted litigation. Marron Decl., ¶ 22. See, e.g., In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) (“The recommendations of plaintiffs’ counsel should be given a presumption of reasonableness.”); Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 976 (9th Cir. 2009) (Deference to Class Counsel’s evaluation of the Settlement is appropriate because “[p]arties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in litigation.”). Accordingly, adequacy of representation is satisfied.

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). “This inquiry aims to root out settlements that may benefit the plaintiffs' lawyers at the class's expenses, sometimes called ‘collusive settlements.’” Final approval criteria—Rule 23(e)(2)(B): Arm's length negotiation, 4 NEWBERG ON CLASS ACTIONS § 13:50 (5th ed.). Here, the settlement was negotiated at arm’s length after hard-fought litigation and discovery. The Parties did not begin settlement discussions until after the Court had ruled on Naturex’s Motion to Dismiss the First Amended Complaint




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(ECF No. 190) and after the Parties had exchanged written discovery and documents, which speaks to the fundamental fairness of the process. Marron Decl., ¶ 18. See Nat'l Rural Telecommunications 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.”). Significantly, the settlement was also reached following two mediation sessions before the Honorable Leo S. Papas (Ret.). Marron Decl., ¶¶ 10-11; Gallucci v. Gonzales, 603 Fed. Appx. 533, 534 (9th Cir. 2015) (“This conclusion [that there was no collusion] is bolstered by the fact that the Settlement was negotiated with the aid of a retired magistrate judge and experienced mediator, who reported no evidence of collusion.”). The several months that it took to work out significant details and vigorous disagreements between the parties demonstrate that this proposed resolution was the product of heavily disputed and arm’s length negotiation. Marron Decl., ¶ 11. The settlement negotiations were hard-fought, with both Parties and their counsel thoroughly familiar with the applicable facts, legal theories, and defenses on both sides. Marron Decl., ¶ 12. Accordingly, the Settlement is the product of genuine arms-length negotiations.

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.” Final approval criteria—Rule 23(e)(2)(C): Adequate relief, 4 NEWBERG ON CLASS

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




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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 settlement is within the ‘ballpark’ of reasonableness.’” Id. (citation omitted). During discovery, Plaintiffs obtained sales information for the Labrada Green Coffee Bean Extract Product. Marron Decl., ¶ 19. This sales information was produced by Labrada and from non-party the Vitamin Shoppe. Marron Decl., ¶ 19. This sales information was provided to Plaintiffs’ damages expert, Charlene L. Podlipna, CPA, who prepared an expert report on damages that was served on all Parties on March 19, 2018. Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 7]. After analyzing Labrada’s sales figures and the Vitamin Shoppe sales data, Ms. Podlipna has concluded that Labrada has sold units of its Green Coffee Bean Extract Product to nationwide class members during the Class Period. Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 20]. Ms. Podlipna notes that Labrada’s suggested retail price for the Labrada Green Coffee Bean Extract Product is . Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 20]. Approximately of total sales of the Labrada Green Coffee Bean Extract Product were sold through the Vitamin Shoppe. Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 21]. Vitamin Shoppe’s average retail price for the Labrada Green Coffee Bean Extract Product was . Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 21]. Ms. Podlipna’s class wide damages calculation would be based on the full refund model, which multiples the total units sold by an average retail price. Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 21]; see also Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1183 (9th Cir. 2017), rev'd on other grounds, 139 S. Ct. 710, 203 L. Ed. 2d 43 (2019) (“The full refund model measures damages by presuming a full refund for each customer, on the basis that the product has no or only a de minimis value.”). Accordingly, Ms. Podlipna has determined that total classwide damages for sales of the Labrada Green Coffee




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Bean Extract Product would total by multiplying the units sold by the average retail price. Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at Schedule 1.1]. Naturex has agreed to settle this matter for a non-reversionary total of $1,300,000. Agreement at § 2.1(II). The settlement fund accounts for of total sales of the Labrada Green Coffee Bean Extract ($1,300,000 settlement fund /

total Labrada damages = ). Although the Settlement includes other products that contain Svetol® aside from the Labrada Green Coffee Bean Extract Product, the settlement amount is still fair, reasonable, and adequate. Classuara has determined that 22% of all class member claims received to date were for the Labrada Green Coffee Bean Extract Products. Retnasaba Decl., ¶ 19. Using this figure, Plaintiffs estimate that the Labrada Green Coffee Bean Product accounts for 22% of total sales of all Class Products at issue in the settlement. Accordingly, Plaintiffs estimate that total available damages for all Class Products would be

( is 22% of ). The $1,300,000 non-reversionary Settlement Fund therefore accounts for approximately % of total damages that would be available at trial. This amount is well within the range of reasonableness.10 The $1,300,000 Settlement Fund is also reasonable considering that this only a partial class action settlement. The

10 See, e.g., Stovall-Gusman v. W.W. Granger, Inc., No. 13-cv-02540-HSG, 2015 WL 3776765, at *4 (N.D. Cal. June 17, 2015) (granting final approval of a net settlement amount representing 7.3% of the plaintiffs’ potential recovery at trial); Balderas v. Massage Envy Franchising, LLC, No. 12-cv-06327NC, 2014 WL 3610945, at *5 (N.D. Cal. July 21, 2014) (granting preliminary approval of a net settlement amount representing 5% of the projected maximum recovery at trial); Ma v. Covidien Holding, Inc., No. SACV 12-02161-DOC (RNBx), 2014 WL 360196, at *5 (C.D. Cal. Jan. 31, 2014) (finding a settlement worth 9.1% of the total value of the action “within the range of reasonableness”); Downey Surgical Clinic, Inc. v. Optuminsight, Inc., No. CV09-5457PSG (JCx), 2016 WL 5938722 at *5 (C.D. Cal. May 16, 2016) (granting final approval where recovery was as low as 3.21% of potential recovery at trial).




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release in the Settlement Agreement is narrowly tailored to include only Naturex and its related entities. The release specifically excludes the non-settling defendants and will not preclude the Class’s ability to pursue claims against the manufacturers, marketers, distributors, and retailers of Green Coffee Bean Extract Products. Agreement at ¶ 2.1(FF). In addition, Naturex’s sales of Svetol® at issue in this litigation totaled only $90,250. Marron Decl., ¶ 15. Accordingly, the Court should find that the relief provided to the Class is adequate.

1. The Costs, Risks, and Delay of Trial and Appeal Support Final Approval

The costs, risks, and delay of trial and appeal further support final approval. Proceeding in this litigation in the absence of settlement poses various risks such as failing to certify a class, having summary judgment granted against Plaintiffs, or losing at trial. 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.”). As the Court previously noted in its Preliminary Approval Order, “[w]ithout the Settlement Agreement, the parties would be required to litigate class certification, as well as the ultimate merits of the case—a process which the Court acknowledges is long, complex, and expensive. Settlement of this matter will conserve the resources of this Court and the parties.” (ECF No. 294 at 13).

2. The Proposed Method of Distribution 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.” Final approval criteria—Rule 23(e)(2)(C)(ii): Distribution method, 4 NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.). The claims process here was intentionally straightforward and has allowed Settlement Class members to




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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.”). The Settlement Agreement here provides for pro rata distribution to class, which will ensure that class members receive as much as the settlement fund as possible. Agreement at ¶ 6.2(1)(e). The total relief available for distribution to the class will be $772,997.44 after the requested costs of notice and administration, attorneys’ fees, litigation costs, and incentive awards are deducted from the settlement fund.11 There are approximately 84,110 valid claims that were submitted by class members. Retnasaba Decl., ¶ 18. Accordingly, each class member will receive $9.19. This amount is reasonable considering that the average retail price for the Labrada Green Coffee Bean Extract is approximately . Marron Decl., ¶ 19 & Ex. 1 [Podlipna Expert Rpt. at ¶ 21]. Accordingly, class members will receive approximately % of the amount that they most likely paid for each product. This distribution is reasonable considering that class members are only releasing their claims against Naturex and will still have the ability to bring claims against the non-settling defendants in this action as well as against other manufacturers, marketers, distributors, and retailers of Green Coffee Bean Extract Products. Agreement at ¶ 2.1(FF). If any amounts remain in the settlement fund following a pro rata distribution to class members, then the remaining funds will thereafter be awarded cy pres to the Consumers Union. Agreement at ¶ 6.2(1)(e). This cy pres award is

11 $1,300,000 Settlement Fund - $123,181 in notice in administration costs - $325,000 in requested attorneys’ fees - $61,321.56 in requested litigation costs - $17,500 total requested incentive awards = $772,997.44 in funds for distribution.




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intended to distribute a de minimis amount of remaining funds that may result from uncashed settlement distribution checks that would no longer be feasible to re-distribute. Courts have routinely approved Consumers Union as a cy pres recipient. See Miller v. Ghirardelli Chocolate Co., No. 12-CV-04936-LB, 2015 WL 758094, at *8 (N.D. Cal. Feb. 20, 2015) (“Consumers Union has been approved as a cy pres recipient in numerous false-advertising lawsuits.”) (collecting cases). Accordingly, the Court should find the proposed distribution method to be effective.

3. The Requested Attorneys’ Fees and Incentive Awards are Fair and Reasonable

Class Counsel has fully addressed the reasonableness of the fee request in Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Incentive Awards that was filed on August 16, 2019. (ECF No. 295-1). Class Counsel are seeking fees in the amount of 25% of the total settlement fund, which is the “benchmark” under Ninth Circuit case law. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). In addition, Plaintiffs Woodard and Morrison are seeking incentive awards in the amount of $5,000 each and Plaintiff Rizzo-Marino is seeking an incentive award in the amount of $7,500. The requested incentive awards are reasonable considering Plaintiffs’ substantial participation in the case. Woodard Decl., ¶¶ 2-13; Morrison Decl., ¶¶ 2-13; Rizzo-Marino Decl., ¶¶ 2-13; see also Wren v. RGIS Inventory Specialists, No. C-06-05778 JCS, 2011 WL 1230826, at *36 (N.D. Cal. Apr. 1, 2011) (“there is ample case law finding $5,000 to be a reasonable amount for an incentive payment.”).

4. There Are No Side Agreements at Issue 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. Marron Decl., ¶ 23.




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D. 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.” Final approval criteria—Rule 23(e)(2)(D): Intra-class equity, 4 NEWBERG ON CLASS ACTIONS § 13:56 (5th ed.). Here, the settlement treats each class member equally. As discussed above, each class member will receive a pro rata distribution of the settlement fund for each valid claim that is submitted. Agreement at ¶ 6.2(1)(e). Because each class member is treated equally, the Court should approve the settlement as fair, reasonable, and adequate.

E. The Absence of Governmental Participation Supports Approval Although CAFA does not create an affirmative duty for either state or federal officials to take any action in response to a class-action settlement, CAFA presumes that—once put on notice—state or federal officials will “raise any concerns that they may have during the normal course of the class action settlement procedures.” Garner v. State Farm Mut. Auto. Ins. Co., No. CV 08-1365, 2010 WL 1687832, at *14 (N.D. Cal. Apr. 22, 2010). see also LaGarde v. Support.com, Inc., No. C 12-0609, 2013 WL 1283325, at *7 (N.D. Cal. Mar. 26, 2013) (same); In re Netflix Privacy Litig., No. 5:11-cv-00379, 2013 WL 1120801 at *8 (N.D. Cal. Mar. 18, 2013) (same). To date, no state or federal official has raised any objection to the settlement.

F. The Reaction of the Class Members to the Proposed Settlement Has Been Favorable

It is well established that “the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a




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proposed class settlement action are favorable to the class members.” Nat’l Rural Telecomms. Coop., 221 F.R.D. at 529 (collecting cases). Here, the response from Class members has been overwhelmingly positive. There have been only six requests for exclusion (Retnasaba Decl., ¶ 21), and no objections have been filed. This positive reaction to the Settlement indicates the Court should grant final approval, as the Court “‘may appropriately infer that a class action settlement is fair, adequate, and reasonable when few class members object to it.’” Garner, 2010 WL 1687832, at *14. The absence of objections is particularly noteworthy here, where notice of the settlement was disseminated to millions of consumers. See Section IV., supra. “‘It is established that the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members.’” In re Omnivision Techs., Inc., 559 F. Supp. 2d at 1043 (quoting Nat’l Rural Telecomms. Coop., 221 F.R.D. at 528-29); see also Dupler v. Costco Wholesale Corp., 705 F. Supp. 2d 231, 239 (E.D.N.Y. 2010) (“[A] small number of class members seeking exclusion or objecting indicates an overwhelming positive reaction of the class.”). That presumption applies with full force here. VII. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED When presented with a proposed settlement, a court must first determine whether the proposed settlement class satisfies the requirements for class certification under Rule 23. In assessing those class certification requirements, a court may properly consider that there will be no trial. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). For the reasons below, the Class meets the requirements of Rule 23(a) and (b).

A. The Class Satisfies Rule 23(a) 1. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all




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members is impracticable.” See Fed. R. Civ. P. 23(a)(1). “As a general matter, courts have found that numerosity is satisfied when class size exceeds 40 members, but not satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 F.R.D. 649, 654 (C.D. Cal. 2000). Here, the proposed class is comprised of thousands of consumers who purchased the Class Products. To date, the settlement administrator has received 84,110 valid claims. See Retnasaba Decl., ¶ 18. Accordingly, the numerosity requirement is easily satisfied.

2. Commonality Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” See Fed. R. Civ. P. 23(a)(2). Commonality is established if plaintiffs and class members’ claims “depend on a common contention,” “capable of class-wide resolution … [meaning] that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). There are ample issues of both law and fact here that are common to the members of the Class. All of the Class Members’ claims arise from a common nucleus of facts and are based on the same legal theories. Plaintiffs allege that Naturex misrepresented the weight-loss benefits of supplements containing the green coffee bean extract Svetol® made or sold by Naturex, including but not limited to the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract. These alleged misrepresentations were made in a uniform manner to each of the class members. Accordingly, commonality is satisfied by the existence of these common factual issues. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (commonality requirement met by “the alleged existence of common discriminatory practices”). Second, Plaintiffs’ claims are brought under legal theories common to the Class as a whole. Alleging a common legal theory alone is enough to establish commonality. See Hanlon, 150 F.3d at 1019. Here, all of the legal theories asserted




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by Plaintiffs are common to all Class Members. Given that there are virtually no issues of law which affect only individual members of the Class, common issues of law clearly predominate over individual ones. Thus, commonality is satisfied.

3. Typicality Rule 23(a)(3) requires that the claims of the representative plaintiffs be “typical of the claims … of the class.” See Fed. R. Civ. P. 23(a)(3). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” See Hanlon, 150 F.3d at 1020. In short, to meet the typicality requirement, the representative plaintiffs simply must demonstrate that the members of the settlement class have the same or similar grievances. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). The claims of the named Plaintiffs are typical of those of the Class. Like those of the Class, their claims arise out of the purchase of green coffee bean extract products for personal or household use after purportedly relying on alleged representations about the efficacy of these products. The named Plaintiffs have precisely the same claims as the Class and must satisfy the same elements of each of their claims, as must other Class Members. Supported by the same legal theories, the named Plaintiffs and all Class Members share claims based on the same alleged course of conduct. The named Plaintiffs and all Class Members have been injured in the same manner by this conduct. Therefore, Plaintiffs satisfy the typicality requirement.

4. Adequacy The final requirement of Rule 23(a) is set forth in subsection (a)(4) which requires that the representative parties “fairly and adequately protect the interests of the class.” See Fed. R. Civ. P. 23(a)(4). Plaintiffs have fully addressed the adequacy requirement in Section VI(A) above and the same arguments need not be repeated here.




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B. The Class Satisfies Rule 23(b)(3) In addition to meeting the prerequisites of Rule 23(a), Plaintiffs must also meet one of the three requirements of Rule 23(b) to certify the proposed class. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Under Rule 23(b)(3), a class action may be maintained if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) is appropriate and encouraged “whenever the actual interests of the parties can be served best by settling their differences in a single action.” Hanlon, 150 F.3d at 1022.

1. Common Questions of Law and Fact Predominate The proposed Class is well-suited for certification under Rule 23(b)(3) because questions common to the Class Members predominate over questions affecting only individual Class Members. Predominance exists “[w]hen common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.” Id. As the U.S. Supreme Court has explained, when addressing the propriety of certification of a settlement class, courts take into account the fact that a trial will be unnecessary and that manageability, therefore, is not an issue. Amchem, 521 U.S. at 619-620. In this case, common questions of law and fact exist and predominate over any individual questions, including, in addition to whether this settlement is reasonable (see Hanlon, 150 F.3d at 1026-27), inter alia: (1) whether or not Naturex’s representations regarding the green coffee bean extract Svetol® were false and misleading or reasonably likely to deceive consumers; (2) whether or not Naturex violated the CLRA, UCL, FAL and NY GBL §§ 349-350; (3.) whether or not Naturex had defrauded Plaintiff and the Class Members; and (4.) whether or not the Class has been injured by the wrongs complained of, and if so, whether




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Plaintiffs and the Class are entitled to damages, injunctive and/or other equitable relief, including restitution or disgorgement, and if so, the nature and amount of such relief. There are also no concerns here about certifying a nationwide settlement class. Since the Court entered its Preliminary Approval Order, the Ninth Circuit issued its en banc opinion in In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539 (9th Cir. 2019) (“Hyundai”). The Ninth Circuit in Hyundai made clear that it is “‘the foreign law proponent’ who must ‘shoulder the burden of demonstrating that foreign law, rather than California law, should apply to class claims.’” Id. at 561. Here, no party is arguing that California law should not apply, so the Court need not undertake the choice-of-law analysis set forth in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590 (9th Cir. 2012). Although the Hyundai court held that application of California law to a nationwide class must still satisfy due process, Hyundai, 926 F.3d at 566, Plaintiffs addressed any due process concerns in their supplemental brief that was submitted in support of preliminary approval. (ECF No. 291). As the Court noted in its Preliminary Approval Order, “Plaintiffs assert it is likely that more class members reside in California than in any other state” and “[t]his assessment is based U.S. Census data showing that California has both the largest absolute population and the largest population fitting the class member demographic profile; Facebook data showing California has the largest population matching the class member target audience; and CDC data showing th[at] California[ns] have a higher rate of health consciousness, suggesting higher usage of dietary supplement products, including those containing the Naturex ingredient.” (ECF No. 294 at 9). The claims submitted by class members now confirm that California “has a constitutionally sufficient aggregation of contacts” to the class members’ claims. See Mazza, 666 F.3d at 590. Out of the 84,110 valid claims that were submitted, 14,433 claims were submitted by class members who reside in California.




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Retnasaba Decl., ¶ 20. The California claims account for 17% of the total claims submitted. Retnasaba Decl., ¶ 20. More claims were submitted by California residents than residents from any other state. Retnasaba Decl., ¶ 20. Accordingly, the Court should have no trouble concluding that application of California law satisfies due process. See Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 589, 598 (C.D. Cal. 2008) (finding sufficient contacts between California and the class members’ claims where “defendant ha[d] a substantial presence in California” and “it [was] likely that more class members reside in California than any other state.”). For these reasons, predominance is satisfied.

2. A Class Action Is the Superior Mechanism for Adjudicating this Dispute

The class mechanism is superior to other available means for the fair and efficient adjudication of the claims of the Class Members. Each individual Class Member may lack the resources to undergo the burden and expense of individual prosecution of the complex and extensive litigation necessary to establish Defendants’ liability. Individualized litigation increases the delay and expense to all parties and multiplies the burden on the judicial system. Individualized litigation also presents a potential for inconsistent or contradictory judgments. In contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court. Accordingly, common questions predominate and a class action is the superior method of adjudicating this controversy.

VIII. CONCLUSION For the reasons set forth above, the Court should grant final approval of Plaintiffs’ class action settlement with Naturex.




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DATED: September 9, 2019 Respectfully submitted,

/s/ Ronald A. Marron RONALD A. MARRON LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON [email protected] Michael T. Houchin [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

COHELAN KHOURY & SINGER TIMOTHY D. COHELAN [email protected] ISAM C. KHOURY [email protected] MICHAEL D. SINGER [email protected] JAMES J. HILL [email protected] 605 C St #200 San Diego, California 92101 Telephone: (619) 239-8148 Facsimile: (619) 595-3000 Counsel for Plaintiffs and the Proposed Class



DECLARATION OF RONALD A. MARRON IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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Plaintiffs, vs.


Defendants.


DECLARATION OF RONALD A. MARRON IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL




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I, Ronald A. Marron, declare as follows: 1. I am a member in good standing of the State Bar of California and of

the United States District Courts for the Northern, Central, Eastern and Southern Districts of California as well as the Ninth Circuit Court of Appeals and the United States Supreme Court. I submit this Declaration in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement with Naturex, Inc. I make this Declaration based on my personal knowledge and if called to testify, I could and would competently testify to the matters contained herein.

2. On February 2, 2016, plaintiff Veda Woodard (“Woodard”) filed this putative class action alleging violations of consumer protection laws against Naturex, Inc. (“Naturex”), Lee Labrada, Labrada Bodybuilding Nutrition, Inc., Labrada Nutritional Systems, Inc., (“Labrada Defendants”); InterHealth Nutraceuticals Inc., (“InterHealth”), Zoco Productions, LLC, Harpo Productions, Inc., and Dr. Mehmet C. Oz, M.D. (the “Media Defendants”). (ECF No. 1). The complaint alleged claims arising from the Defendants’ alleged misrepresentations surrounding the effectiveness of the weight-loss supplement products, including the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract (“Labrada Green Coffee Bean Extract Product”). Svetol® is produced by Naturex, Inc.

3. On April 4, 2016, the Media Defendants filed a motion to dismiss, (ECF No. 45), which Plaintiff Woodard opposed on April 18, 2016. (ECF No. 61). On May 12, 2016, the Court granted in part and denied in part the Media Defendants’ motion to dismiss. (ECF No. 85). Then on June 2, 2016, Plaintiffs Veda Woodard Teresa Rizzo-Marino, and Diane Morrison (collectively the “Plaintiffs”) filed the operative First Amended Complaint (“FAC”). (ECF No. 88). On July 15, 2016, Naturex filed a Motion to Dismiss Plaintiffs’ First Amended Complaint and a Motion to Strike portions of Plaintiffs’ First Amended Complaint. (ECF Nos. 101, 102). On July 31, 2017, the Court issued an Order Denying




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Naturex’s Motion to Dismiss the First Amended Complaint and Denying Naturex’s Motion to Strike portions of Plaintiffs’ First Amended Complaint. (ECF No. 190).

4. Plaintiffs and Naturex have engaged in substantial discovery. All Parties to this litigation have collectively produced approximately 30,000 pages of documents and have exchanged approximately 20 sets of formal written discovery.

5. Plaintiffs also served approximately twelve Non-Party subpoenas to produce documents to gather further information about the products at issue, sales and potential monetary gain by Naturex.

6. On November 30, 2017, Plaintiffs’ counsel took the Rule 30(b)(6) deposition of Defendant Naturex, Inc. through its corporate representative, David Yvergniaux, in Hackensack, New Jersey.

7. In addition to deposing the representative of Naturex, Plaintiffs’ counsel has also taken several depositions of the non-settling parties in this action relating to, among other topics, their relationship with Naturex. For example, on August 10, 2017, Plaintiffs’ counsel took the Rule 30(b)(6) deposition of Defendant Zoco Productions, LLC through its corporate representative, Anthony Bruster, in New York City. On March 30, 2018, Plaintiffs’ counsel took the Rule 30(b)(6) deposition of Defendant Interhealth Nutraceuticals, Inc. through its corporate representative, Mary Helen Lucero, in Los Angeles, California. On August 16, 2017, Plaintiffs’ counsel took the Rule 30(b)(6) deposition of Defendant Labrada Bodybuilding Nutrition, Inc. through its corporate representative, Kyle Workman, in Houston, Texas. On August 11, 2017, Plaintiffs’ counsel took the deposition of Amy Chiaro, the current executive producer of The Doctor Oz Show, in New York City. On September 15, 2017, Plaintiffs’ counsel took the deposition of Mindy Borman, the former executive producer of The Doctor Oz Show, in New York City. On February 2, 2018, Plaintiffs’ counsel took the deposition of Faith Rosello, the rights and clearances supervisor for The Doctor Oz Show, in New York City. These depositions helped Plaintiffs’ Counsel gain a




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better understanding of the relationship between the Non-Settling Defendants and Naturex and also have allowed Plaintiffs and Naturex to sufficiently evaluate the strengths and weaknesses of their respective cases.

