A court authorized this Notice because you have a right to know about the proposed settlement of this class action lawsuit and about all of your options before the Court decides whether to grant final approval to the settlement. This website explains the lawsuit, the settlement, your legal rights, what benefits are available, and who can get them.
Judge Landya B. McCafferty of the United States District Court for the District of New Hampshire is overseeing this class action. The case is known as Stephanie Bauman, Kathleen Holt and Jose Rubalcava v. FoodState, Inc., Case No. 1:17-cv-00637-LM (D.N.H.) (the “Lawsuit” or “Litigation”). The people that filed this lawsuit are called the “Named Plaintiffs” and the company they sued, FoodState, Inc., is called the “Defendant” or “FoodState.”Top
This Lawsuit is about claims made on the labeling and packaging of vitamin supplements manufactured and sold by FoodState under the MegaFoods and Innate Response Formula brands. Plaintiffs allege that the labeling, packaging, and websites for products manufactured by FoodState and/or its affiliates or co-manufacturers, including vitamin supplements sold under the MegaFoods and Innate Response Formula brands, were misleading and violate consumer protection laws. FoodState denies all of the allegations made in the Litigation. No one claims that these products are unsafe or present a health hazard.Top
In a class action, one or more people called Named Plaintiffs (in this case, Kathleen Holt, Jose Rubalcava, and Stephanie Bauman) sue on behalf of other people with similar claims. Together, the people included in the class action are called a class or class members. One court resolves the issues for all class members, except for those who exclude themselves from the class.Top
The Court did not decide in favor of the Named Plaintiffs or Defendant. Instead, the Named Plaintiffs and Defendant agreed to a settlement. This way, the cost and burden of a trial is avoided and the people allegedly affected can get benefits. The Named Plaintiffs and their attorneys think the settlement is best for all Settlement Class Members. The Court granted preliminary approval of the settlement on May 15, 2019 and directed that the Notice be provided.Top
The settlement includes all residents of the United States and its territories who purchased for personal use, and not resale or distribution, a Covered Product between January 15, 2011 and September 15, 2018 (the “Class Period”) (“Settlement Class Members”). Covered Products include products manufactured by FoodState and/or its affiliates or co-manufacturers, including vitamin supplements sold under the MegaFoods and Innate Response Formula brands. A list of products manufactured by FoodState during the Class Period by this Settlement Agreement may be accessed on this website. The same list is also attached as Exhibit D to the Proposed Class Action Settlement available under the “Court Documents” tab of the Settlement Website.Top
Yes. The Settlement Class does not include: (1) FoodState and its respective affiliates, employees, officers, directors, agents, and representatives, and their immediate family members; (2) Settlement Class Counsel and partners, attorneys, and employees of their law firms; and (3) the judges who have presided over the Litigation, the case identified in Paragraph I.B. of the Settlement Agreement, or the mediations referenced in Paragraph I.E. of the Settlement Agreement, and their immediate family members.Top
If you are not sure whether you are included, call 1-866-683-9603 or write to one of the lawyers listed in Question 19 below.Top
FoodState has agreed to establish a $2,100,000 Settlement Fund to settle the claims as set forth in the Settlement Agreement. After deducting (1) Court-approved attorneys’ fees and costs; (2) incentive awards for the Named Plaintiffs; and (3) the costs of settlement notice and administration, the balance of the Settlement Fund (the “Available Cash Award Total”) will be distributed to Settlement Class Members who submit a valid Claim Form.
In addition to the Settlement Fund, FoodState has agreed to modify the labeling of the Covered Products.Top
If you submit a valid Claim Form, you may request a payment of up to $25 per bottle of Covered Products purchased. Up to four (4) bottles per household may be claimed. Your actual payment amount will be based on the total number of valid Claim Forms received, the balance of the Available Cash Award Total, and whether or not you provided proof of purchase with your Claim Form.
If there is enough money in the Available Cash Award Total to pay the total dollar amount claimed on all valid Claim Forms, regardless of whether proof of purchase was included, then all Settlement Class Members who file a valid Claim Form will receive $25 per bottle ($100 maximum).
