GOMEZ TRIAL ATTORNEYS LAW OFFICES OF …...Allen et al. v. Similasan Corp., et al., Case No....

Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)

NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS

ACTION SETTLEMENT

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GOMEZ TRIAL ATTORNEYS JOHN H. GOMEZ [email protected] DEBORAH S. DIXON [email protected] 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496

LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650) [email protected] WILLIAM B. RICHARDS, JR. (SBN 298552) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone:(619) 696-9006 Facsimile: (619) 564-6665

[Additional counsel on signature page] Class Counsel

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

KIM ALLEN, LAINIE RIDEOUT, and

KATHLEEN HAIRSTON, on behalf of

themselves, all others similarly

situated, and the general public,

Plaintiffs,

v.

SIMILASAN CORPORATION,

Defendant.

Case No. 3:12-cv-00376-BAS (JLB)

CLASS ACTION

NOTICE OF JOINT MOTION AND

JOINT MOTION FOR AN ORDER (1)

GRANTING PRELIMINARY

APPROVAL OF CLASS ACTION

SETTLEMENT, (2) CERTIFYING

SETTLEMENT CLASS, (3)

APPOINTING CLASS

REPRESENTATIVES AND CLASS

COUNSEL, (4) APPROVING NOTICE

PLAN, AND (5) SETTING FINAL

APPROVAL HEARING

NO ORAL ARGUMENT UNLESS

REQUESTED BY THE COURT

Hearing: May 8, 2017

Judge: Hon. Cynthia A. Bashant

Courtroom: 4B

Case 3:12-cv-00376-BAS-JLB Document 257 Filed 04/06/17 PageID.9087 of 3

1 Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)

NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT

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NOTICE OF MOTION AND MOTION

The parties respectfully and jointly move for an order: (1) Granting Preliminary

Approval of Class Action Settlement; (2) Certifying a Settlement Class; (3) Appointing

Plaintiffs Class Representatives and Plaintiff’s Attorneys as Settlement Class Counsel; (4)

Approving the Notice Plan; and (5) Setting the Final Approval Hearing and Schedule. This

joint motion is based on this Notice of Motion and Motion; the Memorandum of Points and

Authorities filed concurrently herewith; the Declaration of Deborah S. Dixon and all

exhibits attached thereto; the Declaration of Ronald A. Marron and its exhibit; the

Declaration of Michelle Gillette; the record on file and all proceedings had in this matter

to date; and all further evidence and argument submitted in support of or against the motion.

Dated: April 6, 2017 GOMEZ TRIAL ATTORNEYS

By: s/ Deborah S. Dixon

John H. Gomez

Deborah S. Dixon

655 West Broadway, Suite 1700

San Diego, California 92101

Telephone: (619) 237-3490

Facsimile: (619) 237-3496

[email protected]

[email protected]

LAW OFFICES OF RONALD A. MARRON

Ronald A. Marron

William B. Richards, Jr.

651 Arroyo Drive

San Diego, California 92103

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

[email protected]

[email protected]


2 Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)

NOTICE OF JOINT MOTION AND JOINT MOTION FOR PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT

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THE GOETZ FIRM, LLC Dean A. Goetz

603 N. Coast Hwy 101, Ste. H

Solana Beach, California 92075

Telephone: (858) 481-8844

Facsimile: (858) 481-2139

[email protected]

Dated: April 6, 2017 /s/ Michelle Gillette

MICHELLE GILLETTE

[email protected]

CROWELL & MORING LLP

275 Battery St., 23rd Floor

San Francisco, CA 94111

Direct: 415.365.7445

Attorneys for Defendant Similasan

Corporation

* Counsel for Plaintiff certifies that, pursuant to Section 2.f.4. of the Court’s CM/ECF

Administrative Policies, Defendant’s counsel, Michelle Gillette, has reviewed the

contents of this Joint Motion for Preliminary Approval of Settlement and authorized

placement of her electronic signature on this document.


Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)

MEM. OF POINTS & AUTHORITIES IN SUPPORT OF JOINT MOTION FOR PRELIMINARY

APPROVAL OF CLASS ACTION SETTLEMENT

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GOMEZ TRIAL ATTORNEYS JOHN H. GOMEZ [email protected] DEBORAH S. DIXON [email protected] 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496

LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650) [email protected] WILLIAM B. RICHARDS, JR. (SBN 98552) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone:(619) 696-9006 Facsimile: (619) 564-6665

[Additional counsel on signature page] Class Counsel


FOR THE SOUTHERN DISTRICT OF CALIFORNIA

KIM ALLEN, LAINIE RIDEOUT, and

KATHLEEN HAIRSTON, on behalf of

themselves, all others similarly

situated, and the general public,

Plaintiffs,

v.

SIMILASAN CORPORATION,

Defendant.

Case No. 3:12-cv-00376-BAS (JLB)

CLASS ACTION

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

JOINT MOTION FOR AN ORDER (1)

GRANTING PRELIMINARY

APPROVAL OF CLASS ACTION

SETTLEMENT, (2) CERTIFYING

SETTLEMENT CLASS, (3)

APPOINTING CLASS


COUNSEL, (4) APPROVING NOTICE

PLAN, AND (5) SETTING FINAL

APPROVAL HEARING

NO ORAL ARGUMENT REQUESTED

UNLESS REQUESTED BY THE COURT

Hearing: May 8, 2017

Judge: Hon. Cynthia A. Bashant

Courtroom: 4B

Case 3:12-cv-00376-BAS-JLB Document 257-1 Filed 04/06/17 PageID.9090 Page 1 of 30

i Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)



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TABLE OF CONTENTS

I. FACTUAL AND PROCEDURAL BACKGROUND ........................................... 1

II. SUMMARY OF THE SETTLEMENT .................................................................. 4

III. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND

ADEQUATE AND SATISFIES THE CRITERIA FOR PRELIMINARY

APPROVAL ........................................................................................................... 6

A. Class Action Settlements Are Favored by the Ninth Circuit ....................... 6

B. The Court Should Certify the Class for Settlement Purposes ...................... 9

1. Numerosity ......................................................................................... 9

2. Commonality .................................................................................... 10

3. Typicality ......................................................................................... 11

4. Adequacy of Representation ............................................................ 12

C. The Proposed Settlement is Superior to Other Available Methods for Fairly

and Efficiently Adjudicating the Controversy ........................................... 14

1. The Settlement was Reached at Arms’ Length ................................ 15

2. The Settlement is Fair for All Claimants ......................................... 15

3. The Proposed Settlement is Fundamentally Fair, Reasonable, and

Adequate .......................................................................................... 16

i. The Strength of Plaintiffs’ Case ............................................ 17

ii. Complexity, Expense, and Probable Length of Litigation .... 17

iii. The Risks of Maintaining Class Action Status Throughout

Trial ........................................................................................ 18

iv. Amount of Recovery ............................................................. 18

v. The Extent of Discovery Completed and the Stage of the

Proceedings ............................................................................ 19

vi. The Experience and Views of Counsel ................................. 20

vii. The Reaction of the Class Members to the Proposed

Settlement .............................................................................. 20

D. The Proposed Form of Class Notice and Notice Plan Satisfy the

Requirements of Rule 23 ............................................................................ 21

E. The Proposed Timeline for Events Should be Adopted ............................. 22

IV. CONCLUSION ..................................................................................................... 23


ii Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)



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TABLE OF AUTHORITIES

Cases

Allen v. Hyland’s, Inc., 12-cv-1150 DMG (C.D. Cal.) ................................................... 14

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) ......................... 8

Beck-Ellman v. KAZ USA, Inc., 2013 WL 1748729 (S.D. Cal. 2013) ........................... 14

Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) ............................................ 20

Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) ........................... 6, 16

City P’ship Co. v. Jones Intercable, Inc., 213 F.R.D. 576 (D. Colo. 2002) ..................... 9

Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) .................................... 6

Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)............................................................ 20

DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) ................................ 18, 19

Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) ..................................... 10, 11

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .............................................. 14

Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87 (S.D.N.Y. 1981) ................ 13

Gallucci v. Boiron, Inc., No. 11CV2039 JAH NLS, 2012 WL 5359485

(S.D. Cal. Oct. 31, 2012) ............................................................................................. 12

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ............................................... 10, 11

Gribble v. Cool Transports Inc., No. CV 06-04863, 2008 WL 5281665

(C.D. Cal. 2008) .......................................................................................................... 15

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................. 7, passim

Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964) ............................. 9

In re Abbott Labs. Norvir Anti-Trust Litig., Nos. C 04-1511 CW, C 04-4203 CW,

2007 WL 1689899 (N.D. Cal. June 11, 2007) .............................................................. 9

In re Cont’l Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) ............................................... 16

In re Ferrero Litig., No. 11-CV-205 H(CAB), 2011 WL 5557407

(S.D. Cal. Nov. 14, 2011) ............................................................................................ 11

In re GM Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) ..... 15


iii Allen et al. v. Similasan Corp., et al., Case No. 3:12-CV-00376 BAS (JLB)



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In re Heritage Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403

(C.D. Cal. June 10, 2005) ............................................................................................ 15

In re Live Concert Antitrust Litig., 247 F.R.D. 98 (C.D. Cal. 2007) .............................. 12

In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ................................... 19

In re Nvidia Derivs. Litig., No. C-06-06110-SBA (JCS), 2008 WL 5382544

(N.D. Cal. Dec. 22, 2008) ............................................................................................ 17

In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ......................... 18

In re Pacific Enters. Secs. Litig., 47 F.3d 373 (9th Cir. 1995) ....................................... 20

In re Static Random Access Antitrust Litig., No. C 07-01819 CW, 2008 WL 4447592

(N.D. Cal. Sept. 29, 2008) ............................................................................................. 9

In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145 (Ct. App. 2010) ............... 13

In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ............................................... 6

In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ....................... 7

In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ............................................................. 13

Jaffe v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 346417

(N.D. Cal. Feb. 7, 2008) .............................................................................................. 19

Kirkorian v. Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988) ......................................... 8

Knight v. Red Door Salons, Inc., No. 08-1520 SC, 2009 WL 248367

(N.D. Cal. Feb. 2, 2009) .......................................................................................... 7, 20

Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ................................ 6, 8

Lobatz v. U.S. W. Cellular, Inc., 222 F.3d 1142 (9th Cir. 2000) .................................... 19

Lowden v. T-Mobile USA, Inc., 512 F.3d 1213 (9th Cir. 2008) ..................................... 15

Misra v. Decision One Mortg. Co., 2009 WL 4581276 (C.D. Cal. Apr. 13, 2009) . 16, 17

Nat'l Rural Telecomms. Coop. v. DirecTV, 221 F.R.D. 523 (C.D. Cal. 2004)............... 18

Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir. 1982) ....................... 6

Quintero v. Mulberry Thai Silks, Inc., No. C 08-02294 MHP, 2008 WL 4666395

(N.D. Cal. Oct. 21, 2008) ............................................................................................ 10


1

CLASS ACTION SETTLEMENT AGREEMENT

This Class Action Settlement Agreement (the “Agreement”) is made and entered

into by and between Plaintiffs Lainie Rideout and Kathleen Hairston (the

“Representative Plaintiffs”), on behalf of themselves and the certified classes in this

action (collectively, the “Plaintiffs”), and Defendant Similasan Corporation

(“Similasan” or “Defendant”), to settle and compromise this action, and settle,

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

and conditions herein. Plaintiffs and Similasan are collectively referred to herein as

the “Settling Parties.”

RECITALS

1. PROCEDURAL BACKGROUND

1.1. WHEREAS, Plaintiffs filed an action in the United States District Court

for the Southern District of California against Defendant, entitled Allen, et al. v.

Similasan Corp., No. 3:12-cv-00376, bringing claims under California’s Consumer

Legal Remedies Act, (Civ. Code § 1750, et seq. [“CLRA”]), Unfair Competition

Law (Bus. & Prof. Code § 17200, et seq. [“UCL”]), False Advertising Law (id. §

17500, et seq. [“FAL”]), violation of the Magnuson-Moss Warranty Act (15 U.S.C.

§ 2301, et seq. [“MMWA”]), and Breach of Express and Implied Warranties.

1.2. WHEREAS, on March 30, 2015, the Court certified two classes in this

case (Dkt. No. 143).

1.3. WHEREAS, on January 17, 2017, the Court denied in part Defendant’s

motion for summary judgment (Dkt. 171) and motion to decertify the class (Dkt. No.

164), and denied Plaintiffs’ motion for leave to amend (Dkt. No. 174). (Dkt. No.

247).

1.4. WHEREAS, on March 6, 2017, the parties attended the Final Pre-Trial

Conference with a trial scheduled to begin on April 11, 2017.

1.5. WHEREAS, based upon the discovery taken to date, investigation, and

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

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

of settlement, Plaintiffs and Defendant have agreed to settle the claims asserted in

the Litigation pursuant to the provisions of this Agreement.

1.6. NOW THEREFORE, subject to the Final Approval of the Court as

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

consideration of the mutual promises and covenants contained herein, that any

Released Claims against any Released Parties shall be settled, compromised, and

forever released upon the following terms and conditions.

Ex. 1, Pg. 002


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TERMS AND CONDITIONS OF THE SETTLEMENT

2. DEFINITIONS

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

2.2. As used herein, the term “Authorized Claimant” means any Class

Member who validly and timely submits a Claim Form according to the terms of this

Settlement Agreement and does not validly request exclusion from the Class.

2.3. “CAFA Notice” means the notice of this settlement to the appropriate

federal and state officials in the United States, as provided by the Class Action

Fairness Act of 2005, 28 U.S.C. § 1715, and as further described in Paragraph 7.3.

2.4. As used herein, the term “Claim” means a request made by a Class

Member in order to receive a Settlement Payment pursuant to the procedures stated

below in Section 3.6.

2.5. As used herein, the term “Claim Form” means the form a Class Member

must validly and timely submit to receive a Settlement Payment under this

Agreement. The Claim Form must be substantially similar to the form attached as

Exhibit D.

2.6. “Class” means all purchasers of all Similasan Corporation homeopathic

Products nationwide for personal or household use and not for resale, as listed in

Exhibit A to this Agreement, from February 10, 2008 to the present. Excluded from

the Class are governmental entities, Defendant, any entity in which Defendant has a

controlling interest, its employees, officers, directors, legal representatives, heirs,

successors and wholly or partly owned subsidiaries or affiliated companies,

including all parent companies, and their employees; and the judicial officers, their

immediate family members and court staff assigned to this case.

2.7. “Class Period” means February 10, 2008 through the date the Judgment

is entered.

2.8. “Class Counsel” means the Representative Plaintiffs’ and the Class’

counsel of record in the Litigation, the Law Offices of Ronald A. Marron, APLC,

Gomez Trial Attorneys, and Law Offices of Dean Goetz.

2.9. “Class Member” means a Person who falls within the definition of the

Class.

2.10. “Court” means the United States District Court for the Southern

District of California.

2.11. “Defense Counsel” means Defendant’s counsel of record in the

Litigation, Michelle Gillette of Crowell & Moring, LLP.

2.12. “Effective Date” means the first date by which any Judgment entered

Ex. 1, Pg. 003


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pursuant to the Agreement becomes Final.

2.13. “FDA” means the United States Food and Drug Administration.

2.14. “Final” means (a) if no appeal from the Judgment is filed, the date of

expiration of the time for the filing or noticing of any appeal from the Judgment; or

(b) if an appeal from the Judgment is filed, and the Judgment is affirmed or the

appeal dismissed, the date of such affirmance or dismissal; or (c) if a petition for

certiorari seeking review of the Appellate Judgment is filed and denied, the date the

petition is denied; or (d) if a petition for a writ of certiorari is filed and denied, the

date the petition is denied; or (e) if a petition for a writ of certiorari is filed and

granted, the date of final affirmance or final dismissal of the review proceeding

initiated by the petition for a writ of certiorari. Any proceeding or order, or any

appeal or petition for a writ of certiorari pertaining solely to any application for

attorneys’ fees or expenses will not in any way delay or preclude the Judgment from

becoming Final.