8. The Defendants in this action have also taken the depositions of each of the three named Plaintiffs. Plaintiff Diane Morrison was deposed on September 12, 2017 in Buffalo, New York. Plaintiff Veda Woodard was deposed on September 18, 2017 in Riverside, California. Plaintiff Teresa Rizzo-Marino was deposed on September 14, 2017 and continued on February 20, 2018 in New York City.

9. Plaintiffs and Naturex have also exchanged initial expert reports. On March 19, 2018, Plaintiffs designated the following three expert witnesses: (1.) Dr. David B. Allison— an expert in the field of obesity research; (2.) Dr. George E. Belch— an expert in the field of integrative marketing, and; (3.) Charlene L. Podlipna, CPA— an expert in the field of accounting. On March 19, 2018, Naturex designated as an expert witness Dr. Richard J. Bloomer – an expert in Nutraceuticals and Dietary Supplements for Health and Performance.

10. On September 26, 2017, all the Parties to this action engaged in a confidential, extensive, arm’s-length negotiation and mediation with the Hon. Leo Papas (Ret.). Judge Papas is a retired Magistrate Judge of the United States District Court for the Southern District of California and an experienced and highly regarded mediator who served as a Magistrate Judge for the U.S. District Court, Southern District of California from 1991 to 2009, including a tenure as the Presiding Judge from 2002 to 2007.

11. The Parties to this action were unable to reach a resolution at the September 26, 2017 mediation. However, Plaintiffs and Naturex engaged in an additional mediation session with Judge Papas on August 30, 2018. During the August 30 mediation, with Judge Papas’ guidance, Plaintiffs and Naturex signed a non-binding memorandum of understanding (“MOU”). The MOU agreed on an




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outline for a potential settlement, if reached between the Parties. The MOU was superseded by the binding written Settlement Agreement that was filed with the Court on February 15, 2019. (ECF No. 284-3). The mediator’s continued involvement over several months to work out significant details and vigorous disagreements between the parties demonstrate that this proposed resolution was the product of heavily disputed and arm’s length negotiation.

12. The settlement negotiations were hard-fought, requiring multiple mediation sessions over several months, with both Plaintiffs and Naturex and their counsel thoroughly familiar with the applicable facts, legal theories, and defenses on both sides.

13. Naturex would no doubt present a vigorous defense at trial, and there is no assurance that the Class would prevail – or even if they did, that they would be able to obtain an award of damages significantly higher than achieved here absent such risks.

14. In the eyes of Class Counsel, the proposed Settlement provides the Class with an outstanding opportunity to obtain significant relief at this stage in the litigation. The Settlement also abrogates the risks that might prevent them from obtaining any relief.

15. Naturex has agreed to settle this matter for $1,300,000. Naturex’s sales of the Svetol® ingredient produced by Naturex at issue in this Action totaled only $90,250.

16. The release in the Settlement Agreement is also narrowly tailored to include only Naturex and its related entities. The release specifically excludes the Non-Settling Defendants and will not preclude the Class’s ability to pursue claims against the manufacturers, marketers, distributors, and retailers of Green Coffee Bean Extract Products.

17. Through the discovery process, Class Counsel has obtained sufficient information and documents to evaluate the strengths and weaknesses of the case.




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The information reviewed by class counsel includes sales information for the Labrada Products and the Svetol® ingredient during the class period, the labels for the Labrada products and other products that contain Svetol® during the class period, and scientific articles produced by Naturex purporting to show the efficacy of the Svetol® ingredient.

18. The settlement was negotiated at arm’s length after hard-fought litigation and discovery. The Parties did not begin settlement discussions until after the Court had ruled on Naturex’s Motion to Dismiss the First Amended Complaint (ECF No. 190) and after the Parties had exchanged written discovery and documents, which speaks to the fundamental fairness of the process.

19. I believe that the relief provided to the Class through this settlement is fair, reasonable, and adequate. During discovery, Plaintiffs obtained sales information for the Labrada Green Coffee Bean Extract Product. This sales information was produced by Labrada and from non-party the Vitamin Shoppe. This sales information was provided to Plaintiffs’ damages expert, Charlene L. Podlipna, CPA, who prepared an expert report on damages that was served on all Parties on March 19, 2018. Attached hereto as Exhibit 1 is a true and correct copy of the expert report of Charlene L. Podlipna, CPA, which was served on all parties on March 18, 2019. Ms. Podlipna has determined that total classwide damages for sales of the Labrada Green Coffee Bean Extract Product would total by multiplying the units sold by the average retail price.

20. The $1,300,000 settlement fund accounts for of total sales of the Labrada Green Coffee Bean Extract ($1,300,000 settlement fund / total Labrada damages = ). Although the Settlement includes other products that contain the Svetol® ingredient aside from the Labrada Green Coffee Bean ExtractProduct, the settlement amount is still fair, reasonable, and adequate. Classuara has determined that 22% of all class member claims received to date were for the Labrada Green Coffee Bean Extract Product. Using this figure,




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Plaintiffs estimate that the Labrada Green Coffee Bean Product accounts for 22% of total sales of all Class Products at issue in the settlement. Accordingly, Plaintiffs estimate that total available damages for all Class Products would be

( is 22% of ). 21. The $1,300,000 non-reversionary Settlement Fund therefore accounts

for approximately of total damages that would be available at trial. This amount is well within the range of reasonableness.

22. Based on my experience, I believe that the Settlement provides exceptional results for the class while sparing the class from the uncertainties of continued and protracted litigation.

23. 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.

Ronald A. Marron Firm’s Qualifications and Experience Prosecuting Consumer Class Action Lawsuits

24. My work experience and education began in 1984 when I enlisted in the United States Marine Corps (Active Duty 1984-1988, Reserves 1988-1990) and thereafter received my Bachelor of Science in Finance from the University of Southern California (1991). While attending Southwestern University School of Law (1992-1994), I also studied Biology and Chemistry at the University of Southern California and interned at the California Department of Corporations with emphasis in consumer complaints and fraud investigations. I was admitted to the State Bar of California in January of 1995 and have been a member in good standing since that time. In 1996, I started my own law firm with an emphasis in consumer fraud. My firm currently employs five full-time attorneys, two paralegals, and support staff. Attached hereto as Exhibit 2 is a true and correct copy of my firm’s current resume.




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25. Over the years I have acquired extensive experience in class actions and other complex litigation, and have obtained large settlements as lead counsel. In recent years, I devoted almost all of my practice to the area of false and misleading labeling of food, nutrition or over-the-counter products, cases involving violations of the Telephone Consumer Protection Act and other privacy cases.

26. Most recently, on September 20, 2017, the Honorable Cynthia A. Bashant of the United States District Court for the Southern District of California granted Plaintiff’s Motion for Class Certification and appointed my law firm as class counsel in a class action titled Reyes v. Educational Credit Management Corporation, Case No. 15-cv-00628-BAS-AGS (USDC S.D. Cal.) that involves violations of California’s Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 630 et seq.

27. On January 27, 2017, my firm obtained final approval of a TCPA class action against RBS Citizens, N.A. In granting final approval, the Honorable Cynthia Bashant found that “Class Counsel [had] fairly and adequately represented the Class for purposes of entering into and implementing the Settlement, and, thus, continues to appoint . . . Ronald A. Marron, Alexis M. Wood and Kas L. Gallucci of the Law Offices of Ronald A. Marron as Class Counsel for the Settlement Class.” Sanders v. RBS Citizens, N.A., No. 13-CV-3136-BAS-RBB, 2017 WL 406165, at *4 (S.D. Cal. Jan. 27, 2017).

28. On January 4, 2016, the Honorable Analisa Torres appointed the Marron firm as Interim Lead Class Counsel over the opposition and challenge of other plaintiffs’ counsel, noting that the Marron firm’s “detailed” complaint was “more specifically pleaded, . . . assert[ing] a more comprehensive set of theories . . . [and was] more factually developed.” Potzner v. Tommie Copper Inc., No. 15 CIV. 3183 (AT), 2016 WL 304746, at *1 (S.D.N.Y. Jan. 4, 2016). Judge Torres also noted that Mr. Marron and his firm’s attorneys had “substantial experience




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litigating complex consumer class actions, are familiar with the applicable law, and have the resources necessary to represent the class.” Id.

29. In addition to the above cases and the present action, my firm has an in-depth knowledge of other consumer cases including litigating over-the-counter (“OTC”) product cases, including the FDCA’s history, principles and regulation and Courts have recognized my firms’ ability to litigate complex class actions. For example, in Gallucci v. Boiron, Inc., Case No. 3:11-CV-2039 JAH NLS (S. D. Cal.), we drafted a Complaint with five potential causes of action, and claims under the CLRA, UCL and FAL with respect to OTC homeopathic drugs which “concern[ed] novel legal theories in a specialized area of law.” See Delarosa v. Boiron, Inc., 275 F.R.D. 582, 590 n. 4 (C.D. Cal. 2011). This action involved extensive motion practice and my firm’s opposition brief was so persuasive that defendants decided to withdraw their motion. My firm’s well-drafted briefing, knowledge and experience resulted in a $5 million common fund plus injunctive relief settlement of Gallucci against French homeopathic giant, Boiron, Inc. On April 25, 2012, the Honorable John A. Houston granted preliminary approval, noting that:

During the pendency of the Litigation, Class Counsel conducted a extensive examination and evaluation of the relevant facts and law to assess the merits of the named plaintiffs’ and class claims to determine how best to serve the interests of Plaintiffs and the Class. . . . Class Counsel conducted thorough review of the Food, Drug and Cosmetic Act, its numerous changes over the years, and the Act’s implementing regulations. Class Counsel have carefully considered the merits of Plaintiffs’ claims, and the defenses raised by defendants. Gallucci Dkt. No. 89 at i.

30. Accordingly, Judge Houston appointed my firm as Class Counsel, finding that Class Counsel “will fairly and adequately protect the interests of the Class . . . [and] are experienced and competent to prosecute this matter on behalf of the Class.” Id. at iii-iv. The Fairness Hearing was held on October 1, 2012 and on




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October 31, 2012, the court granted final approval. See Gallucci v. Boiron, Inc., 2012 U.S. Dist. LEXIS 157039 (S.D. Cal. Oct. 31, 2012).

31. Further, on June 26, 2015, the Honorable Maxine M. Chesney of the United States District Court for the Northern District of California granted preliminary approval to a class action settlement with injunctive relief for class wide claims of false representations regarding the defendant’s weight loss teas. See Johnson v. Triple Leaf Tea Inc., Case No. 3:4-cv-01570 MMC (Dkt. No. 53) (“Having considered the factors set forth in Rule 23(g)(1) of the Federal Rules of Civil Procedures, the Court appoints Plaintiff’s counsel, the Law offices of Ronald A. Marron APLC, to serve as Class Counsel.”).

32. On October 31, 2013, the Honorable Gonzalo P. Curiel of the United States District Court for the Southern District of California granted preliminary approval to a class action settlement of $1 million and injunctive relief for class wide claims of false and deceptive advertising of OTC drugs negotiated by my firm in Mason v. Heel, Inc., Case No. 3:12-cv-3056 GPC (KSC) (Dkt. No. 27), also finding there was “sufficient basis . . . under the factors set forth in Rule 23(g)(1) of the Federal Rules of Civil Procedure” to appoint my firm as Class Counsel. Id. at p. 5.

33. On October 23, 2013, the Honorable Michael M. Anello of the United States District Court for the Southern District of California granted final approval to a $1.2 million and injunctive relief class action settlement concerning false and deceptive advertising of OTC drugs negotiated by my firm in Nigh v. Humphreys Pharmacal, Inc., Case No. 3:12-cv-02714-MMA-DHB (Dkt. No. 30), finding that “the Class was adequately represented by competent counsel.” Id. at p. 14.

34. On March 13, 2012, my firm settled a case against manufacturers of OTC dietary supplement products for $900,000 in a common fund plus injunctive relief, styled Burton v. Ganeden Biotech, Inc. et al., Case No. 3:11-cv-01471 W (NLS) (S.D. Cal.). Burton alleged that defendants falsely advertised their products




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as containing “clinically proven” proprietary bacteria that improved and benefitted the digestive and immune health of individuals when, in fact, no clinical proof existed. Before this settlement was finalized, my firm rejected defendants’ coupon settlement offer, because we did not believe it constituted the best relief for the class members. Instead, we continued extensive and lengthy rounds of negotiations with the defendants to obtain the best result for the class. These months-long negotiations included back and forth exchange of approximately twenty editions of the Settlement Agreement, multiple conference calls (including on the weekends) and e-mails. On March 14, 2012, the parties filed a Joint Motion for Preliminary Approval of Settlement, (Dkt. No. 38) which the court granted on April 16, 2012 (Id. at 42). After the Fairness Hearing in this case on August 21, 2012, Judge Whelan granted final approval on October 5, 2012. Dkt. Nos. 48, 52.

35. On March 1, 2012, the Honorable Janis L. Sammartino appointed my firm Interim Class Counsel in an action styled Margolis v. The Dial Corporation, Case No. 3:12-cv-288 JLS (WVG) (Dkt. No. 14). This case involved an OTC pheromone soap product that its manufacturer alleges enhances a man’s sexual attraction to women.

36. When my firm was appointed Interim Lead Class Counsel for a class of consumers in a deceptive food labeling case back in March of 2011, the Honorable Marilyn Huff recognized Class Counsel “appears to be well qualified to represent the interest of the purported class and to manage this litigation.” Hohenberg v. Ferrero U.S.A., Inc., 2011 U.S. Dist. LEXIS 38471, at *6 (S.D. Cal. Mar. 22, 2011). Subsequently, when my firm obtained certification of the proposed class, the court reaffirmed its finding that my firm is adequate Class Counsel. See In re Ferrero Litig., 278 F.R.D. 552, 559 (S.D. Cal. 2011). Judge Huff gave Final Approval of a settlement on July 9, 2012. (Ferrero Dkt. No. 127).

37. On November 14, 2011 my firm obtained the certification of a nationwide class of consumers who purchased Qunol CoQ10, a dietary supplement




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making misleading efficacy claims. See Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal. Nov. 14, 2011). My firm then successfully defeated the defendants’ motion to decertify the class following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012). The case then settled on the eve of trial (originally scheduled for October 2, 2012).

38. On June 14, 2011, the Honorable Richard Seeborg appointed my firm Interim Class Counsel, over a competing application from a former partner at the New York law firm Milberg Weiss regarding a deceptive food labeling case. See Chacanaca v. Quaker Oats Co., 2011 U.S. Dist. LEXIS 65023, at *8-9 (N.D. Cal. June 14, 2011) (since restyled as In re Quaker Oats Labeling Litig.) (“There is no question here that both the Weston/Marron counsel…have ample experience handling class actions and complex litigation. It is also clear that both have particular familiarity with suits involving issues of mislabeling in the food industry.”).

39. I was appointed class counsel in Peterman v. North American Company for Life and Health Ins., et al., No. BC357194, (L.A. Co. Sup. Ct.), which was litigated for over 4 years and achieved a settlement of approximately $60 million for consumers. In granting preliminary approval of the settlement, the Hon. Carolyn B. Kuhl noted that “the excellent work that the plaintiffs’ side has done in this case has absolutely followed through to the settlement…The thought and detail that went into the preparation of every aspect was very impressive to me.”

40. I also served as class counsel in Clark v. National Western Life Insurance Company, No. BC321681 (L.A. Co. Sup. Ct.), a class action that, after litigating the case for well over 6 years, resulted in a settlement of approximately $25 million for consumers.

41. In Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.), I




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was appointed class counsel on August 24, 2006, following class certification, which was granted on July 25, 2006 by the Honorable Irma E. Gonzalez. Dkts. Nos. 113 and 121. After nearly 6 years of intensive litigation, a settlement valued at $110 million was reached in Iorio, supra, and approved on March 3, 2011, by the Honorable Janis Sammartino. Dkt. No. 480. Co-counsel and I successfully defended multiple motions brought by defendant in the Southern District of California, including “challenges to the pleadings, class certification, class decertification, summary judgment,…motion to modify the class definition, motion to strike various remedies in the prayer for relief, and motion to decertify the Class’ punitive damages claim,” plus three petitions to the Ninth Circuit, attempting to challenge the Rule 23(f) class certification. Iorio, Final Order Approving (1) Class Action Settlement, (2) Awarding Class Counsel Fees and Expenses, (3) Awarding Class Representatives Incentives, (4) Permanently Enjoining Parallel Proceedings, and (5) Dismissing Action with Prejudice, entered on Mar. 3, 2011, at 6:9-15 (commenting that class counsel were “highly experienced trial lawyers with specialized knowledge in insurance and annuity litigation, and complex class action litigation generally” and “capable of properly assessing the risks, expenses, and duration of continued litigation, including at trial and on appeal,” Id. at 7:18-22). Judge Sammartino also noted “the complexity and subject matter of this litigation, and the skill and diligence with which it has been prosecuted and defended, and the quality of the result obtained for the Class.” Id. at 17:25-27.

42. Besides these cases, I have also represented plaintiffs victimized in other complex cases such as Ponzi schemes, shareholder derivative suits, and securities fraud cases. I have litigated hundreds of lawsuits and arbitrations against major corporations; of these, approximately 30 cases against the likes of, such corporate titans as Shell Oil, Citigroup, Wells Fargo, Morgan Stanley and Merrill Lynch have gone through trial or arbitration. Many more have settled on the eve of




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trial although I was fully prepared to proceed to trial. I declare under penalty of perjury of the laws of the United States that the

foregoing is true and correct. Executed on this 9th day of September, 2019 in San Diego, California. /s/ Ronald A. Marron RONALD A. MARRON


EXHIBIT 1 REDACTED VERSION OF DOCUMENT PROPOSED TO BE

FILED UNDER SEAL


Veda Woodard, et al.

vs.

Lee Labrada, et al.

United States District Court

Southern District of California

Case No. 5:16-cv-00189-JGB-SP

Expert Report of Charlene L. Podlipna, CPA

Freeman & Mills, Incorporated

350 South Figueroa Street, Suite 900

Los Angeles, CA 90071

March 14, 2018


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I am above the age of 18, not a party to the within action, and have personal knowledge

of the following information. If called upon to testify, I could and would testify

competently to the following:

QUALIFICATIONS, PRIOR TESTIMONY AND PUBLICATIONS

1. I am a Vice President and shareholder of Freeman & Mills, a consulting

firm offering services in the areas of accounting, finance, economics and business

practices and procedures.

2. I am a Certified Public Accountant and since 2000 have been admitted to

practice in the State of California. I am a member of the American Institute of Certified

Public Accountants. I am also a member of the California Society of Certified Public

Accountants and an officer in that organization’s Economic Damages Section. I am

Certified in Financial Forensics by the American Institute of Certified Public

Accountants.

3. I received my Bachelor of Science degree in Accounting from the

University of Southern California. I worked in public accounting at Arthur Andersen

where I supervised and administrated audit engagements of middle market and publicly

traded companies. I have provided financial consulting services in dispute settings for

counsel representing plaintiffs and defendants for over thirteen years. My experience

includes the measurement of damages in a variety of disputes involving intellectual

property, breach of contract, breach of fiduciary duty, partnership disputes, shareholder

suits, class action suits, false advertising, business interruption, professional malpractice,

and alleged fraud and embezzlements.

4. I have testified as an expert in cases filed in the Federal District Courts in

California and in matters filed in the Superior Courts of the State of California.


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5. A copy of my professional resume, which further describes my

experience, prior testimony, previous professional positions and professional affiliations,

is attached hereto at Tab 1. My firm is being compensated based upon the standard

billing rate per hour for the staff employed on this matter and the actual hours incurred by

each person. Out-of-pocket expenses are billed as incurred. My hourly billing rate for

deposition and trial testimony is $375.

ASSIGNMENT

6. I have been retained by Law Offices of Ronald A. Marron, counsel for the

Plaintiffs in this matter, to provide this report in support of Plaintiffs’ motion for class

certification. Specifically, I have been asked to calculate the total amount that proposed

class members paid for the products that are at issue in this litigation, the amount of

profits that Defendants (discussed below) have earned from the sale and/or promotion of

the products and/or ingredients at issue in this litigation, and the amount of potential

statutory damages. In addition, I have been asked to determine whether it is possible to

determine the financial health of the Defendants for purposes of punitive damages.

7. Attached at Tab 2 to this report is a listing of documents considered in

forming my opinions to date. In support of my opinions at any trial of this matter, I may

use the exhibits and information listed in this disclosure as well as other exhibits or

demonstrative aides made or derived from the exhibits or information listed in this

disclosure, or other materials obtained in discovery or otherwise in this action.

8. I am aware of my continuing obligation under Rule 26 of the Federal

Rules of Civil Procedure to supplement this report if additional information becomes

available. I intend to supplement this report if information becomes available which

would cause me to amend or supplement my opinions and/or observations in this matter.


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OPINIONS

9. Based on a review and analysis of the financial information produced to

date, the amounts paid by the proposed Nationwide classes, California classes, and New

York classes during the class period for the products at issue were approximately

, and , respectively.


date, the amounts of profit earned by the Labrada Defendants from sales of the disputed

products to the Nationwide classes, California classes, and New York classes were

approximately , and , respectively.


date, Defendant Interhealth’s sales of Supercitrimax® to Defendant Labrada’s

manufacturer approximate . An estimate of Interhealth’s profit from the sale

of Supercitrimax® to Defendant Labrada’s manufacturer approximates .


date, Defendant Naturex’s sales of Svetol® to Defendant Labrada’s manufacturer

approximate $90,000. An estimate of Naturex’s profit from the sale of Svetol® to

Defendant Labrada’s manufacturer approximates .

13. The amount of potential statutory damages pertaining to the New York

classes ranges from approximately to , based on potential

statutory award amounts per unit provided by counsel.

BASES AND REASONS THEREFOR

14. There are two products at issue in this litigation: Labrada Garcinia

Cambogia DUAL ACTION FAT BUSTER with Supercitrimax® and Labrada Green


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Coffee Bean Extract FAT LOSS OPTIMIZER with Svetol® (collectively the “Labrada

Products”).1

15. There are three groups of defendants in this matter. The “Labrada

Defendants” develop, manufacture, promote, market, distribute and sell the Labrada

Products. The Labrada Defendants include world-renowned bodybuilder Lee Labrada

who is the founder and C.E.O of both Defendants Labrada Bodybuilding Nutrition, Inc.

and Labrada Nutritional Systems, Inc. (collectively the “Labrada Defendants”).2 Labrada

Bodybuilding Nutrition, Inc. owns the “Labrada Nutrition” trademark.3

16. The “Supplier Defendants” include Naturex, Inc. (“Naturex”) and

Interhealth Nutraceuticals, Inc. (“Interhealth”). Naturex owns the Svetol® trademark,

and develops, manufactures, promotes, distributes and/or sells the Svetol® brand Green

Coffee Bean Extract ingredient to Labrada Defendants’ manufacturers as well as other

supplement manufacturers.4 Interhealth owns the Supercitrimax® trademark and

develops, manufactures, promotes, distributes and/or sells Supercitrimax® to Labrada

Defendants’ manufacturers as well as other supplement manufacturers.5

17. The “Media Defendants” participate in the production, promotion and

distribution of The Dr. Oz Show and/or the alleged endorsement or promotion of products

(and/or ingredients) on the show. Defendant Dr. Mehmet C. Oz, M.D. (“Dr. Oz”) has

allegedly promoted and marketed the Labrada Products (and/or their active ingredients)

on his television show.6 Defendant Entertainment Media Ventures, Inc. d/b/a “Oz

Media” (“EMV”) is believed to have brokered “strategic partnership” or endorsement

deals between Dr. Oz and weight-loss supplement ingredient suppliers, including the

Supplier Defendants.7 Defendant Zoco Productions, LLC (“Zoco”) is believed to have

assisted Dr. Oz in carrying out a “branded integration marketing strategy” that promotes 1 First Amended Class Action Complaint, June 2, 2016, ¶11. 2 First Amended Class Action Complaint, June 2, 2016, ¶36-43. 3 First Amended Class Action Complaint, June 2, 2016, ¶41. 4 First Amended Class Action Complaint, June 2, 2016, ¶60. 5 First Amended Class Action Complaint, June 2, 2016, ¶64. 6 First Amended Class Action Complaint, June 2, 2016, ¶44. 7 First Amended Class Action Complaint, June 2, 2016, ¶47.