If the Available Cash Award Total is less than the total dollar amount claimed on valid Claim Forms submitted with proof of purchase, payment amounts will be reduced proportionately (equally based on the total number of bottles claimed) and paid to those Settlement Class Members only.
If there is enough in the Available Cash Award Total to pay the total dollar amount claimed on valid Claim Forms submitted with proof of purchase, but not enough to pay the dollar amount claimed on all Claim Forms, then Settlement Class Members whose Claim Forms are submitted with proof of purchase will be paid the dollar amount claimed and Settlement Class Members whose Claim Forms submitted without proof of purchase will be paid a proportionately reduced amount (based on the total number of bottles claimed without proof of purchase).
If any money remains in the Available Cash Award Total after making payments to Settlement Class Members who submit valid Claim Forms, it will be split equally between the proposed cy pres recipients, Feed The Children and the Public Justice Foundation, as subject to approval by the Court.Top
To request a payment from the settlement, you must complete and submit a Claim Form by August 19, 2019. Claim Forms may be submitted online or printed from the website and submitted to the Settlement Administrator at the address on the form. Claim Forms are also available by calling
1-866-683-9603 or by writing to the Settlement Administrator, Holt v. FoodState, Inc. Settlement Administrator, P.O. Box 404041 Louisville, KY. 40233-4041.
The Court will hold a Final Approval Hearing (or fairness hearing) on November 4, 2019 to decide whether to grant final approval to the settlement. If the Court approves the settlement, there may be appeals. It is always uncertain whether appeals will be filed and, if so, how long it will take to resolve them. Settlement payments will be distributed as soon as possible, if and when the Court grants final approval to the settlement and after any appeals are resolved (if they are resolved in favor of the settlement).Top
Unless you exclude yourself, you will remain in the Class. If the settlement is approved and becomes final, all of the Court’s orders will apply to you and legally bind you. You won’t be able to sue, continue to sue, or be part of any other lawsuit against FoodState or the Released Persons (see next question) about the legal issues resolved by this settlement. The rights you are giving up are called Released Claims.Top
If and when the settlement becomes final, Settlement Class Members will permanently release FoodState and the other Released Persons from all claims of any kind during the Class Period, arising from or relating to the Covered Products (the “Claims”), including, without limitation, the Claims made by the Named Plaintiffs in the Litigation, and also including, without limitation, causes of action for violation of the Consumers Legal Remedies Act, violation of the California Business & Professions Code, and breach of express warranty, and including, without limitation, Claims that have been, could have been, may be or could be alleged or asserted now or in the future by the Named Plaintiffs or any Settlement Class Members against the Released Persons in the Litigation or in any other forum, arising out of or related to the Claims, but excluding any claims for bodily injury.
More detail about the claims you will be releasing, including the provisions of California Civil Code § 1542, are described in Paragraph IX.B and C of the Settlement Agreement, available on this website. The Release language is also contained at the end of the notice. “Released Claims” is defined in Paragraph II.HH on page 7 of the Settlement Agreement. “Released Persons” is defined in Paragraph II.II on page 8 of the Settlement Agreement.Top
Yes. Judge Landya B. McCafferty appointed Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group, APC, and Joshua B. Swigart of Hyde & Swigart, to represent you and other Settlement Class Members as “Settlement Class Counsel.” These law firms and their lawyers are experienced in handling similar cases. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.Top
Settlement Class Counsel will ask the Court for an award of attorneys’ fees and costs of up to 33.33% (up to $699,930) of the Settlement Fund. They will also ask the Court to approve $1,500 incentive awards to each of the Named Plaintiffs ($4,500 total). The Court may award less than these amounts. If approved, these fees, costs and awards will be paid from the Settlement Fund before making payments to Settlement Class Members who submit valid Claim Forms.
If you want to keep the right to sue or continue to sue FoodState or the Released Persons about the legal claims in this case, and you do not want to receive a payment from this settlement, you must take steps to get out of the settlement. This is called excluding yourself from or opting out of the settlement.Top
To exclude yourself from the settlement, you must submit a written request for exclusion online or by mail. Your request for exclusion must include: (1) your name; (2) your current address; (3) a statement that you are a Settlement Class Member and you purchased one or more of the Covered Products and wish to be excluded from the settlement in Holt v. FoodState, Inc., Case No. 1:17-cv-00637-LM (D.N.H.); and (4) your signature. Your request for exclusion must be submitted online by August 28, 2019 or mailed to the Settlement Administrator at the address below so it is postmarked no later than August 28, 2019.