2.15. “Fund” means the total amount of money Similasan will deposit of not

to exceed seven hundred thousand dollars ($700,000.00), out of which all claims,

costs, and fees associated with the Agreement will be had, including Settlement

Payments, incentive awards, attorneys’ fees and costs, and costs of Notice and

Notice or Claims administration.

2.16. “Judgment” means the judgment to be entered by the Court pursuant to

the Settlement.

2.17. “Litigation” means Kimberly Allen, et al v. Similasan Corp., No. 3:12-

cv-00376, pending in the U.S. District Court for the Southern District of California.

2.18. “Notice” means a document, substantially in the form of Exhibit B

hereto (the “Long Form Notice”), and “Summary Notice” means a document

substantially in the form of Exhibit C hereto, to be disseminated in accordance with

the Preliminary Approval Order, informing Persons who fall within the Class

definition of, among other things, the pendency of the Litigation, the material terms

of the proposed Settlement, and their options with respect thereto.

2.19. “Notice Administrator” or “Claims Administrator” means Classaura

LLC, the company jointly selected by the Parties and approved by the Court to

provide notice to the Class, including CAFA and CLRA Notice.

2.20. “Notice Plan” means the method of providing the Class with notice of

the settlement, as approved by the Court.

2.21. “Opt-Out Date” means the date that is the end of the period to request

exclusion from the Class established by the Court and set forth in the Notice.

2.22. “Parties” means the Representative Plaintiffs, on behalf of themselves

Ex. 1, Pg. 004


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and the classes, and Defendant.

2.23. “Person” means an individual, corporation, partnership, limited

partnership, association, joint stock company, estate, legal representative, trust,

unincorporated association, government or any political subdivision or agency

thereof, any business or legal entity, and such individual’s or entity’s spouse, heirs,

predecessors, successors, representatives, and assignees.

2.24. “Preliminary Approval Order” means an order providing for, among

other things, preliminary approval of the Settlement and dissemination of the Notice

to the Class according to the Notice Plan.

2.25. “Products” means all homeopathic products distributed by Defendant,

as identified in Exhibit A, in any variation, format, dosage, dilution, or packaging.

2.26. “Released Claims” means, with the exception of claims for personal

injury, any and all claims, demands, rights, suits, liabilities, and causes of action of

every nature and description whatsoever, known or unknown, matured or

unmatured, at law or in equity, existing under federal and/or state law, including

without limitation a waiver of all rights under Section 1542 of the California Civil

Code, that the Representative Plaintiffs and/or any Class Member has or may have

against the Released Persons arising out of, in connection with, or related in any

way, directly or indirectly, to Defendant’s advertising, marketing, packaging,

labeling, promotion, sale, or distribution of the Products, that have been brought,

could have been brought, or are currently pending, by any Class Member against

Released Persons, in any forum in the United States (including territories and Puerto

Rico).

2.27. “Released Persons” means Defendant, its respective parent companies,

subsidiary companies, affiliated companies, past, present, and future officers (as of

the Effective Date), directors, shareholders, employees, predecessors, principals,

insurers, administrators, agents, accountants, consultants, advisers, independent

contractors, distributors, subcontractors, vendors, buyers, experts, servants,

successors, trustees, co-conspirators, buyers, attorneys, representatives, heirs,

executors, and assigns of all of the foregoing persons and entities.

2.28. “Representative Plaintiffs” means Kathleen Hairston and Lainie

Rideout.

2.29. “Settlement” means the settlement set forth in this Agreement.

2.30. “Settlement Amount” means the total amount Defendant agrees to pay

for settlement of this matter, inclusive of all payments to the class, class notice and

administration costs, and all other costs and attorneys’ fees, including incentive

awards.

2.31. “Settling Parties” means, collectively, Defendant, the Representative

Ex. 1, Pg. 005


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Plaintiffs, and all Class Members.

2.32. The plural of any defined term includes the singular, and the singular

of any defined term includes the plural, as the case may be.

3. DENIAL OF WRONGDOING AND LIABILITY

3.1. Defendant denies the material factual allegations and legal claims

asserted by the Representative Plaintiffs in the Litigation, including any and all

charges of wrongdoing or liability arising out of any of the conduct, statements, acts

or omissions alleged, or that could have been alleged, in the Litigation. This

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

expenses of protracted litigation.

4. THE BENEFITS OF SETTLEMENT

4.1. Class Counsel and the Representative Plaintiffs recognize and

acknowledge the expense and length of continued proceedings that would be

necessary to prosecute the Litigation through trial and appeals. Class Counsel also

has taken into account the uncertain outcome and the risk of any litigation, especially

in complex actions such as this Litigation, as well as the difficulties and delays

inherent in such litigation. Class Counsel is mindful of the inherent problems of

proof under the claims and possible defenses to the claims asserted in the Litigation.

Class Counsel believes that the proposed Settlement confers substantial benefits

upon the Class. Based on their evaluation of all of these factors, the Representative

Plaintiffs and Class Counsel have determined that the Settlement is in the best

interests of the Representative Plaintiffs and the Class.

5. SETTLEMENT CONSIDERATION

5.1. Monetary Consideration

5.1.1. Award to the Settlement Class. Each Authorized Claimant is

entitled to receive a Settlement Payment. To be entitled to receive a Settlement

Payment, a Class Member must timely submit a valid and complete Claim Form and

any supporting documentation required. The manner for submitting a timely, valid,

and complete Claim Form is specified in Section 6.2 below. Payments shall be made

by check to the Authorized Claimants by the Claims Administrator.

5.1.2. Funding Settlement Payments. Similasan will establish a Fund,

not to exceed seven hundred thousand dollars ($700,000.00), out of which all claims,

costs, and fees associated with the Agreement will be had, including Settlement

Payments, incentive awards, attorneys’ fees and costs, and costs of Notice and

Notice administration. The total amount of monetary payment by Similasan will be

contingent upon final approval by the Court, not to exceed $700,000.00 total

Ex. 1, Pg. 006


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payment. Similasan will only be obligated to pay the amount approved by the Court.

5.1.3. Incentive Awards to Named Plaintiffs. Plaintiff will make an

application for incentive awards of up to $2,500.00 for each Representative Plaintiff,

Lainie Rideout and Kathleen Hairston, for a total of up to $5,000.00 with such

amount subject to Court approval. Representative Plaintiffs will not seek an amount

greater than those amounts for this Litigation. Representative Plaintiffs’ incentive

awards are to be paid from the Fund.

5.1.4. Attorneys’ Fees and Costs. Class Counsel will apply to the

Court for reimbursement of all costs and for attorneys’ fees of not more than 25% of

the Fund, subject to Court approval. All attorneys’ fees and costs awarded by the

Court will be paid from the common fund by the Claims Administrator within 10

days of the Effective Date.

5.1.5. Pro Rata Claims. If there is money remaining in the Fund after

all Claims have been made and paid and after the Court determines an amount for

incentive awards and attorneys’ fees and costs, and all costs of Notice and Notice

administration have been paid, such remaining funds will be equally distributed pro

rata to each Authorized Claimant who submitted a valid Claim Form. There will be

no cy pres or reversion fund.

5.2. Non-Monetary Consideration

5.2.1. Similasan acknowledges that it has or will be updating its website

to provide important information to consumers, which has been or will be done in

part as a result of the Lawsuit. Specifically, Similasan will add to its website a link

to FDA Compliance Policy Guide section 400.400 to provide consumers with more

information about the regulation of homeopathic products.

5.2.2. Similasan acknowledges that it has or will be making label

changes, which has been or will be done in part as a result of the Litigation.

Specifically, Similasan will place the following language on the same outer label or

package panel on the Products that bears the Drug Facts box: “These statements are

based upon traditional homeopathic principles. They have not been reviewed by the

Food and Drug Administration.”

5.2.3. To the extent that any state and/or federal statute, regulation,

policies, and/or code may at any time impose other, further, different and/or

conflicting obligations or duties on Defendant with respect to the labeling and

advertisement of the Products, this Agreement and any Judgment that may be

entered pursuant thereto, as well as the Court’s continuing jurisdiction with respect

to implementation and enforcement of the terms of this Agreement, shall cease as to

Defendant’s conduct covered by that statute, regulation, and/or code as of the

effective date of such statute, regulation, and/or code.

Ex. 1, Pg. 007


7

5.2.4. Nothing in this Agreement will prohibit Defendant from making

any representation in the labeling, advertising, or marketing of the Products that is

permitted by applicable law, regulations, or policies promulgated by FDA or other

state or federal agency.

5.2.5. Defendant shall be bound by any labeling laws or regulations that

restrict or expand the scope of claims for which the Products are eligible, and any

laws or regulations that have a bearing on the labeling or advertising of the Products

shall supersede any terms of this Agreement to the extent they are inconsistent with

such terms.

6. CLASS SETTLEMENT PROCEDURES

6.1. Cooperation to Obtain Court Approval. The Parties will jointly take

reasonable steps necessary to secure the Court’s approval of this Settlement

Agreement and the Settlement.

6.2. Claims Procedure. To be eligible to receive a Settlement Payment,

Class Members must accurately complete and submit a Claim Form with any

required documentation specified on the Claim Form and deliver that form and any

required supporting documentation to the Claims Administrator no later than 30 days

following Final Approval Hearing, or September 7, 2017. The Claim Form and any

supporting documentation required may be submitted electronically or by U.S.

postal mail. The delivery date is deemed to be the date (a) the Claim Form is

deposited in the U.S. Mail as evidenced by the postmark, in the case of submission

by U.S. mail, or (b) in the case of submission electronically through the Settlement

Website, the date the Claims Administrator receives the Claim Form, as evidenced

by the transmission receipt. Any Class Member who fails to submit a valid and

timely Claim Form will not receive any benefits under this Settlement Agreement.

The eligibility and any documentation requirements for each category of Settlement

Payment are specified on the Claim Form.

7. ADMINISTRATION AND NOTICE

7.1. Appointment and Retention of Notice and Claims Administrator

7.1.1. The Parties shall jointly retain the Notice and Claims

Administrator(s) (“Administrator”) (including subcontractors) to help implement the

terms of the Settlement Agreement.

7.1.2. The Administrator will facilitate the notice process by assisting

the Parties in the implementation of the Notice Plan, as well as CAFA Notice,

although Defendant shall retain ultimate responsibility for effecting CAFA notice

within the required time.

Ex. 1, Pg. 008


8

7.1.3. The Administrator shall be responsible for providing the Parties

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

performed with respect to implementing the Class Notice, and providing regular

updates to the Parties’ counsel about the status of the claims process.

7.1.4. All fees, costs, and expenses of the Administrator related to this

Settlement will be paid out of the Settlement Amount.

7.2. Class Settlement Website

7.2.1. The Notice Administrator will create and maintain the Class

Settlement Website, to be activated within fifteen (15) calendar days of its receipt of

the Preliminary Approval Order. The Notice Administrator’s responsibilities will

also include securing an appropriate URL, such as

www.SimilasanClassActionSettlement.com. The Class Settlement Website will

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

Agreement, the Long-Form Notice, the Preliminary Approval Order, Class

Counsel’s motion for fees, costs, and incentive awards for the Representative

Plaintiffs, and Notices from the Court. In addition, the Class Settlement Website

will include procedural information regarding the status of the Court-approval

process, such as an announcement of the Final Approval Hearing Date, when the

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

has been reached.

7.2.2. The Class Settlement Website will terminate (be removed from

the internet) and no longer be maintained by the Notice Administrator thirty (30)

days after either (a) the Effective Date or (b) the date on which the Settlement

Agreement is terminated or otherwise not approved by a court, whichever is later.

The Notice Administrator will then transfer ownership of the URL to Defendant.

7.2.3. All costs and expenses related to the Class Settlement Website

shall be paid out of the Settlement Amount, as approved by the Court.

7.3. CAFA Notice

7.3.1. The Parties agree that the Notice Administrator shall serve notice

of the settlement that meets the requirements of CAFA, 28 U.S.C. § 1715, on the

appropriate federal and state officials no later than 10 days after the filing of this

Settlement Agreement with the Court.

7.3.2. Notwithstanding 7.3.1, Defendant shall have ultimate

responsibility to ensure that CAFA notice is in fact accomplished consistent with the

statutory requirements.

7.3.3. All costs and expenses related to the CAFA Notice shall be paid

out of the Settlement Amount.

Ex. 1, Pg. 009


9

7.3.4. Defendant will file a certification with the Court stating the

date(s) on which the CAFA notices were sent. Defendant, as assisted by the Notice

Administrator, will provide Class Counsel with any substantive responses received

in response to any CAFA notice.

7.3.5. The Notice Administrator shall also publish the Summary Notice

in a newspaper in a manner sufficient to meet California Government Code § 6064

and Civil Code § 1781, which cost shall be paid out of the Settlement Amount.

7.4. Notice Plan

7.4.1. Class Notice shall conform to all applicable requirements of the

Federal Rules of Civil Procedure, the United States Constitution (including the Due

Process Clauses), and any other applicable law, and shall otherwise be in the manner

and form agreed upon by the Parties and approved by the Court.

7.4.2. As part of the Notice Plan, Similasan agrees to include a sentence

on its website (www.similasanusa.com) with its “satisfaction guarantee” that if a

consumer purchased a product from 2008 to the end of the class period and did not

obtain any relief from use of the Product, they could “click here” to be directed to

the Class Settlement Website. The exact language of the statement will be agreed

upon by the parties.

7.4.3. Within thirty (30) days after preliminary approval by the Court

of this Settlement, the Settlement Administrator shall commence providing Notice

to the Settlement Class according to the Notice Plan as attached in Exhibit E.

7.4.4. The Parties agree to the content of the Notices, substantially in

the forms attached to this Agreement as Exhibit B and Exhibit C, as approved by

the Court.

7.5. Other Administration and Notice Provisions

7.5.1. Declarations of Compliance. The Notice Administrator shall

prepare a declaration attesting to compliance with the publication requirements set

forth in the Class Notice Plan. Such declaration shall be provided to Class Counsel

and Defendant’s Counsel and filed with the Court no later than 10 days prior to the

Final Approval Hearing.

7.5.2. Best Notice Practicable. The Parties agree, and the Preliminary

Approval Order shall state, that compliance with the procedures described in this

Article is the best notice practicable under the circumstances and shall constitute due

and sufficient notice to the Settlement Class of the pendency of the Action,

certification of the Settlement Class, the terms of the Settlement Agreement, and the

Final Approval Hearing, and shall satisfy the requirements of all applicable law.

Ex. 1, Pg. 010


10

7.5.3. Report On Requests For Exclusion. Not later than ten days before

the Final Approval Hearing, the Notice Administrator shall prepare and deliver to

Class Counsel, who shall file it with the Court, and Defendant’s Counsel, a report

stating the total number of Persons that have submitted timely and valid Requests

for Exclusion from the Settlement Class, and the names of such Persons.

7.5.4. Inquiries From Settlement Class Members. It shall be the

responsibility of Class Counsel to establish procedures for receiving and responding

to all inquiries from Settlement Class Members with respect to this Settlement.

Defendant and Defendant’s counsel may, but are not required, to respond to such

inquiries.

7.5.5. Taxes

7.5.6. The Representative Plaintiffs and Class Counsel shall be

responsible for paying any and all federal, state, and local taxes due on any payments

made to them pursuant to the Settlement.

7.5.7. Class Members shall be responsible for paying any and all

federal, state, and local taxes due on any payments made to them pursuant to the

Settlement.

7.5.8. Taxes due in connection with the Notice Plan shall be paid

by the Notice Administrator from the funds provided to it to effectuate the Notice

Plan.