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Labrada Products (and/or their active ingredients) on his show.8 Harpo Productions, Inc.

(“Harpo”) produces The Dr. Oz Show.9 Media Defendants Harpo, Zoco and Dr. Oz. are

believed to be general partners in an unregistered business entity that produces, promotes

and distributes the television show and other Dr. Oz related business operations.10

18. I understand that Plaintiffs bring this action on behalf of The Nationwide

Garcinia Class, The Nationwide Green Coffee Class, The California Garcinia Class, The

California Green Coffee Class, The New York Garcinia Class, and The New York Green

Coffee Class.11 I am informed and understand that Plaintiffs and the proposed classes

will seek restitution and damages in the form of the total amount paid for the Labrada

Products at issue in this litigation. Alternatively, I understand that Plaintiffs and the

proposed classes may seek to disgorge the profits that the Defendants earned as a result

of the sale or promotion of the Labrada Products (and/or their active ingredients) at issue

in this litigation. The Class Period is defined as the time period from when the Labrada

Products first entered into the stream of commerce until the present.12 Sales of the

Labrada Products at issue began in November 2012.13

Full Refund of Labrada Products to Proposed Classes

19. The amount paid by proposed class members for the products at issue is

calculated by multiplying Labrada Defendants’ number of units sold by each product’s

average retail price or manufacturer suggested retail price (“MSRP”) if average retail

prices aren’t available.

20. The Labrada Defendants produced nationwide unit sales data by product

and by month for the period November 2012 through December 2016, which is

summarized on an annual basis at Schedule 1.1. The percentage decline in Garcinia

8 First Amended Class Action Complaint, June 2, 2016, ¶52. 9 First Amended Class Action Complaint, June 2, 2016, ¶54-55 10 First Amended Class Action Complaint, June 2, 2016, ¶57. 11 First Amended Class Action Complaint, June 2, 2016, ¶129. 12 First Amended Class Action Complaint, June 2, 2016, ¶129. 13 Labrada_Woodard 000263.


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Cambogia unit sales from 2015 to 2016 was applied to project 2017 unit sales. Based on

Labrada Defendants’ data, sales of Green Coffee Bean Extract ceased in May 2016. As

shown on Schedule 1.1, Labrada Defendants sold units of Garcinia Cambogia

to nationwide class members and units of Green Coffee Bean Extract to

nationwide class members during the Class Period. If and when additional sales data is

produced by Labrada Defendants, this analysis will be updated.

21. With respect to retail pricing, the Labrada Defendants have produced their

MSRP data. Based on the Labrada Defendants’ interrogatory responses, MSRP during

the Class Period was for the Garcinia Cambogia product and for the Green

Coffee Bean Extract product.14 Average retail prices can be obtained from retailers who

sell the Labrada Products or from third party providers of retail point-of-sales (“POS”)

data. For example, Vitamin Shoppe, a national distributor and retailer of the Labrada

Products, has produced its annual retail unit and dollar sales of Green Coffee Bean

Extract during the Class Period, from which average retail prices can be derived.15 Based

on Labrada Defendants’ sales data by distributor, of Defendants’ 2015-2016 sales of

Green Coffee Bean Extract and of Defendants’ 2015-2016 sales of Garcinia

Cambogia were to Vitamin Shoppe.16 Based on Vitamin Shoppe’s retail sales data, its

average retail price for Green Coffee Bean Extract during the Class Period was

nationwide, in California, and in New York (see Schedule 1.4). Average

retail prices for Garcinia Cambogia can be determined if and when Vitamin Shoppe

provides its retail sales data for this product.

22. The full refund amount of approximately to the Nationwide

classes is calculated by multiplying Labrada Defendants’ nationwide unit sales by

average retail price or MSRP, as shown on Schedule 1.1.17 The full refund amounts to

14 Labrada Bodybuilding Nutrition, Inc.’s Responses to Plaintiffs’ First Set of Interrogatories, May 22, 2017, Answer to Interrogatory No. 4. 15 VITAMINSHOPPE000001. 16 Labrada_Woodard 000397-398. 17 Based on a September 15, 2017 Opinion by the U.S. Court of Appeals for the Ninth Circuit in the Lambert v. Nutraceutical Corp. matter, the Court of Appeals recognized that although MSRP does not “automatically configure an average” retail price, “such a precise average is unnecessary for class


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the proposed California and New York Classes are based on a percentage of Labrada

Defendants’ nationwide unit sales multiplied by average retail prices in those states, as

shown on Schedule 1.2 and Schedule 1.3. As shown on Schedule 1.4, California retail

stores accounted for ) of Vitamin Shoppe’s nationwide

unit sales and New York retail stores accounted for another

) of Vitamin Shoppe’s nationwide sales. Thus, on Schedules 1.2 and 1.3, Labrada

Defendants’ nationwide unit sales are multiplied by to estimate unit sales to

proposed California and New York Classes. For the Garcinia Cambogia Classes, these

estimates of California and New York unit sales are then multiplied by MSRP of

to calculate the full refund amounts. Average retail prices for Garcinia Cambogia can be

determined if and when Vitamin Shoppe provides its retail sales data for this product.

For the Green Coffee Bean Extract Classes, the full refund amounts are calculated using

the estimates of California and New York unit sales multiplied by Vitamin Shoppe’s

average retail prices of in California and in New York, based on Schedule

1.4. Using this method, the full refund to the California Classes approximates

(Schedule 1.2) and the full refund to the New York Classes approximates

(Schedule 1.3).

Profits of the Labrada Defendants

23. The profits earned by the Labrada Defendants from the sale of products at

issue can be calculated based on Labrada Defendants’ sales data, cost of goods sold data,

and/or financial statements. The Labrada Defendants’ profits from the two products at

issue can be calculated by subtracting cost of goods sold and other direct costs (if any)

from sales.

24. For 2012 through 2017, the Labrada Defendants generated sales from the

two disputed products of approximately (Schedule 2), based on actual unit

and dollar sales from 2012 through 2016 and projections for 2017. The percentage

certification.” Also according to the Opinion, at the class certification stage, the question is only whether a “workable method” has been presented.


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decline in Garcinia Cambogia unit sales from 2015 to 2016 was applied to project 2017

unit sales. Labrada Defendants’ sales of Green Coffee Bean Extract ceased in May 2016.

The projection for 2017 Garcinia Cambogia dollar sales is based on 2017 projected unit

sales multiplied by the average wholesale price per unit derived from 2016.

25. For 2012 through 2017, the Labrada Defendants’ cost of goods sold

approximates (Schedule 2), based on actual cost of goods sold from 2012

through 2016 and projections for 2017. The Garcinia Cambogia cost of goods sold

percentage derived from actual 2016 data was multiplied

by projected dollar sales for 2017 in order to estimate 2017 cost of goods sold.

26. For 2012 through 2017, the Labrada Defendants’ profits from the sale of

the disputed products to the Nationwide classes approximate , based on sales

of approximately less cost of goods sold of approximately

(Schedule 2). The profits from sales to the Nationwide classes were then multiplied by

to estimate the profits of from sales to the California Classes and

from sales to the New York Classes.

27. To date, the Labrada Defendants have not produced information regarding

other direct costs (if any) (such as selling costs, commissions, advertising costs, etc.) that

are attributable to the sales of the two products at issue. In the event that the Labrada

Defendants claim that such costs are incurred but are not tracked on a product-by-product

basis, then they can be estimated based on the income statements of the Labrada

Defendants, which are accounting documents maintained in the ordinary course of

business. For example, company-wide sales commission expense as a percentage of

company-wide sales can be applied to the sales of the two products at issue to estimate

commission expense attributable to the two products.


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Profits of the Supplier Defendants

28. The profits earned by the Supplier Defendants from the sale of the

disputed ingredients can be calculated by subtracting cost of goods sold and other direct

costs from sales. Supplier Defendants produced their 2012 through 2016 ingredient sales

to all customers and separately to Labrada Defendants’ manufacturer, JW Nutritional,

LLC (“JW”), which is summarized at Schedule 3. Defendant Interhealth’s gross sales of

Supercitrimax® to all customers nationwide during the class period approximate

and Defendant Naturex’s gross sales of Svetol® to all customers nationwide

approximate , as shown on Schedule 3. Defendant Interhealth’s sales of

Supercitrimax® to JW during the Class Period approximate , based on actual

sales from 2012 through 2016 and a projection for 2017 based on the percentage decline

from 2015 to 2016. Defendant Naturex’s sales of Svetol® to JW from during the Class

Period approximate $90,000, based on the JW purchased orders produced to date.

29. The Supplier Defendants have not produced their cost of goods sold data,

but they have provided the gross profit percentages attributable to the disputed

ingredients. As shown on Schedule 3, Defendant Interhealth’s gross profits that are

attributable to the sale of Supercitrimax® ranged from to of sales during the

Class Period, based on Interhealth’s interrogatory responses.18 Defendant’s Naturex’s

gross profits that are attributable to the sale of Svetol® range from to during

the Class Period, based on Naturex’s interrogatory responses.19

30. The Supplier Defendants’ gross profits from the sale of the disputed

ingredients to Labrada’s manufacturer approximate , which was calculated by

multiplying the amount of Supplier Defendants’ dollar sales to Labrada’s manufacturer

and their gross profit percentages, as shown on Schedule 3.

18 Defendant Interhealth Nutraceuticals, Inc.’s Supplemental Responses to Plaintiff Veda Woodard’s First Set of Interrogatories, 3/1/2018, pages 22-24. 19 Defendant Naturex, Inc.'s Supplemental Responses to Interrogatory Nos. 10, 14, 20 and 21 in Plaintiffs' First Set of Interrogatories Pursuant to Court Order dated January 11, 2018, 2/12/2018, pages 5-7.


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Profits of the Media Defendants

31. I am informed and understand that Plaintiffs may seek to disgorge profits

that Media Defendants Dr. Oz, EMV, Zoco, and Harpo have derived from the marketing

and promotion of the Labrada Products (and/or its active ingredients) on The Dr. Oz

Show. These profits could be calculated if the Media Defendants were to produce the

relevant contracts or agreements between the parties and/or check copies issued pursuant

to such contracts or agreements.

Potential Statutory Damages Pertaining to the New York Classes

32. The potential amount of statutory damages pertaining to the New York

classes is calculated based on Labrada Defendants’ unit sales in New York multiplied by

the potential statutory amounts per unit, which were provided by counsel. Based on

Schedule 1.3, during the Class Period, the Labrada Defendants sold an estimate of

units in New York ( units of Garcinia Cambogia and units of

Green Coffee Bean Extract). Assuming a statutory damages award of $50, $500, or $550

per unit, the potential amounts for statutory damages pertaining to the New York Classes

are approximately units x $50), units x $500),

and units x $550).

Punitive Damages

33. For purposes of determining Defendants’ abilities to pay punitive

damages, the financial health of each Defendant can be determined based on most recent

annual financial statements, including balance sheets, income statements, and statements

of cash flow. Balance Sheets report total cash, investments and other assets, as well as

total liabilities, total earnings since inception, and the equity held by stockholders and/or

owners. Income Statements report total sales, cost of sales, operating expenses, other

income and expenses, and net income for each year. Statements of Cash Flow report

annual cash flow from operations, cash flow from investing activities, and cash flow from



Veda Woodard, et al. v. Lee Labrada, et al.Full Refund to Proposed Nationwide Classes (2012 - 2017) Schedule 1.1

90-Count Garcinia Cambogia

Year

Labrada Nationwide

Unit Sales [1]

Units Returned

[1]

Nationwide Unit Sales,

Net of Returns MSRP [2]

Full Refund to Nationwide

Class

A B C=A-B D E=C*D2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) 2017 (Projected) Total Rounded)

90-Count Green Coffee Bean Extract

Year

Labrada Nationwide

Unit Sales [1]

Units Returned

[1]


Net of Returns

Average Retail

Price [3]

Full Refund to Nationwide

Class

A B C=A-B D E=C*D2012 (Actual) 2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) Total (Rounded)

GRAND TOTAL (Rounded)

[1] Actual unit sales and returns are from Labrada_Woodard 000254-000386. The 2017 projected unit sales and returns are based on the decline in sales units and 25% decline in returned units from 2015 to 2016. unit sales = [ returned units = ][2] Labrada Bodybuilding Nutrition, Inc.’s Amended Responses to Plaintiffs’ First Set of Interrogatories, 5/22/2017, Answer to Interrogatory No. 4.[3] See Schedule 1.4.


Veda Woodard, et al. v. Lee Labrada, et al.Full Refund to Proposed California Classes (2012 - 2017) Schedule 1.2


Year

Labrada Nationwide

Unit Sales [1]

Units Returned

[1]


Net of Returns

California % Estimate [3]

California Unit Sales,


Full Refund to California Class [3]

A B C=A-B D E=C*D F G=E*F2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) 2017 (Projected) Total (Rounded)


Year

Labrada Nationwide

Unit Sales [1]

Units Returned

[1]


Net of Returns

California % Estimate [3]

California Unit Sales,

Net of Returns

Average Retail

Price [4]

Full Refund to California Class [3]

A B C=A-B D F H=G*12%2012 (Actual) 2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) Total (Rounded)

GRAND TOTALS (Rounded)

[1] Actual unit sales and returns are from Labrada_Woodard 000254-000386. The 2017 projected unit sales and returns are based on the decline in sales unitsand decline in returned units from 2015 to 2016. unit sales = [ returned units = ][2] Labrada Bodybuilding Nutrition, Inc.’s Amended Responses to Plaintiffs’ First Set of Interrogatories, 5/22/2017, Answer to Interrogatory No. 4.[3] Based on Schedule 1.4, Retail Stores - California accounted for ) of Vitamin Shoppe's nationwide unit sales.[4] See Schedule 1.4.


Veda Woodard, et al. v. Lee Labrada, et al.Full Refund to Proposed New York Classes (2012 - 2017) Schedule 1.3


Year

Labrada Nationwide

Unit Sales [1]

Units Returned [1]


Net of Returns

New York % Estimate [3]

New York Unit Sales,


Full Refund to New York Class [3]

2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) 2017 (Projected) Total (Rounded)


Year

Labrada Nationwide

Unit Sales [1]

Units Returned [1]


Net of Returns

New York % Estimate [3]

New York Unit Sales,

Net of Returns

Average Retail

Price [4]

Full Refund to New York Class [3]

A B C=A-B D F H=G*12%2012 (Actual) 2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) Total (Rounded)


[1] Actual unit sales and returns are from Labrada_Woodard 000254-000386. The 2017 projected unit sales and returns are based on the decline in sales unitsand decline in returned units from 2015 to 2016. [ returned units = ][2] Labrada Bodybuilding Nutrition, Inc.’s Amended Responses to Plaintiffs’ First Set of Interrogatories, 5/22/2017, Answer to Interrogatory No. 4.[3] Based on Schedule 1.4, Retail Stores - New York accounted for ) of Vitamin Shoppe's nationwide unit sales.[4] See Schedule 1.4.


Veda Woodard, et al. v. Lee Labrada, et al.Annual Summary of Vitamin Shoppe's Sales of Labrada Defendants' Products Schedule 1.4

90-Count Green Coffee Bean Ext. 90-Count Garcinia CambogiaYear Units [1] Revenue [1] Unit Price Units Revenue Unit Price

Retail Stores & Direct Sales - National201220132014201520162017Total

Retail Stores - California201220132014201520162017Total

Retail Stores - New York2012 2013 2014 2015 2016 2017 Total

[1] VITAMINSHOPPE000001.


Veda Woodard, et al. v. Lee Labrada, et al.Summary of Labrada Defendants' Annual Profits Schedule 2


Year


Net of Returns [1]

Average Wholesale

PriceLabrada

$ Sales [1]

LabradaCOGS [1]

Other DirectCosts

Profit from Nationwide

Sales

Profit from California Sales [2]

Profit from New York Sales [2]

A B = C/A C D E F = C - D - E G = F * 12% H = F * 12%

2012 (Actual) 2013 (Actual) 2014 (Actual) 2015 (Actual) 2016 (Actual) 2017 (Projected) Total

(Rounded) (Rounded) (Rounded)

90-Count Green Coffee Bean Ext.

Year


Net of Returns [1]

Average Wholesale

PriceLabrada

$ Sales [1]

LabradaCOGS [1]

Other DirectCosts

Profit from Nationwide

Sales

Profit from California Sales [2]

Profit from New York Sales [2]

A B = C/A C D E F = C - D - E G = F * 12% H = F * 12%

2012 (Actual)2013 (Actual)2014 (Actual)2015 (Actual)2016 (Actual)Total

(Rounded) (Rounded) (Rounded)

GRAND TOTALS

[1] 2012-2016 actual unit sales, dollar sales and cost of goods sold data are from Labrada_Woodard 000254-000386. Labrada's 2017 dollar sales projection foGarcinia Cambogia is based on the 2016 average wholesale price per unit multiplied by the projected unit sales from Schedule 1.1. ( The 2017 projected cost of goods sold for Garcinia Cambogia is based on the 2016 COGS as a percentage of dollar sales

[2] Based on Schedule 1.4, California retail stores account for 12% of Vitamin Shoppe's nationwide sales of the Labrada Products and New York retail stores accounfor another of Vitamin Shoppe's nationwide sales.


Veda Woodard, et al. v. Lee Labrada, et al.Ingredient Supplier Defendants' Sales and Profits Schedule 3

Defendant Interhealth's Supercitrimax® Sales and Gross Profits

Total Gross Sales [3]

Sales to Labrada's

Manufacturer [1] [4]

Gross Profit % [3]

Gross Profit from Sales to

Labrada's Manufacturer

2013 (Actual)2014 (Actual)2015 (Actual)2016 (Actual)2017 (Projected)Total (Rounded)

Defendant Naturex's Svetol® Sales and Gross Profits

Total Gross Sales [5]

Sales to Labrada's

Manufacturer [2]

Gross Profit % [5]

Gross Profit from Sales to

Labrada's Manufacturer

A B C = A * B2012 (Actual)2013 (Actual)2014 (Actual)2015 (Actual)2016 (Actual)Total (Rounded)


[1] Based on Total Supercitrimax Sales to Labrada's Contract Manufacturer JW Nutritional, LLC (10-page PDF, No Bates References)[2] Based on JW Nutritional, LLC's 2012 and 2013 Purchase Orders issued to Naturex (Naturex000020-000022).[3] Defendant Interhealth Nutraceuticals, Inc.'s Supplemental Responses to Plaintiff Veda Woodard's First Set of Interrogatories,3/1/2018, pages 22-24. The 2017 gross profit % of is based on 2016.[4] based on the decline from 2015 to 2016.[5] Defendant Naturex, Inc.'s Supplemental Responses to Interrogatory Nos. 10, 14, 20 and 21 in Plaintiffs' First Set of InterrogatoriesPursuant to Court Order dated January 11, 2018, 2/12/2018, pages 5-7.

Year

Year


1


CHARLENE L. PODLIPNA Vice President Charlene Podlipna is a shareholder of Freeman & Mills, Inc., a consulting firm offering services in the areas of accounting, finance, economics and business practices and procedures. Ms. Podlipna has provided litigation support services for over thirteen years, working with counsel in civil litigation, arbitration and mediation. She has testified at trial, arbitration, and in depositions. Ms. Podlipna has experience with matters in the following areas: damages associated with breach of contract or breach of fiduciary duty claims; damages related to trademark and copyright infringement; class actions and false advertising lawsuits; lost earnings associated with wrongful terminations, wrongful death or personal injuries; fraud investigations; the determination of whether transactions were recorded in accordance with generally accepted accounting principles; and professional malpractice litigation. Prior to joining Freeman & Mills, Ms. Podlipna was a consultant at Resources Global Professionals where she worked on various accounting engagements, including financial statement audits and reviews of the internal controls of publicly held companies. Prior to Resources Global Professionals, Ms. Podlipna was a senior consultant at CCH Incorporated, a leading tax and accounting software company, where she provided training for and helped implement auditing software at CPA firms. Prior to CCH Incorporated, she provided litigation support services as a consultant at Gursey, Schneider & Co., LLP and performed and supervised financial statement audits at Arthur Andersen LLP, generally for clients in the healthcare and manufacturing industries. PROFESSIONAL EXPERIENCE 2016 - Present Vice President, Freeman & Mills, Inc. 2006 – 2015 Senior Consultant, Freeman & Mills, Inc. 2004 – 2006 Consultant, Resources Global Professionals 2001 – 2004 Senior Software Consultant, CCH Incorporated 1999 – 2001 Litigation Consultant, Gursey, Schneider & Co., LLP 1996 – 1999 Senior Auditor, Arthur Andersen LLP PRESENTATIONS “Michael Jackson: The Wrongful Death Case Against AEG” – American Institute of Certified Public Accountants’ Forensic Valuation Services Conference (2016) “Minkow in the Mix: How a Joint Venture Dispute Led to Stock Price Litigation” – California Society of CPA’s Economic Damages Section (2014) PROFESSIONAL AFFILIATIONS AND MEMBERSHIPS American Institute of Certified Public Accountants (“AICPA”) California Society of Certified Public Accountants (“CalCPA”)

- Forensic Services, Economic Damages Section


Ms. Podlipna earned a B.S. in accounting from the University of Southern California. She is a Certified Public Accountant licensed in California since 2000. She is also Certified in Financial Forensics by the AICPA. Ms. Podlipna is Treasurer of the CalCPA’s Economic Damages Section for the 2016-2018 term.

