Please be advised that all settlement benefits were distributed to approved claimants on February 14, 2012.
Superior Court for the State of California, County of Los Angeles
NOTICE OF CLASS CERTIFICATION AND SETTLEMENT OF CLASS ACTION
To: All persons who purchased a Bio-Engineered Supplements & Nutrition, Inc. (“BSN”) CHEATERS RELIEF™ Product labeled and/or represented as
providing “Carbohydrate and Fat Regulation,” “weight management,” and “lean muscle” in the United States, its territories, or at any United States
military facility or exchange for personal use from October 4, 2006, through June 23, 2011.
You may be a class member in a class action lawsuit known as Jane Roe, et al. v. Bio-Engineered Supplements & Nutrition, Inc., et al., Case
No. BC446817 (the “Action”) filed in the Superior Court of the State of California, County of Los Angeles.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS.
The purpose of this Notice is to advise you that a proposed settlement of the Action has been reached. As part of the proposed settlement, class
members who submit valid claim forms with proof of purchase are entitled to, among other things, a refund check of $20.00 for each CHEATERS RELIEF™
Product purchased during the class period, with a maximum refund limit of $40.00.
I. NATURE OF THE ACTION
Defendant BSN develops manufactures and distributes nutritional supplements. Plaintiffs filed a class action lawsuit against BSN, alleging that BSN
made false and misleading statements in their labeling and advertising of the CHEATERS RELIEF™ Product.
BSN denies any wrongdoing and any liability whatsoever, and no court or other entity has made any judgment or other determination of any liability.
The Parties have determined that it is in their best interests to settle the Action on the terms generally discussed below in order to avoid the
expense, inconvenience, and interference with ongoing business operations of further litigation.
Judge Barbara M. Scheper of the Los Angeles Superior Court has determined that the Action should be certified as a class action for settlement purposes
only, with Plaintiff as the class representative, and has granted preliminary approval of the settlement, subject to a final fairness hearing discussed
below.
II. THE PROPOSED SETTLEMENT
BSN has ceased all marketing and advertising complained of in the Action, and all CHEATERS RELIEF™ Product shipped from the warehouse have revised
labels as of May 1, 2011.
Additionally, BSN has agreed to provide refunds for Authorized Claimants who submit valid claim forms. Authorized Claimants will be provided a refund
check of $20.00 for each bottle of CHEATERS RELIEF™ Product purchased during the class period. Cash refunds will be limited to a maximum of $40.00 per
Authorized Claimant. BSN’s obligation to pay cash refunds is limited to the payment of valid claims received and subject to a maximum of $600,000.00.
Finally, if the total amount of refunds to the Authorized Claimants does not reach $350,000.00, BSN will donate the unclaimed refunds, in an amount
equal to $350,000.00 less the amount of actual refunds paid, to City of Hope, an independent medical and research institution. Additionally, Attorneys
for Plaintiff and the Class will apply to the Court for attorneys’ fees, costs and expenses in this action. Attorneys for Plaintiff and the Class
estimate that their fee request will be in the amount of $222,610.00 and will not exceed $225,000.00.
III. DISMISSAL OF THE ACTION AND RELEASE OF CLAIMS
If the Court approves the proposed settlement, it will enter a dismissal of the Action with prejudice as to all class members. All class members who do
not validly and timely request to be excluded from the proposed settlement will be forever barred from prosecuting their own lawsuits and deemed to
have released, among others, BSN and each of its direct or indirect parents, wholly or majority owned subsidiaries, affiliated and related entities,
predecessors, successors and assigns, partners, privities, and any of their present and former directors, officers, employees, shareholders, agents,
representatives, attorneys, accountants, insurers, and all persons acting by, through, under or in concert with them, or any of them, from all manner
of action, causes of action, claims, demands, rights, suits, obligations, debts, contracts, agreements, promises, liabilities, damages, charges,
penalties, losses, costs, expenses, and attorneys’ fees, of any nature whatsoever, known or unknown, in law or equity, fixed or contingent, which they
have or may have arising out of or relating to any of the acts, omissions or other conduct that have or could have been alleged or otherwise referred
to in the Action.