8. RELEASES

8.1. Upon the Effective Date, the Representative Plaintiffs and each of the

Class Members will be deemed to have, and by operation of the Judgment will have,

fully, finally, and forever released, relinquished, and discharged the Released

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

personal injury, any and all claims, demands, rights, suits, liabilities, and causes of

action of every nature and description whatsoever, known or unknown, matured or

unmatured, at law or in equity, existing under federal and/or state law, including

without limitation a waiver of all rights under Section 1542 of the California Civil

Code, that the Representative Plaintiffs and/or Class Member has or may have

against the Released Persons arising out of, in connection with, or related in any

way, directly or indirectly, to Defendant’s advertising, marketing, packaging,

labeling, promotion, sale, and/or distribution of the Products, that have been brought,

could have been brought, or are currently pending, up to the date of the Effective

Date, by any Class Member against Released Persons, in any forum in the United

States (including their territories and Puerto Rico). Class Members do not waive

their right to contact, in any way or for any purpose, any state or federal agency

regarding the activities of any party, nor do they waive any right to enjoy benefits

Ex. 1, Pg. 011


11

obtained by a state or federal agency.

8.2. After entering into this Settlement Agreement, the Representative

Plaintiffs or the Class Members may discover facts other than, different from, or in

addition to, those that they know or believe to be true with respect to the Released

Claims. The Representative Plaintiffs and the Class Members expressly waive and

fully, finally, and forever settle and release any known or unknown, suspected or

unsuspected, contingent or noncontingent equitable claim, whether or not concealed

or hidden, without regard to the subsequent discovery or existence of such other,

different, or additional facts.

8.3. All Parties to this Settlement Agreement, including the Representative

Plaintiffs and the Class Members, specifically acknowledge that they have been

informed of Section 1542 of the California Civil Code by their legal counsel via the

Notice, and they expressly waive and relinquish any rights or benefits available to

them under this statute. California Civil Code § 1542 provides:

A GENERAL RELEASE DOES NOT EXTEND

TO CLAIMS WHICH THE CREDITOR DOES

NOT KNOW OR SUSPECT TO EXIST IN HIS OR

HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE, WHICH IF KNOWN BY HIM OR

HER MUST HAVE MATERIALLY AFFECTED

HIS OR HER SETTLEMENT WITH THE

DEBTOR.

8.4. Notwithstanding California Civil Code § 1542, or any other federal or

state statute or rule of law of similar effect, this Agreement shall be given full force

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

those related to any unknown or unsuspected claims, liabilities, demands, or causes

of action which are based on, arise from or are in any way connected with the

Litigation.

9. CLASS CERTIFICATION

9.1. The Parties agree that, for settlement purposes only, this Litigation shall

be re-certified as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3)

with Representative Plaintiffs as Class Representatives and Class Counsel as counsel

for the Settlement Class, defined as follows:

9.2. All persons in the United States who purchased the Products as defined

in Paragraph 2.6 and Exhibit A, within the Class Period as defined in Paragraph 2.6.

The Class expressly excludes Defendant and its present and former officers,

directors, employees and immediate families; and the Court, its officers and their

immediate families.

Ex. 1, Pg. 012


12

9.3. In the event the Settlement is terminated or for any reason the

Settlement is not effectuated, the certification of the Settlement Class shall be

vacated and the Litigation shall proceed with the classes as certified by the Court on

March 30, 2015 (Dkt. No. 143).

10. SETTLEMENT HEARING

10.1. Promptly after execution of this Agreement, the Parties will submit the

Agreement together with its Exhibits to the Court and will request that the Court

grant preliminary approval of the Settlement, as of the date of which the settlement

shall be deemed “filed” within the meaning of 28 U.S.C. § 1715, and issue the

Preliminary Approval Order. The Court has scheduled a Final Approval Hearing for

August 7, 2017, at 10:30 a.m., which may be modified as required, to determine

whether the Settlement should be granted final approval and whether the Fee

Application should be granted (“Final Approval Hearing”). The Parties shall request

the Court schedule the Fee Application to be filed no later than seven (7) calendar

days prior to the Opt-Out and Objection deadline.

10.2. Defendant shall cooperate in good faith in Plaintiffs’ preparation of the

motion for preliminary approval of the Settlement as necessary, including by

providing Class Counsel with then-available details of the payment of the out-of-

pocket costs of label changes, corrective advertising, and other measures and relief

such as implementing web site changes, and any and all other costs associated with

implementing the provisions of this Agreement; and will provide signed declarations

of appropriate corporate officers of Defendant, if necessary.

10.3. Defendant shall not oppose Plaintiffs’ assertion, in papers filed in

furtherance of this Settlement, that the Class satisfies each of the elements required

under Federal Rules of Civil Procedure 23(a) and (b). Defendant shall not oppose

the following when done for Settlement Purposes: certification of the Class, and the

appointment of Hairston and Rideout as Class Representatives and their counsel as

Class Counsel, as set forth herein.

10.4. The Parties agree to the form and substance of the proposed Preliminary

Approval Order, attached hereto as Exhibit F, to be lodged with the Court with the

motion for preliminary approval of the Settlement Agreement.

10.5. Procedures for Objecting to the Settlement

10.5.1. Class Members shall have the right to appear and show

cause, if they have any reason why the terms of this Agreement should not be given

Final Approval, subject to each of the sub-provisions contained in Paragraph 10.5.

Any objection to this Agreement, including any of its terms or provisions, must be

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

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

Ex. 1, Pg. 013


13

Notice, and postmarked no later than thirty (30) days prior to the Final Approval

Hearing Date. Class Members may object either on their own or through an attorney

hired at their own expense.

10.5.2. If a Class Member hires an attorney to represent him or

her at the Final Approval Hearing, he or she must do so at his or her own expense.

No Class Member represented by an attorney shall be deemed to have objected to

the Agreement unless an objection signed by the Class Member is also filed with the

Court and served upon Class Counsel, Counsel for Defendant, and the Notice

Administrator at the addresses set forth in the Class Notice thirty (30) days before

the Final Approval Hearing.

10.5.3. Any objection regarding or related to the Agreement

shall contain a caption or title that identifies it as “Objection to Class Settlement in

Allen v. Similasan, No. 12-cv-00376 CAB” and also shall contain information

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

if any), as well as a clear and concise statement of the Class Member’s objection,

documents sufficient to establish the basis for their standing as a Class Member, i.e.,

verification under oath as to the approximate date(s) and location(s) of their

purchase(s) of the Products, the facts supporting the objection, and the legal grounds

on which the objection is based. Any objections not submitted to the Court at least

thirty (30) days prior to the Final Approval Hearing are deemed waived. If an

objecting party chooses to appear at the hearing, that objecting party must file with

the Court, at least thirty (30) days before the Final Approval Hearing, a notice of

intent to appear, which must list the name, address, and telephone number of the

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

10.5.4. Any Class Member who does not object to the

Agreement, or who does not opt out in compliance with the opt out provision in

Paragraph 10.7 below, is deemed to be a Class Member and bound by the Settlement

Agreement or any further orders of the Court in this Litigation.

10.5.5. Any Settlement Class Member wishing to object to or to

oppose the approval of this Settlement and/or the Fee and Cost Application shall file

a written objection (with a statement of reasons) with the Court and serve it on the

Parties at least twenty-one days before the date of the Final Approval Hearing. Any

Settlement Class Member that fails to do so shall be foreclosed from making such

objection or opposition. The Representative Plaintiffs will file with the Court their

brief in support of final settlement approval, in support of final certification of the

Settlement Class, and in response to any objections at least seven days before the

date of the Final Approval Hearing. Any Settlement Class Member that fails to file

a timely written objection and to appear and speak at the final approval hearing shall

have no right to file an appeal relating to the approval of this Settlement.

Ex. 1, Pg. 014


14

10.6. Right to Respond to Objections

10.6.1. Class Counsel and Defendant shall have the right, but not

the obligation, to respond to any objection, by filing opposition papers no later than

seven (7) calendar days prior to the Final Approval Hearing. The Party responding

shall file a copy of the response with the Court, and shall serve a copy, by regular

mail, hand or overnight delivery, in the Party’s discretion, to the objector (or counsel

for the objector), with standard notice to Class Counsel and Defense Counsel.

10.7. Opt Outs

10.7.1. Any Class Member who does not wish to participate in

this Settlement must write to the Claims Administrator stating an intention to be

“excluded” from this Settlement. This written Request for Exclusion must be sent

via first class United States mail to the Claims Administrator at the address set forth

in the Class Notice and postmarked no later than thirty (30) days before the date set

for the Final Approval Hearing. The Request for Exclusion must be personally

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

Member. So-called “mass” or “class” opt-outs shall not be allowed.

10.7.2. Any Class Member who does not request exclusion from

the Settlement has the right to object to the Settlement. Any Class Member who

wishes to object must timely submit an objection as set forth in paragraphs 10.5.1 to

10.5.4 above. If a Class Member submits an objection and a written Request for

Exclusion, he or she shall be deemed to have complied with the terms of the opt-out

procedure and shall not be bound by the Agreement if approved by the Court.

However, any objector who has not timely requested exclusion from the Settlement

will be bound by the terms of the Agreement upon Final Approval of the Settlement.

11. ATTORNEYS’ FEES AND EXPENSES AND INCENTIVE AWARDS

11.1. In accord with F.R.C.P. 23(h) and relevant case law, the Representative

Plaintiffs will petition the Court for attorneys’ fees, expenses, and Class

Representative incentive awards. Defendant shall have the option of responding to

any such petition, including by contesting any fees, expenses, or incentive award

requested, to the extent the petition requests (a) more than $2,500 each as incentive

awards for the Class Representatives or (b) reimbursement of an amount up to the

total of Class Counsel’s costs and fees but not to exceed twenty-five percent (25%)

of the total Settlement Amount after excluding costs of Notice and any notice

administration. The total amount of monetary payment from Similasan will be

contingent upon final approval by the Court, but will not exceed $700,000 total

payment. Similasan will only be obligated to pay the amount approved by the Court.

There will be no cy pres or reversion.

Ex. 1, Pg. 015


15

11.2. Upon appropriate Court order so providing, any incentive awards,

attorneys’ fees, and costs awarded to Class Counsel by the Court shall be paid to

Class Counsel by Defendant (“Fee and Incentive Award”), notwithstanding the

existence of any timely filed objections thereto, or appeal (actual or potential)

therefrom, or collateral attack on the Settlement or any part thereof, within 30

business days of the Effective Date.

11.3. If after 60 days after payment of Settlement Claims, attorneys’ fees,

costs and incentive awards, funds still remain in the Fund, the Claims Administrator

will distribute pro rate the remaining funds in the Fund to all Authorized Claimants.

11.4. Defendant shall bear its own attorneys’ fees and costs.

11.5. In the event any person is successful in objecting to the Settlement, as

evidenced in a written Court order, and the Parties subsequently revise the

Settlement in a manner consistent with such successful objection, and the objecting

person thereafter seeks attorneys’ fees relating to that objection and the Court awards

such fees, then such fees shall be paid out of the total amount paid by Defendant to

Class Counsel as set forth in 11.1.

12. MOTION FOR FINAL JUDGMENT AND ORDER

12.1. The Court has set the final approval hearing to be held on August 7,

2017, at 10:30 a.m., as set forth in the Preliminary Approval Order. The Parties shall

file a motion for final approval of the Settlement Agreement by June 23, 2017.

12.2. Defendant shall cooperate in good faith with Plaintiffs’ preparation of

the motion for final approval of the Settlement as necessary, including by providing

Class Counsel with then-available details of the payment of the out-of-pocket costs

of label changes, corrective advertising, and other measures and relief such as

implementing web site changes, and any and all other costs associated with

implementing the provisions of the Settlement Agreement; providing signed

declarations of appropriate corporate officers of Similasan or its parent entities, if

necessary.

12.3. Defendant shall not oppose Plaintiffs’ assertion in papers filed in

furtherance of this Settlement that the Court should affirm its ruling granting

Preliminary Approval of the Settlement.

12.4. The Parties agree to the form and substance of the proposed Final

Judgment and Order, attached hereto as Exhibit G, to be lodged with the Court with

the motion for final approval of the Settlement Agreement.

Ex. 1, Pg. 016


16

13. CONDITIONS FOR EFFECTIVE DATE; EFFECT OF

TERMINATION

13.1. The Effective Date of this Agreement shall be the date the Judgment

has become Final, as defined in Paragraph 2.12.

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

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

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

Litigation as of the date the Motion for Preliminary Approval was filed. In such

event, the terms and provisions of this Agreement will have no further force and

effect with respect to the Settling Parties and will not be used in this Litigation or in

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

Court in accordance with the terms of this Agreement will be treated as vacated.

13.3. No order of the Court or modification or reversal on appeal of any order

of the Court concerning any award of attorneys’ fees, expenses, or costs to Class

Counsel will constitute grounds for cancellation or termination of this Agreement.

14. MISCELLANEOUS PROVISIONS

14.1. The Parties acknowledge that it is their intent to consummate this

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

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

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

Agreement.

14.2. The Parties intend the Settlement to be a final and complete resolution

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

compromises claims that are contested and will not be deemed an admission by any

Settling Party as to the merits of any claim or defense.

14.3. The Parties agree that the consideration provided to the Class and the

other terms of the Settlement were negotiated at arms’ length, in good faith by the

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

competent legal counsel. This Agreement is entered solely to eliminate the

uncertainties, burdens, and expenses of protracted litigation.

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

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

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

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

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

fault or omission of Defendant in any civil, criminal, or administrative proceeding

in any court, administrative agency, or other tribunal. Any party to this Litigation

Ex. 1, Pg. 017


17

may file this Agreement and/or the Judgment in any action that may be brought

against it in order to support any defense or counterclaim, including without

limitation those based on principles of res judicata, collateral estoppel, release, good

faith settlement, judgment bar or reduction, or any other theory of claim preclusion

or issue preclusion or similar defense or counterclaim.

14.5. All agreements made and orders entered during the course of the

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

14.6. Any and all Exhibits to this Agreement are material and integral parts

hereof and are fully incorporated herein by this reference.

14.7. This Agreement may be amended or modified only by a written

instrument signed by or on behalf of all Parties or their respective successors-in-

interest.

14.8. This Agreement and any Exhibits attached hereto constitute the entire

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

have been made to any Party concerning this Agreement or its Exhibits other than

the representations, warranties, and covenants covered and memorialized in such

documents. Except as otherwise provided herein, the Parties will bear their own

respective costs.

14.9. Class Counsel, on behalf of the Class, are expressly authorized by the

Representative Plaintiffs to take all appropriate action required or permitted to be

taken by the Class pursuant to this Agreement to effectuate its terms, and are

expressly authorized to enter into any modifications or amendments to this

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

14.10. Each counsel or other Person executing this Agreement or any of its

Exhibits on behalf of any Party hereby warrants that such Person has the full

authority to do so.

14.11. This Agreement may be executed in one or more counterparts. All

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

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

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

successors and assigns of the Settling Parties.

14.13. The Court will retain jurisdiction with respect to implementation and

enforcement of the terms of this Agreement, and all parties hereto submit to the

jurisdiction of the Court for purposes of implementing and enforcing the Settlement.