CONTACT: (213) 576-1834 [email protected]


CHARLENE L. PODLIPNA

RULE 26(a)(2)(B) DISCLOSURE OF DEPOSITION/TRIAL TESTIMONY

DATE CASE COURT D/T

11/14 Lawrence Nadler, et al. v. Nature’s Way Products, LLC, et al. (Case No. CV 13-100 TJH (OPx)

U.S. District Court, Central District of California

D

12/14 Neal A. Roberts, et al. v. Packard, Packard & Johnson (Case No. 1220043791)

JAMS, Los Angeles D

01/15 Neal A. Roberts, et al. v. Packard, Packard & Johnson (Case No. 1220043791)

JAMS, Los Angeles T

08/15 Pegasus Imports, LLC v. PT. Wahyu Pradana Binamulia (Case No. 2:14-cv-06843-ODW (AJWx))


D

08/15 Lois D. Brown v. ELCO Mutual Life and Annuity, U.S. Senior Vets, and Mike John Read (Case No. P.S.C. 1403748)

California Superior Court, County of Riverside

D

09/16 Joseph Zaghi, D.D.S., Inc., et al., v. Khabab Salama, et al. (Case No. BC549021)

California Superior Court, County of Los Angeles

D

09/16 Peter DeBear, et al. v. Larry Capatosto, et al. (Case No. MC 025640)


D

07/17 Zidan Zhao, et al. v. Pacific Covina Group, LLC, et al. (Case No. BC597102)


D

10/17 Element436 LLC. v. Schaffel Development Company, Inc. (Case No. 1220055174)

JAMS, Los Angeles D

10/17 Element436 LLC. v. Schaffel Development Company, Inc. (Case No. 1220055174)

JAMS, Los Angeles T

02/18 Gregory Arthur, et al. v. United Industries Corporation (Case No. 2:17-cv-06983-CAS-SK)


D


2


Veda Woodard, et al. v. Lee Labrada, et al.Documents Considered

Beginning Bates Ending Bates

Pleadings1. First Amended Complaint, 6/26/20162. Labrada Bodybuilding Nutrition, Inc.'s Amended Responses

to Plaintiffs' First Set of Interrogatories, 5/22/20173. Defendant Naturex, Inc.'s Supplemental Responses to

Interrogatory Nos. 10, 14, 20 and 21 in Plaintiffs' First Set ofInterrogatories Pursuant to Court Order Dated January 11,2018, 2/12/2018

4. Defendant Interhealth Nutraceuticals, Inc.'s SupplementalResponses to Plaintiff Veda Woodard's First Set ofInterrogatories, 3/1/2018

Defendants' Financial and Other Documents1. 2012-2016 sales and cost of goods sold data Labrada_Woodard 000254 Labrada_Woodard 0004002. 10-page Summary of Interhealth's Supercitrimax® sales to No Bates Reference No Bates Reference

Labrada's manufacturer3. Purchase orders for Svetol® issued by Labrada’s Naturex000020 Naturex000022

manufacturer to Naturex4. 2015 Oz Media Presentation titled "Trust is Our Currency" Oz.6.001570 Oz.6.0015885. Various agreements among Harpo, Inc., Ozworks, LLC, Dr. HARPOINC.1.000001 HARPOINC.1.000212

Mehmet Oz, Sony Pictures Television, Inc., ZoCo 1, LLC,and ZoCo Productions, LLC, 2008-2013

Third Party Documents1. Vitamin Shoppe Retail Sales Data VITAMINSHOPPE000001 VITAMINSHOPPE000001

Defendants' SEC Filings1. Lonza 2016 Annual Report2. Naturex 2016 Annual Report

Other1. U.S. Court of Appeals for the Ninth Circuit Opinion Re:

Lambert, et al. v. Nutraceutical Corp, 9/15/2017

Document Description


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LAW OFFICES OF RONALD A. MARRON, APLC 651 Arroyo Drive

San Diego ▪ CA ▪ 92103 Tel.: (619) 696-9006 Fax: (619) 564-6665

Firm Resume

FIRM OVERVIEW

The Law Offices of Ronald A. Marron is a recognized class action and complex litigation firm based out of San Diego, California, representing clients across the nation. Founded in 1996 with an emphasis in consumer and securities fraud, the firm has expanded its practice to include complex cases such as electronic privacy, banking regulations, antitrust, automatic renewals, Telephone Consumer Protection Act and Government Environmental Law Litigation. The firm has skillfully litigated hundreds of lawsuits and arbitrations against investment advisors and stockbrokers, such as Morgan Stanley, LPL Financial, Merrill Lynch, Banc of America Securities, and Citigroup, who placed clients into unsuitable investments, failed to diversify, and who violated the Securities Act of 1933 and/or 1934. Aptly and competently prepared to represent its clients, the firm has taken on cases against the likes of Shell Oil, Citigroup, Wells Fargo, Union Bank of California, American Express Advisors, Morgan Stanley and Merrill Lynch. Since 2004, the firm has devoted most of its practice to the area of false and misleading labeling of Consumer Products and food, drug and over-the-counter products, as well as seeking to protect consumers from unauthorized and unsolicited telephone calls, SMS or text messages to cellular phones from corporations under the Telephone Consumer Protection Act. The firm employs five attorneys, whose qualifications are discussed in brief below.

THE MARRON FIRM’S ATTORNEYS:

Ronald A. Marron, Founder As the founder of the Law Offices of Ronald A. Marron, APLC, Mr. Marron has been practicing law for 25 years. He was a member of the United States Marine Corps from 1984 to 1990 (Active Duty 1984-1988, Reserves 1988-1990) and thereafter received a B.S. in Finance from the University of Southern California (USC) in 1991. While attending Southwestern University School of Law (1992-1994), he interned at the California Department of Corporations with emphasis in consumer complaints and fraud investigations; and studied Bio-Chemistry at the University of Southern California and was a member of the Trojan Chemistry Club. Mr. Marron has extensive experience in class actions and other complex litigation and has obtained hundreds of millions of dollars on behalf of consumers as lead counsel. Mr. Marron has represented plaintiffs victimized in TCPA cases, Consumer Fraud, Antitrust, Broker-Dealer Liability, Ponzi schemes, shareholder derivative suits, and securities fraud cases. Mr. Marron has assisted two United States Senate Subcommittees and their staff in investigations of financial fraud, plus the Senate Subcommittee on Aging relating to annuity sales practices by agents using proceeds from reverse mortgages. Mr. Marron's clients have testified before the United States Senate Subcommittee on Investigations relating to abusive sales practices alleged in a complaint he filed against All-Tech Investment Group. The hearings resulted in federal legislation that: (a) raised


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the minimum capital requirements, and (b) required written risk disclosure signed by consumer. The civil action resulted in return of client funds and attorneys’ fees pursuant to the private attorney general statute and/or Consumers Legal Remedies Act. Mr. Marron conducted the legal research and co-wrote the brief that resulted in the largest punitive damages award (500%) in NASD history for aggrieved investors against Dean Witter Reynolds in securities arbitration. Mr. Marron's opinion on deferred annuity sales practices targeting the elderly has often been sought by major financial news organizations and publications such as Forbes, the Wall Street Journal, the Kiplinger's Retirement Report, CNN, and FOX News affiliates. In addition, he has devoted significant energy and time educating seniors and senior citizen service providers, legislators, and various non-profits (including Elder Law & Advocacy) about deferred annuity sales practices targeting the elderly. Mr. Marron had numerous speaking engagements at FAST (Fiduciary Abuse Specialist Team), which is an organization devoted to the detection of, prevention, and prosecution of elder financial abuse; Adult Protective Services; and Elder Law & Advocacy, a non-profit dedicated to assisting seniors who have been the victims of financial fraud. He has litigated hundreds of lawsuits and arbitrations against major corporations, such as Shell Oil, Citigroup, Wells Fargo, Morgan Stanley, and Merrill Lynch. In recent years, Mr. Marron has devoted almost all of his practice to the area of TCPA and Privacy Violations, false and misleading labeling of food, dietary supplements, and over-the-counter products. He is a member in good standing of the State Bar of California; the United States District Courts for the Eastern, Southern and Northern Districts of New York; the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States District Court for the Eastern District of Michigan; the United States District Court for the Eastern and Western Districts of Wisconsin; the United States District Court of Colorado; the United States Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States. Alexis M. Wood, Senior Associate Ms. Wood graduated cum laude from California Western School of Law in 2009, where she was the recipient of the Dean’s Merit Scholarship for Ethnic & Cultural Diversity and also Creative Problem Solving Scholarships. In addition, during law school, Ms. Wood was the President of the Elder, Child, and Family Law Society, and participated in the study abroad program on international and comparative human rights law in Galway, Ireland. Ms. Wood interned for the Alternate Public Defender during law school, and also held a judicial externship with the San Diego Superior Court. Upon graduation, Ms. Wood obtained her Nevada Bar license and worked at the law firm Alverson Taylor Mortensen & Sanders in Las Vegas, Nevada where she specialized in medical malpractice. Ms. Wood then obtained her license to practice law in California in 2010 and worked at the bankruptcy firm Pite Duncan, LLP in San Diego, California, in which she represented financial institutions in bankruptcy proceedings. She additionally worked for the national law firm Gordon & Rees, LLP as an associate attorney in the professional liability defense and tort & product liability practice groups. Ms. Wood was also selected to the 2015 and 2016 California Super Lawyers Rising Star list (general category)—a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. No more than 2.5% of the lawyers in the state were selected for the Rising Stars list. Ms. Wood joined the Law Office of Ronald Marron in September of 2012 and has dedicated her practice to consumer advocacy. Ms. Wood is also a foster youth advocate with Voices for Children. She is a member in good standing of the State Bar of California; the State Bar of Nevada; the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States District Court of Nevada; the United States District Court for the Eastern and Western Districts of Wisconsin; the United States District Court of Colorado; and the United States Court of Appeals for the Ninth


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Circuit. Kas L. Gallucci, Senior Associate Ms. Gallucci graduated cum laude from California Western School of Law in 2012, where she ranked in the top 12% of her graduating class and was listed on the Dean’s Honor List for four terms. During law school, Ms. Gallucci received the highest grade in her Legal Skills and Advanced Legal Research classes. She also participated in the Capitals of Europe Summer Study Abroad Program, where the Honorable Samuel A. Alito, Jr. was a Distinguished Guest Jurist. Ms. Gallucci has worked for the firm since 2009 and has a number of years’ experience in consumer fraud cases and is currently prosecuting violations of the Telephone Consumer Protection Act. Ms. Gallucci also regularly assists with the firm’s food, drug, and cosmetic cases. She is a member in good standing of the State Bar of California; the United States District Courts for the Central, Northern, and Southern Districts of California; the United States District Court for the Eastern District of Michigan; the United States District Court for the Eastern and Western Districts of Wisconsin; the United States District Court for New Mexico; the United States District Court of Colorado; and the United States Court of Appeals for the Ninth Circuit. Michael Houchin, Associate Mr. Houchin has been with the Law Offices of Ronald A. Marron since 2011. Prior to passing the California bar exam, Mr. Houchin worked as a law clerk for the firm while he attended law school courses in the evenings at the Thomas Jefferson School of Law. During law school, Mr. Houchin received four Witkin Awards for the highest grade achieved in his Legal Writing, Constitutional Law, American Indian Law, and California Civil Procedure courses. He also served as an editor on the Thomas Jefferson Law Review and was a member of an editing team that prepared a student Note for compliance with publishable quality standards. See I. Suruelo, Harmonizing Section 14(B) with The Policy Goals of the NLRA on the Heels of Michigan's Enactment of Right-To-Work Laws, 36 T. JEFFERSON L. REV. 427 (2014). Mr. Houchin graduated magna cum laude in May of 2015 and ranked in the top 5% of his graduating class. Through his work at the Law Offices of Ronald A. Marron, APLC, Mr. Houchin has gained substantial familiarity with multi-district litigation proceedings, solutions for e-discovery management, and false advertising investigations. He is a member in good standing of the State Bar of California; and the United States District Courts for the Central, Eastern, Northern, and Southern Districts of California; the United States Court of Appeals for the Ninth Circuit; and the Supreme Court of the United States. Lilach Halperin, Associate Ms. Halperin graduated cum laude from the University of San Diego School of Law in 2018. During law school, Ms. Halperin held a judicial externship with the San Diego Superior Court and volunteered for numerous pro bono clinics, including the USD Entrepreneurship Clinic, the USD State Sales and Use Tax Clinic, and the San Diego Clean Slate Clinic. In addition, Ms. Halperin was the Chair of the USD Pro Bono Legal Advocates Consumer Affairs Clinic, where she worked with the Legal Aid Society of San Diego to assist indigent clients with lawsuits in consumer protection law. In her third year of law school, Ms. Halperin was hired as a law clerk for the Law Offices of Ronald A. Marron and assisted in consumer fraud cases for the firm, including the areas of false and misleading labeling of consumer products. Ms. Halperin recently passed the California Bar and will continue working for the Marron firm as an Associate Attorney. She is a member of good standing of the State Bar of California; and the United States District Courts for the Southern, Northern and


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Central Districts of California. Support Staff The Marron Firm also employs a number of knowledgeable and experienced support staff, including paralegals and legal assistants. EXAMPLES OF MARRON FIRM’S SUCCESSES ON BEHALF OF CONSUMERS Littlejohn v. Ferrara Candy Company, No. 18-cv-0658-AJB-WVG (S.D. Cal.) On June 17, 2019, the Honorable Anthony J. Battaglia granted final approval of a nationwide CLRA class action settlement stating “Class Counsel has fully and competently prosecuted all causes of action, claims, theories of liability, and remedies reasonably available to the Class Members.” Littlejohn v. Ferrara Candy Co., No. 318CV00658AJBWVG, 2019 WL 2514720, at *3 (S.D. Cal. June 17, 2019). Busch v. Bluestem Brands, Inc., No. 16-cv-0644(WMW/HB) (D. Minn.) On May 3, 2019, the Honorable Judge Wilhelmina M. Wright granted preliminary approval of a nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. A final approval hearing is scheduled for October 8, 2019. Rwomwijhu v. SMX, LLC, No. BC634518 (L.A. Supr. Ct.) On January 11, 2019, the Honorable Carolyn B. Kuhl granted final approval of case brought pursuant to under California’s Private Attorneys General Act where the Law Offices of Ronald A. Marron served as co-lead class counsel. Jackson v. Lang Pharma Nutrition, Inc., No. 37-2017-00028196-CU-BC-CTL (S.D. Supr. Ct.) On December 20, 2018, the Honorable Joel R. Wohlfeil of the California Superior Court granted final approval to a nationwide labeling case settlement involving Co-q10 dietary supplements where the Law Offices of Ronald A. Marron served as class counsel. The settlement created a fund in the amount of $1,306,000 for which class members could elect to obtain cash or product vouchers. Medina v. Enhanced Recovery Company, LLC, No. 15-CV-14342-MARTINEZ-MAYNARD (S.D. Fla.) On December 12, 2018, the Honorable Judge Jose E. Martinez granted preliminary approval of a nationwide TCPA class action settlement and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. A final approval hearing is scheduled for August 22, 2019. Simms v. ExactTarget, LLC, No. 1-14-cv-00737-WTL-DKL (S.D. Ind.) On October 19, 2018, the Honorable William T. Lawrence granted final approval of a nationwide TCPA class action settlement where the Law Offices of Ronald A. Marron served as class counsel. The settlement created a $6.25 million common fund. Mancini v. The Western and Southern Life Insurance Company, et al., No. 16-cv-2830-LAB (WVG) (S.D. Cal) On September 18, 2018, the Honorable Larry Alan Burns granted final approval of settlement in the amount of $477,500 to resolve claims under California’s Private Attorneys General Act.


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Gonzales v. Starside Security & Investigation, No. 37-2015-00036423-CU-OE-CTL (S.D. Supr. Ct.) On September 7, 2018, the Honorable Gregory W. Pollack granted final approval of a wage and hour class action settlement and where the Law Offices of Ronald A. Marron served as class counsel. Mollicone v. Universal Handicraft, No. 17-21464-Civ-Scola (S.D. Fla.) On August 10, 2018, the Honorable Robert N. Scola, Jr. granted final approval of class action settlement regarding false advertising claims of Adore cosmetics products marketed as containing a plant stem cell formula where in which the Law Offices of Ronald A. Marron served as class counsel. In his Preliminary Approval Order, Judge Scola stated that the Marron Firm is “experienced and competent in the prosecution of complex class action litigation.” (Dkt. No. 120). Mason v. M3 Financial Services, Inc., No. 15-cv-4194 (N.D. Ill.) On June 29, 2018, the Honorable Andrea R. Wood granted final approval of a nationwide TCPA class action settlement in the amount of $600,000 in which the Law Offices of Ronald A. Marron served as co-lead class counsel. Lucero v. Tommie Copper, Inc., No. 15 Civ. 3183 (AT) (S.D. N.Y.) On May 4, 2018, the Honorable Analisa Torres granted final approval of a false advertising class settlement in the amount $700,000. This case involves allegations of false and deceptive advertising and endorser liability for copper fabric compression clothing. On January 4, 2016, the Honorable Analisa Torres appointed the Marron firm as Interim Lead Class Counsel over the opposition and challenge of other plaintiffs’ counsel, noting that the Marron firm’s “detailed” complaint was “more specifically pleaded, . . . assert[ing] a more comprehensive set of theories . . . [and was] more factually developed.” Potzner v. Tommie Copper Inc., No. 15 CIV. 3183 (AT), 2016 WL 304746, at *1 (S.D.N.Y. Jan. 4, 2016). Judge Torres also noted that Mr. Marron and his firm’s attorneys had “substantial experience litigating complex consumer class actions, are familiar with the applicable law, and have the resources necessary to represent the class.” Id. Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-cv-00182-H-BLM (S.D. Cal.) On March 26, 2018, the Honorable Marilyn Huff granted final approval of a nationwide TCPA class action settlement which provided monetary relief in the amount of $1,500,000, in addition to significant injunctive relief. (Dkt. 67.) The Law Offices of Ronald A. Marron were appointed class counsel. Gutierrez-Rodriguez v. R.M. Galicia, Inc., No. 16-CV-00182-H-BLM, 2018 WL 1470198, at *2 (S.D. Cal. Mar. 26, 2018). Thornton v. NCO Financial Systems, No. 16-CH-5780 (Cook County, Ill) On October 31, 2017, the Honorable Tomas R. Allen of the Circuit Court of Cook County, Illinois, granted final approval to a nationwide TCPA class which created a common fund in the amount of $8,000,000 and also provided for injunctive relief. The Law Offices of Ronald A. Marron served as co-lead class counsel. Elkind v. Revlon Consumer Products Corporation, No. 14-cv-2484(JS)(AKT) (E.D.N.Y.) On September 5, 2017, the Honorable A. Kathleen Tomlinson granted final approval of a nationwide


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false advertising class action settlement which challenged Revlon’s advertising of its “Age Defying with DNA Advantage” line of cosmetics in the amount of $900,000, and significant injunctive relief. The Law Offices of Ronald A. Marron served as co-lead class counsel. Sanders v. R.B.S. Citizen, N.A., No. 13-CV-03136-BAS (RBB) (S.D. Cal.) On January 27, 2017 the Honorable Cynthia A. Bashant granted final approval of a nationwide TCPA class action settlement in the amount of $4,551,267.50. Sanders v. R.B.S. Citizen, N.A., No. 13-CV-03136-BAS (RBB), 2017 WL 363536 (S.D. Cal. Jan. 25, 2017). On July 1, 2016, the Honorable Cynthia A. Bashant certified a nationwide class, for settlement purposes, of over one million persons receiving cell phone calls from Citizens made with an alleged automatic telephone dialing system. Dkt. 107. The Court appointed the Law Offices of Ronald A. Marron as class counsel, noting they have “significant experience in handling class actions.” Id. In re Leaf123 (Augustine v. Natrol), No. 14-114466 (U.S. Bankruptcy Court for the District of Delaware) This action involved allegations of false and deceptive advertising of Senna Leaf tea products as dietary aids. Plaintiff alleged Senna Leaf is nothing more than a stimulant laxative which does not aid diets but hinders them. After a strong showing in the district court, and pursuant to other actions against the defendant manufacturer, the defendant filed for bankruptcy. The Marron Firm followed defendant to the federal bankruptcy court and retained bankruptcy counsel to assist. After a full day mediation before a retired federal jurist, and months of follow up negotiations, a settlement was reached. On August 7, 2015, in In re Leaf123 (adversary proceeding of Augustine v. Natrol), the Honorable Brendan L. Shannon approved an injunctive relief-only settlement, finding it “fair, reasonable and adequate.” Johnson v. Triple Leaf Tea, Inc., No. 3:14-cv-01570-MMC (N.D. Cal.) An injunctive relief class action settlement, requiring manufacturer of senna leaf diet teas to re-label their products and remove ingredients based on alleged consumer confusion and harm, was filed in April 2014. The Marron firmed served as class counsel and the Honorable Maxine M. Chesney, Senior U.S. District Court Judge granted final approval to a classwide settlement on November 16, 2015. Johnson v. Triple Leaf Tea Inc., No. 3:14-CV-01570-MMC, 2015 WL 8943150, at *3, *5 (N.D. Cal. Nov. 16, 2015) (“Class Counsel has fully and competently prosecuted all causes of action, claims, theories of liability, and remedies reasonably available to the Class Members. The Court hereby affirms its appointment of the Law Offices of Ronald A. Marron, APLC as Class Counsel . . . . Class Counsel and Defendant's counsel are highly experienced civil litigation attorneys with specialized knowledge in food and drug labeling issues, and complex class action litigation generally.”). Perry v. Truong Giang Corp., Case No. BC58568 (L.A. Supr. Ct.) Plaintiff alleged defendant’s Senna Leaf teas, advertised as diet aids, were falsely or misleadingly advertised to consumers. After an all-day mediation, a class wide settlement was reached. In granting final approval to the settlement on August 5, 2015, the Honorable Kenneth Freeman noted that class counsel’s hourly rates were “reasonable” and stated the Marron Firm’s lawyers used skill in securing the positive results achieved on behalf of the class. The court also noted “this case involved difficult legal issues because federal and state laws governing dietary supplements are a gray area, . . . the attorneys displayed skill in researching and settling this case, which provides a benefit not only to Class Members but to the public at large . . . .”


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Carr v. Tadin, Inc., No. 3:12-cv-03040-JLS-JMA (S.D. Cal.) An injunctive relief class action settlement, requiring manufacturer of diet teas and other health supplements to re-label their products to avoid alleged consumer confusion, was filed in January 2014 before the Honorable Janis L. Sammartino. The Marron Firm was appointed as class counsel and the classwide settlement was granted final approval on December 5, 2014. Gallucci v. Boiron, Inc., No. 3:11-cv-2039-JAH (S.D. Cal.) The firm was class counsel for consumers of homeopathic drug products in an action against Boiron, Inc., the largest foreign manufacturer of homeopathic products in the United States, involving allegations that Boiron’s labeling and advertising were false and misleading. We obtained a nationwide settlement for the class which provided injunctive relief and restitution from a common fund of $5 million. The settlement was upheld by the Ninth Circuit on February 21, 2015. The case also set an industry standard for homeopathic drug labeling. See www.homeopathicpharmacy.org/pdf/press/AAHP_Advertising_ Guidelines.pdf. Red v. Kraft Foods Global, Inc., No. 2:10-1028-GW (C.D. Cal) The firm represented consumers in a class action against one of the world’s largest food companies and was appointed lead counsel in a consolidated putative class action. The action has resulted in a permanent injunction barring the use of deceptive health claims on Nabisco packaged foods containing artificial trans fat. The Court has also granted an interim award of attorneys’ fees. Mason v. Heel, Inc., No. 3:12-cv-3056-GPC-KSC (S.D. Cal.) Plaintiff alleged false and deceptive advertising of over-the-counter homeopathic drugs. On October 31, 2013, the Honorable Gonzalo P. Curiel granted preliminary approval to a nationwide class settlement of $1 million in monetary relief for the class plus four significant forms of injunctive relief. Final approval was granted on March 13, 2014. See Mason v. Heel, Inc., 3:12-CV-03056-GPC, 2014 WL 1664271 (S.D. Cal. Mar. 13, 2014). Clark v. National Western Life Insurance Co., No. BC321681 (L.A. Co. Super. Ct.) Class action involving allegations of elder financial abuse and fraud. After litigating the case for well over six years, including Mr. Marron being appointed co-lead class counsel, the case resulted in a settlement of approximately $25 million for consumers. In re Quaker Oats Labeling Litig., No. 5:10-cv-00502-RS (N.D. Cal.) False and deceptive advertising case concerning Instant Oats, Chewy Granola Bars and Oatmeal To Go products, including use of partially hydrogenated vegetable oil while also representing the products as healthy snacks. An injunctive relief class action settlement was granted preliminary approval on February 2, 2014, with my firm being appointed Class Counsel. On July 29, 2014, the court granted the final approval of the settlement. Nigh v. Humphreys Pharmacal, Inc., No. 3:12-cv-02714-MMA-DHB (S.D. Cal.) Case involving allegations of false and deceptive advertising of homeopathic over-the-counter drugs as effective when they allegedly were not. On October 23, 2013, a global settlement was granted final approved by the Honorable Michael M. Anello, involving a common fund of $1.4 million plus five significant forms of injunctive relief for consumers. Burton v. Ganeden Biotech, Inc., No. 3:11-cv-01471-W-NLS (S.D. Cal.)