Holt v. FoodState, Inc. Settlement Administrator
P.O. Box 404041
Louisville, KY. 40233-4041
No. If you exclude yourself, you are telling the Court that you do not want to be part of the settlement. You can only get a payment if you stay in the settlement and submit a valid Claim Form. If you submit an exclusion request and a Claim Form, your exclusion request will be cancelled and your Claim Form will be processed instead.Top
No. Unless you exclude yourself, you are giving up the right to sue FoodState and the Released Persons for the claims that this settlement resolves. You must exclude yourself from this Litigation to start or continue with your own lawsuit or be part of any other lawsuit against FoodState or any of the Released Persons.
You can tell the Court if you do not agree with the settlement or any part of it.Top
If you are a Settlement Class Member, you can object to the settlement if you do not like it or any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. Your objection must be in writing and include: (1) your name, address, and phone number; (2) a signed declaration stating that you are a Settlement Class Member and you purchased one or more of the Covered Products; (3) the reasons why you object to the settlement, including any supporting documents; (4) a statement indicating whether you or your attorney intends to appear at the Court’s Final Approval Hearing (if so, include the name of your attorney). Mail your objection to all three addresses below postmarked on or before August 28, 2019.
Counsel for Defendant
District of New Hampshire
Joshua B. Swigart
René P. Tatro
Yes. You or your attorney may request permission from the Court to speak at the Final Approval Hearing about your objection. To do so, you must include a statement in your objection indicating that you or your attorney intend to appear at the Final Approval Hearing. Remember, your objection must be postmarked by
August 28, 2019 and sent to all three addresses in Question 19.
Objecting is simply telling the Court that you do not like something about the settlement. You can object only if you remain as a Settlement Class Member (that is, do not exclude yourself). Excluding yourself is telling the Court that you do not want to be part of the settlement. If you exclude yourself, you cannot object because the settlement no longer affects you.
The Court will hold a final hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you do not have to do so.Top
The Court will hold a Final Approval Hearing at 9:30 a.m. on November 4, 2019 in Courtroom 5 at the District of New Hampshire, 55 Pleasant Street, Concord, NH 03301. At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. It will also consider whether to approve Settlement Class Counsel’s request for an award of attorneys’ fees and costs, as well as the Named Plaintiff’s incentive awards. If there are objections, the Court will consider them. Judge Landya B. McCafferty will listen to people who have asked to speak at the hearing (see Question 20 above). After the hearing, the Court will decide whether to approve the settlement.Top
No. Settlement Class Counsel will answer any questions Judge Landya B. McCafferty may have. However, you are welcome to come to the hearing at your own expense. If you send an objection, you do not have to come to court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary to do so.Top
Yes. You may ask the Court for permission to speak at the Final Approval Hearing (see Question 20 above). You are not required to attend the Final Approval Hearing.Top
If you are Settlement Class Member and you do nothing, you will give up the rights explained in Question 13, including your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against FoodState and the Released Persons about the legal issues resolved by this settlement. In addition, you will not receive a payment from the Settlement Fund.Top
This Notice summarizes the proposed settlement. Additional details are provided in the Settlement Agreement. The Settlement Agreement and other related documents are available on this website. Additional information is also available by calling 1-866-683-9603 or by writing to Holt v. FoodState, Inc. Settlement Administrator, P.O. Box 404041 Louisville, KY. 40233-4041. Publicly-filed documents can also be obtained by visiting the District of New Hampshire during business hours or for a fee using the Court’s online PACER system.
EXCEPT AS PROVIDED IN PARAGRAPH 19, ABOVE, PLEASE DO NOT
CONTACT THE COURT, THE CLERK OF THE COURT, FOODSTATE OR
FOODSTATE’S COUNSEL ABOUT THE SETTLEMENT