14.14. None of the Settling Parties, or their respective counsel, will be

deemed the drafter of this Agreement or its Exhibits for purposes of construing the

provisions thereof. The language in all parts of this Agreement and its Exhibits will

Ex. 1, Pg. 018


Ex. 1, Pg. 019


Ex. 1, Pg. 020


Ex. 1, Pg. 021


Ex. 1, Pg. 022


EXHIBIT A

Ex. 1, Pg. 023


SFACTIVE-904004149.2

Exhibit A to Settlement Agreement

This list encompasses the Similasan Corporation homeopathic products included in the Allen v. Similasan Settlement Agreement by name and includes, but is not limited to, the following FDA NDC numbers, which are included for further identification: Product FDA NDC No. Adult Cough Relief 59262-260-25 Adult Mucus Relief 59262-261-25 Aging Eye Relief 59262-360-11 Allergy Eye Relief

59262-364-11; 59262-354-13; 59262-346-11; 59262-353-12; 59262-354-13

Anxiety Relief 59262-602-30 Arnica Active 59262-101-41; 59262-100-41 Baby Gas & Colic Relief Tablets 59262-501-26 Baby Teething + Tooth Support Tablets 59262-500-26 Burn Recovery 59262-400-41 Computer Eye Relief 59262-355-13; 59262-347-11;

59262-355-13 Dry Eye Relief

59262-352-13; 59262-352-13; 59262-345-11; 59262-351-12

Ear Relief

59262-271-11; 59779-900-11; 11673-904-11; 11822-900-27; 0363-9020-11; 0363-9021-11

Ear Wax Relief 59262-272-11 Ear Wax Removal Kit Eye Drops #1 Eye Drops #2 Eye Drops #3 Hay fever Relief Hayfever Drops #1 Irritated Eye Relief

59262-348-11; 59779-901-11; 59262-356-13; 59262-356-13; 11822-5366-40; 11673-905-11; 0363-9031-44

Itch Relief Junior Cold & Mucus Relief 59262-262-26 Junior Cough & Fever Relief 59262-263-26 Junior Immune Support 59262-264-26 Kids Allergy Eye Relief 59262-361-11 Kids Cold & Mucus Relief 59262-257-25 Kids Cold & Mucus Relief + Echinacea 59262-266-25

Ex. 1, Pg. 024


SFACTIVE-904004149.2

Kids Cough & Cold Relief + Echinacea, Night

59262-265-25

Kids Cough & Fever Relief 59262-259-25 Kids Ear Relief 59262-274-11 Kids Irritated Eye Relief 59262-362-11 Nasal Allergy Relief 59262-241-20 Redness & Itchy Eye Relief 59262-363-11 Sinus Relief 59262-240-20 Sleeplessness Relief 59262-601-30 Sore Throat Spray Stress & Tension Relief 59262-600-30 Stye Eye Relief 59262-350-11 Throat Drops #1 Throat Relief Tired Eye Relief 59262-357-11

Ex. 1, Pg. 025


EXHIBIT B

Ex. 1, Pg. 026


QUESTIONS? VISIT WWW.SIMILASANCLASSACTION.COM, OR CALL 1.855.974.6452

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

If You Bought An Eligible Similasan Product At Any Time From February 10, 2008 To XXXX XXX, 2017, You May Be Part of This Lawsuit.

READ THIS NOTICE CAREFULLY.

YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT. PLEASE CHECK THE SETTLEMENT WEBSITE AT WWW.SIMILASANCLASSACTION.COM

REGULARLY FOR UPDATES AND FURTHER DETAILS.

A federal court authorized this notice. This is not a solicitation from a lawyer.

• There is a class action Settlement of a lawsuit alleging Similasan made false and misleading representations, and breached express and implied warranties regarding its homeopathic products. Similasan denies that it did anything wrong, denies all of the claims made in this lawsuit, and stands by its products and marketing. The Court did not rule in favor of either party. Instead, the parties agreed to a Settlement in order to avoid the expense and uncertainty of continuing the lawsuit.

• Anyone who bought an eligible Similasan product, referred to as the “Products” and listed below under Question 7, from February 10, 2008 to XXX XX, 2017, is included in the Settlement.

• Your legal rights are affected whether you act or do not act.

Read this notice carefully because it explains decisions you must make and actions you must take now.

SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

SUBMIT A CLAIM

FORM The only way to get a payment.

DO NOTHING Get no payment. Give up rights to be a part of any other lawsuit against the Defendant about legal claims released by the Settlement.

EXCLUDE YOURSELF This is the only choice that allows you to be part of any other lawsuit against Similasan about the claims in this case (see Question 12). You must postmark your letter requesting exclusion from the class (a “Request for Exclusion”), as described further below (see Question 11) by XXX XX, 2017.

OBJECT You can write to the Court by XXXX XX, 2017 to explain why you do not agree with any or all aspects of the Settlement (see Question 15).

GO TO A HEARING You can ask by XXXX XX, 2017 to speak in Court about the fairness of the Settlement (see Question 19).

• These rights and options—and the deadlines to exercise them—are explained in this notice. The

deadlines may be moved, cancelled, or otherwise modified, so please check the settlement website at www.SimilasanClassAction.com regularly for updates and further details.

• If you do not exclude yourself from the Class, the Settlement (if approved) will release certain claims and will affect your rights. The Release is set forth in a Settlement Agreement called the “Class Action Settlement Agreement,” which is available at www. SimilasanClassAction.com and has been reprinted in full below (see Question 10).

Ex. 1, Pg. 027


2 QUESTIONS? VISIT WWW.SIMILASANCLASSACTION.COM, OR CALL 1.855.974.6452

WHAT THIS NOTICE CONTAINS

BASIC INFORMATION………………………………………………………………………………….3

1. Why was this notice issued? 2. What is this lawsuit about? 3. Why is this a class action? 4. Why is there a Settlement?

WHO IS PART OF THE SETTLEMENT?…….……………………………………………………….4

5. Who is included in the Settlement? 6. Are there exceptions to being included? 7. Which products are included? 8. What if I’m still not sure if I’m included?

THE SETTLEMENT BENEFITS – WHAT YOU CAN GET…..…..………………...……………….5

9. What does the Settlement provide? 10. What am I giving up if I stay in the Class?

EXCLUDING YOURSELF FROM THE SETTLEMENT.…………………………………………….8 11. How can I get out of the Settlement? 12. If I don’t exclude myself, can I sue Similasan for the same thing later?

THE LAWYERS REPRESENTING THE CLASS….……………………..…………………….…….9

13. Do I have a lawyer in this case? 14. How will the lawyers be paid?

OBJECTING TO THE SETTLEMENT.………………………………………………………..………10

15. How can I tell the Court if I do not like the Settlement? 16. What is the difference between objecting and asking to be excluded?

THE COURT’S FAIRNESS HEARING………..……………………………………………………...11

17. When and where will the Court decide whether to approve the Settlement? 18. Do I have to come to the hearing? 19. May I speak at the fairness hearing?

GETTING MORE INFORMATION…………………………………….………………………………12

20. How can I get more information?

Ex. 1, Pg. 028



BASIC INFORMATION

1. Why was this notice issued? The Court ordered that this Notice be provided because you have the right to know about a Settlement of a class action lawsuit, and about your rights and options, before the Court decides whether to approve the Settlement. This Notice explains: (1) the lawsuit; (2) the settlement; and (3) your legal rights. Information about the Settlement is summarized below. The settlement agreement, which is called the “Settlement Agreement,” is available on the Settlement website, www.SimilasanClassAction.com, and provides greater detail on the rights and duties of the parties and Class Members. The persons who sued are called the “Plaintiffs.” Similasan Corporation is the “Defendant.”

2. What is this lawsuit about? Plaintiffs brought a class action lawsuit on behalf of purchasers of over-the-counter Similasan Corporation (“Similasan”) homeopathic drug products. The case alleges that Similasan made false and misleading representations, and breached express and implied warranties regarding its Products. Similasan denies Plaintiff’s allegations and continues to stand by its products and advertising. Before a trial could resolve Plaintiffs’ allegations, Plaintiffs and Similasan reached a settlement. The full settlement agreement and court documents associated with this case can be viewed at www.SimilasanClassAction.com, or by contacting the settlement administrator.

3. Why is this a class action? In a class action, one or more people called “Representative Plaintiffs” sue on behalf of themselves and other people who have similar claims. Together, all of these people are “Class Members” and form a “Class.” One Court resolves the issues for all Class Members in a class action, except for those who exclude themselves from the Class.

4. Why is there a Settlement? The Court has not decided in favor of either the Plaintiffs or Similasan. Instead, both sides have agreed to the Settlement Agreement. By agreeing to the Settlement Agreement, and if the Settlement Agreement is approved by the Court, they avoid the costs and uncertainty of further case proceedings, potentially including a trial, and Class Members receive the benefits described in this notice, in exchange for a release of the claims in this case. The Settlement does not mean that any law was broken or that Similasan did anything wrong, or that the Plaintiffs and the Class would or would not win their case if it were to go to trial. The parties believe that the Settlement Agreement is fair, reasonable, and adequate; will provide substantial benefits to the Class; and is best for all Class Members.

Ex. 1, Pg. 029



WHO IS PART OF THE SETTLEMENT?

5. Who is included in the Settlement? “Class Members” means all consumers who purchased Similasan’s Homeopathic Products (listed in Question 7) for household or personal use during the Class Period (February 10, 2008 to XXX X, 2017) in the United States.

6. Are there exceptions to being included? The Settlement Agreement does not include:

• Similasan; • Persons who during or after the Class Period were officers, directors, or employees of Similasan, or

any corporation, trust or other entity in which Similasan has a controlling interest, members of their immediate families or their successors, heirs, assigns and legal representatives;

• Persons or entities who purchased the Products for the purpose of resale or distribution; • Persons who timely and properly exclude themselves from the Class as provided in the Settlement

Agreement (see Question 11); • Any judicial officer hearing the Litigation, as well as his or her immediate family members and

employees; and • Personal injuries that resulted in actual bodily harm

7. Which products are included?

The following Similasan products, in all sizes, are the “Products”:

Product FDA NDC No. Adult Cough Relief 59262-260-25 Adult Mucus Relief 59262-261-25 Aging Eye Relief 59262-360-11 Allergy Eye Relief 59262-364-11; 59262-354-13;

59262-346-11; 59262-353-12; 59262-354-13

Anxiety Relief 59262-602-30 Arnica Active 59262-101-41; 59262-100-41 Baby Gas & Colic Relief Tablets 59262-501-26 Baby Teething + Tooth Support Tablets 59262-500-26 Burn Recovery 59262-400-41 Computer Eye Relief 59262-355-13; 59262-347-11;

59262-355-13 Dry Eye Relief 59262-352-13; 59262-352-13;

59262-345-11; 59262-351-12 Ear Relief 59262-271-11; 59779-900-11;

11673-904-11; 11822-900-27; 0363-9020-11; 0363-9021-11

Ear Wax Relief 59262-272-11 Ear Wax Removal Kit Eye Drops #1

Ex. 1, Pg. 030



Product FDA NDC No. Eye Drops #2 Eye Drops #3 Hay fever Relief Hayfever Drops #1 Irritated Eye Relief 59262-348-11; 59779-901-11; 59262-356-

13; 59262-356-13; 11822-5366-40; 11673-905-11; 0363-9031-44

Itch Relief Junior Cold & Mucus Relief 59262-262-26 Junior Cough & Fever Relief 59262-263-26 Junior Immune Support 59262-264-26 Kids Allergy Eye Relief 59262-361-11 Kids Cold & Mucus Relief 59262-257-25 Kids Cold & Mucus Relief + Echinacea 59262-266-25

8. What if I’m still not sure whether I’m included? If you are not sure whether you are a Class Member, or have any other questions about the Settlement Agreement, you should visit the website, www.SimilasanClassAction.com, or call the toll free number, 1.855.974.6452 (1.855.9.SIMILASAN). You may also send questions to interim Class Counsel, Ronald A. Marron, Law Offices of Ronald A. Marron, APLC, 651 Arroyo Drive, San Diego, CA 92103; or call interim Class Counsel, Ronald A. Marron on 619-696-9006.

Ex. 1, Pg. 031



THE SETTLEMENT BENEFITS – WHAT YOU CAN GET

9. What does the Settlement provide?

A. Payments to Class Members. Defendant will pay a sum total of $700,000 for (i) valid claims submitted by Class Members, (ii) Class Counsel’s attorneys’ fees and expenses, (iii) an incentive award to Plaintiffs for their efforts in bringing the Action, (iv) costs of notice and claims administration, and (v) any applicable taxes. Any of the $700,000 remaining after payment of all claims, attorneys’ fees and expenses, incentive award, and taxes will be distributed pro rata to Class Member Claimants. If you are a member of the Class (defined in the answer to Question No. 4 above), and you do not exclude yourself from the Class, you can submit a claim to receive a cash payment. Claims Submitted With Proof of Purchase: If you are able to provide proof of purchase from any retailer in the United States (e.g., receipt or packaging) (“Proof of Purchase”), you may submit a claim which will entitle you to a full refund of the purchase price. Claims Submitted Without Proof of Purchase: If you are unable to provide Proof of Purchase but swear or affirm under penalty of perjury that you purchased a Product during the Class Period and it did not provide relief, you may submit a claim and receive an estimated $10.00-$30.00, depending on amount of claims. Process: To be eligible for a payment pursuant to the Settlement, a Class Member must submit a claim that (i) is postmarked (or dated, if submitted online) by the Claim Filing Deadline, which will be thirty (30) days after the date the Court enters a judgment granting final approval, and (ii) contains all of the required information and documentation set forth in the claim form. You can file a claim form online or download a claim form by going to www.SimilasanClassAction.com and following the instructions provided. You can also get a claim form by writing to the Similasan Claims Administrator, c/o Classaura, 1718 Peachtree St #1080, Atlanta, GA 30309. If the aggregate number of claims exceeds the Settlement Fund, payments to Class Members may be subject to pro rata reduction. If funds are available after all Settlement Claims are disbursed, Class Members may be subject to a pro rata increase in their Claim.

10. What am I giving up in exchange for the Settlement benefits? If the Settlement becomes final, Class Members will be releasing Similasan and related people and entities from all of the claims asserted in this lawsuit, including monetary relief and injunctive relief, as described in the Settlement Agreement. Unless you exclude yourself from the Settlement Agreement, you cannot sue Similasan or be part of any other lawsuit against Similasan about the issues in this case. (As noted above, see Question 6, this lawsuit does not involve claims for Personal Injuries that resulted in actual bodily harm arising out of the consumption of the Products.) Unless you exclude yourself, all of the decisions by the Court will bind you. By staying in the Class, you become a Class Member, and you will automatically release Similasan from any claims set forth below, which includes your right to sue Similasan for injunctive relief beyond the relief that has been agreed to in the Settlement Agreement, or any form of monetary relief other than personal injury claims, and you will give up your rights to pursue or continue any action against Similasan based on the “Released Claims.”

Ex. 1, Pg. 032


http://www.similasanclassaction.com/


The Settlement Agreement is available at www.SimilasanClassAction.com. Section 8 of the Settlement Agreement describes the released claims with specific descriptions, in necessarily accurate legal terminology, so you should read it carefully. A word-for-word copy of the release sections from the Settlement Agreement is provided below. Please carefully read the following sections regarding the “Released Claims”:

2.26. “Released Claims” means, with the exception of claims for personal injury, any and all claims, demands, rights, suits, liabilities, and causes of action of every nature and description whatsoever, known or unknown, matured or unmatured, at law or in equity, existing under federal and/or state law, including without limitation a waiver of all rights under Section 1542 of the California Civil Code, that the Representative Plaintiffs and/or any Class Member has or may have against the Released Persons arising out of, in connection with, or related in any way, directly or indirectly, to Defendant’s advertising, marketing, packaging, labeling, promotion, sale, or distribution of the Products, that have been brought, could have been brought, or are currently pending, by any Class Member against Released Persons, in any forum in the United States (including territories and Puerto Rico). 2.27. “Released Persons” means Defendant, its respective parent companies, subsidiary companies, affiliated companies, past, present, and future officers (as of the Effective Date), directors, shareholders, employees, predecessors, principals, insurers, administrators, agents, accountants, consultants, advisers, independent contractors, distributors, subcontractors, vendors, buyers, experts, servants, successors, trustees, co-conspirators, buyers, attorneys, representatives, heirs, executors, and assigns of all of the foregoing persons and entities. . 8.2. After entering into this Settlement Agreement, the Representative Plaintiffs or the Class Members may discover facts other than, different from, or in addition to, those that they know or believe to be true with respect to the Released Claims. The Representative Plaintiffs and the Class Members expressly waive and fully, finally, and forever settle and release any known or unknown, suspected or unsuspected, contingent or noncontingent equitable claim, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such other, different, or additional facts.. 8.3. All Parties to this Settlement Agreement, including the Representative Plaintiffs and the Class Members, specifically acknowledge that they have been informed of Section 1542 of the California Civil Code by their legal counsel via the Notice, and they expressly waive and relinquish any rights or benefits available to them under this statute. California Civil Code § 1542 provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.. 8.4. Notwithstanding California Civil Code § 1542, or any other federal or state statute or rule of law of similar effect, this Agreement shall be given full force and effect according to each and all of its expressed terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands, or causes of action which are based on, arise from or are in any way connected with the Litigation.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you want to keep the right to sue or continue to sue Similasan on your own about the legal issues in this case, then you must take steps to exclude yourself from this Settlement. This is called “opting out” of the Class.

