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MEMORANDUM IN SUPPORT OF JOINT MOT. FOR PRELIM. APPROVAL OF SETTLEMENT
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Philip D. Dracht (SBN 219044)
[email protected]
Scott M. Petersen (pro hac vice)
[email protected]
Jason W. Hardin (pro hac vice)
[email protected]
Fabian & Clendenin
215 South State Street, Suite 1200
Salt Lake City, UT 84151-0210
Telephone: (801) 531-8900


Thomas G. Foley, Jr., SBN 65812
[email protected]
Justin P, Karczag, SBN 223764
[email protected]
Foley Bezek Behle & Curtis, LLP
15 West Carrillo Street
Santa Barbara, CA 93101
Telephone: (805) 962-9495

Attorneys for Plaintiffs Dana Bostick,
Anita Vasko, Judi Trotter, Beverly
Molnar, and Chester Cote



IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


DANA BOSTICK, a California
citizen, et al.,

PLAINTIFF,

vs.

HERBALIFE INTERNATIONAL
OF AMERICA, INC., a Nevada
Corporation, et al.,

DEFENDANTS.

Case No.: 2:13-cv-02488-BRO-RZ

PLAINTIFFS MEMORANDUM
IN SUPPORT OF JOINT MOTION
FOR PRELIMINARY APPROVAL
OF CLASS ACTION
SETTLEMENT AND
CERTIFICATION OF THE CLASS

Hon. Beverly Reid OConnell


Complaint filed: April 8, 2013



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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................ iii
I. BACKGROUND ................................................................................................. 1
A. The Litigation ........................................................................................... 1
B. The Mediation Process and Settlement Negotiations ........................... 4
C. The Settlement Agreement ...................................................................... 7
1. Economic Relief .............................................................................. 7
a. Cash Settlement Fund ................................................................... 7
i. Pro Rata Awards ....................................................................... 9
ii. Flat Rate Award ........................................................................ 9
iii. Cy Pres ...................................................................................... 10
b. Product Return Fund .................................................................. 10
2. Corporate Reforms ........................................................................... 12
3. Enforcement and Release ................................................................. 14
4. Fees and Costs ................................................................................... 16
II. DISCUSSION .................................................................................................... 17
A. The Court Should Certify the Settlement Class. ................................. 17
1. Rule 23(a)s Requirements Are Satisfied ........................................ 18
a. Numerosity .................................................................................... 18
b. Commonality ................................................................................ 19
c. Typicality ...................................................................................... 20
d. Adequacy....................................................................................... 21
i. There Are No Significant Conflicts of Interest ......................... 22
ii. Plaintiffs Are Represented by Qualified and Competent
Counsel .......................................................................................... 24
2. Predominance and Superiority ........................................................ 25
B. The Court Should Appoint Plaintiffs Counsel as Class Counsel ..... 28
C. The Court Should Preliminarily Approve the Settlement. ................ 29
1. The Strength of Plaintiffs Case, the Complexity, Expense and
Likely Duration of Further Litigation, the Risk of Obtaining Class
Action Status, and the Risk of Prevailing at Trial All Weigh in
Favor of Preliminary Approval. ...................................................... 31
2. The Settlement Amount and Corporate Reforms Are Significant
and Fair and Support Preliminary Approval. ............................... 36
3. The Extent of Discovery Completed and the Stage of the
Proceedings Support Preliminary Approval. ................................. 37
4. The Experience and Views of Plaintiffs Counsel Support
Preliminary Approval. ...................................................................... 38
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D. The Court Should Order the Proposed Notice Be Sent to the
Settlement Class. ..................................................................................... 39
E. The Court Is Requested to Schedule a Fairness Hearing ................... 40
III.CONCLUSION ................................................................................................. 41

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TABLE OF AUTHORITIES
CASES
Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997) .......................... 18, 24, 25, 26
Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.
Cal. 1994) ........................................................................................................... 21
Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589 (E.D. Cal.
1999) ................................................................................................................... 18
Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) ................................................... 22
California v. Levi Strauss & Co., 41 Cal.3d 460 (1986); ........................................ 18
Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004). .......................... 39
Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992) ..................... 31, 39
Connecticut Ret. Plans & Trust Funds v. Amgen, Inc., No. CV07-
2536PSG, 2009 WL 2633743, at *6 (C.D. Cal. Aug. 12, 2009) ........................ 21
Daar v. Yellow Cab Co., 67 Cal.2d 695 (1967) ...................................................... 18
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ............................................... 39
Fisher Bros. v. Cambridge-Lee Industries, Inc., 630 F. Supp. 482, 488
(E.D. Pa. 1985) .................................................................................................. 38
Haley v. Medtronic, Inc., 169 F.R.D. 643 (C.D. Cal. 1996) ................................... 20
Hanlon v. Chrysler Corp., 150 F. 3d 1011 (9th Cir. Cal. 1998) ....................... 19, 21
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) .................................................. 32
In re Syncor, 516 F. 3d 1095 (9th Cir. 2008) .......................................................... 40
In re Conseco Life Ins. Co. Cost of Ins. Litigation, No. 04-1610, 2005
WL 5678842, *9 (C.D. Cal. Apr. 26, 2005) ....................................................... 26
In re Corrugated Container Antitrust Litig., 643 F.2d 195, 205 (5th Cir. 1981) .... 30