IV. FAIRNESS HEARING
On October 18, 2011 at 8:30 a.m., a hearing will be held on the fairness of the proposed settlement. At the hearing, the Court will entertain any
objections and arguments concerning the proposed settlement’s fairness. The hearing will take place at 111 North Hill Street, Los Angeles, CA 90012 in
Department 30.
V. HOW TO RECEIVE YOUR REFUND
To be entitled to participate in the refund portion of the settlement, class members must accurately complete a Claim Form and deliver that form to the
Claims Administrator no later than September 29, 2011:
BSN Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 1110
Corte Madera, CA 94976-1110
Telephone: 1-877-247-1245
If you do not submit a valid and timely Claim Form, you will not be able to participate in the refund portion of settlement. The delivery date is
deemed to be the date the form is deposited in the US. Mail, postage pre-paid, as evidenced by the postmark. You may request a Claim Form from the
Claims Administrator at the address above or download one atwww.chreliefsupplementsettlement.com, and/or Class Counsel’s website at http://trialnewport.com/.
VI. HOW TO OBJECT OR EXCLUDE YOURSELF FROM THE CLASS
Under the law, you have the right to exclude yourself from the class if you wish to pursue a separate lawsuit against the defendants or for any other
reason or no reason at all. If you exclude yourself from the class, you will not be entitled to participate in any recovery by the class, and
you will not be bound by the settlement.
If you desire to be excluded from the class, you must send a letter or postcard, addressed to the BSN Claims Administrator at: BSN Claims
Administrator, c/o Gilardi & Co. LLC, P.O. Box 8090, San Rafael, CA 94912-8090. Set forth your name, address, the date(s) you purchased the
product, and state your desire to be excluded from the Class. Your request for exclusion must be postmarked no later than September 14, 2011.
If you wish to object to the settlement, you must file a written objection and/or a Notice of Intention to Appear with the Court, and serve such
objection and/or notice on Class Counsel and BSN’s Counsel by September 14, 2011 at the addresses set forth below. Any written objections and/or Notice
of Intention to Appear must state: (a) the full name, address, and telephone number of the person objecting; (b) the words “Notice of Objection” or
“Formal Objection;” and (c) in clear and concise terms, the legal and factual arguments supporting the objection. If you only object to the
appropriateness or merits of the Action itself; then your objection will be deemed invalid. Class members who fail to make objections in the manner
specified above will be deemed to have waived any objections and will be foreclosed from making any objections (whether by appeal or any other process)
to the settlement. Only class members who file and serve timely written objections and/or Notices of Intention to Appear will be allowed to speak at
the Fairness Hearing. Counsel for the Class
BSN Cheaters Class Counsel c/o Newport Trial Group A Professional Corporation 895 Dove Street, Suite 425 Newport Beach, CA 92660
|
Counsel for the Class
BSN Cheaters Class Counsel c/o Newport Trial Group A Professional Corporation 895 Dove Street, Suite 425 Newport Beach, CA 92660
|
Counsel for BSN
Robert D. Phillips, Jr. Kathy J. Huang Reed Smith LLP 355 South Grand Ave., Suite 2900 Los Angeles, CA 90071
|
To be considered, the objection papers must be filed with the Court and delivered or postmarked to Class Counsel and BSN’s counsel no later than
September 14, 2011.
CLASS MEMBERS WHO DO NOT TIMELY MAKE THEIR OBJECTIONS WILL BE DEEMED TO HAVE WAIVED ALL OBJECTIONS AND WILL NOT BE ENTITLED TO SPEAK AT THE
FAIRNESS HEARING
.
You may, but need not, enter an appearance through counsel of your choice. If you do, you will be responsible for your personal attorneys’ fees and
costs.
VII. HOW TO OBTAIN MORE INFORMATION
The foregoing information is not all-inclusive. You may obtain additional information by visiting the Office of the Clerk of the Court, 111 North Hill
Street, Los Angeles, CA 90012, during regular court hours, to inspect the pleadings and other papers maintained there.
PLEASE DO NOT CALL OR WRITE THE CLERK OF THE COURT’S OFFICE
Dated: June 23, 2011 BY ORDER OF THE COURT
JUDGE BARBARA M. SCHEPER
LOS ANGELES SUPERIOR COURT JUDGE