Ex. 1, Pg. 033



11. How can I get out of the Settlement?

To exclude yourself from the Class, you must send, by U.S. mail, a letter or written request to the Class Action Administrator. You cannot ask to be excluded over the phone or through the Internet. Your Request for Exclusion must include all of the following:

1. Your full name and current address; 2. A clear statement that you wish to be excluded from the Class; 3. The case name and case number (Allen v. Similasan Corp., No. No. 3:12-cv-00376); and 4. Your signature (you must personally sign the letter).

Your Request for Exclusion must be postmarked no later than XXX XX, 2017 and addressed as follows:

Similasan Settlement Classaura Class Action Administration

1718 Peachtree St #1080 Atlanta, GA 30309

“Mass” or “Class” opt-outs are not permitted.

12. If I don’t exclude myself, can I sue Similasan for the same thing later? No. If the Court approves the Settlement Agreement and you do not exclude yourself from the Class, you give up (or “release”) all claims that have been made in this lawsuit. This means that you are agreeing to fully, finally, and forever release, relinquish, and discharge all Released Claims against the Released Parties, as set forth above in response to Question 10. As part of this Settlement, the Court has preliminarily stopped all Class Members and/or their representatives (who do not timely exclude themselves from the Class) from receiving any benefits from any other lawsuit relating to the claims being resolved in this case. Upon final approval of the Settlement Agreement, Plaintiffs and Similasan will ask the Court to enter a permanent ruling forbidding all Class Members and/or their representatives and/or personnel from engaging in the activities described above. All Class Members will be bound by this order.

Ex. 1, Pg. 034



THE LAWYERS REPRESENTING THE CLASS

13. Do I have a lawyer in this case? You have been represented by a number of lawyers that have prosecuted this case together. The Court has appointed the following lawyers to represent you and other Class Members as Class Counsel. You will not be charged for the services of these lawyers. You may contact Class Counsel as follows:

Ronald A. Marron Law Office of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103 [email protected] Tel: 619.696.9006

You have the right to retain your own lawyer to represent you in this case, but you are not obligated to do so. If you do hire your own lawyer, you will have to pay his or her fees and expenses. You also have the right to represent yourself before the Court without a lawyer.

14. How will the lawyers be paid? Class Counsel, on behalf of themselves and other lawyers who have worked on this case, will ask the Court for reimbursement of their expenses and costs and will also ask the Court for attorney’s fees not to exceed $175,000. Class Counsel will also ask for a payment not to exceed $2500 for each of the named Class Members who helped the lawyers on behalf of the entire Class by acting as Representative Plaintiffs. The Court has to approve any attorneys’ fees and expenses or payments to the Representative Plaintiffs before they can be awarded in this case. The attorneys’ motion(s) for fees, costs, and expenses, and for payments to the Representative Plaintiffs, will be filed on or before XXX XX, 2017. The motion(s) will be posted on the website at www.SimilasanClassAction.com.

OBJECTING TO THE SETTLEMENT You have the right to tell the Court that you do not agree with Settlement Agreement or any or all of its terms.

15. How can I tell the Court if I do not like the Settlement Agreement? If you choose to remain a Class Member, you have the right to object to any part of the Settlement Agreement. The Court will consider your views. To object, you must file a timely, written objection with the Court no later than, and also send the written objection by U.S. mail to Class Counsel and the Court postmarked no later than XXX XX, 2017. Members of the Class who fail to file and serve timely written objections as described here and in the Settlement Agreement shall be deemed to have waived all objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement. Your written objection must include:

(1) your full name, address, and telephone number;

Ex. 1, Pg. 035



(2) the name, address, and telephone number of your lawyer, if you have one; (3) the factual and legal grounds for your objection(s); (4) documents sufficient to establish the basis for you standing as a Class Member, i.e., verification

under oath as to the approximate date(s) and location(s) of your purchase(s) of the Products; (5) your signature; (6) the signature of your lawyer, if you have one; (7) the case name and case numbers (Allen v. Similasan Corp., No. No. 3:12-cv-00376); and (8) a specific list of any other objection you or your lawyer have made to any class action settlement

submitted to any court in the United States in the previous five years. If you choose to object, in order to be considered by the Court, your written objection(s) must be filed with the Court and sent by U.S. Mail to Class Counsel, Defense Counsel, and the Class Action Administrator no later than XXXXXXX. Objections that are served on the Parties, but not filed with the Court, will not be received or considered by the Court at the Fairness Hearing. Objections must be served:

On Class Counsel (who will share objections with co-counsel and defense counsel): Ronald A. Marron Law Office of Ronald Marron 651 Arroyo Drive San Diego, CA 92103 Telephone: 619-696-9006 For the Court: Clerk of the Court United States District Court Southern District of California 333 West Broadway, Suite 420 San Diego, CA 92101 Telephone: 619-557-5600

16. What is the difference between objecting and asking to be excluded?

Objecting is simply a way of telling the Court that you do not like something about the Settlement Agreement. You can object only if you stay in the Class. You will also be bound by any subsequent rulings in this case, and (if the Settlement Agreement is approved) you will not be able to file or participate in any other lawsuit asserting a Released Claim. If you object to the Settlement Agreement, you will remain a Class Member. Excluding yourself is telling the Court that you do not want to be a part of the Class. If you exclude yourself, you have no basis to object to the Settlement Agreement and/or appear at the Fairness Hearing because it no longer affects you.

Ex. 1, Pg. 036



THE COURT’S FAIRNESS HEARING The Court will hold a hearing (called a Fairness Hearing) to decide whether to finally approve the Settlement Agreement. If you have filed and mailed an objection on time, you may submit a notice to seek permission to speak at the Fairness Hearing. You do not have to speak.

17. When and where will the Court decide whether to approve the Settlement Agreement? On August 7, 2017 at 10:30 p.m. the Court will hold a Fairness Hearing at the United States District Court for the Southern District of California, before the Honorable Cynthia A. Bashant, District Judge, in Courtroom 4B (4th floor – Schwartz) of the Courthouse located at 221 West Broadway, San Diego, CA 92101. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check www.SimilasanClassAction.com for updates. At the Fairness Hearing, the Court will consider whether the Settlement Agreement is fair, reasonable, and adequate. The Court will also decide whether to award attorneys’ fees and costs, as well as any payment to the Representative Plaintiffs. If there are objections, the Court will consider them at that time if they were properly filed and mailed by the deadline. After the hearing, the Court will decide whether to approve the Settlement Agreement. We do not know how long these decisions will take.

18. Do I have to come to the Fairness Hearing? No. Class Counsel will answer any questions that the Court may have at the Fairness Hearing. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. Please note that the Court has the right to change the date and/or time of the Fairness Hearing without further notice, so it is a good idea to check the settlement website (www.SimilasanClassAction.com) for updates. If you are planning to attend the hearing, you should confirm the date and time on the above website before going to the Court.

19. May I speak at the Fairness Hearing? Yes, you may ask the Court for permission to speak at the hearing, but only if you filed a written objection as described above. To speak at the hearing, you must file a “Notice of Intent to Appear.” If you or your attorney wants to appear and speak at the Fairness Hearing, you (or your attorney) must, in addition to filing a Notice of Intent to Appear with the Court, mail or e-mail copies of the Notice of Intent to Appear to Class Counsel and Defense Counsel, whose addresses are listed above in Question 15. Your Notice of Intent to Appear must be filed and received by the Court, and mailed and/or e-mailed to Defense Counsel and Class Counsel, no later than XXX XX, XXXX.

Ex. 1, Pg. 037



GETTING MORE INFORMATION

20. How can I get more information? Class Members can ask questions and review court documents associated with this case at www.SimilasanClassAction.com, or by writing the “Claims Administrator” at [Classaura, 1718 Peachtree St #1080, Atlanta GA 30309] or by calling 1-855-974-6452 (1-855-9-SIMILASAN).

PLEASE DO NOT CONTACT THE COURT OR CLERK’S OFFICE REGARDING THIS NOTICE.

Dated: XXX XX, 2017 Clerk of the Court for the United States District Court for

the Southern District of California

Ex. 1, Pg. 038


http://www.similasanclassaction.com/

EXHIBIT C

Ex. 1, Pg. 039


LEGAL NOTICE

A federal court authorized this notice. This is not a solicitation from a lawyer.

1-855-974-6452 www.SimilasanClassAction.com

DO NOT CALL SIMILASAN OR THE COURT

If you purchased a product manufactured by Similasan Corporation, your rights may be affected by a proposed class

action settlement WHAT IS THIS CASE ABOUT?

A proposed settlement has been reached in a class

action lawsuit. The lawsuit claims that labeling and

marketing on homeopathic over-the-counter drugs

manufactured or distributed by defendant Similasan

Corporation (“Similasan”) was false or deceptive.

Similasan stands by its advertising and denies it did

anything wrong. The Court has not decided which side

was right. Instead, the parties have decided to settle

the case.

ARE YOU A CLASS MEMBER?

You are a class member if you purchased any over-

the-counter Similasan homeopathic drug, in all sizes

and package iterations, for personal or household use

between February 10, 2008 and [DATE] (the

“Products”). Excluded from the Class are Similasan,

its employees, parents, subsidiaries, affiliates, officers

and directors, and those who purchased the Products

for resale.

WHAT DOES THIS SETTLEMENT PROVIDE?

A settlement fund of $700,000 is being set up to pay

claims to eligible class members, attorneys’ fees and

costs, incentive award to the named plaintiff, and the

notice and claims administration costs. Similasan has

also agreed to make certain changes to the manner in

which it labels and advertises the Products, and has

also agreed to provide dilution disclaimers on its

websites. The complete Settlement Agreement is

found at www.SimilasanClassAction.com.

WHAT HAPPENS NOW?

The Court will hold a hearing in this case on February

7, 2017 at 10:30 at the federal courthouse located at

Courtroom 4B (4th Floor - Schwartz), 221 West

Broadway, San Diego, CA 92101, to consider final

approval of the settlement, payment of attorneys’ fees,

costs incentive awards of up to $2,500 for the Class

Representative in the lawsuit, and related issues. The

motion(s) by Class Counsel for attorneys’ fees and

costs and incentive awards for the Class

Representative will be available for viewing on the

settlement website after they are filed. You may appear

at the hearing in person or through your attorney at

your own cost, but you are not required to do so.

WHAT ARE YOUR OPTIONS?

SUBMIT A CLAIM FORM

The only way to get a payment.

To receive a payment, you must

file a claim (online for via mail)

no later than {DATE}.

EXCLUDE YOURSELF

Get out of the lawsuit and the

settlement. Get no payment. If

you do not want to be bound by

the settlement, you must send a

letter to the Claims Administrator

at the address below requesting

to be excluded. The letter must

be postmarked by [DATE]. If

you exclude yourself, you cannot

receive a benefit from this

settlement, but you can sue the

manufacturer of the Products for

the claims alleged in this lawsuit.

OBJECT OR COMMENT

Write the Court about why you

do, or do not, like the settlement.

If you want to object to the

settlement you must file a

written statement with the

Court by [DATE].

DO NOTHING If you do not exclude yourself

from the settlement, you will be

bound by the Court’s decisions.

You will get no payment.

Your rights and options – and the deadlines to exercise

them – are only summarized in this notice. The

Detailed Notice describes, in full, how to file a claim,

object, or exclude yourself and provides other

important information. For more information and to

obtain a Detailed Notice, claim form or other

documents, visit www.SimilasanClassAction.com,

call toll-free [1-855-974-6452], or write to: Similasan

Class Action, c/o Classaura, 1718 Peachtree St #1080,

Atlanta, GA 30309.

Ex. 1, Pg. 040


EXHIBIT D

Ex. 1, Pg. 041


Allen v. Similasan Corporation, Case No. 3:12-cv-00376

CLAIM FORM

YOU MUST SUBMIT YOUR CLAIM FORM NO LATER THAN SEPTEMBER 7, 2017.

PERSONAL INFORMATION. Please legibly print or type the following information:

Name (first, middle, and last):

Residential Street Address:

City, State, and ZIP code:

Telephone Number: (______) Email Address (optional):

The above information will be used to send you your Settlement Payment and to communicate with you if any

additional information is needed for or problems arise with your claim.

CONFIRMATION OF CLASS MEMBERSHIP

I declare the following (choose one):

□ I purchased a Similasan Product between February 10, 2008 and [the date of entry of the Preliminary Approval

Order] and the Product I purchased did not provide relief. I do not have a receipt for my purchase.

□ I purchased a Similasan Product between February 10, 2008 and [the date of entry of the Preliminary Approval

Order] and the Product I purchased did not provide relief. I am attaching documentation of my purchase in the form

of a receipt or itemized credit card or itemized bank statement.

IF SUBMITTED BY ELECTRONIC SUBMISSION:

I agree that by submitting this Claim Form I certify under penalty of perjury of the laws of the United States

of America that the foregoing is true and correct to the best of my knowledge and that checking this box

constitutes my electronic signature on the date of its submission.

IF SUBMITTED BY U.S. MAIL:

I declare under penalty of perjury under the laws of the Unites States of America that the foregoing is true and

correct to the best of my knowledge.

Dated: Signature:

Ex. 1, Pg. 042


EXHIBIT E

Ex. 1, Pg. 043


Classaura LLC 1718 Peachtree St NW #1080 Atlanta GA 30309 Phone: (404) 500 3356 EIN: 46-4825672

ESTIMATE

Please make checks payable to Classaura LLC. If you have any questions or concerning, please contact Gajan Retnasaba at (214) 502 9376 or [email protected].

March 3, 2017

SIMILASAN NOTICE

TO: Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103

Description Amount Press Release (PR Newswire) $1,500 Website & Maintenance $5,000 Phone IVR $2,000 CAFA Notice $1,500 Facebook –Targeted to Likely Homeopathy Users (10 MM impressions) $20,000 SD Tribune (4 insertions) (Metro Only – Early Week) $5,000

Total $35,000

Ex. 1, Pg. 044


EXHIBIT F

Ex. 1, Pg. 045


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Allen, et al. v. Similasan Corp., Case No. 3:12-CV-00376 CAB PRELIMINARY APPROVAL ORDER

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SOUTHERN DISTRICT OF CALIFORNIA

KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant.

Case No. 3:12-cv-00376-CAB CLASS ACTION ORDER PRELIMINARILY

APPROVING CLASS ACTION

SETTLEMENT, CERTIFYING THE

CLASS, APPOINTING CLASS


COUNSEL, APPROVING NOTICE

PLAN, AND SETTING FINAL

APPROVAL HEARING

After arms-length settlement discussions between Plaintiffs Lainie Rideout and

Kathleen Hairston and Defendant Similasan Corporation (the “Parties”), the Parties have

entered into a Settlement Agreement (“Agreement”) with respect to the above captioned

matter, which, if approved, would resolve this certified class action (“the Litigation”).

The capitalized terms used in this Preliminary Approval Order shall have the

meanings and/or definitions given to them in the Agreement, or if not defined therein, the

meanings and/or definitions given to them in this Preliminary Approval Order.