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Action alleging false and deceptive advertising of a dietary probiotic supplement. On March 13, 2012, the Marron Firm settled the case for $900,000 in a common fund plus injunctive relief in the form of labeling changes. Final approval was granted on October 5, 2012. Hohenberg v. Ferrero U.S.A., Inc., No. 3:11-CV-00205-H-CAB (S.D. Cal.) This case involved false and deceptive advertising of sugary food product as a healthy breakfast food for children. After successfully defeating a motion to dismiss, Hohenberg, 2011 U.S. Dist. LEXIS 38471, at *6 (S.D. Cal. Mar. 22, 2011), the Honorable Marilyn Huff certified a class on November 15, 2011, resulting in a published decision, In re Ferrero Litig., 278 F.R.D. 552 (S.D. Cal. 2011). A final settlement consisting of injunctive relief labeling and marketing changes, plus a $550,000 common fund for monetary relief to the class was finally approved on July 9, 2012. In re Qunol CoQ10 Liquid Labeling Litigation, No. 8:11-cv-173-DOC (C.D. Cal.) This case involved false and deceptive consumer advertising of a dietary supplement. The Marron Firm was appointed class counsel and successfully defeated defendants’ motion to decertify the class following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012); see also Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal. Nov. 14, 2011). The case settled on the eve of trial (originally scheduled for October 2, 2012) for cash payments to the class and injunctive relief. Iorio v. Asset Marketing Systems, Inc., No. 05cv00633-IEG-CAB (S.D. Cal.) This action involved allegations of elder financial abuse and fraud. Mr. Marron was appointed class counsel on August 24, 2006 and the Court certified a class on July 25, 2006. After nearly six years of intensive litigation, including “challenges to the pleadings, class certification, class decertification, summary judgment,…motion to modify the class definition, motion to strike various remedies in the prayer for relief, and motion to decertify the Class’ punitive damages claim,” plus three petitions to the Ninth Circuit, attempting to challenge the Rule 23(f) class certification, a settlement valued at $110 million was reached and approved on March 3, 2011. Iorio, Dkt. No. 480. In granting final approval to the settlement, the Court noted that class counsel were “highly experienced trial lawyers with specialized knowledge in insurance and annuity litigation, and complex class action litigation generally” and “capable of properly assessing the risks, expenses, and duration of continued litigation, including at trial and on appeal.” Id. at 7:18-22. Martinez v. Toll Brothers, No. 09-cv-00937-CDJ (E.D. Penn.) Shareholder derivative case alleging breach of fiduciary duty, corporate waste, unjust enrichment and insider trading, filed derivatively on behalf of Toll Brothers and against individual corporate officers. Under a joint prosecution agreement, this action was litigated along with other consolidated and related actions against Toll Brothers in a case styled Pfeiffer v. Toll Brothers, No. 4140-VCL in the Delaware Chancery Court. After extensive litigation, the case settled in September 2012 for $16.25 million in reimbursement to the corporation. Peterman v. North American Co. for Life & Health Insurance, No. BC357194, (L.A. Co. Super. Ct.), involved allegations of elder financial abuse. This case was litigated for over four years and achieved a settlement of approximately $60 million for consumers.


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Vaccarino v. Midland Nat’l Life Ins. Co., No. 2:11-cv-05858-CAS (MANx) (C.D. Cal.) This action involved allegations of elder financial abuse and fraud. On June 17, 2013, the Honorable Christina A. Snyder appointed the Marron Firm as Class Counsel, and on February 3, 2014, the Court certified a class of annuities purchasers under various theories of relief, including breach of contract and the UCL. On September 22, 2014, the court granted final approval to a class action settlement that achieved a settlement of approximately $5.55 million for consumers, including cy pres relief to the Congress of California Seniors. CURRENT AND NOTABLE APPOINTMENTS AS CLASS COUNSEL Esparza v. Smartpay Leasing, Inc., No. 3:17-cv-03421-WHA (N.D. Cal.) On June 5, 2019, the Honorable William Alsup certified a nation-wide TCPA class of individuals who were texted on behalf of the defendant, using its vendor Twilio, Inc.’s platform after texting the word “STOP”, between September 29, 2015 to June 13, 2017. The Court also appointed Plaintiff Shawn Esparza as class representative and Ronald A. Marron, Alexis Wood and Kas Gallucci of the Law Offices of Ronald A. Marron as class counsel. Hilsley v. Ocean Spray Cranberries, Inc., No. 3:17-cv-02335(GPC) (S.D. Cal.) A nationwide class of consumers brought this suit against Ocean Spray Cranberries, Inc. and Arnold Worldwide LLC for violations of California’s Consumer Legal Remedies Act. Plaintiff alleges that certain Ocean Spray products falsely state “no artificial flavors” when they in fact contain the artificial flavoring agent, malic acid. On November 29, 2018, the Honorable Gonzalo P. Curiel granted class certification, appointing Ronald A. Marron and Michael Houchin of the Marron Firm as class counsel. On July 3, 2019, Judge Curiel denied Defendant’s Motion for Summary Judgment and on July10, 2019 denied Defendant’s Motion to Decertify the Class. Romero v. Securus Technologies, Inc. No. 3:16-cv-01283 (JM) (S.D. Cal.) Plaintiffs Juan Romero, Kenneth Elliot, and Frank Tiscareno allege that Securus Technologies illegally recorded telephone conversations between inmates and their counsel. On November 21, 2018, the Honorable Jeffrey Miller granted class certification in part, appointing the Law Offices of Ronald A. Marron as co-lead class counsel. O’Shea v. American Solar Solutions, Inc., No. 3:14-cv-00894-L-RBB (S.D. Cal.) On March 3, 2017, the Honorable M. James Lorenz certified a TCPA class of all individuals in the United States who were called on behalf of the defendant, using the ViciDial predictive dialers, on a cellular telephone number, between November 22, 2012 and August 22, 2015, and appointed Ronald A. Marron, Alexis Wood and Kas Gallucci as class counsel. Reyes v. Education Credit Management Corporation, No. 3:15-cv-00628-BAS-AGS (S.D. Cal.) Plaintiff A.J. Reyes brought suit against Education Credit Management Corporation under California’s Invasion of Privacy Act. Plaintiff alleges due to an error in the Defendant’s phone system, inbound calls to ECMC were being recorded without their consent. On September 20, 2017, the Honorable Cynthia Bashant certified a class of individuals who made inbound calls to lines with the faulty setting, as well as granted certification of plaintiff’s demand for injunctive relief and monetary damages. The Law Offices of Ronald A. Marron was appointed as class counsel. Currently remanded back from 9th Circuit after vacating Class Certification, this case is back at the District Court for further proceedings.


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Robbins v. Gencor Nutrients, Inc., No. 16AC-CC00366 (Circuit Court, Cole Cty. Mo.). On May 14, 2018, the Honorable Jon E. Beetem granted preliminary approval of a nationwide false advertising class action settlement concerning testosterone boosting supplements and appointed the Law Offices of Ronald A. Marron as co-lead class counsel. Allen v. Hyland’s, Inc., No. 12-CV-1150 DMG (MANx) (C.D. Cal.) Nationwide class of consumers certified for false and deceptive advertising against largest U.S.-based manufacturer of homeopathic drugs, involving ten over-the-counter homeopathic drug products. A nationwide class was certified after two years of vigorous litigation, including Marron firm counsel surviving against two motions to dismiss, a motion for judgment on the pleadings, and a motion to strike punitive damages. See 300 F.R.D. 643 (C.D. Cal. 2014). Following a thirteen-day jury trial before the Honorable Judge Dolly M. Gee, a verdict was returned in favor of Hyland’s. The Marron Firm timely appealed. On May 15, 2019, the Ninth Circuit reversed the judgment in part holding that “the jury’s narrow findings as to deceptive advertising do not resolve [Plaintiffs’] broader unfair practices theory” and that “the district court must engage in fact-finding to resolve [the UCL claim], and erred in granting judgment to Hyland’s without doing so.” Allen v. Hylands, Inc., No. 17-56184, 2018 WL 2142843, at *3 (9th Cir. May 15, 2019). Allen v. Similasan Corp., No. 12-cv-376 BAS (JLB) (S.D. Cal.) A California class of consumers alleging false and deceptive advertising of six homeopathic drugs was certified by the Honorable Cynthia A. Bashant on March 30, 2015, with the Court noting that the firm was experienced and competent to prosecute the matter on behalf of the Class. Judge Bashant denied summary judgment on the class’ claims that the drug products were not effective, as advertised, and certified claims under California’s Consumers Legal Remedies Act, Unfair Competition Law, False Advertising Law, breach of express and implied warranty, and violation of the federal Magnuson-Moss Warranty Act. OTHER NOTABLE CASES In re Santa Fe Natural Tobacco Company Marketing & Sales Practices Litig., No. 1:16-md-02695-JB-LF (D.N.M.) On May 24, 2016, Ronald A. Marron was appointed to the Executive Committee in a multidistrict litigation labeling case. (Dkt. 24.) Henderson v. The J.M. Smucker Company, No. 2:10-cv-4524-GHK (C.D. Cal.) This action was the catalyst forcing the defendant to reformulate a children’s frozen food production to remove trans-fat. On June 19, 2013, the Honorable George H. King held the firm’s client was a prevailing Private Attorney General and entitled to her costs and attorneys’ fees. NINTH CIRCUIT CASES Troy Lambert v. Nutraceutical Corp., Case No. 17-1094 On September 15, 2017, the Ninth Circuit Court of Appeals reversed a class decertification order in a false advertising class action concerning a dietary supplement product. (Case No. 15-56423). The Marron Firm successfully argued that the “full refund” measure of damages could be calculated on a class wide basis and that the model matched plaintiff’s theory of liability. “In a matter of first impression,” the Ninth Circuit also held that “the Rule 23(f) deadline is not jurisdictional” and that “equitable exceptions apply.” Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1174 (9th Cir. 2017).


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On February 26, 2019, the United States Supreme Court reversed the Ninth Circuit's holding that equitable exceptions apply to the Rule 23(f) deadline. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019). However, the Supreme Court remanded the case back to the Ninth Circuit for consideration of whether the "Rule 23(f) petition was timely even without resort to tolling." Id. at 717. Shyriaa Henderson v. United States Aid Funds, Inc., Case No. 17-55373 (9th Cir.) On March 22, 2019, the Ninth Circuit reversed the District Court’s order granting summary judgment in favor of Defendant, and remanded for further proceedings in a class action where debt collectors acting on behalf of defendant were in violation of the Telephone Consumer Protection Act (TCPA). The Ninth Circuit found that a reasonable jury could hold Defendant vicariously liable for the alleged TCPA violations by debt collectors.

John Sandoval v. Pharmacare US, Inc., Case No. 16-56301 (9th Cir.) On April 5, 2016, the Ninth Circuit reversed, in part, the District Court’s order granting summary judgment in a false advertising class action concerning an aphrodisiac dietary supplement called “IntenseX” The Marron Firm successfully argued that statements on the intensex.com website showed that the defendant failed to obtain approval of IntenseX as an OTC aphrodisiac drug, thus creating a basis for liability under California’s Unfair Competition Law. Reid v. Johnson & Johnson, Case No. 12-56726 (9th Cir.) On March 13, 2015, the Ninth Circuit reversed, in part, the District Court’s order granting the defendant’s motion to dismiss in a false advertising class action concerning Benecol spread that was allegedly falsely advertised as containing “No Trans Fat.” The Marron Firm successfully argued that the plaintiff’s claims are not preempted by the Federal Food, Drug, and Cosmetics Act. Reid v. Johnson & Johnson, 780 F.3d 952, 964 (9th Cir. 2015).


Declaration of Timothy D. Cohelan in Support of Motion for Final Approval of Settlement Case No. 5:16-cv-00189-JGB-SP

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LAW OFFICES OF RONALD A. MARRON, APLCRONALD A. MARRON (SBN 175650)[email protected] T. HOUCHIN (SBN 305541)[email protected] Arroyo DriveSan Diego, California 92103Tele.: (619) 696-9006/Fax:(619) 564-6665

COHELAN KHOURY & SINGERTIMOTHY D. COHELAN (SBN 60827)[email protected] C. KHOURY (SBN 58759)[email protected] D. SINGER (SBN 115301)[email protected]. JASON HILL (SBN 179630)[email protected] C Street, Suite 200San Diego, California 92101Tele.: (619) 239-8148/Fax: (619) 595-3000

Attorneys for Plaintiffs and the Proposed Classes


CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

VEDA WOODARD, TERESA RIZZO-MARINO, and DIANE MORRISON, on behalf of themselves, all others similarly situated, and the general public,

Plaintiffs,

vs.

LEE LABRADA; LABRADABODYBUILDING NUTRITION, INC.; LABRADA NUTRITIONAL SYSTEMS, INC.; DR. MEHMET C. OZ, M.D.; ENTERTAINMENT MEDIA VENTURES, INC. D/B/A OZ MEDIA; ZOCO PRODUCTIONS, LLC; HARPO PRODUCTIONS, INC; SONYPICTURES TELEVISION, INC; NATUREX, INC.; AND INTERHEALTH NUTRACEUTICALS, INC.,

Defendants.


CLASS ACTION

DECLARATION OF TIMOTHY D. COHELAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

Date: October 7, 2019Time: 9:00 a.m.Ctrm: 1Judge: Hon. Jesus G. Bernal


-1-Declaration of Timothy D. Cohelan in Support of Motion for Final Approval of Settlement


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I, Timothy D. Cohelan, declare as follows:

1. As a Partner with the law firm of Cohelan Khoury & Singer, co-counsel

of record herein for Plaintiffs and the Proposed Class, I submit this Declaration in

Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement with

Naturex, Inc. The following facts are within my personal knowledge and if called to

testify I could and would competently testify thereto.

2. I have reviewed the declaration of my co-counsel Ronald Marron filed

in support of Plaintiffs’ Motion for Final Approval, and hereby respectfully associate

myself with the facts and assertions therein by reference.

3. This matter was filed on February 2, 2016, and Cohelan Khoury &

Singer became formally associated on August 28, 2017. (ECF Nos. 206-210).

4. Since that time both our office and that of Mr. Marron have worked

jointly to prosecute this matter, including the specific items and tasks outlined in

paragraphs 4 through 9 of Mr. Marron’s declaration and those set forth below.

5. The Parties met and conferred extensively regarding discovery

responses and document productions. Between the Parties, approximately 30,000

pages of documents were exchanged and multiple of sets of formal written discovery

were propounded and responded to.

6. All three Plaintiffs appeared for deposition. Dianne Morrison was

deposed on September 12, 2017, in Buffalo, New York. I traveled from San Diego

to represent and defend Ms. Morrison and my co-counsel, Michael Houchin,

appeared by telephone. On September 14, 2017, Plaintiff Teresa Rizzo-Marino had

her deposition taken in New York, New York. My San Diego co-counsel, Michael

Houchin, defended Ms. Rizzo-Marino at her deposition. Plaintiff Veda Woodard

gave her deposition testimony on September 18, 2017, in Riverside, California.

Ronald Marron, as well as J. Jason Hill from my firm, appeared on behalf of Ms.

Woodard.




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7. Plaintiffs have also taken the Rule 30(b)(6) deposition of Defendant

Naturex, Inc. through its corporate representative, David Yvergniaux, in

Hackensack, New Jersey.

8. Two formal mediations occurred on September 26, 2017 and August

30, 2018. In between these sessions, the Parties reviewed liability issues and

exchanged arms -length communications designed to determine the likelihood of a

settlement with Naturex, Inc.

9. At the second mediation, the Parties were able to agree upon terms of a

proposed settlement in the form of a non-binding Memorandum of Understanding.

Formal settlement documentation consistent with class action practice was drafted,

reviewed, and filed with the court thereafter.

10. Based on my experience, I believe that the Settlement provides

exceptional results for the class while sparing the class from the uncertainties of

continued and protracted litigation. In the face of these uncertainties, the Parties

agreed to settlement this matter with Defendant Naturex, Inc. for a non-reversionary

sum of $1,300,000 for the Class.

11. For class members who submit a claim with receipts that show a

purchase of a Class Product, the class members will receive $30.00 cash for each

product purchased. For class members who submit a claim without a receipt showing

a purchase of Class Product, Naturex will provide $30.00 cash for each product

purchased, to be paid from the Settlement Fund, with a limit of $60.00 per

household. Moreover, the Settlement also provides additional valuable equitable

relief that achieves significant goals of this lawsuit.

12. To date, the Settlement Administrator reports it has received

approximatley 84,110 valid claims from Class Members. In addition, not a single

Class Member has objected to the terms of the settlement.

13. Given the risks inherent in litigation and the defenses asserted, as well

as lack of a single class member objection, this Settlement is fair, adequate, and




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reasonable and in the best interests of the class, and should be granted final approval.

Cohelan Khoury & Singer’s Qualifications and Experience

14. After graduation from the University of Arizona in 1967, I entered

Naval Officer Candidate School and received my commission in 1968. After 3 years

of active duty as a line officer in the Western Pacific I enrolled in law school. As a

1974 graduate of California Western School of Law I was admitted to the California

State Bar in 1974, and in the District of Colombia in 1996. I am admitted to practice

in all state and federal courts in California, as well as the United States Court of

Appeals for the Second and Ninth Circuits. As class counsel or co- counsel, I have

trial experience in state and federal courts including the Southern Districts of New

York, and California. I have been AV rated by Martindale-Hubbell for over 30 years.

15. In 1981, Isam C. Khoury and I formed Cohelan & Khoury, a

Partnership of Professional Law Corporations and within a few years began to focus

on class actions. In 2009, Cohelan & Khoury became Cohelan Khoury & Singer.

Our firm represents plaintiffs in complex and class action litigation, including wage

and hour, labor and employment, antitrust, consumer protection, construction defect,

and other public interest type class actions. Attached hereto, and incorporated herein

by this reference, as Exhibit 3 is a true and correct copy of our firm’s resume.

16. Cohelan Khoury & Singer is staffed by 8 highly experienced attorneys,

4 of whom, included a former associate, worked extensively on this matter as set

forth in the earlier filing associated with the request for attorney’s fees and costs.

(ECF Nos. 295-6, ¶¶21, 22, and 295-7).

17. Cohelan Khoury & Singer has been certified by the State Bar of

California to provide the Mandatory Continuing Legal Education activity entitled

“Litigating California Class Actions” and has conducted MCLE certified seminars

on this topic. I am the author of Cohelan on California Class Actions (1997-2019),

part of Thomson Reuters “Expert Series” updated annually. Managing Partner,

Michael D. Singer, is a contributing author on the CEB publication California Wage




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and Hour Law: Compliance and Litigation (2010-2019, updated annually), in which

he wrote the opening chapter overview on California Wage and Hour laws, including

the public policy underpinnings for those laws, and the PAGA Claim chapter. Mr.

Singer has served as a columnist for the California State Bar, Litigation Section on

wage and hour litigation and has contributed articles on wage and hour and class

action issues through the years to numerous California publications. Cohelan

Khoury & Singer has successfully tried class cases, obtained appellate reversals of

class certification denials (Hicks v. Kaufman and Broad, (2001) 89 Cal.App.4th

908), certified multiple wage and hour class.

18. Cohelan Khoury & Singer has been appointed certified Class Counsel

in the following contested proceedings: Aguilar v. Atlantic Richfield, et al., San

Diego Superior Court Case No. 00700810; Andino v. Kaiser Foundation Hospitals,

Alameda Superior Court Case No. RG11580548; Arellano, et al. v. Container

Connection of Southern California, Inc., Los Angeles Superior Court Case No.

BC500675; BANK OF AMERICA WAGE AND HOUR EMPLOYMENT

PRACTICES LITIGATION, United States District Court, District of Kansas MDL

Case No. 2138 (FLSA Condition Certification); Czuchaj v. Conair Corporation,

United States District Court, Southern District of California Case No. 13CV1901;

Dilts, et al. v. Penske Logistics, L.L.C., et al., United States District Court, Southern

District of California Case No. 08CV0318; Englert, et al. v. AT&T Wireless

Services, Inc., et al., Circuit Court of the Second Circuit, State of Hawaii Case No.

02-1-0074; Evans v. Washington Mutual Bank, Orange County Superior Court Case

No. 02CC15415; Filion v. Ethan Allen Retail Inc., United States District Court,

Southern District of California Case No. 05CV2340; Gerard v. Les Schwab Tire

Centers of California, Inc., Sacramento Superior Court Case No. 2007-30000003;

Grana, et al. v. PICO Enterprises, Inc. dba Phyle Inventory Control Specialist and

PICS L.A.S.C. Case No. BC472891; Gutierrez v. Save Mart Supermarkets San

Mateo Superior Case No. CIV530955; Gonzalez, et al. v. Freedom Communications,




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Inc. d/b/a The Orange County Register, Orange County Superior Court Case No.

03CC08756; Graham, et al. v. Overland Solutions, Inc., United States District Court,

Southern District of California Case No. 10CV0672 (FLSA Conditional

Certification); Hicks v. Kaufman and Broad Home Corp., Los Angeles Superior

Court Case No. B198414; Hohnbaum, et al. v. Brinker Restaurant Corporation, et

al., San Diego Superior Court Case No. GIC834348; KEMP, et al. v. CSEA, et al.,

Circuit Court of the First Circuit, State of Hawaii Case No. 98-3815-08; LIBERTY

MUTUAL OVERTIME CASES, Los Angeles Superior Court Case No. JCCP 4234;

Mitchell, et al. v. Acosta, Inc., dba Acosta Sales and Marketing Company, United

States District Court, Central District of California Case No.11CV07196 (FLSA

Conditional Certification); Santana v. Rady Children’s Hospital-San Diego, San

Diego Superior Court Case No. 37-2014-00022411; Schaffer v. Rady Children’s

Hospital-San Diego, San Diego Superior Court Case No. 337-2015-00022978;

Schneider, et al. v. Catholic Healthcare West, San Francisco Superior Court Case

No. CGC-10-506243; Salucci v. Amada Senior Care, Inc., Orange County Superior

Court Case No. 37-2015-00778081; Smith v. California Pizza Kitchen, San Diego

Superior Court Case No. 37-2008-00083992; STEROID HORMONE PRODUCT

CASES, Los Angeles Superior Court Case No. JCCP 4363; Stevenson Aibangbee v.

Victoria Apartments, et al., Los Angeles County Superior Court Case No.

BC299498; Swift v. Liebert Corp., Orange County Superior Court Case No.

00CC04588; Sylvia, et al. v. Wells Fargo Home Mortgage, Inc., Orange County

Superior Co Case No. 03CC05747; Vaquero v. Ashley Furniture Industries, Inc., et

al., United States District Court, Central District of California Case No. 12CV8590;

Vaquero v. Stoneledge Furniture LLC, Los Angeles Superior Court Case No.

BC522676; Vazquez v. Kraft Heinz Foods Company, Unites States District Court,

Southern District of California Case No. 16-CV-02749; Watson v. Raytheon

Company, United States District Court, Southern District of California Case No.

1OCV0634; Weigele v. FedEx Ground Package System, Inc., United States District




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Court, Southern District of California Case No. 06CV1330; and Wilcox v Albertsons,

San Diego Superior Court Case No. GIC833922, among others, as well as being

appointed Class Counsel in connection with well over 1750 class action settlements.

19. As Class Counsel, Cohelan Khoury & Singer has actively commenced,

prosecuted and concluded numerous state and federal class actions. Since 2016,

Cohelan Khoury & Singer has played a central role in the resolution of the following

class action cases which have received final approval by the Court: (a)Arellano, et

al. v. Container Connection of Southern California, Inc., Los Angeles Superior

Court, Case No. BC500675, Hon. Anne I. Jones; (b) Castro v. Home Depot U.S.A.,

Inc., Los Angeles County Superior Court, Case No. BC577885, Hon. Elihu M.