Ex. 1, Pg. 046


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During the pendency of the Litigation, Class Counsel conducted an extensive

examination and evaluation of the relevant facts and law to assess the merits of the

named Plaintiffs’ and Class’ claims to determine how best to serve the interests of

Plaintiffs and the Class. In the course of this extensive examination, Class Counsel

reviewed numerous documents, which consisted of marketing data, label and package

mechanicals, sales figures, unit sales, promotional materials, package materials, and

detailed financial information produced by Defendant. Class Counsel has conducted a

thorough review of the federal Food, Drug and Cosmetic Act (“FDCA”), its numerous

changes over the years, and the FDCA’s implementing regulations with respect to dietary

supplements. Class Counsel propounded interrogatories, requests for admission, and

requests for production of documents on Defendant, to which Defendant responded.

Class Counsel has carefully considered the merits of Plaintiffs’ and the Class’ claims,

and the defenses raised by Defendant.

The proposed settlement was reached only after extensive investigation and

discovery in the matter, and was the result of protracted negotiations conducted by the

Parties, including with the assistance of the Honorable Jill Burkhardt, Magistrate Judge

in this action, through numerous in-person and telephonic settlement conferences. In

addition, the Parties engaged in numerous settlement discussions between the Parties’

counsel after the settlement conferences with Judge Burkhardt in order to reach the terms

of the Agreement, over the course of several months. Based on the negotiations between

counsel for the Parties, the Parties fully understood the nature, strength, and weaknesses

of each other’s claims and defenses.

Plaintiffs and Class Counsel maintain that the Litigation and the claims asserted

therein are meritorious but admit that Plaintiffs and the Class may not have prevailed at

trial given the recent defense verdict in Allen v. Hyland’s, Inc. Plaintiffs and Class

Counsel have therefore agreed to settle the Litigation pursuant to the provisions of the

Agreement, after considering, among other things: (i) the substantial benefits to Plaintiffs

and the Class under the terms of this Agreement; (ii) the uncertainty of being able to

Ex. 1, Pg. 047


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prevail at trial; (iii) the uncertainty relating to Defendant’s defenses and the expense of

additional motion practice in connection therewith; (iv) the issues relating to proving

damages on an individual Class Member basis; (v) the attendant risks of litigation,

especially in complex actions such as this, as well as the difficulties and delays inherent

in such litigation; and (vi) the desirability of consummating this Settlement promptly in

order to provide effective relief to Plaintiffs and the Class.

Plaintiffs and Class Counsel agree that this Agreement is fair, reasonable, and

adequate because it provides substantial benefit to the Class, is in the best interests of the

Class, and fairly resolves the claims alleged in this Litigation.

Defendant expressly denies any wrongdoing alleged in the pleadings in the

Litigation, and does not admit or concede any actual or potential fault, wrongdoing, or

liability in connection with any facts or claims that have been or could have been alleged

against it in the Litigation. Defendant nonetheless considers it desirable for the

Litigation to be settled and dismissed, because the proposed settlement will: (i) avoid

further expense and disruption of the management and operation of Defendant’s business

due to the pendency and defense of the Litigation; (ii) finally put Plaintiffs’ and the

Class’ claims and the underlying matters to rest; and (iii) avoid the substantial expense,

burdens, and uncertainties associated with a potential finding of liability and damages for

Plaintiffs and the Class on the claims alleged in the Complaint in the Litigation.

The Court has read and considered the Agreement and all exhibits thereto,

including the proposed notices and claim form, and finds there is sufficient basis for: (1)

granting preliminary approval of the Agreement; (2) certifying a class for settlement

purposes; (3) appointing Plaintiffs Kathleen Hairston and Lainie Rideout as Class

Representatives and their counsel as Class Counsel; (4) directing that Notice be

disseminated to the Class; and (5) setting a hearing at which the Court will consider

whether to grant final approval of the Agreement.

The Court now GRANTS the motion for preliminary approval and makes the

following findings and orders:

Ex. 1, Pg. 048


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1. Pursuant to Federal Rule of Civil Procedure 23, the Court hereby certifies

this Litigation as a class action on behalf of the following certified Class:

All purchasers of all Similasan Corporation homeopathic Products

nationwide for personal or household use and not for resale, as listed in

Exhibit A to the Settlement Agreement, from February 10, 2008 to the

Opt Out Deadline. Excluded from the Class are governmental entities,

Defendant, any entity in which Defendant has a controlling interest, its

employees, officers, directors, legal representatives, heirs, successors

and wholly or partly owned subsidiaries or affiliated companies,

including all parent companies, and their employees; and the judicial

officers, their immediate family members and court staff assigned to this

case.

2. The Court finds that the Class meets the requirements of Rule 23(a),

(b)(2), and (b)(3) of the federal Rules of Civil Procedure. Joinder of all Class Members

in a single proceeding would be impracticable, if not impossible, because of their

numbers and dispersion. Common issues exist among Class Members and predominate

over questions affecting individual Class Members only. In particular, each Class

Member’s claim depends on whether the representations made by Defendant on the

packaging, labeling, and marketing of the Products, which were uniform throughout the

United States, were misleading to a reasonable consumer. Plaintiffs’ claims are typical

of, indeed identical, to those of the Class, as Plaintiffs were exposed to Defendant’s

claims and purchased the Product(s) in reliance on those claims. Plaintiffs and their

counsel will fairly and adequately protect the interests of the Class, as Plaintiffs has no

interests antagonistic to the Class, and has retained counsel who are experienced and

competent to prosecute this matter on behalf of the Class. Finally, a class settlement is

superior to other methods available for a fair resolution of the controversy.

3. The Court approves Plaintiffs Kathleen Hairston and Lainie Rideout as

Class Representatives.

4. Having considered the factors set forth in Rule 23(g)(1) of the Federal

Rules of Civil Procedure, the Court appoints Plaintiffs’ counsel, the Law Offices of

Ex. 1, Pg. 049


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Ronald A. Marron, APLC, Gomez Trial Attorneys, and Law Offices of Dean Goetz, to

serve as Class Counsel.

5. The Court preliminarily approves the Agreement, finding that its terms

appear sufficient, fair, reasonable, and adequate to warrant dissemination of Notice of the

proposed settlement to the Class. The Agreement contains no obvious deficiencies and

the Parties have entered into the Agreement in good faith, following arms-length

negotiation between their respective counsel. The Court’s approval of this Agreement is

made subject to further consideration at the Final Approval Hearing Date.

6. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court

will hold a final approval hearing (the “Final Approval Hearing Date”) on August 7,

2017 at 10:30 a.m., in the Courtroom of the Honorable Cynthia A. Bashant, United States

District Court for the Southern District of California, for the following purposes:

a. finally determining whether the Class meets all applicable

requirements of Federal Rules of Civil Procedure 23(a) and (b), and,

thus, the Class’ claims should be certified for purposes of

effectuating the Settlement;

b. determining whether the proposed Settlement of the Litigation on

the terms and conditions provided for in the Agreement is fair,

reasonable, and adequate and should be approved by the Court;

c. considering the application of Class Counsel for an award of

attorneys’ fees and costs, as provided for in the Agreement;

d. considering the application of the named Plaintiffs for a class

representative incentive award, as provided for in the Agreement;

e. considering whether the Court should enter the [Proposed]

Judgment, Final Order and Decree;

f. considering whether the release by the Class Members of the

Released Claims as set forth in the Agreement should be provided;

and

g. ruling upon such matters as the Court may deem just and

appropriate.

Ex. 1, Pg. 050


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7. Class Members must file and serve any objections to the proposed

settlement no later than thirty (30) calendar days prior to the Final Approval Hearing

Date, including any memoranda and/or submissions in support of the objections, which

deadline will be set forth in the Class Notice.

8. All papers in support of the Agreement must be filed with the Court and

served at least fourteen (14) calendar days prior to the Final Approval Hearing date. Any

response to an objection must be filed and served at least seven (7) days prior to the Final

Approval Hearing date.

9. Any application for an award of attorneys’ fees and costs and class

representative incentive award must be filed with the Court and served at least forty-five

(45) days prior to the Final Approval Hearing date. After filing, the application for fees

and costs, and incentive award shall be posted on the Settlement Website for review by

Class Members.

10. The Court approves the form and procedure for disseminating Notice of

the proposed Settlement to the Class as set forth in the Agreement. This Litigation

concerns retail products for which the Parties do not have direct notice information for

class members. Accordingly, the Notice Plan provides for notice to the Class by

publication. The Court finds that the Notice Plan submitted by the Parties constitutes the

best notice practicable under the circumstances, and constitutes valid and sufficient

notice to the Class in full compliance with the requirements of applicable law, including

Rule 23 of the Federal Rules of Civil Procedure and the Due Process Clause of the

United States Constitution.

11. Within thirty (30) days after the date of entry of this Order, Defendant

shall disseminate the Class Notice in the form attached to the Agreement as Exhibit B.

The manner and form of such dissemination shall be as set forth in the Notice Plan

attached as Exhibits E to the Agreement.

12. The Court approves the designation of Classaura LLC (“Classaura”) to

serve as the Court-Appointed Class Action Administrator for the settlement. The Class

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Action Administrator shall disseminate Class Notice and supervise and carry out the

Notice Plan, and other administrative functions, and shall respond to Class Member

inquiries under the direction and supervision of the Court.

13. The Court directs the Class Action Administrator to establish a Class

Settlement Website, making available copies of this Order, Class Notice, the Settlement

Agreement and all exhibits thereto, a toll-free hotline, and such other information as may

be of assistance to Class Members or required under the Agreement. The Class

Settlement Website shall be made available to Class Members no later than fifteen (15)

calendar days after the date of this Order, and continuously thereafter until thirty (30)

days after the Final Approval Hearing (defined below).

14. As set forth in the Agreement, all fees, costs, and expenses of the Notice

and Claims Administrator related to this Settlement will be paid out of the Settlement

Amount, which shall be used for costs and expenses associated with the Class Notice,

creating and maintaining the Class Settlement Website, and all other Class Notice

expenses. The Parties shall jointly retain the services of Classaura as their Class Action

Administrator.

15. No later than fourteen (14) days prior to the Final Approval Hearing Date,

Defendant, through the Class Action Administrator, shall file an affidavit and serve a

copy on Class Counsel, attesting that notice was disseminated as required by the terms of

the Notice Plan or as ordered by the Court.

16. All Class Members shall be bound by all determinations and judgments in

the Litigation concerning the settlement, whether favorable or unfavorable to the Class.

17. Any person falling within the definition of the Class may, upon his or her

request, be excluded from the Class. Any such person must submit a completed request

for exclusion to the Clerk of the Court postmarked or delivered no later than thirty (30)

calendar days before the Final Approval Hearing date (“Opt-Out and Objection

Deadline”), as set forth in the Class Notice. Requests for exclusion purportedly filed on

behalf of groups of persons are prohibited and will be deemed void.

Ex. 1, Pg. 052


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18. Any Class Member who does not send a completed, signed request for

exclusion to the Clerk of the Court postmarked or delivered on or before the Opt-Out and

Objection Deadline will be deemed to be a Class Member for all purposes and will be

bound by all further orders of the Court in this Litigation and by the terms of the

settlement, if finally approved by the Court. The written request for exclusion must

request exclusion from the Class, must be signed by the potential Class Member and

include a statement indicating that the person is a member of the Class. All persons who

submit valid and timely requests for exclusion shall not be bound by the Agreement or

the Final Judgment and Order.

19. Any person falling within the definition of the Class may object to the

Agreement. Objections purportedly filed on behalf of groups of persons are prohibited

and will be deemed void. To be considered, all objections must be timely, in writing,

signed and dated by the objector (or his or her attorney, if applicable), must reference the

abbreviated name and case number of the Litigation, and must contain the following

information: (i) the objector’s name, address, and telephone number; (ii) the name,

address, and telephone number of any attorney for the objector with respect to the

objection; (iii) the factual basis and legal grounds for the objection; (iv) identification of

the case name, case number, and court for any prior class action lawsuit in which the

objector has objected to a proposed class action settlement, the general nature of such

prior objection(s), and the outcome of said prior objection(s); (v) identification of the

case name, case number, and court for any prior class action lawsuit in which the

objector and the objector’s attorney (if applicable) has objected to a proposed class action

settlement, the general nature of such prior objection(s), and the outcome of said prior

objection(s); (vi) the payment terms of any fee agreement between the objector and the

objector’s attorney with respect to the objection; and (vii) any attorneys’ fee sharing

agreement or referral fee agreement between or among the objector, the objector’s

attorney, and/or any third party, including any other attorney or law firm, with respect to

the objection.

Ex. 1, Pg. 053


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20. A request for exclusion or an objection that does not include all of the

foregoing information, that is sent to an address other than the one designated in the

Class Notice, or that is not received within the time specified, shall be invalid and the

person serving such a request shall be deemed a member of the Class, and shall be bound

as a Class Member by the Agreement. The Class Action Administrator shall promptly

forward copies of all requests for exclusion and objections to Class Counsel and counsel

for Defendant.

21. If a Class Member hires an attorney to represent him or her in support of a

timely and properly submitted objection, and the attorney wishes to appear at the Final

Approval Hearing, in addition to the foregoing requirements, that attorney must (1) file

both an entry of appearance and a notice of intention to appear and participate at the

Final Approval Hearing with the Clerk of the Court no later than thirty (30) calendar

days before the Final Approval Hearing, and (2) mail copies of the entry of appearance

and the notice of intention to appear and participate at the Final Approval Hearing to

Counsel for Defendant and Class Counsel, postmarked no later than thirty (30) calendar

days before the Final Approval Hearing.

22. A Class Member who appears at the Final Approval Hearing, either

personally or through counsel, will be permitted to argue only those matters that were set

forth in the timely and validly submitted written objection filed by such Class Member.

No Class Member shall be permitted to raise matters at the Final Approval Hearing that

the Class Member could have raised in his/her written objection, but failed to do so, and

all objections to the Agreement that are not set forth in a timely and validly submitted

written objection are deemed waived.

23. If a Class Member wishes to present witnesses or evidence at the Final

Approval Hearing in support of a timely and validly submitted objection, all witnesses

must be identified in the objection, and true and correct copies of all supporting evidence

must be appended to, or filed and served with, the objection. Failure to identify

witnesses or provide copies of supporting evidence in this manner waives any right to

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introduce such testimony or evidence at the Final Approval Hearing. While the

declaration described above is prima facie evidence that the objector is a member of the

Class, Plaintiffs or Defendant or both may take discovery regarding the matter, subject to

Court approval.

24. Any Class Member who fails to comply with the applicable provisions of

the preceding paragraphs concerning their objection shall waive and forfeit any and all

rights he or she may have to object, appear, present witness testimony, and/or submit

evidence, shall be barred from appearing, speaking, or introducing any testimony or

evidence at the Final Approval Hearing, and shall be bound by all the terms of the

Agreement and by all proceedings, orders, and judgments in the Litigation.

25. All objections must be filed with the Clerk and served on the Parties’

counsel no later than the Opt-Out and Objection Deadline. Objections received after the

Opt-Out and Objection Deadline will not be considered at the Final Approval Hearing.

A Class Member’s failure to submit a written objection within the Opt-Out and Objection

Deadline, in conformance with the procedures set forth in the Class Notice, and above,

waives any right the Class Member may have to object to the settlement, the Agreement,

attorneys’ fees and costs, the Class Representative’s incentive award, or to appeal or seek

other review of the Final Judgment and Order.

26. Class Members who do not oppose the settlement, the applications for

attorneys’ fees and costs, or Class Representatives’ incentive awards need not take any

action to indicate their approval.

27. Class Members are preliminarily enjoined from filing, commencing,

prosecuting, intervening in, participating in, maintaining as class members or otherwise,

directly or indirectly through a representative or otherwise, or receiving any benefits

from, any lawsuit, arbitration, government action, administrative or regulatory

proceeding or order in any jurisdiction, forum or tribunal asserting any Released Claims.

In addition, all persons are preliminarily enjoined from filing, commencing, or

prosecuting a lawsuit as a class action (including by seeking to amend a pending

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complaint to include class allegations or by seeking class certification in a pending action

in any jurisdiction) on behalf of Class Members, or asserting any Released Claims.

Nothing herein shall require any Class Member to take any affirmative action with regard

to other pending class action litigation in which he or she may be an absent class

member.

28. The Agreement and the proceedings and statements made pursuant to the

Agreement or papers filed relating to the approval of the Agreement, and this Order, are

not and shall not in any event be construed as, offered in evidence as, received in

evidence as, and/or deemed to be evidence of a presumption, concession, or an admission

of any kind by any of the Parties of (i) the truth of any fact alleged or the validity of any

claim or defense that has been, could have been, or in the future might be asserted in the

Litigation, any other litigation, court of law or equity, proceeding, arbitration, tribunal,

investigation, government action, administrative proceeding, or other forum, or (ii) any

liability, responsibility, fault, wrongdoing, or otherwise of the Parties. Defendant has

denied and continues to deny the claims asserted by Plaintiff. Nothing contained herein

shall be construed to prevent a Party from offering the Agreement into evidence for the

purposes of enforcement of the Agreement.

29. The certification of the Class shall be binding only with respect to the

settlement of this Litigation. In the event that the Agreement is terminated pursuant to its

terms or is not finally approved by the Court, or such approval is reversed, vacated, or

modified in any material respect by this or any other Court, the Litigation shall proceed

as if the Settlement had never been reached, and no reference to the Agreement, or any

documents, communications, or negotiations related in any way thereto shall be made for

any purpose.

IT IS SO ORDERED.

DATED: ____________________ ___________________________

Hon. Cynthia A. Bashant

UNITED STATES DISTRICT JUDGE

Ex. 1, Pg. 056


EXHIBIT G

Ex. 1, Pg. 057


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Allen, et al. v. Similasan Corp., Case No. 3:12-CV-00376 CAB FINAL APPROVAL ORDER

1


SOUTHERN DISTRICT OF CALIFORNIA

KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant.

Case No. 3:12-cv-00376-CAB CLASS ACTION FINAL JUDGMENT AND ORDER:

(1) APPROVING CLASS ACTION

SETTLEMENT, (2) AWARDING

CLASS COUNSEL FEES AND

EXPENSES, (3) AWARDING CLASS

REPRESENTATIVE INCENTIVE

AWARD, (4) PERMANENTLY

ENJOINING PARALLEL

PROCEEDINGS, AND (5)

DISMISSING ACTION WITH

PREJUDICE

I. PROCEDURAL HISTORY

Plaintiffs Lainie Rideout and Kathleen Hairston filed a complaint against

Defendant Similasan Corporation (the “Parties”) in this action as styled above (the

“Litigation”), alleging violations of California’s Unfair Competition Law ([“UCL”] Cal.

Bus. & Prof. Code §§ 17200, et seq.), False Advertising Law ([“FAL”] Cal. Bus. &

Prof. Code §§ 17500, et seq.), the Consumers Legal Remedies Act ([“CLRA”] Cal. Civ.

Ex. 1, Pg. 058


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Code §§ 1750, et seq.), and breach of express and implied warranties. Defendant

distributes, markets, and sells in the United States certain homeopathic products at issue

in this Settlement (“the Products”). Plaintiffs allege that Defendant’s labeling and

marketing of its Products is false and misleading.

After arms-length settlement discussions between Plaintiffs and Defendant, the

Parties have entered into a Settlement Agreement (“Agreement”) with respect to the

Litigation, which, if approved, would resolve this certified class action.

After consideration of the Parties’ briefs and the briefs submitted by the

objectors to the Settlement, this Court hereby GRANTS Final Approval of the

Settlement.

On ______________, 2017, the Court entered its Order (1) Preliminarily

Approving Class Action Settlement, (2) Certifying Class, (3) Appointing Class

Representatives and Class Counsel, (4) Approving Notice Plan, and (5) Setting Final

Approval Hearing (“Preliminary Approval Order”), in which it preliminarily approved

the Settlement Agreement. The Court also scheduled a hearing to determine whether the

Settlement is fair, reasonable, adequate, in the best interests of the Class, and free from

collusion, such that the Court should grant Final Approval of the Settlement, and to

consider Plaintiffs’ motion for an award of attorneys’ fees, costs and litigation expenses,

and incentives for the Class Representatives (“Fairness Hearing”).

The Court has considered:

The points and authorities submitted by Plaintiffs in support of the motion

for final approval of the Settlement (“Final Approval Motion”);

The points and authorities submitted by Plaintiffs in support of the motion

for an award of attorneys’ fees and litigation expenses, and approval of

incentive awards for the Class Representatives (“Fee Motion”);

Defendant’s memorandum in support of final approval of the Settlement;

The declarations and exhibits submitted in support of said motions;

Ex. 1, Pg. 059


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The Settlement Agreement;

The entire record in this proceeding, including but not limited to the points

and authorities, declarations, and exhibits submitted in support of

preliminary approval of the Settlement;

The Notice Plan, providing full and fair notice to the Class;

The existence of only ___ objections to and only ___ exclusions from the

Settlement, and the substance of those objections, if any;

The absence of any objection or response by any official after the

provision of all notices required by the Class Action Fairness Act of 2005,

28 U.S.C. §1715;

The oral presentations of Class Counsel, Counsel for Defendant, and

objector(s) at the Fairness Hearing, if any;

This Court’s experiences and observations while presiding over this

matter, and the Court’s file herein; and

The relevant law.

Based upon these considerations and the Court’s findings of fact and conclusions

of law as set forth in the Preliminary Approval Order and in this Final Judgment and

Order (1) Approving Class Action Settlement, (2) Awarding Class Counsel Fees and

Expenses, (3) Awarding Class Representatives Incentive Awards, (4) Permanently

Enjoining Parallel Proceedings, and (5) Dismissing Action with Prejudice (“Final

Approval Order”), and good cause appearing, IT IS HEREBY ORDERED AND

DECREED:

1. Definitions. The capitalized terms used in this Final Approval Order shall

have the meanings and/or definitions given to them in the Settlement Agreement or, if

not defined therein, the meanings and/or definitions given to them in the Preliminary

Approval Order and this Final Approval Order.

2. Incorporation of Documents. This Final Approval Order incorporates the

Settlement Agreement, filed as Exhibit 1 to the Declaration of Deborah S. Dixon in

Ex. 1, Pg. 060


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support of preliminary settlement approval on April ___, 2017, including all exhibits

thereto, and the Court’s findings and conclusions contained in its Preliminary Approval

Order.

3. Jurisdiction. The Court has personal jurisdiction over the Parties, the

Class Members, including objectors, and Defendant. The Court has subject matter

jurisdiction over this action, including, without limitation, jurisdiction to approve the

Settlement, to settle and release all claims alleged in the action and all claims released

by the Settlement, including the Released Claims, to adjudicate any objections

submitted to the proposed Settlement, and to dismiss this action with prejudice. All

Class Members who did not exclude themselves according to the Court’s prior orders

and the terms of the Class Notices have consented to the jurisdiction of this Court for

purposes of this action and the Settlement of this action.

Findings and Conclusions

4. Definition of the Class and Class Members. The Court’s Preliminary

Approval Order defines the “Class,” which is comprised of the “Class Members,” as

follows:

All purchasers of all Similasan Corporation homeopathic Products

nationwide for personal or household use and not for resale, as

listed in Exhibit A to the Settlement Agreement, from February

10, 2008 to the Opt Out Deadline. Excluded from the Class are

governmental entities, Defendant, any entity in which Defendant

has a controlling interest, its employees, officers, directors, legal

representatives, heirs, successors and wholly or partly owned

subsidiaries or affiliated companies, including all parent

companies, and their employees; and the judicial officers, their

immediate family members and court staff assigned to this case.

The Court affirms its certification of the Class, as set forth in the Preliminary

Approval Order. All Class Members are subject to this Final Approval Order and the

Final Judgment to be entered by the Clerk of Court in accordance herewith.

Ex. 1, Pg. 061


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5. Class Certifications (Rule 23)

A. Numerosity

Defendant’s sales in the United States number in the thousands annually. See

Decl. of _________ in Supp. of Final Approval ¶ __. For the purposes of this

Settlement, no party or objector contests numerosity. The Court finds that the Class is

sufficiently numerous that joinder of all class claims is impracticable. Fed. R. Civ. P.

23(a)(1).

B. Commonality

The Court finds that there are questions of law and fact common to the Class, as

to whether Defendant made false or deceptive marketing claims about its Products. All

Class Members allege the same injury: loss of money spent purchasing the allegedly

deceptively-labeled Products. All Class Members were exposed to the same or

substantially similar contested labeling claims regarding the properties and benefits of

the Products. Resolution of the common questions about whether Defendant’s labeling

claims were deceptive would resolve all of the claims in one stroke. Accordingly, the

Court affirms its prior ruling under Rule 23(a)(2).

C. Typicality

The Court finds that Plaintiffs’ claims are reasonably co-extensive with those of

the other Class Members so as to meet Rule 23(a)(3)’s requirements. Typicality is a

“permissive” standard under which “representative claims are ‘typical’ if they are

reasonably co-extensive with those of absent class members; they need not be

substantially identical.” Hanlon v. v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.

1998). For the purposes of this Settlement, the Parties and objectors do not contend the

Class lacks typicality. The Court therefore affirms its prior order, finding that the

Plaintiffs’ claims are reasonably coextensive with those of the Class.

D. Adequacy of Class Representative

Having considered the factors set forth in Rule 23(g)(1), the Court finds that

Plaintiffs and Class Counsel are adequate class representatives. For the purposes of this

Ex. 1, Pg. 062


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Settlement, the Parties and objectors do not contend the Class lacks adequate

representation. Class Counsel has fully and competently prosecuted all causes of action,

claims, theories of liability, and remedies reasonably available to the Class Members.

The Court hereby affirms its appointment of the Law Offices of Ronald A. Marron,

APLC, Gomez Trial Attorneys, and Law Offices of Dean Goetz as Class Counsel. The

Court also affirms its appointment of Plaintiffs Lainie Rideout and Kathleen Hairston as

Class Representatives, finding that they possess no interests adverse to the Class and are

adequate to represent the Class.

E. Rule 23(b) Has Been Satisfied

For the purposes of this Settlement, the Parties contend that the elements of

Rules 23(b)(2) and (b)(3) have been met. The Court finds that Defendant has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief

is appropriate respecting the class as a whole, Fed. R. Civ. P. 23(b)(2); that questions of

law and fact as to whether a reasonable consumer would find the Products’ packaging

deceptive predominate over individual questions. Plaintiffs allege a common injury on

behalf of the Class, specifically the loss of the purchase price of the Products, and the

Products’ respective packaging was standard across the United States and consistent

throughout the Class Period. The Court also finds that resolution on a class-wide basis

is superior for purposes of judicial efficiency and to provide a forum for absent Class

Members, who are unlikely to bring individual suits to challenge the Products’

packaging. The Court therefore affirms its prior ruling that the Class satisfies Rule

23(b)(3). The Court also affirms its prior ruling that the Class satisfies Rule 23(b)(2).

6. The Settlement. The Court finds that the Settlement is fair, reasonable,

and adequate to the Class, in light of the complexity, expense, and likely duration of the

litigation (including appellate proceedings), and the risks involved in establishing

liability, damages, and in maintaining the action as a class action, through trial and

appeal. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009). The

Settlement is the result of arms-length negotiation and there is no evidence of collusion

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or other conflicts of interest between Plaintiff, Class Counsel, and the Class. See In re

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011).

A. The Parties reached the proposed Settlement only after proceeding

with voluntary investigation and discovery in this action, and following protracted

negotiations before a capable and well-respected jurist, the Honorable Jill Burkhardt of

this Court and then right before trial, the Parties engaged in extensive negotiations,

including joint and individual mediation sessions with Judge Burkhardt, and the Parties’

own follow-up negotiations, in order to reach agreement over the specific terms of the

proposed Settlement.

Plaintiffs and Class Counsel maintain that this action and the claims asserted

herein are meritorious and that Plaintiffs and the Class might have prevailed at trial.

Notwithstanding, Plaintiffs and Class Counsel have agreed to settle the action pursuant

to the provisions of the Settlement, after considering, among other things: (i) the

substantial benefits to Plaintiffs and the Class under the terms of the Settlement; (ii) the

uncertainty of being able to prevail at trial; (iii) the uncertainty relating to Defendant’s

defenses and the expense of additional motion practice in connection therewith; (iv) the

issues relating to proving damages on an individual Class Member basis; (v) the

attendant risks, difficulties, and delays inherent in litigation, especially in complex

actions such as this; and (vi) the desirability of consummating this Settlement promptly

in order to provide effective relief to Plaintiffs and the Class. Plaintiffs and Class

Counsel agree that the Settlement is fair, reasonable, and adequate because it provides

substantial benefits to the Class, is in the best interests of the Class, and fairly resolves

the claims alleged in this action.

Defendant expressly denies any wrongdoing alleged in the pleadings in the

action, and does not admit or concede any actual or potential fault, wrongdoing, or

liability in connection with any facts or claims that have been or could have been

alleged against it in the action. Defendant asserts that it sells, manufactures, and

markets the Products in accordance with the Food, Drug, and Cosmetic Act. Defendant

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nonetheless considers it desirable for the action to be settled and dismissed because the

proposed Settlement will: (i) avoid further expense and disruption of the management

and operation of Defendant’s businesses due to the pendency and defense of the action;

(ii) finally put Plaintiffs’ and the Class’ claims and the underlying matters to rest; and

(iii) avoid the substantial expense, burdens, and uncertainties associated with a potential

finding of liability and damages on the claims alleged in the Complaint.

The Parties engaged in thorough formal and informal discovery, which included,

inter alia, claims and defenses on the issue of the federal Food, Drug, and Cosmetic Act

([“FDCA”] 21 U.S.C. § 301, et seq.), and whether the Products complied with the

FDCA, and California-specific rules pertaining to the Products. Accordingly, the Parties

were well-versed in the merits, risks, and likelihood of success, should this action have

been litigated through trial.

Based upon the stage of litigation reached concerning relevant legal issues and

the Parties’ exchange of information through the discovery process, Plaintiffs and

Defendant were fully informed of the legal bases for the claims and defenses herein, and

capable of balancing the risks of continued litigation and the benefits of the Settlement.

Class Counsel and Defendant’s counsel are highly experienced civil litigation attorneys

with specialized knowledge in food and drug labeling issues, and complex class action

litigation generally. Class Counsel and Defendant’s counsel are capable of properly

assessing the risks, expenses, and duration of continued litigation.

B. The Settlement affords meaningful relief to the class members.

Pursuant to the Settlement Agreement, each class member is entitled to receive a

Settlement Payment by declaration under penalty of perjury that the class member

purchased a Product and did not obtain any relief from use of the Product. Class

members are entitled to a full refund with proof of purchase and there is no cap on

claims with proof of purchase. If the class member does not have proof of purchase, a

class member may still declare under penalty of perjury that the class member purchased

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a Product and did not receive relief and will be entitled to an estimated fifty percent

refund, depending on the number of claims. Similasan will establish a Fund, not to

exceed seven hundred thousand dollars ($700,000.00), out of which all claims, costs,

and fees associated with the Agreement will be had, including but not limited to

Settlement Payments, incentive awards, attorneys’ fees and costs, and costs of Notice

and Notice administration.

In addition, Similasan has agreed that it will change and has changed its

advertising practices, in part, because of the lawsuit. It has agreed to make labeling

changes and will direct consumers to the FDA website from a link on its website.

The Court has considered the realistic range of outcomes in this matter, including

the amount Plaintiffs might receive if they prevailed at trial, the recent defense verdict

on identical labeling and effectiveness issues in Allen v. Hyland’s, Inc., the strength and

weaknesses of the case, the novelty and number of the complex legal issues involved,

and the risk that Plaintiffs and the Class would receive less than the Settlement relief or

take nothing at trial. The relief offered by the Settlement is fair, reasonable, and

adequate in view of these factors.