Berle; (c) Czuchaj v. Conair Corporation, United States District Court, Southern

District of California, Case No. 13-CV-1901 BEN, Hon. Roger T. Benitez; (d)

Gardiner v. TSYS, United States District Court, Central District of California, Case

No. 18-cv-00415, Hon. David O. Carter; (e) Grana v. PICO Enterprises, Inc., Los

Angeles County Superior Court, Case No. BC472891, Hon. Stephanie M. Bowick;

(f) Gutierrez v. Save Mart Supermarkets, San Mateo County Superior Court, Case

No. CIV530955, Hon. Marie S. Weiner; (g) Hernandez v. Workforce Enterprises

WFE, Inc., Los Angeles County Superior Court Case No. BC590913, Hon. Elihu M.

Berle; (h) Hicks v. Poway Academy of Hair Design, Inc., San Diego County Superior

Court, Case No. 2014-00026517, Hon. Ronald L. Styn; (i) Klein v. Loomis Armored

US, LLC, San Bernardino County Superior Court, Case No. CIVDS1704547, Hon.

David Cohn; (j) Laureano v. The Art of Shaving, Los Angeles Superior Court, Case

No. BC550093, Hon. Amy D. Hogue; (k) Magdaleno v. Shelly Automotive, LLC,

Orange County Superior Court Case No. 2013-0043958, Hon. Kim. G. Dunning; (l)

McGrath, et al. v. Wyndham Resort Development Corporation, et al., United States

District Court, Southern District of California, Case. No. 15-CV-1631 JM, Hon.

Jeffrey T. Miller; (m) Mena v. Wolfgang Puck Catering, Los Angeles County

Superior Court Case No. BC582743, Hon. John Shepard Wiley, Jr.; (n) Morales v.




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The Los Angeles Country Club, Los Angeles Superior Court, Case No. BC566493,

Hon. William F. Highberger; (o) Nijmeh v. Bon Appetit Management Company, Inc.,

Santa Clara County Superior Court, Case No. 16CV294127, Hon. Thomas E.

Kuhnle; (p) Plascencia v. Aramark Services, Inc., Santa Clara County Superior

Court, Case No. 2015-1-CV-288310, Hon. Brian C. Walsh; (q) Plimpton v. Gordon

Trucking, Inc., San Bernardino County Superior Court, Case No. CIV-DS-1511918,

Hon. Donald Alvarez; (r) Raya v. Amazon, United States District Court, Northern

District of California, Case No. 15-CV-02005 MMC, Hon. Maxine M. Chesney; (s)

Rivas v. ESA Management, United States District Court, Central District of

California, Case No. 14-CV-5767, Hon. Dale S. Fischer; (t) Rodriguez v Healthcare

Partner Medical Group, Inc., Los Angeles Superior Court, Case No. BC541313,

Hon. Kenneth Freeman; (u) Ryan v. Dignity Health, Sacramento County Superior

Court Case No. 2013-00147371, Honorable Alan G. Perkins; (v) Schneider v.

Catholic Healthcare West, San Francisco Superior Court, Case No. CGC-10-

506243, Hon. Angela Bradstreet; (w) Schwartz v Bank of the West, San Francisco

Superior Court, Case No. CGC-14-538955, Hon. Harold E. Kahn; (x) Syed v. M.I.

Swaco, United States District Court, Eastern District of California, Case No. 12-CV-

01718 DAD, Hon. Dale A. Drozd; (y) Vaquero, et al. v. Stoneledge Furniture, LLC,

Los Angeles Superior Court Case No. BC522676, Hon. Elihu M. Berle; (z) Walsh

v. Cedars-Sinai Medical Center, Los Angeles County Superior Court Case No.

BC487290, Hon. William F. Highberger; among many others.

20. We are experienced and qualified to evaluate Class claims and viability

of the defenses. That experience and those qualifications allowed class counsel to

assist in achieving an efficient resolution of the claims in this matter.

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

America that the foregoing is true and correct and that this declaration was executed

on this 9th day of September 2019 in San Diego, California.____________________Timothy D. Cohelan


EXHIBIT 3


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COHELAN KHOURY & SINGERA PARTNERSHIP OF PROFESSIONAL LAW CORPORATIONS

TIMOTHY D. COHELAN, * APLC ISAM C. KHOURY, APC DIANA M. KHOURY, APC MICHAEL D. SINGER, •APLC

(*Also admitted in the District of Columbia) (•Also admitted in Colorado)

ATTORNEYS AT LAW

605 “C” STREET, SUITE 200 SAN DIEGO, CALIFORNIA 92101-5305

Telephone: (619) 595-3001 Facsimile: (619) 595-3000

www.ckslaw.com

JEFF GERACI ∆J. JASON HILL† MARTA MANUS KRISTINA DE LA ROSA

(† Also admitted in Illinois) (∆ Of Counsel)

TIMOTHY D. COHELAN and ISAM C. KHOURY are the founding partners of COHELAN KHOURY & SINGER, a civil litigation firm established in 1981. Since 1987, Cohelan Khoury & Singer has specialized in class action cases and has been certified as class counsel and lead counsel in numerous state and federal court cases throughout the United States. The firm has successfully prosecuted well over 150 class action cases representing diverse groups of victims, including urban homeless entitled to emergency shelter; victims of a national health insurance fraud scheme; retirees entitled to pension benefits; defrauded investors; consumers; and workers entitled to back wages. Cohelan Khoury & Singer’s diverse practice currently includes representation of, among others, employees contesting wage and hour violations as well as consumers battling unfair business practices.

Cohelan Khoury & Singer has a broad array of experience in prosecuting class action cases. The firm has successfully achieved a landmark California Supreme Court reversal of a court of appeal reversal of a trial court grant of certification affecting over 100,000 workers in Brinker Restaurant Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, as well as a groundbreaking reversal of a class certification denial in Hicks v. Kaufman and Broad (2001) 89 Cal.App.4th 908. Cohelan Khoury & Singer has also achieved statewide recognition for pro bono public interest work including successful cases prosecuted on behalf of homeless persons in Hoffmaster v. City of San Diego (1997) 55 Cal.App.4th 1098.

Cohelan Khoury & Singer’s public interest work has been recognized in numerous cases including that of United States District Court Judge Milton Pollack, a Senior United States District Court Judge for the Southern District of New York, who has publicly stated that he had “seen no similar indication of a public service rendered by any group of lawyers in all the years I have practiced law myself, which is for 38, or the 27 years that I have been on the bench.” Judge Pollack’s comments came in connection with a class action case brought on behalf of thousands of victims of health insurance fraud across the nation.

The firm has substantial trial experience in class action, representative, and complex litigation, as well as individual matters. Cohelan Khoury & Singer is one of a handful of firms to have tried class action wage and hour cases, including an independent contractor misclassification action on behalf of newspaper carriers against the Orange County Register and an action for unpaid wages, wage deductions, and expense


http://www.ckslaw.com/

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reimbursements on behalf of a certified class of truckers and appliance installation helpers. The firm also tried to judgment a certified case against the State of Hawaii Child Support Enforcement Agency for wrongful retention of child support monies. The agency was ordered to conduct an accounting and pay the funds to the custodial parents. The firm has also represented large numbers of individuals collectively for construction defect claims and major investment frauds, recovering monies related to cracked slab foundations and defrauded investors of Ponzi schemes.

Cohelan Khoury & Singer has certified classes in heavily contested hearings against the following entities:

1. Atlantic Richfield Corporation, Chevron Corporation, Exxon Corporation,Mobil Oil Corporation, Shell Oil Company, Texaco, Inc., ToscoCorporation, Ultramar Corporation, and Unocal Corporation

2. Empire Blue Cross/Blue Shield3. Pioneer Mortgage4. Liebert Corporation5. PaineWebber, Inc.6. Dayton Hudson Corp.7. Chartwell Financial8. Cal Fed, Inc.9. Jones, American Thrift10. Service Technicians, Inc.11. Kaufman & Broad12. Washington Mutual Bank13. Albertson’s, Inc.14. Wells Fargo Home Mortgage, Inc.15. Brinker Restaurant Corporation16. FedEx Ground Package System17. Ethan Allen, Inc.18. State of Hawaii Child Support Enforcement Agency19. Victoria Apartments20. AT&T Wireless Services, Inc.21. Farmers Insurance Company22. City of San Diego23. Lewis Homes of California24. Freedom Communications, Inc. d/b/a The Orange County Register25. California Pizza Kitchen26. Raytheon Company27. Les Schwab Tire Centers of California, Inc.28. Catholic Healthcare West29. Kaiser Foundation Hospitals30. Penske Logistics and Penske Truck Leasing31. Conair32. Container Connection of Southern California33. Ashley Furniture/Stoneledge Furniture34. Save Mart Supermarkets35. PICO Enterprises, Inc. dba Phyle Inventory Control Specialist and PICS36. Certified Class Counsel well over 100 settlement classes


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Cohelan Khoury & Singer has obtained numerous verdicts, judgments, or settlements since September 1993. Listed below are examples of cases the firm has played a central role in the resolution of and which have received final approval by the Court:

• Bennett v. Countrywide, San Diego Superior Court, Case No. GIC840981 [expense reimbursement claim by commission employees];

• Evans v. Washington Mutual Bank, Orange County Superior Court Case No. 02CC15415 [expense reimbursement and wage deduction claim by commission employees];

• Gonzalez, et al. v. Freedom Communications, Inc. d/b/a The Orange County Register, Orange County Superior Court Case No. 03CC08756 [home delivery carriers misclassified as “independent contractors”];

• Aravena v. Cisco Systems, Inc., Orange County Superior Court Case No. 07CC01367 [OT misclassification claim by IT employees];

• Venturini v. Genentech, Inc., San Francisco Superior Court Case No. CGC- 09-492494 [OT misclassification claim by IT employees];

• Durrani v. Western Digital Corporation, et al., Orange County Superior Court Case No. 30-2009-00268212 [OT misclassification claim by IT Employees];

• Watson v. Raytheon Company, United States District Court, Southern District of California Case No. 10CV0634 [Ot misclassification claim by IT employees];

• Bills v. Sutter Health, Alameda Superior Court Case No. RG09465894 [Ot misclassification claim by IT employees];

• Smith v. California Pizza Kitchen, San Diego Superior Court Case No. 37- 2008-00083992 [OT misclassification claims by managers and assistant managers];

• Dunn v. The Kroger Company, et al., Los Angeles Superior Court Case No. Case No. BC323252 [meal and rest break claims];

• Gallen v. Gambro Healthcare, Inc., Orange County Superior Court Case No. 04CC00571 [OT claims by nurses];

• Hohnbaum, et al. v. Brinker Restaurant Corp., San Diego Superior Court Case No. GIC834348 [meal and rest break claims];

• Liberty Mutual Overtime Cases, Los Angeles Superior Court Case No. J.C.C.P. 4234 [OT misclassification of Insurance Claims Handlers];

• Leisinger-Reed, et al. v. Equinox Holdings, Inc., et al., Los Angeles Superior Court Case No. BC481860 [unpaid wages, and meal and rest break claims by massage therapists, estheticians, and nail technicians];

• Rite Aid Wage and Hour Cases, Los Angeles Superior Court Case No. J.C.C.P. 4583 [OT, Meal and Rest Period Claims by Pharmacists]

• Djukich v. Carwell, LLC, Unites States District Court, Central District of California Case No. 13CV4455 BRO [unpaid wages claims by automotive technicians];


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• Laureano, Jr. et al. v. The Art of Shaving-FL, LLC, Los Angeles Superior Court Case No. BC550093 [meal and rest break and overtime claims by non-exempt employees];

• Martinez v. Alameda Health System, Alameda Superior Court Case No. RG14719205 [unpaid wages by non-exempt employees];

• Freeman v. Coast to Coast Manpower, LLC, Los Angeles Superior Court Case No. BC543709 [unpaid wages, meal and rest break, and vacation pay claims by truck drivers];

• Morales v. The Los Angeles Country Club, Los Angeles Superior Court Case No. BC566493 [unpaid wages, meal and rest break, reporting and split shift pay, expense reimbursement and improper wage deductions claims by non-exempt employees];

• Bradley v. Safe Haven Security Services, Inc., San Diego Superior Court Case No. 37-2015-00019576-CU-OE-CTL [expense reimbursement and wage statement claims by Sales Representatives]; and

• Czuchaj, et al. v. Conair Corporation, United States District Court, Southern District of California Case No. 13CV1901 BEN (RBB) [implied warranty of merchantability of certain models of hair dryers], among others.

TIMOTHY D. COHELAN, Founding Partner, author of Cohelan on California Class Actions (Thomson Reuters, 1997-2019, updated annually), is the son of the late Jeffery Cohelan, former California Congressman. He is a 1974 graduate of California Western School of Law, where he was a law review editor. Mr. Cohelan served as an Officer in the U.S. Navy from 1968 to 1971 and received a B.A. from the University of Arizona in 1967. Mr. Cohelan was admitted to the State Bar of California in 1974, and was admitted to the Bar in the District of Columbia in 1996. He also served as the Chairman of the San Diego Coast Regional Commission from 1978 to 1981. From 1982 to 2006, Mr. Cohelan served the San Diego Superior Court as a Judge Pro Tem, hearing and ruling on hundreds of matters during his service.

Timothy Cohelan was named a “California Lawyer of the Year” by California

Lawyer Magazine (Clay Award) in 1996. Mr. Cohelan’s memberships include former member of the Board of Governors of the Association of Business Trial Lawyers for San Diego County, member of the American Bar Association and the Consumer Attorneys of California and San Diego County Bar Association. His main areas of practice include class action, civil, wage and hour and antitrust cases.

Mr. Cohelan served as the Chair of San Diego Volunteer Lawyer Program, a non-

profit successor of Legal Aid, from 2015 through 2018 and currently sits on the Board as past Chair. As an advocate for the homeless, Mr. Cohelan received San Diego County Bar Association honors for community service in connection with his work on behalf of SDVLP on an important class action case impacting homeless shelter locations.


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ISAM C. KHOURY, Founding Partner, is a 1970 graduate of the University of California at San Diego and received a law degree from Hastings School of Law in 1973. Mr. Khoury is a member of the State Bar of California, admitted in 1974, the San Diego County Bar Association, Consumer Attorneys of San Diego and Consumer Attorneys of California. He has successfully litigated numerous complex civil matters to verdict, jury and non-jury. His main areas of practice include civil tort litigation, personal injury, business torts, antitrust and class action cases.

In recent years, Mr. Khoury has emphasized wage and hour class action matters

having assisted in the litigation to judgement or settlement of over 150 wage and hour class actions. The Southern California Super Lawyers Magazine has selected Mr. Khoury as a southern California/San Diego Super lawyer for the years 2011 through 2017. He has been approved as a CLE lecturer and has participated in seminars on class action wage and hour issues, the complexities of mediation, and the procedural requirements involved in class action settlements. He has argued appeals and been co-counsel in several matters of major import including California Supreme Court decisions including the Brinker decision clarifying California meal and rest break requirements and Harris v Liberty Mutual which defined parameters for the use of the administrative exemption.

MICHAEL D. SINGER, Managing Partner, is a 1984 graduate of U.C. Hastings

Law School. He graduated magna cum laude from San Francisco State University in 1980 with a B.A. in English. He was admitted to the State Bar of California in 1984 and the State Bar of Colorado in 2001. For over thirteen years, he served as co-chair and liaison to the California Employment Lawyers Association (CELA). He is a member of the San Diego County Bar Association. He is the author of the opening chapter overview on California wage and hour law and PAGA Claim chapter in California Wage and Hour Law: Compliance and Litigation (CEB 2010-2019). He was named to the Daily Journal 2012, 2013 and 2018 list of the Top California Labor and Employment Attorneys. Mr. Singer serves on the Legal Aid at Work Board of Directors. His main areas of practice include employment wage and hour, consumer, and unfair competition class actions and appellate practice.

Mr. Singer regularly contributes amicus curiae briefs on c l a ss ac t ion and

employment issues in the California Supreme Court and Courts of Appeal. In his capacity as Amicus lesion for CELA, he coordinated, drafted or co-drafted amicus letters and briefs on a wide range of labor law issues in the rapidly developing decisional law, supporting Review in the Supreme Court, and publication or depublication of Court of Appeal decisions in the following cases since January 1, 2008: Chindarah v. Pick up Stix, 171 Cal. App. 4th 796 (2009), California Superior Court Case No. S171864 [regarding propriety under Labor Code section 206.5 and California Rules of Court of settling with absent class members without court supervision prior to class certification] (Supporting Petition for Review; Review Denied); Lu v Hawaiian Gardens Casino, California Supreme Court Case No. S171442 [whether a private cause of action exists under the Labor Code for tip pooling


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violations](Review Granted); Brinkley v Public Storage, 198 P.3d 1087 (2009), California Supreme Court Case No. S168806 [denying class certification of rest and meal period claims](Review Granted); Estrada v. Fedex Ground Package System, 154 Cal. App. 4th 1 (2007), California Supreme Court Case No. S156595 [judgment finding drivers entitled to expense reimbursement] (supporting opposition to Review; Review denied); Group Brewer v Premier Golf, 168 Cal. App. 4th 1243 (2008), California Supreme Court Case No. 169666 [holding punitive damages unavailable in connection with wage claims] (supporting Petition for Review; Review Denied); Christler v. Express Messenger, California Supreme Court Case No. S171439 [jury verdict finding employees independent contractors] (supporting Petition for Review; Review Denied); Watkins v. Wachovia, 172 Cal. App. 4th 1576 (2009), California Court of Appeal Case No. B199982 [affirming dismissal of appeal following denial of class certification based on employee severance agreement resolving claims] (depublication request pending); Ghazaryan v. Diva Limousine, 169 Cal. App. 4th 1524 (2008), California Court of Appeal Case No. B201509 [reversing class certification denial] (publication request granted); Bufil v Dollar Financial Group, 162 Cal. App. 4th 1193 (2008), California Court of Appeal Case No. A118143 [reversing certification denial of meal period claims applying collateral estoppels] (publication request granted); Kurian v. U.S. Mortgage Capital, California Court of Appeal Case No. B201013 [regarding propriety of wage compromises under Labor Code section 206.5] (publication request denied); BCBG Overtime Cases, 163 Cal. App. 4th 1293 (2008), California Supreme Court Case No. S165348 [propriety of defendant bringing preemptive motion to deny class certification] (depublication request denied); Kenny v Supercuts, 252 F.R.D. 641 (2008), United State District Court Case No. C 06-07521 CRB; Salazar v Avis, 251 F.R.D. 529 (2008), United State District Court Case No. 07-CV-0064-IEG-WMC [denying certification of rest and meal period claims] (request that 9th Circuit Court of Appeals certify question to the California Supreme Court denied); and Methodist Hospital v Superior Court, California Court of Appeal Case No. B208295 [ruling a private right of action exists for rest and meal period claims under Labor Code section 226.7] (supporting opposition to Petition for Writ; Writ denied), among many others.

Mr. Singer is a contributor to the Los Angeles Daily Journal, having authored

articles on the California Court of Appeal decision in Parris v. Superior Court regarding communications with absent class members (May, 2003), SB 796 (Dunn, D-Garden Grove), California’s Private Attorneys General Law providing employees a private right of action against employers for civil penalties under the Labor Code (October 2003), the California Court of Appeal decision in Bell v. Farmers Ins. Exch. and its guidance for the use of statistical sampling and extrapolation to prove aggregate class-wide damages (February 2004), and the then-pending Supreme Court decision regarding Sav-On and Overtime Class Suits.

He is an MCLE lecturer on class action procedure and wage and hour issues and

has argued appeals in the Second, Third, and Ninth Federal Circuit Courts of Appeals, as


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well as the Second and Fourth California District Courts of Appeal. Published decisions include Hicks v. Kaufman and Broad Home Corp. (2001) 89 Cal.App.4th 908 (reversing the denial of certification of a class of home buyers for construction defects); Hicks v. Superior Court (2004) 115 Cal.App.4th 77 (challenging implied construction warranty disclaimers); Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856 (defending challenge to attorney disqualification); and Save Our NTC, Inc. v. City of San Diego (2003) 105 Cal.App.4th 285 (challenging private development of former naval training center). He also contributed to the briefing of Aguilar v. Atlantic Richfield, et al. (2001) 25 Cal.4th 826 (summary judgment of antitrust claim of certified class of 20 million California drivers). He is one of the very few attorneys in the State of California to have tried a wage and hour class action involving contested procedures regarding the use of sampled and statistical evidence.

DIANA M. KHOURY, Partner, received a law degree from Western State

University in 1986 and is a graduate of San Diego State University, where she received her Bachelors of Science degree in 1975. She is a member of the State Bar of California, admitted in 1987. Since admission to the bar, Ms. Khoury has been a member of the San Diego County Bar Association, Consumer Attorneys of San Diego, Consumer Attorneys of California, American Bar Association and the American Association of Justice. From 2010 through 2016, Ms. Khoury served on the Board of Directors for Consumer Attorneys of San Diego. Since 2013, Ms. Khoury has served on the Board of Directors for the San Diego County Bar Foundation, (“SDCBF”), the 501(c) (3) charitable arm of the San Diego County Bar Association. Ms. Khoury has been selected by her peers based on ethics, experience and reputation as a “Super Lawyer” in Civil Litigation from 2010 through the present by the Southern California Super Lawyers Magazine, and is also AV- Preeminent rated by Martindale –Hubbell, the highest possible rating for a lawyer.

Upon being admitted to the State Bar of California, a major focus of Ms. Khoury’s

practice has been on consumer rights litigation, and has included civil tort litigation, personal injury, and business torts. Throughout her career, she has taken numerous jury trials to verdict. She has been a lecturer for Mandatory Continuing Legal Education regarding class actions. Ms. Khoury currently represents employees in wage and hour class actions, where her recognized specialty is class action resolution.

JEFF GERACI, Partner, is a 1982 graduate of Pitzer College with a degree in

Sociology. He is a 1990 graduate of the University of San Diego School of Law, and has practiced employment law for over seventeen years. He has handled matters in California state and federal trial and appellate courts, and before many administrative agencies, including the California Division of Labor Standards Enforcement, the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission, the California State Personnel Board, the California Board of Psychology, and the California State Commission for Teacher Credentialing.


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Mr. Geraci has provided counseling and representation in all areas of employment law, including wrongful termination, employment discrimination, sexual harassment, and wage and hour laws. His practice is now focused on class actions, including wage and hour class action litigation and consumer actions.

Mr. Geraci’s published decisions include McAlindin v. County of San Diego

(1999) 192 F.3d 1226 [reversing summary judgment in a disability discrimination case] and Araiza v. National Steel and Shipbuilding (S.D. Cal. 1997) 973 F. Supp. 963 [denying mandatory arbitration of employment claims under a collective arbitration agreement].

Mr. Geraci is a member of the Labor and Employment Law sections of the

California and San Diego County Bar Associations, and has served as Editor of the Employment Law column for the Consumer Attorneys of San Diego monthly publication, Trial Bar News. He is a past recipient of the Wiley W. Manuel Award for Pro Bono Service.

J. JASON HILL, Partner, is a 1992 graduate of the University of Illinois at

Urbana-Champaign and holds a B.A. in Philosophy, Political Science and Communications. In 1995, he received his J.D. degree from California Western School of Law, where he was a member of the Law Review an International Law Journal, as well as editor of the Telecommunications Law Forum. Currently, Mr. Hill is admitted to the bar in both California and Illinois, and is a broker licensed by the California Department of Real Estate. He maintains memberships not only with the San Diego County Bar Association, but also the National Association of Realtors, the California Association of Realtors and the San Diego Association of Realtors.

Prior to joining Cohelan Khoury & Singer, Hill represented large institutional

clients in a variety of civil litigation settings, including insurance coverage, employment law, health care law, general and professional liability, as well as, premises and product liability claims. He has particular emphasis on all aspects of professional liability claims in a healthcare setting, as well as claims brought pursuant to the Emergency Medical Treatment and Active Labor Act (EMTALA) and the Elder Abuse and Dependent Adult Civil Protections Act (EADACPA). Mr. Hill is also an accomplished appellate practitioner and has briefed and/or argued over 40 matters in both state and federal courts of appeal, yielding several published decisions on a range of legal issues. MARTA MANUS, Attorney, is a 2008 graduate of California Western School of Law. She graduated with honors and received a Bachelor of Arts in Psychology from California State University Northridge. Ms. Manus has been a member of the State Bar of California since her admission in December 2008. She has practiced before all District Courts in the state of California as well as the Fourth District Court of Appeal and the U.S. Court of Appeals for the Ninth Circuit.


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Ms. Manus has been successfully litigating employment law cases for nearly a decade, representing employees in all aspects of labor and employment law matters, including employment discrimination, wrongful termination, retaliation, and wage and hour class action lawsuits. Her practice focuses primarily on employee-side wage and hour class actions. Ms. Manus is a member of the Labor and Employment Law sections of the California and San Diego Bar Associations as well as the Federal Bar Association. Ms. Manus was recognized by San Diego Super Lawyers as a Rising Star in 2015, 2016, and 2017.

KRISTINA DE LA ROSA, Attorney, was born and raised in San Diego. She graduated from UC San Diego in 2006 with a B.A. in Psychology, where she was also a 4- year member of the Women’s NCAA intercollegiate soccer team. She received her law degree from Santa Clara Law School in 2011 and was admitted to the California State Bar in the same year.

During law school, she interned for Equal Rights Advocates, the ACLU of Southern California, and externed for the Hon. John F. Herlihy (Ret.). She volunteered for the Katherine and George Alexander Community Law Center Workers’ Rights workshops and earned the Witkin Award for Excellence and the Richard S. Rosenberg Prize for Excellence in Labor Law. Immediately after passing the bar, she began representing employees in class action wage and hour litigation. She also volunteered for the California Rural Legal Assistance, Inc., assisting farm workers with filing wage and worker’s compensation claims. Ms. De La Rosa remains committed to protecting employee rights and represents employees and consumers in class and collective actions across California, helping them recover millions of dollars in unpaid wages, restitution and penalties. Ms. De La Rosa is a member of CELA.


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Woodard v. Lee Labrada, Case No. 5:16-cv-00189-JGB-SP

DECLARATION OF GAJAN RETNASABA

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4155-9950-6207.1

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


UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

VEDA WOODARD, TERESA RIZZOMARINO, and DIANE MORRISON on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, vs. LEE LABRADA; LABRADA BODYBUILDING NUTRITION, INC.; LABRADA NUTRITIONAL SYSTEMS, INC.; DR. MEHMET C. OZ, M.D.; ENTERTAINMENT MEDIA VENTURES, INC. d/b/a OZ MEDIA; ZOCO PRODUCTIONS, LLC; HARPO PRODUCTIONS, INC; SONY PICTURES TELEVISION, INC; NATUREX, INC.; and INTERHEALTH NUTRACEUTICALS, INC.; Defendants.

Case No.: 5:16-cv-00189-JGB-SP CLASS ACTION DECLARATION OF GAJAN RETNASABA Date: October 7, 2019 Time: 9:00 AM Ctrm: 1 Judge: Hon. Jesus G. Bernal


1 Woodard v. Lee Labrada, Case No. 5:16-cv-00189-JGB-SP


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4155-9950-6207.1

I, Gajan Retnasaba, declare:

1. I am a Partner at Classaura LLC (“Classaura”), a class action

administration firm, located at 1718 Peachtree St #1080, Atlanta, Georgia. I am over

21 years of age and am not a party to this action. I have personal knowledge of the

facts set forth herein and, if called as a witness, could and would testify competently

thereto.

2. Classaura was retained by the parties, and appointed by this Court, to

serve as the Claims Administrator to, among other tasks, publish notice of the

proposed class action settlement; receive and process Claim Forms; respond to Class

Member inquiries; establish and maintain the settlement website

(GCBEproducts.com) (hereinafter, “the Settlement Website”) and perform other

duties as specified in the Settlement Agreement preliminarily approved by this Court

on April 23, 2019.

PUBLICATION NOTICE

3. A notice was published in Prevention, a national magazine with a

circulation of approximately 1,800,000 and a reach of approximately 5,300,000

readers. The notice was published in the July 2019 edition, which began distribution

on June 1, 2019. Prevention often focuses on topics related to supplements and

weight loss. For example, 50% of the magazine issues for 2019 will feature a weight

loss headline on the cover. Assuming 27% of these readers have used green coffee

bean supplements (the rate of green coffee bean supplement usage among users of

weight loss supplements), I estimate that this publication has reached 1.4 million

people in the target audience. A copy of the notice is attached hereto as Exhibit A.

ONLINE NOTICE PUBLICATION

4. On May 9, 2019, Classaura began an online advertising campaign on the

social media website Facebook.com. The advertising targeted adults residing in the


http://www.q10settlement.com/



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4155-9950-6207.1

United States who were identified as having an interest in weight loss, weight loss

supplements, Vitamin Shoppe, GNC, or Green Coffee. Copies of the advertisements

are included in Exhibit B.

5. The Facebook advertising campaign generated 31,986,673 impressions.

An “impression” (in the context of online advertising) is the number of times an ad

was displayed to an individual on any given site. The impression is displayed and

gives an individual the opportunity to click on the advertisement and be directed to

the Settlement Website for more information. Each time an ad is displayed to a

visitor, it is counted as one impression.

6. The Facebook advertising campaign had a reach of 18,922,191 unique

users. “Reach” is defined as the number of different people that the advertisement

was exposed to. Each time an ad is displayed to a user that has not previously been

exposed to the advertisement through that medium, it is counted as adding one to the

reach.

7. The online advertising campaign also made submissions to Consumer

Class Action Websites, which are websites used by consumers to stay informed of

class action settlements that may apply to them. Consumer class action websites that

displayed a summary of the settlement included ClassActionRebates.com and

TopClassActions.com.

PRESS RELEASE

8. Classaura crafted a neutral informational press release, providing a

summary of the settlement. On May 10, 2019, the press release was released using

the PR Newswire’s US1 National Newsline. US1 National Newsline provides the

press release to thousands of media outlets across the country, including national and

local newspapers, websites, and television and radio stations. The press release was

picked up and republished by 139 media outlets. A true and correct copy of the press




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4155-9950-6207.1

release along with a summary report of outlets that picked up the release is attached

as Exhibit C.

CLRA NOTICE

9. California’s Consumers Legal Remedies Act (Cal. Civ. Code §1781)

requires published notice in a newspaper of general circulation in the county of the

transaction, once a week for four consecutive weeks. Accordingly, we published

notice in the The Press-Enterprise on May 14, 2019, May 21, 2019, May 28, 2019,

and June 4, 2019. A copy of the advertisements and a certification of publication

from the publisher are included in Exhibit D.

PHONE LINE

10. A dedicated toll-free number (888-663-5378) was set up on May 9,

2019, providing pre-recorded information and allowing class members to leave a

voicemail requesting further information. To date we have received and answered

59 calls.

WEBSITE & EMAIL

11. The Settlement Website (www.GCBEProducts.com) was set up on May

8, 2019, providing information on the lawsuit and access to case documents. The

website includes a summary of the case, a list of important dates, answers to

frequently asked questions, key case filings (the operative complaint, joint motion for

preliminary approval, preliminary approval order, long and short form notice of class

action settlement, as well as the settlement agreement), and contact information.

Plaintiffs’ fee motion was uploaded to the settlement website on August 19, 2019.

The Settlement Website also displayed the claim filing deadline; the deadline to opt-

out of the class settlement; the deadline to submit an objection; and the date of the

Fairness Hearing. The website address was set forth in all of the public notices


http://the/



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described above, as well as on the Claim Form. To date the website has been visited

108,443 times.

12. A dedicated email address ([email protected]) was set up on April 24,

2019 to answer questions from potential class members. To date we have received

and answered 158 emails.

CAFA NOTICE

13. In compliance with the Class Action Fairness Act (“CAFA”), 28 U.S.C.

§ 1715, Classuara compiled a CD-ROM containing the following documents:

• The complaint, amended complaints, and associated exhibits;

• The Motion for Preliminary Approval of Settlement;

• The Longform and Shortform notifications that are being provided to

class members to inform them of the proposed settlement and their right

to be excluded from the class;

• The parties’ proposed class action Settlement Agreement and exhibits.

14. The CD-ROM was accompanied by a cover letter (collectively, the

“CAFA Notice Packet”). A copy of the cover letter is attached hereto as Exhibit E.

15. On February 20, 2019, CAFA Notice was mailed via United States

Postal Service (USPS), Priority Mail Service, to the U.S. Attorney General, the

Attorneys General of each of the 50 States and the District of Columbia, and the

Attorneys General of the 5 recognized U.S. Territories.

16. We have provided copies of the CD to counsel. Copies of the CD will

be made available to the court on request.

CLAIMS

17. To date we have received 95,993 claims from prospective class

members. Of these claims, 95,538 were submitted electronically, and 455 were

submitted via mail.




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4155-9950-6207.1

18. Based on an initial review of claims submitted, we found 11,883 claims

to be invalid due to being duplicative or not meeting the settlement criteria. A claim

was judged duplicative if multiple identical or near identical claims were filed. A

claim was judged as not meeting the settlement criteria if the place of purchase or

product purchased stated on the claim form was not a place related to defendants or

where the defendants sold products. Thus, we estimate that there will be there

approximately 84,110 valid claims.

19. Twenty-one percent (22%) of all valid claims received were for the

Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract (the “Labrada

Product”). The Labrada Product accounts for the most claims received out of any

other products containing Svetol®.

20. Out of the 84,110 valid claims that were submitted, 14,433 claims were

submitted by class members who reside in California. The California claims account

for 17% of the total claims submitted. More claims were submitted by California

residents than residents from any other state.

REQUESTS FOR EXCLUSION

21. The deadline for Class Members to request to be excluded from the class

was a postmarked deadline of August 30, 2019. We received 6 requests to opt-out of

the settlement.

COSTS

22. The costs incurred to provide notice of the settlement via publication,

settlement website, Press Release, Online Notice, and CAFA is $50,500. The costs

to administer the settlement, and process claims is $9,599 (assuming 95,993 claims).

The cost to distribute payment to class members is $63,082 (assuming 84,110

approved claims). This brings the total cost to $123,181.




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4155-9950-6207.1

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

foregoing is true and correct. Executed on the 9th day of September, 2019 in Atlanta,

Georgia.

__________________ Gajan Retnasaba


Exhibit A



Exhibit B



Exhibit C


9/6/2019 Classaura Announces Green Coffee Bean Extract Class Action Settlement

https://www.prnewswire.com/news-releases/classaura-announces-green-coffee-bean-extract-class-action-settlement-300848026.html 1/2

Classaura Announces Green Coffee BeanExtract Class Action Settlement

NEWS PROVIDED BYClassaura May 10, 2019, 08:56 ET

LOS ANGELES, May 10, 2019 /PRNewswire/ -- A proposed settlement has been reached in a

class action lawsuit involving Naturex, Inc., the producer of Svetol®. The settlement establishes

a $1,300,000 settlement fund. Class members may be eligible for cash payments of up to $30

per purchase.

On April 23 , 2019, United States District Court for the Central District of California, Judge Jesus

G. Bernal, preliminarily approved a settlement of a lawsuit between Naturex and purchasers of

Svetol® or any green coffee bean extract product containing Svetol®. The lawsuit alleges that

Naturex may have misrepresented the ef. cacy of Svetol®, a green coffee bean extract

ingredient used in certain weight loss supplement products. Naturex denies the allegations

and any wrongdoing, and the Court has not made any ruling on the merits of the allegations of

the lawsuit. Naturex, however, in order to settle this lawsuit and avoid the expense of further

litigation of the claims alleged by Plaintiffs, has chosen to provide consumers with cash

payments.

The proposed class settlement will provide the Class with $1,300,000 in monetary relief.

Class members, who purchased Svetol® or any green coffee bean extract product containing

Svetol®, including but not limited to the Labrada Fat Loss Optimizer with Svetol® Green Coffee

Bean Extract, from February 2, 2012 until May 17, 2019, may be eligible for cash payments of up

to $30 for each Product purchased.

rd


https://www.prnewswire.com/news/classaura

9/6/2019 Classaura Announces Green Coffee Bean Extract Class Action Settlement

https://www.prnewswire.com/news-releases/classaura-announces-green-coffee-bean-extract-class-action-settlement-300848026.html 2/2

Claims can be submitted online at the class website www.GCBEproducts.com. Claims must be

submitted by August 30, 2019. Class members may request to be excluded from the class ("opt

out" of the settlement), comment on the settlement, or object to the settlement, but must do

so by August 30, 2019. Class members who do nothing will not receive any payment and will

be bound by the Court's decision.

Your rights and options – and the deadlines to exercise them – are only summarized in this

press release. It is only a summary of the full class action settlement. A Long Form Notice

describes, in full, how to �le a claim, object, or exclude yourself, and provides other important

information. For more information and to obtain a Long Form Notice, claim form or other

documents, visit www.GCBEProducts.com. You may also contact the Settlement Administrator

by emailing [email protected], or by writing to: Weight Loss Class Action

Settlement, c/o Classaura Class Action Administration, 1718 Peachtree St #1080, Atlanta, GA

30309, or by calling 1-888-663-5378.

SOURCE Classaura


http://www.gcbeproducts.com/

http://www.gcbeproducts.com/

mailto:[email protected]

Classaura Announces Green Coffee Bean Extract Class ActionSettlementEnglish PR Newswire ID: 2462287-1 Clear Time May 10, 2019 8:56 AM ET

PickupWhere did my release get picked up?

139total pickup

104,429,754total potential audience

TrafficWhat traffic did my release generate?

638release views

1,107release web crawler hits

AudienceWho are the audiences viewing my release?

67media views

54organization views

1,071Associated Press outlets

EngagementHow are people engaging with my release?

69total engagement actions

69click-throughs


Industry BenchmarksOn a scale of 1 - 100, how this release performed compared to other similar releases.

49total visibility

76pickup

22traffic

48audience

84engagement


Pickup

Overview

Total Pickup Over TimeTotal pickup since your content was distributed

TOTAL PICKUP 139

Exact Match 139 postings

TOTAL POTENTIAL AUDIENCE 104M

Exact Match 104M visitors

Tota

l Pic

kup

Cou

nt

139.0

2019-05-100

25

50

75

100

125

150


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Exact Match PickupExact matches are full text postings of your content which we have found in the online andsocial media that we monitor. Understand how it is calculated. Your release has generated139 exact matches with a total potential audience of 104,429,754.

Total Pickup by Source Type

Broadcast Media (48/34.5%)Newspaper (39/28.1%)Online News Sites & Other Influencers (29/20.9%)Financial News Service (9/6.5%)News & Information Service (3/2.2%)Other (11/7.9%)

Total Pickup by Industry

Media & Information (104/74.8%)Financial (23/16.5%)Health (6/4.3%)Multicultural & Demographic (2/1.4%)Retail & Consumer (2/1.4%)Other (2/1.4%)

Logo Outlet Name Location Source Type Industry PotentialAudience

Chase Online View Release

UnitedStates

News & InformationService

Financial 29,804,771visitors/month

MarketWatch Online View Release

UnitedStates

Financial News Service Financial 16,341,607visitors/month

Morningstar Online View Release

Global Financial Data, Research& Analytics


PR Newswire Online View Release

UnitedStates

PR Newswire Media &Information

9,372,666visitors/month

finanzen.net Online View Release

Germany Financial News Service Financial 6,189,084visitors/month


http://vrhelp.mediaroom.com/definitions

https://idc.chase.com/newspublic/story?article=6e2ff29ee91e69f4&

http://www.marketwatch.com/press-release/classaura-announces-green-coffee-bean-extract-class-action-settlement-2019-05-10

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https://www.finanzen.net/nachricht/aktien/classaura-announces-green-coffee-bean-extract-class-action-settlement-7476811

Tulsa World [Tulsa, OK] Online View Release

UnitedStates

Newspaper Media &Information


Medindia Health Network Online View Release

India Trade Publications Health 3,290,763visitors/month

WFMZ-TV IND-69 [Allentown, PA] Online View Release

UnitedStates

Broadcast Media Media &Information


KOTV-TV CBS-6 [Tulsa, OK] Online View Release

UnitedStates



Yahoo! Finance Online View Release

Global Online News Sites &Other Influencers

Media &Information


Daily Herald [Chicago, IL] Online View Release

UnitedStates



Buffalo News [Buffalo, NY] Online View Release

UnitedStates



Benzinga Online View Release

UnitedStates

Online News Sites &Other Influencers


The Roanoke Times [Roanoke, VA] Online View Release

UnitedStates



WDRB-TV FOX [Louisville, KY] Online View Release

UnitedStates



ADVFN Germany Online View Release

Germany Financial News Service Financial 1,136,694visitors/month

WBBH-TV NBC-2 [Fort Myers, FL] Online View Release

UnitedStates


870,274visitors/month

KWTV-TV CBS-9 [Oklahoma City, OK] Online View Release

UnitedStates



KAKE-TV ABC [Wichita, KS] Online View Release

UnitedStates



Finanzen.at Online View Release

Germany Online News Sites &Other Influencers

Financial 725,861visitors/month


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Exhibit D



Exhibit E


1718 Peachtree St #1080 214.502.9376 Atlanta, GA 30309 [email protected]

By Priority Mail

The United States Attorney General, State Attorneys General, and Territory Attorneys General

February 20, 2019

Re: CAFA Notice of Proposed Settlement: Woodard et al. vs. Labrada et al., Central District of California, Case No. 5:16-cv-00189-JGB (SPx)

Dear Sir or Madam:

Pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1711 et seq. (“CAFA”), and on behalf of Defendant Naturex, Inc. ("Naturex") in the above-referenced action, this letter respectfully provides notice of a proposed partial class action settlement of the above-captioned matter. Toward that end, and in accordance with CAFA, please find enclosed a CD containing the following documents:

1. The complaint, amended complaints, and associated exhibits.

2. The Motion for Preliminary Approval of Settlement;

3. The Longform and Shortform notifications that are being provided to class members to inform them of the proposed settlement and their right to be excluded from the class;

4. The parties’ proposed class action Settlement Agreement and exhibits.

Naturex sold an ingredient used by third party manufacturers in the subject products. Naturex is thus unable to provide the number, names, nor state of residence of any class member because the subject products were manufactured and distributed by independently owned producers and further sales of the subject products were made through independently operated retail stores and, thus, such information is not in Naturex’s possession, custody or control. Accordingly, there is no precise tally of the number of class members in each state, nor is there available a list of class members in each state, nor is it feasible to provide an estimate of the number of class members residing in each state.

We hereby advise you that no agreements of any kind were made contemporaneously between class counsel and Naturex or its counsel (other than the Settlement Agreement, which is attached as Exhibit 1 to the Motion for Preliminary Approval of Settlement).

A preliminary approval hearing for the case has been scheduled for March 18, 2019 at 9:00a.m., at the U.S. District Court for the Central District of California, 3470 Twelfth Street Riverside, CA 92501-38018.


http://www.classaura.com/

If you have questions about this notice, the lawsuit, or the enclosed materials, please contact me at the address below.

Sincerely,

Gajan Retnasaba

Naturex Settlement Class Action Administrator

Classaura LLC 1718 Peachtree St #1080 Atlanta, GA 30309

214.502.9376 [email protected]



DECLARATION OF VEDA WOODARD IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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Plaintiffs, vs.


Defendants.


DECLARATION OF VEDA WOODARD IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal




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I, Veda Woodard, declare as follows: 1. I am a named Plaintiff and proposed class representative in the above-

titled action. I submit this Declaration in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement with Naturex, Inc. I make this declaration based on my personal knowledge and if called to testify, I could and would competently testify to the matters contained herein.

2. I purchased the Labrada Green Coffee Bean Extract Fat Loss Optimizer with Svetol® during the class period from Vitamin Shoppe stores located in Murrieta, California and in Temecula, California.

3. My counsel filed this action on my behalf on February 2, 2016. During the course of this litigation, I was dedicated to vigorously pursuing the claims on behalf of the Class. I have reviewed copies of all material filings in the action including a copy of the Complaint, the First Amended Complaint, and the Court’s orders regarding the Defendants’ Motions to Dismiss.

4. I have actively participated in the discovery process. On December 21, 2017, Naturex served me with discovery requests consisting of eleven requests for production of documents, seventeen interrogatories, and thirteen requests for admission. I worked with my counsel to provide responses to these discovery requests any my responses were served on February 9, 2019. My counsel also served supplemental responses to Naturex’s discovery requests on my behalf on April 12, 2018.

5. On March 26, 2018, Naturex served with me with a second set of requests for production of documents consisting of twelve additional document requests. On March 26, 2018, Naturex also served me with three additional interrogatories. I worked with my counsel to provide responses to this second set of discovery and my responses were served on April 25, 2018.




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6. In addition to the discovery that was served by Naturex, I also responded to several sets of written discovery that were served by the Non-Settling Defendants in this action.

7. I spent several hours working with my counsel to provide written discovery responses. I thoroughly reviewed all of my discovery response before they were served. In addition, I spent additional time searching for and producing documents that were responsive to the Defendants’ discovery requests.

8. On September 18, 2017, the Defendants took my deposition. My deposition lasted approximately seven and a half hours. Prior to my deposition, I spent several hours preparing for the deposition by meeting with my counsel in-person and by reviewing case filings and discovery responses.

9. I have remained in contact with my Counsel throughout the course of this litigation and have kept myself informed about the status of the proceedings and discovery.

10. It is my understanding that my counsel attended mediation sessions with Naturex on September 26, 2017 and on August 30, 2018. During these meditation sessions, I made myself available by telephone to discuss settlement proposals with my counsel.

11. I have reviewed the settlement agreement with Naturex and I believe that the terms of the settlement are fair, reasonable, and adequate for the Class.

12. I understand the responsibilities expected of a class representative, such as acting on behalf of the Class's best interests and staying involved and informed about the case and the settlement approval process. I believe that I have fulfilled these duties and that I am an adequate class representative.

13. I am dedicated to continuing to pursue the claims against the Non-Settling Defendants in this action and I am willing to make myself available at trial if necessary.




DECLARATION OF DIANE MORRISON IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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Plaintiffs, vs.


Defendants.


DECLARATION OF DIANE MORRISON IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal




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I, Diane Morrison, declare as follows: 1. I am a named Plaintiff and proposed class representative in the above-


2. I purchased the Labrada Green Coffee Bean Extract Fat Loss Optimizer with Svetol® during the class period from various retail stores located in New York, including Walgreens.

3. I joined this litigation on April 2, 2016 when my counsel filed the First Amended Complaint on my behalf. During the course of this litigation, I was dedicated to vigorously pursuing the claims on behalf of the Class. I have reviewed copies of all material filings in the action including a copy of the Complaint, the First Amended Complaint, and the Court’s orders regarding the Defendants’ Motions to Dismiss.






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6. In addition to the discovery that was served by Naturex, I also responded to several sets of written discovery that were served by the Non-Settling Defendants in this action.

7. I spent several hours working with my counsel to provide written discovery responses. I thoroughly reviewed all of my discovery responses before they were served. In addition, I spent additional time searching for and producing documents that were responsive to the Defendants’ discovery requests.

8. On September 12, 2017, the Defendants took my deposition. My deposition lasted approximately six and a half hours. Prior to my deposition, I spent several hours preparing for the deposition by meeting with my counsel in-person and by reviewing case filings and discovery responses.









DECLARATION OF TERESA RIZZO-MARINO IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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Plaintiffs, vs.


Defendants.


DECLARATION OF TERESA RIZZO-MARINO IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC. Date: October 7, 2019 Time: 9:00 a.m. Ctrm: 1 Judge: Hon. Jesus G. Bernal




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I, Teresa Rizzo-Marino, declare as follows: 1. I am a named Plaintiff and proposed class representative in the above-


2. I purchased the Labrada Green Coffee Bean Extract Fat Loss Optimizer with Svetol® during the class period from various retail stores located in New York, including CVS and Rite Aide.