C. The Court has found no evidence of collusion between Plaintiffs and

Defendant or their respective counsel. The Settlement resulted from extensive arms-

length, adversarial negotiation. Up to and through Settlement, both Parties have

vigorously litigated and negotiated this action, as evidenced by the docket in this action,

which includes multiple motions challenging the claims, motions to dismiss, motions for

summary judgment, motions challenging the experts, and a motion to decertify the class.

Further, the Court has evaluated the factors set forth by the Ninth Circuit and

determined that there was no collusion. See In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935, 947 (9th Cir. 2011) (the three factors are: “(1) when counsel receive a

disproportionate distribution of the settlement, … (2) when the parties negotiate a ‘clear

sailing’ arrangement providing for the payment of attorneys’ fees separate and apart

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from class funds, … and (3) when the parties arrange for fees not awarded to revert to

defendants …”).

D. The response of the Class to this action, the certification of a class,

and the Settlement, including Class Counsel’s application for an award of attorneys’

fees, litigation expenses, and the Class Representative’s incentive awards, after full, fair,

and effective notice thereof, strongly favors final approval of the Settlement. Out of the

estimated hundreds of thousands who received Notice, only ______ class members

submitted valid requests for exclusion. Moreover, ____ objections were filed, which the

Court has considered.

7. Notice to the Class. The Class has received the best practicable notice in

light of the fact that Defendant does not collect or maintain information sufficient to

identify Class Members. The Parties’ selection and retention of Classaura LLC

(“Classaura”) as the Claims Administrator was reasonable and appropriate. Based on

the Declaration of _____________ of Classaura, the Court hereby finds that the

Settlement Notices were published to the Class Members in the form and manner

approved by the Court in its Preliminary Approval Order. The Settlement Notices

provided fair, effective, and the best practicable notice to the Class of the Settlement and

the terms thereof. The Notices also informed the Class of Plaintiffs’ intent to seek

attorneys’ fees, costs, and incentive payments, and set forth the date, time, and place of

the Fairness Hearing and Class Members’ rights to object to the Settlement or Fee

Motion and to appear at the Fairness Hearing. The Court further finds that the

Settlement afforded Class Members a reasonable period of time to exercise such rights.

See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *82 (C.D. Cal. Nov. 23,

2011) (class members’ deadline to object or opt out must arise after class counsel’s fee

motion is filed); In re Mercury Interactive Corp. Secs. Litig., 618 F.3d 988, 994 (9th

Cir. 2010) (same). The Settlement Notices fully satisfied all notice requirements under

the law, including the Federal Rules of Civil Procedure, the requirements of the

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California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under

the U.S. Constitution and California Constitutions.

8. Notices Pursuant to 28 U.S.C. § 1715. The Court finds that Defendant

has satisfied all notice requirements of the Class Action Fairness Act of 2005

(“CAFA”), 28 U.S.C. § 1715, as attested to by the ______ Declaration. On

________________, 2017, at Defendant’s direction, Classaura served the notices

required by 28 U.S.C. § 1715(b), which included a copy of the Settlement Agreement

and other required documents, as well as notice of the date, time, and place of the

Fairness Hearing. The Court has received no objection or response to the Settlement

Agreement by any federal or state official, including any recipient of the foregoing

notices. This fact further supports the fairness of the Settlement.

9. Implementation of Settlement. The Parties are directed to implement the

Settlement according to its terms and conditions.

10. Appeal after Implementation. Any Class Member who failed timely and

validly to object to the Settlement has waived any objection. Any Class Member

seeking to appeal the Court’s rulings must: (a) move to intervene upon a representation

of inadequacy of counsel (if they did not object to the proposed Settlement under the

terms of the Settlement); (b) request a stay of implementation of the Settlement; and (c)

post an appropriate bond. Absent satisfaction of all three requirements, Defendant is

authorized, at its sole option and in its sole discretion, to proceed with the

implementation of the Settlement, including before the Effective Date, even if such

implementation would moot any appeal.

11. Release. The Release set forth in the Settlement Agreement is expressly

incorporated herein in all respects, is effective as of the date of the entry of this Final

Order, and forever discharges the Released Parties from any claims or liabilities released

by the Settlement, including the Released Claims, and including without limitation a

waiver of all rights under Section 1542 of the California Civil Code. This Release

covers, without limitation, any and all claims for attorneys’ fees and expenses, costs or

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disbursements incurred by Class Counsel, the Settlement of this Action, the

administration of such Settlement, and the Released Claims, except to the extent

otherwise specified in this Order and the Settlement Agreement.

12. Binding Affect and Permanent Injunction. The Settlement and this

Final Order and Judgment shall be forever binding on the Plaintiffs and all other Class

Members, as well as their heirs, executors and administrators, successors and assigns,

and shall have res judicata and other preclusive effect in all pending and future claims,

lawsuits, or other proceedings maintained by or on behalf of any such persons, to the

fullest extent allowed by law. The Court hereby permanently enjoins all Class Members

from filing, commencing, prosecuting, intervening in, maintaining, participating (as

class members or otherwise) in, or receiving any benefits from, any lawsuit (including

putative class action lawsuits), arbitration, administrative or regulatory proceeding or

order in any jurisdiction asserting any claims released by this Order; and from

organizing Class Members into a separate class to pursue as a purported class action any

lawsuit (including by seeking to amend a pending complaint to include class allegations,

or seeking class certification in a pending action) asserting any claims released by this

Order. Nothing in this paragraph, however, shall require any Class Member to take any

affirmative action with regard to other pending class action litigation unrelated to this

action in which they may be absent class members. Defendant has reserved the right to

file motions or to take other actions to enforce the release provisions of the Settlement

Agreement and of this injunction, as they may deem appropriate. The Court finds that

issuance of this permanent injunction is necessary and appropriate in the aid of the

Court’s jurisdiction over the action and its judgments.

13. Attorneys’ Fees and Litigation Expenses. The Court orders that Class

Counsel is entitled to reasonable attorneys’ fees and litigation expenses incurred in

connection with the action and in reaching this Settlement in the amount of

$_____________, to be paid at the time and in the manner provided in the Settlement

Agreement. The fee award sought in the present case is reasonable when judged by the

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standards of this circuit, represents Class Counsel’s lodestar with a negative multiplier,

and is thus well within the range Courts have allowed in the Ninth Circuit. The Parties

also agreed to the terms of the Settlement before discussing attorneys’ fees, another

factor which weighs against a finding of collusion. See, e.g., Weeks v. Kellogg Co.,

2011 U.S. Dist. LEXIS 155472, at *83 (C.D. Cal. Nov. 23, 2011).

Even though not necessary since Class Counsel’s actual lodestar before briefing

final approval exceeded the negotiated award amount, a small multiplier would have

been justified here, based on the excellent results obtained, the experience and skill of

Counsel, the complexity of issues, the risk of non-payment and preclusion of other

work, and the reaction of the Class. The fee award requested is also reasonable in light

of similar lodestar awards, as set forth in the Fee Motion. Courts have approved

multipliers ranging from 2-4 (and higher) in comparably complex litigation and under

such circumstances. See, e.g., Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255

(2001); Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988). As

reflected in these cases, the requested fee multiplier falls on the low end of the

reasonable range, based on typical multipliers approved in comparable litigation. The

Court also finds that an award of reasonable attorneys’ fees and litigation expenses is

appropriate based on the private attorney general doctrine and Code of Civil Procedure §

1021.5, and the Court’s equitable powers under California law.

No Named Plaintiff, or any other Class Member, shall have any obligation to pay

Class Counsel any further amounts for attorneys’ fees, costs, or litigation expenses in

the Action. As none of the objections was sustained, the Court further finds that no

Class Member is entitled to seek or receive any further payment of attorneys’ fees or

litigation expenses in connection with the action.

The Court finds the following hourly billing rates reasonable in light of the

complexity of this litigation, the work performed, Class Counsel’s reputation,

experience, competence, and the prevailing billing rates for comparably complex work

by comparably-qualified counsel in the relevant market:

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1. For Ronald A. Marron, $745 per hour;

2. For Beatrice Skye Resendes and Alexis Wood, $475 per hour; and

3. For Kas Gallucci, $450 per hour; and for Marshall Lurtz and William

Richards, $440 per hour;

4. For future attorney time (time expended after the fee motion was filed), a

blended rate of $_____ per hour.

5. Gomez Trial Attorney’s rates: _____________

6. Dean Goetz’s rate: ________

Two other courts – one federal and one state - have recently approved these same

hourly rates for cases brought and settled on nearly identical bases. See Marron Decl.,

Exs. _____. The hourly billing rates for work performed by paralegals and law clerks,

requested by the Marron Firm, is likewise reasonable. Paralegal time, which is normally

billed to fee-paying clients, is properly included and reimbursable under a lodestar

analysis. See, e.g., United Steelworkers v. Phelps Dodge Corp., 896 F. 2d 403, 407-408

(9th Cir. 1990). None of Mr. Marron’s law clerks or other staff members are volunteers;

each are paid an hourly rate or salary. Marron Decl. ¶ ___. Accordingly, Mr. Marron

put his own resources at risk for over a year this case has been pending, enhancing the

appropriateness of the fee award sought. See id.

The time declared to have been expended by Class Counsel is reasonable in

amount in view of the complexity and subject matter of this litigation, the skill and

diligence with which it has been prosecuted and defended, and the quality of the result

obtained for the Class.

Based on the declaration of Class Counsel submitted in support of the Fee

Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation

expenses (paid and un-reimbursed, or currently due) at the time the fee motion was filed

(exclusive of costs to brief and attend final approval) in the amount of $____________,

that said expenses were of a nature typically billed to fee-paying clients, and that said

expenses are recoverable or were reasonable and necessary to the prosecution of this

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action in light of the extent of proceedings both on and off the Court’s docket, the

complexity of the legal and factual issues in the case, the amount at stake in this

litigation, and the vigorous efforts of counsel for all Parties herein. The Court finds

these expenses are reasonable in this case, and shall be included as part of the Fee

Award awarded to Class Counsel, to be paid at the time and in the manner provided in

the Settlement Agreement.

14. Class Representatives’ Incentive. The named Plaintiffs in this action,

who the Court appointed as Class Representatives in its Preliminary Approval Order,

have actively participated in and assisted Class Counsel with this litigation for the

substantial benefit of the Class despite facing significant personal limitations. Ms.

Rideout and Ms. Hairston waived their right to pursue potential individual claims or

relief in the Action. Both were deposed and completed substantial discovery. Both

personally attended the initial Settlement Conference in this case at significant expense

of time and effort as both reside outside the forum; and both were on telephonic standby

for subsequent settlement negotiations. Apart from the requested incentive, Ms. Rideout

and Ms. Hairston will receive no settlement payments or benefits of any nature, other

than the injunctive relief available to the Class generally. The Court hereby approves

incentive awards for Ms. Rideout and Ms. Hairston, to be paid at the time and in the

manner provided in the Settlement Agreement. The amount of the incentive award shall

be $2,500 to each. Ms. Rideout and Ms. Hairston were actively involved throughout the

Litigation and contributed significant time and expense in seeing this action to fruition.

The Court approves these incentive payments to compensate the Class Representatives

for the burdens of their active involvement in the Litigation and their commitment and

effort on behalf of the Class.

15. Class Member Objections. Having considered the lack of any written

objections, oral argument at the Fairness Hearing, the Parties’ written and oral response,

and the documents and record on file in this Action, the Court need not overrule any

objections.

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Even if there had been any objection, the Court finds no evidence of collusion.

Taking into account the weaknesses in Plaintiffs’ case along with the strengths of

Defendant’s defenses and the obstacles to class-wide recovery, the Court has no

concerns about the adequacy of relief the Settlement provides. Further, Defendant’s

agreement to modify the Products’ label and packaging, website, and marketing in a

number of ways adequately addresses the very claims raised in Plaintiffs’ Complaint and

provides substantial value to the Class.

The Court has found that the Notice was fair, reasonable, and adequate, and

provided the best practicable notice to the Class in compliance with all applicable laws.

The fact that the chosen Administrator could effectuate notice in a manner widely

approved for classes such as this one, where names of individual class members are

unknown, for a cost less than other more expensive administrators, is a benefit to the

Class, and not objectionable. The Notice in this case also included statutory newspaper

publication within the State of California pursuant to California Civil Code § 1781.

The Court also received zero objections concerning the Fee Motion. Any

objection would be refuted by the lodestar analysis and the good results achieved on

behalf of the Class. The Court therefore need not overrule any objections as to the Fee

Motion.

16. Modification of Settlement Agreement. The Parties are hereby

authorized, without needing further approval from the Court, to agree to and adopt such

amendments to, and modifications and expansions of, the Settlement Agreement, if such

changes are consistent with this Order and do not limit the rights of any person or Class

Member entitled to relief under this Agreement.

17. Enforcement of Settlement. Nothing in this Final Order shall preclude

any action to enforce or interpret the terms of the Settlement. Any action to enforce or

interpret the terms of the Settlement shall be brought solely in this Court.

18. Retention of Jurisdiction. The Court expressly retains continuing

jurisdiction as to all matters relating to the Settlement, and this Final Order, and for any

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other necessary and appropriate purpose. Without limiting the foregoing, the Court

retains continuing jurisdiction over all aspects of this case including but not limited to

any modification, interpretation, administration, implementation, effectuation, and

enforcement of the Settlement, the administration of the Settlement and Settlement

relief, including notices, payments, and benefits thereunder, the Settlement Notice and

sufficiency thereof, any objection to the Settlement, any request for exclusion from the

certified Class, the adequacy of representation by Class Counsel and/or the Class

Representatives, the amount of attorneys’ fees and litigation expenses to be awarded

Class Counsel, the amount of any incentives to be paid to the Class Representatives, any

claim by any person or entity relating to the representation of the Class by Class

Counsel, to enforce the release and injunction provisions of the Settlement and of this

Order, any remand after appeal or denial of any appellate challenge, any collateral

challenge made regarding any matter related to this litigation or this Settlement or the

conduct of any party or counsel relating to this litigation or this Settlement, and all other

issues related to this action and Settlement. Further, the Court retains continuing

jurisdiction to enter any other necessary or appropriate orders to protect and effectuate

the Court’s retention of continuing jurisdiction provided that nothing in this paragraph is

intended to restrict the ability of the Parties to exercise their rights under the Settlement

Agreement.

19. No Admissions. This Final Order and Judgment and the Settlement, all

provisions herein or therein, all other documents referred to herein or therein, any

actions taken to carry out this Final Order and Judgment and the Settlement, and any

negotiations, statements, or proceedings relating to them in any shall not be construed

as, offered as, received as, used as, or deemed to be evidence of any kind, including in

this Action, any other action, or in any other judicial, administrative, regulatory, or other

proceeding, except for purposes of obtaining approval of the Settlement and the entry of

judgment in the Action, enforcement or implementation of the Settlement, or to support

any defense by Defendant based on principles of res judicata, collateral estoppel,

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release, waiver, good-faith settlement, judgment bar or reduction, full faith and credit,

setoff, or any other theory of claim preclusion, issue preclusion, release, injunction, or

similar defense or counterclaim to the extent allowed by law. Neither the Settlement

Agreement nor any related negotiations, statements, mediation positions, notes, drafts,

outlines, memoranda of understanding, or Court filings or proceedings relating to the

Settlement or Settlement approval, shall be construed as, offered as, received as, used as,

or deemed to be evidence or an admission or concession by any person, including but

not limited to, of any liability or wrongdoing whatsoever on the part of Defendant or as

a waiver by Defendant of any applicable defense, including without limitation any

applicable statute of limitation.

20. Dismissal of Action. This action, including all individual and Class

claims resolved in it, shall be dismissed on the merits and with prejudice, without an

award of attorneys’ fees or costs to any party except as provided in this Order.

IT IS SO ORDERED.

DATED: ____________________ ___________________________

Hon. Cynthia A. Bashant

UNITED STATES DISTRICT JUDGE

Ex. 1, Pg. 075


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