3. I joined this litigation on April 2, 2016 when my counsel filed the First Amended Complaint on my behalf. During the course of this litigation, I was dedicated to vigorously pursuing the claims on behalf of the Class. I have reviewed copies of all material filings in the action including a copy of the Complaint, the First Amended Complaint, and the Court’s orders regarding the Defendants’ Motions to Dismiss.



6. In addition to the discovery that was served by Naturex, I also




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responded to several sets of written discovery that were served by the Non-Settling Defendants in this action.

7. I spent several hours working with my counsel to provide written discovery responses. I thoroughly reviewed all of my discovery responses before they were served. In addition, I spent additional time searching for and producing documents that were responsive to the Defendants’ discovery requests.

8. On September 14, 2017, the Defendants took my deposition. This deposition lasted approximately four hours and was continued until February 20, 2018. The February 20, 2018 deposition lasted an additional two and a half hours. Prior to my deposition, I spent several hours preparing for the deposition by meeting with my counsel in-person and by reviewing case filings and discovery responses.









[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH NATUREX, INC.

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4155-1601-3343.1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

VEDA WOODARD, TERESA RIZZO-MARINO, and DIANE MORRISON, on behalf of themselves, all others similarly situated, and the general public,

Plaintiffs, vs.


Defendants.


[PROPOSED] JUDGMENT AND ORDER (1.) APPROVING CLASS ACTION SETTLEMENT, (2.) AWARDING CLASS COUNSEL FEES AND EXPENSES, (3.) AWARDING CLASS REPRESENTATIVES INCENTIVE AWARDS, AND (4.) DISMISSING CLAIMS AGAINST DEFENDANT NATUREX, INC. WITH PREJUDICE REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL




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This matter having been submitted to the Court by Plaintiffs Veda Woodard, Teresa Rizzo-Marino, and Diane Morrison, on their own behalf and on behalf of the Class defined below (hereafter collectively referred to as “Plaintiffs” or “Class Representatives”) and Law Offices of Ronald A. Marron, APLC and Cohelan, Khoury, and Singer (together, “Class Counsel”) on behalf of the Plaintiffs, by way of the Plaintiffs’ motion for final approval of the proposed settlement with Naturex, Inc. in the above captioned action; WHEREAS, the Court having reviewed and considered the Plaintiffs’ motion for final approval and supporting materials filed by Class Counsel; and WHEREAS, this Court has fully considered the record and the requirements of law; and good cause appearing; IT IS THIS ____ DAY OF ____________, 2019 ORDERED that the settlement (including all terms of the Settlement Agreement and exhibits thereto) is hereby GRANTED FINAL APPROVAL. The Court further finds and orders as follows: 1. Definitions. The capitalized terms used in this Final Approval Order shall have the meanings and/or definitions given to them in the Settlement Agreement or, if not defined therein, the meanings and/or definitions given to them in this Final Approval Order. 2. Incorporation of Documents. This Final Approval Order incorporates the Settlement Agreement (“Agreement”), filed as Exhibit 1 to the Declaration of Ronald A. Marron in support of preliminary settlement approval on February 15, 2019 (ECF No. 284-3), including all exhibits thereto, and the Court’s findings and conclusions contained in its Amended Preliminary Approval Order dated April 25, 2019 (ECF No. 294). 3. Jurisdiction. The Court has personal jurisdiction over the Parties, the Class Members, and Defendant Naturex, Inc.. The Court has subject matter jurisdiction over this action, including, without limitation, jurisdiction to approve




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the Settlement, to settle and release all claims alleged in the action and all claims released by the Settlement, including the Released Claims, to adjudicate any objections submitted to the proposed Settlement, and to dismiss this action with prejudice. All Class Members who did not exclude themselves according to the Court’s prior orders and the terms of the Class Notices have consented to the jurisdiction of this Court for purposes of this action and the Settlement of this action. Findings and Conclusions 4. Definition of the Class and Class Members. The Court’s Amended Preliminary Approval Order defines the “Class,” which is comprised of the “Class Members,” as follows:

All persons in the United States who purchased the Naturex Ingredient1 or any Green Coffee Bean Extract Product2 for personal or household use and not for resale, from February 2, 2012 until the date Notice is made to the Settlement Class Members.

The Court affirms its certification of the Class, as set forth in the Amended Preliminary Approval Order. All Class Members are subject to this Final Approval Order and the Final Judgment to be entered by the Clerk of Court in accordance herewith. 5. Class Certification under Rule 23 A. Rule 23(a) Rule 23(a) requires the following: (1) the class must be so numerous that joinder is impracticable (numerosity); (2) there must be questions of law or fact

1 The term “Naturex Ingredient” is defined in the Settlement Agreement as “the green coffee bean extract Svetol® made or sold by Naturex, whether or not it was sold under or using the Svetol® trademark.” Agreement at ¶ 2.1(JJ). 2 The term “Green Coffee Bean Extract Product” is defined in the Settlement Agreement as “any product containing the Naturex Ingredient, including but not limited to the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract.” Agreement at ¶ 2.1(DD).




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common to the class (commonality); (3) the claims of the class representative must be typical of the other class members (typicality); and (4) the representative parties must fairly and adequately protect the interests of the class (adequacy). See Fed R. Civ. P. 23(a). 1. Numerosity Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” See Fed. R. Civ. P. 23(a)(1). “As a general matter, courts have found that numerosity is satisfied when class size exceeds 40 members, but not satisfied when membership dips below 21.” Slaven v. BP Am., Inc., 190 F.R.D. 649, 654 (C.D. Cal. 2000). Here, the proposed class is comprised of thousands of consumers who purchased the Class Products. To date, the settlement administrator has received 84,110 valid claims. Accordingly, the Court finds that the numerosity requirement is satisfied. 2. Commonality Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” See Rule 23(a)(2). Commonality is established if plaintiffs and class members’ claims “depend on a common contention,” “capable of class-wide resolution … [meaning] that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Court finds that there are ample issues of both law and fact here that are common to the members of the Class. All of the Class Members’ claims arise from a common nucleus of facts and are based on the same legal theories. Plaintiffs allege that Naturex misrepresented the weight-loss benefits of supplements containing the green coffee bean extract Svetol® made or sold by Naturex, including but not limited to the Labrada Fat Loss Optimizer with Svetol® Green Coffee Bean Extract. These alleged misrepresentations were made in a uniform manner to each of the class members. Accordingly, commonality is satisfied by the




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existence of these common factual issues. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (commonality requirement met by “the alleged existence of common discriminatory practices”). Plaintiffs’ claims are brought under legal theories common to the Class as a whole. Alleging a common legal theory alone is enough to establish commonality. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Here, all of the legal theories asserted by Plaintiffs are common to all Class Members. Given that there are virtually no issues of law which affect only individual members of the Class, common issues of law clearly predominate over individual ones. Thus, the Court finds that the commonality requirement is satisfied. 3. Typicality Rule 23(a)(3) requires that the claims of the representative plaintiffs be “typical of the claims … of the class.” See Fed. R. Civ. P. 23(a)(3). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” See Hanlon, 150 F.3d at 1020. In short, to meet the typicality requirement, the representative plaintiffs simply must demonstrate that the members of the settlement class have the same or similar grievances. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). The Court finds that the claims of the named Plaintiffs are typical of those of the Class. Like those of the Class, their claims arise out of the purchase of green coffee bean extract products for personal or household use after purportedly relying on alleged representations about the efficacy of these products. The named Plaintiffs have precisely the same claims as the Class and must satisfy the same elements of each of their claims, as must other Class Members. Supported by the same legal theories, the named Plaintiffs and all Class Members share claims based on the same alleged course of conduct. The named Plaintiffs and all Class




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Members have been injured in the same manner by this conduct. Therefore, the Court finds that the typicality requirement is satisfied. 4. Adequacy The final requirement of Rule 23(a) is set forth in subsection (a)(4) which requires that the representative parties “fairly and adequately protect the interests of the class.” See Fed. R. Civ. P. 23(a)(4). 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). The Court finds that the proposed class representatives in this action have no conflicts of interest with other class members and each have prosecuted this action vigorously on behalf of the Class. Each of the named Plaintiffs have suffered the same alleged injuries as the absent class members because each purchased a Green Coffee Bean Extract product containing Svetol®, for personal and household use, in reliance on the purported weight-loss labeling statements. FAC ¶¶ 30-35. The Court finds that Class Counsel have also vigorously represented the Class and have no conflicts of interest. The Settlement was negotiated by counsel with extensive experience 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. The information reviewed by Class Counsel includes sales information for the Labrada Products and the Svetol® ingredient during the class period, the labels for the Labrada products and other products that contain Svetol® during the class period, and scientific articles produced by Naturex purporting to show the efficacy of the Svetol® ingredient. Based on their experience, Class Counsel has concluded that the Settlement provides exceptional results for the class while sparing the class from the uncertainties of continued and




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protracted litigation. Accordingly, the Court finds that the adequacy of representation requirement is satisfied. B. Rule 23(b)(3) In addition to meeting the prerequisites of Rule 23(a), Plaintiffs must also meet one of the three requirements of Rule 23(b) to certify the proposed class. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Under Rule 23(b)(3), a class action may be maintained if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) is appropriate and encouraged “whenever the actual interests of the parties can be served best by settling their differences in a single action.” Hanlon, 150 F.3d at 1022. 1. Predominance Predominance exists “[w]hen common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.” Id. As the U.S. Supreme Court has explained, when addressing the propriety of certification of a settlement class, courts take into account the fact that a trial will be unnecessary and that manageability, therefore, is not an issue. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-20 (1997). The Court finds that common questions of law and fact exist and predominate over any individual questions, including: (1) whether or not Naturex’s representations regarding the green coffee bean extract Svetol® were false and misleading or reasonably likely to deceive consumers; (2) whether or not Naturex violated the CLRA, UCL, FAL and NY GBL §§ 349-350; (3.) whether or not Naturex had defrauded Plaintiff and the Class Members; and (4.) whether or not the Class has been injured by the wrongs complained of, and if so, whether Plaintiffs and the Class are entitled to damages, injunctive and/or other equitable




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relief, including restitution or disgorgement, and if so, the nature and amount of such relief. The Court also finds that there are no concerns here about certifying a nationwide settlement class. Since the Court entered its Preliminary Approval Order, the Ninth Circuit issued its en banc opinion in In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539 (9th Cir. 2019) (“Hyundai”). The Ninth Circuit in Hyundai made clear that it is “‘the foreign law proponent’ who must ‘shoulder the burden of demonstrating that foreign law, rather than California law, should apply to class claims.’” Id. at 561. Here, no party is arguing that California law should not apply, so the Court need not undertake the choice-of-law analysis set forth in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 590 (9th Cir. 2012). Although the Hyundai court held that application of California law to a nationwide class must still satisfy due process, Hyundai, 926 F.3d at 566, Plaintiffs addressed any due process concerns in their supplemental brief that was submitted in support of preliminary approval. (ECF No. 291). As the Court noted in its Preliminary Approval Order, “Plaintiffs assert it is likely that more class members reside in California than in any other state” and “[t]his assessment is based U.S. Census data showing that California has both the largest absolute population and the largest population fitting the class member demographic profile; Facebook data showing California has the largest population matching the class member target audience; and CDC data showing th[at] California[ns] have a higher rate of health consciousness, suggesting higher usage of dietary supplement products, including those containing the Naturex ingredient.” (ECF No. 294 at 9). The claims submitted by class members now confirm that California “has a constitutionally sufficient aggregation of contacts” to the class members’ claims. See Mazza, 666 F.3d at 590. The California claims account for more than 20% of the total claims submitted and more claims were submitted by California residents than residents from any other state. Accordingly, the Court finds that application of




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California law satisfies due process. See Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 589, 598 (C.D. Cal. 2008) (finding sufficient contacts between California and the class members’ claims where “defendant ha[d] a substantial presence in California” and “it [was] likely that more class members reside in California than any other state.”). For these reasons, the Court finds that the predominance requirement is satisfied. 2. Superiority A class action must also be superior to other methods of adjudication for resolving the controversy. Fed. R. Civ. P. 23(b)(3). To determine superiority, a court’s inquiry is guided by the following pertinent factors: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). However, “[confronted] with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems . . . for the proposal is that there be no trial.” Amchem, 521 U.S. at 620. Here, class members may be unable to pursue individual claims due to the steep cost of litigation. Moreover, resolution of the common issues as a class promotes judicial economy and avoids the risk of inconsistent or contradictory judgments individualized litigation would entail. Because the parties seek class certification for settlement purposes only, the Court ends its analysis here. Accordingly, the Court concludes the superiority requirement is also satisfied.




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6. Approval of the Settlement Under Rule 23(e)(2). Rule 23(e)(2) provides that the Court may approve a class action settlement “only after a hearing and only on a finding that it is fair, reasonable, and adequate after considering whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm's length; (C) 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); and (D) the proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2). Considering these factors, the Court finds that final approval of the settlement is warranted. A. Adequacy of Representation 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.” Final approval criteria—Rule 23(e)'s multifactor test, 4 NEWBERG ON CLASS ACTIONS § 13:48 (5th ed.). For the reasons discussed above, the Court concludes that Plaintiffs and Class Counsel have adequately represented the Class. B. Arm’s Length Negotiation 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). The Court finds that the settlement was negotiated at arm’s length after hard-fought litigation and discovery. The Parties did not begin settlement discussions until after the Court had ruled on Naturex’s Motion to Dismiss the First Amended Complaint (ECF No. 190) and after the Parties had exchanged written discovery and documents, which




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speaks to the fundamental fairness of the process. See Nat'l Rural Telecommunications 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.”). Significantly, the settlement was also reached following two mediation sessions before the Honorable Leo S. Papas (Ret.). Gallucci v. Gonzales, 603 Fed. Appx. 533, 534 (9th Cir. 2015) (“This conclusion [that there was no collusion] is bolstered by the fact that the Settlement was negotiated with the aid of a retired magistrate judge and experienced mediator, who reported no evidence of collusion.”). C. Adequate Relief 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). As an initial matter, the Court finds that the relief provided to the Class is adequate. Naturex has agreed to settle this matter for a non-reversionary total of $1,300,000. Plaintiffs estimate that the settlement fund accounts for approximately % of total damages that would be available at trial. The Court finds that this amount is well within the range of reasonableness. See, e.g., Stovall-Gusman v. W.W. Granger, Inc., No. 13-cv-02540-HSG, 2015 WL 3776765, at *4 (N.D. Cal. June 17, 2015) (granting final approval of a net settlement amount representing 7.3% of the plaintiffs’ potential recovery at trial); Balderas v. Massage Envy Franchising, LLC, No. 12-cv-06327NC, 2014 WL 3610945, at *5 (N.D. Cal. July 21, 2014) (granting preliminary approval of a net settlement amount representing 5% of the projected maximum recovery at trial); Ma v. Covidien Holding, Inc., No. SACV 12-02161-DOC (RNBx), 2014 WL




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360196, at *5 (C.D. Cal. Jan. 31, 2014) (finding a settlement worth 9.1% of the total value of the action “within the range of reasonableness”); Downey Surgical Clinic, Inc. v. Optuminsight, Inc., No. CV09-5457PSG (JCx), 2016 WL 5938722 at *5 (C.D. Cal. May 16, 2016) (granting final approval where recovery was as low as 3.21% of potential recovery at trial). The $1,300,000 Settlement Fund is also reasonable considering that this only a partial class action settlement. The release in the Settlement Agreement is narrowly tailored to include only Naturex and its related entities. The release specifically excludes the non-settling defendants and will not preclude the Class’s ability to pursue claims against the manufacturers, marketers, distributors, and retailers of Green Coffee Bean Extract Products. Agreement at ¶ 2.1(FF). In addition, Naturex’s sales of Svetol® at issue in this litigation totaled only $90,250. Marron Decl., ¶ 15. Accordingly, the Court finds that the relief provided to the Class is adequate. 1. The Costs, Risks, and Delay of Trial and Appeal The Court further finds that the costs, risks, and delay of trial and appeal further support final approval. Proceeding in this litigation in the absence of settlement poses various risks such as failing to certify a class, having summary judgment granted against Plaintiffs, or losing at trial. Such considerations have been found to weigh heavily in favor of settlement. 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.”). As the Court previously noted in its Preliminary Approval Order, “[w]ithout the Settlement Agreement, the parties would be required to litigate class certification, as well as the ultimate merits of the case—a process which the Court acknowledges is long, complex, and expensive. Settlement of this matter will conserve the resources of this Court and the parties.” (ECF No. 294 at 13).




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2. Proposed Method of Distribution The Court finds that the proposed method of distribution supports final approval. The claims process here was intentionally straightforward and has allowed 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.”). The Settlement Agreement provides for pro rata distribution to class, which will ensure that class members receive as much as the settlement fund as possible. If any amounts remain in the settlement fund following a pro rata distribution to class members, then the remaining funds will thereafter be awarded cy pres to the Consumers Union. See Miller v. Ghirardelli Chocolate Co., No. 12-CV-04936-LB, 2015 WL 758094, at *8 (N.D. Cal. Feb. 20, 2015) (“Consumers Union has been approved as a cy pres recipient in numerous false-advertising lawsuits.”) (collecting cases). Accordingly, the Court finds the proposed distribution method to be effective. 3. Reasonableness of Requested Attorneys’ Fees and Incentive Awards Pursuant to Federal Rule of Civil Procedure 23(h), the Court orders that Class Counsel is entitled to reasonable attorneys’ fees incurred in connection with the action and in reaching the Settlement in the amount of $325,000.00, to be paid at the time and in the manner provided in the Settlement Agreement (ECF No. 284-3). The fee award sought in the present case is reasonable when judged by the standards of this circuit. See, e.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). The $325,000.00 fee award accounts for 25% of the $1,300,000.00 Settlement Fund and is well within the percentage range that courts




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have allowed in the Ninth Circuit. Id. at 942 (“courts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award[.]”). Class Counsel’s fee request is also reasonable under the lodestar method. Class Counsel have only submitted time spent in connection with prosecuting and settling the claims against Naturex. Class Counsel’s time that is attributable to Naturex results in a total lodestar of $440,610.00. Accordingly, the $325,000 fee award results in a negative multiplier of .7376. Moreover, the fee award is justified based on the excellent results obtained, the experience and skill of Counsel, the complexity of issues, the risk of non-payment, and the preclusion of other work. The Court further awards Class Counsel $61,321.56 in litigation costs, to be at the time and in the manner provided in the Settlement Agreement. Based on the declarations of Class Counsel submitted in support of the Fee Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation expenses (paid and un-reimbursed) in the amount of $245,286.25 during the course of the litigation. However, Class Counsel are only seeking 25% of their total litigation costs in the amount of $61,321.56 in light of the fact that this is a partial class action settlement. The Court finds that this allocation of costs is reasonable given that there are four main groups of Defendants in this action: (1.) Naturex; (2.) InterHealth; (3.) Labrada Defendants, and; (4.) the Media Defendants. The Court finds that the Class Representatives in this action has actively participated in and assisted Class Counsel with this litigation for the substantial benefit of the Class. Each of the Class Representatives have participated in discovery, reviewed material filings, sat for depositions, and were committed to securing substantive relief on behalf of the Class. The Court further finds that the requested incentive awards are presumptively reasonable and are in line with Ninth Circuit authority. See Wren v. RGIS Inventory Specialists, No. C-06-05778 JCS, 2011 WL 1230826, at *36 (N.D. Cal. Apr. 1, 2011) (“there is ample case law finding $5,000 to be a reasonable amount for an incentive payment.”).




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Accordingly, the Court awards incentive payments as follows: (a.) $5,000 incentive payment to Plaintiff Veda Woodard; (b.) $5,000 incentive payment to Plaintiff Diane Morrison; (c.) $7,500 incentive payment to Plaintiff Teresa Rizzo-Marino. The Court finds that the incentive payment to Plaintiff Rizzo-Marino is reasonable in light of the fact that her deposition was continued and that she incurred time and expense for appearing at her deposition on two different dates. 4. Side Agreements 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). Plaintiffs assert that no agreements were made in connection with the settlement aside from the settlement agreement itself. Accordingly, this factor favors final approval. D. Equitable Treatment of Class Members 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). Here, the settlement treats each class member equally. As discussed above, each class member will receive a pro rata distribution of the settlement fund for each valid claim that is submitted. Agreement at ¶ 6.2(1)(e). Because each class member is treated equally, the Court finds that this factor supports final approval. 7. Notice to the Class. The Court finds that the Class has received the best practicable notice in light of the fact that Naturex does not collect or maintain information sufficient to identify Class Members. The Parties’ selection and retention of Classaura LLC as the Notice Administrator was reasonable and appropriate. Based on the Declaration of Gajan Retnasaba, the Court hereby finds that the Settlement Notices were published to the Class Members substantially in the form and manner approved by the Court in its Preliminary Approval Order. The Settlement Notices provided fair, effective and the best practicable notice to




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the Class of the Settlement and the terms thereof. The Notices also informed the Class of Plaintiff’s intent to seek attorneys’ fees, costs, and incentive payments, and set forth the date, time, and place of the Fairness Hearing and Class Members’ rights to object to the Settlement or Fee Motion and to appear at the Fairness Hearing. The Court further finds that the Settlement afforded Class members a reasonable period of time to exercise such rights. See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *82 (C.D. Cal. Nov. 23, 2011) (class members’ deadline to object or opt out must arise after class counsel’s fee motion is filed); In re Mercury Interactive Corp. Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010) (same). The Settlement Notices fully satisfied all notice requirements under the law, including the Federal Rules of Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under the U.S. Constitution and California Constitutions. 8. CAFA Notice Pursuant to 28 U.S.C. § 1715. The Court finds that Naturex has satisfied all notice requirements of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, as attested to by the Retnasaba Declaration. On February 20, 2019, at Plaintiffs’ and Naturex’s direction, Classaura LLC served the notices required by 28 U.S.C. § 1715(b), which included a copy of the Settlement Agreement and other required documents, as well as notice of the date, time, and place of the Fairness Hearing. The Court has received no objection or response to the Settlement agreement by any federal or state official, including any recipient of the foregoing notices. This fact further supports the fairness of the Settlement. 9. Implementation of Settlement. The Parties are directed to implement the Settlement according to its terms and conditions. 10. Enforcement of Settlement. Nothing in this Final Order shall preclude any action to enforce or interpret the terms of the Settlement. Any action




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to enforce or interpret the terms of the Settlement shall be brought solely in this Court. 11. Retention of Jurisdiction. The Court expressly retains continuing jurisdiction as to all matters relating to the Settlement, and this Final Order, and for any other necessary and appropriate purpose. Without limiting the foregoing, the Court retains continuing jurisdiction over all aspects of this case including but not limited to any modification, interpretation, administration, implementation, effectuation, and enforcement of the Settlement, the administration of the Settlement and Settlement relief, including notices, payments, and benefits thereunder, the Settlement Notice and sufficiency thereof, any objection to the Settlement, any request for exclusion from the certified Class, the adequacy of representation by Class Counsel and/or the Class Representative, the amount of attorneys’ fees and litigation expenses to be awarded Class Counsel, the amount of any incentive awards to be paid to the Class Representatives, any claim by any person or entity relating to the representation of the Class by Class Counsel, to enforce the release and injunction provisions of the Settlement and of this Order, any remand after appeal or denial of any appellate challenge, any collateral challenge made regarding any matter related to this litigation or this Settlement or the conduct of any party or counsel relating to this litigation or this Settlement, and all other issues related to this action and Settlement. Further, the Court retains continuing jurisdiction to enter any other necessary or appropriate orders to protect and effectuate the Court’s retention of continuing jurisdiction provided that nothing in this paragraph is intended to restrict the ability of the Parties to exercise their rights under the Settlement Agreement. 12. Dismissal of Naturex with Prejudice. The claims against Naturex in this action, including all individual and Class claims resolved in it, shall be dismissed on the merits and with prejudice, without an award of attorneys’ fees or costs to any party except as provided in this Order.




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IT IS SO ORDERED. DATED: ____________, 2019 ___________________________ HON. JESUS G. BERNAL United States District Judge