In re First Alliance Mortg. Co., 471 F.3d 977 (9th Cir. 2006) ............................... 19
In re Matter of Johnson, 80 B.R. 791 (E.D. Va. 1987) ........................................... 21
In re Mego Financial Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir.
2000) .................................................................................................................. 37
In re MetLife Demutualization Litig., 689 F.Supp.2d 297 (E.D.N.Y.
2010) ................................................................................................................... 22
In re M.L. Stern Overtime Litigation, 2009 U.S. Dist. LEXIS 31650
(S.D. Cal. 2009) ................................................................................................. 30
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In Re Pet Foods Prod. Liab. Litig., 629 F.3d 333 (3rd Cir. 2010) .................... 22, 23
In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal.
2007) ................................................................................................................... 30
In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516 (3
rd
Cir.
2004) .................................................................................................................. 37
Linney v. Cellular Alaska Pship, 151 F.3d 1234, 1239 (9th Cir. 1998) ................ 37
M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F. Supp. 819,
822 (D. Mass. 1987) .......................................................................................... 31
Mateo v. MIS KISO, 805 F. Supp. 761 (N.D. Cal. 1992) .................................. 25, 26
Nguyen v. FundAmerica, Inc., No. 90-2090, 1990 WL 165251, *2
(N.D. Cal. Aug. 20 1990). .................................................................................. 23
Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir.
1982) ............................................................................................................. 31, 39
Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ..................................... 22
Rodriguez v. West Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ....................... 40
Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992) ................................................ 20
Sandoval v. Tharaldson Employee Mgmt., 2009 U.S. Dist. LEXIS
111320 (C.D. Cal. November 19, 2009) ........................................................... 31
Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .......................................... 17, 21
Sullivan v. Chase Investment Services of Boston, Inc., 79 F.R.D. 246
(N.D. Cal. 1978). ................................................................................................ 21
United Steel, Paper & Forestry, Rubber, Mfg. Energy v.
ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) .................................... 18
Vasquez v. Superior Court, 4 Cal.3d 800, 808 (1971) ............................................ 18
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) ......................... 19, 22
West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710, 743-44
(S.D.N.Y. 1970) ................................................................................................. 32
Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 672 (C.D. Cal. 2009) ...................... 24
Willits v. City of Los Angeles, No. CV 10-05782 CBM RZX, 2011
WL 7767305 at *4 (C.D. Cal. Jan. 3, 2011) ....................................................... 25
Wolin v. Jaguar Land Rover North Am., LLC, 617 F.3d 1168, 1175
(9th Cir. 2010) .............................................................................................. 20, 21
Xiufang Situ v. Leavitt, 240 F.R.D. 551 (N.D. Cal. 2007); ..................................... 24
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STATUTES
8 U.S.C. 1962(a), (c), and (d) ............................................................................... 1
Cal. Business & Professions Code
Section 17200 ..................................................................................... 1, 12, 20, 33
Section 17500 ..................................................................................... 1, 12, 20, 33
Cal. Civ. Code
Section 1689 ................................................................................................... 1, 36
Cal. Penal Code
Section 327 .................................................................................................. passim
Fed. R. Civ. P.
Rule 23. ........................................................................................................ passim

TREATISES
4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions,
11:41 (4th ed. 2006) ........................................................................................ 30

7A Charles A. Wright, Federal Practice and Procedure
1764 ................................................................................................................. 21

7B Fed. Prac. & Proc. Civ.
1797.5 (3d ed.) ................................................................................................. 29

8 Newberg on Class Actions
12:15 ................................................................................................................ 23


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I. BACKGROUND
A. The Litigation
The Original Complaint. On April 8, 2013, Plaintiff Dana Bostick, on behalf
of himself and a putative class of others similarly situated, filed this Action in
the United States District Court for the Central District California, naming as
defendants Herbalife International of America, Inc.; Herbalife International, Inc.;
and Herbalife Ltd., alleging the following claims for relief: (1) violations of
Californias endless chain scheme law under California Penal Code Section 327
and California Civil Code Section 1689.2; (2) violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. 1962(a), (c),
and (d)); (3) unfair and deceptive business practices under California Business and
Professions Code Section 17200, et seq.; and (4) false advertising under California
Business and Professions Code Section 17500, et seq. The complaint sought,
among other things, damages for the financial losses incurred by Bostick and the
class; general, compensatory, and exemplary damages; restitution and
disgorgement; temporary and permanent injunctive relief; costs; reasonable
attorneys fees; pre- and post-judgment interest; and other damages the Court may
deem just and proper.
The Motion to Dismiss. On May 30, 2013, Defendants moved to dismiss the
complaint on several grounds. (Dkt. No. 22.). On October 11, 2013, the Court
denied Defendants motion to dismiss. (Dkt. No. 40.) Defendants answered the
complaint on October 29, 2014. (Dkt. No. 41.)
Discovery. The parties exchanged initial disclosures on November 27,
2013. On December 3, 2013, Plaintiffs counsel served a Request for Production
of Documents with 208 separate requests for production. On December 5, 2013,
the Court held a scheduling conference where it ordered that discovery be
bifurcated between class and merits discovery. (Dkt. No. 51.) On January 23,
2014, Herbalife responded to the requests, lodging numerous objections and
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refusing to produce any documents. (Joint Declaration of Thomas G. Foley and
Scott M. Petersen dated October 31, 2014 filed in support of motion for
preliminary approval, 15, (Joint Decl.).)
On February 4, 2014, Plaintiffs counsel served a meet and confer letter
pursuant to L.R. 37-1 regarding the deficient discovery responses. (Joint Decl.
16.) Unable to resolve the discovery dispute through meeting and conferring, on
April 7, 2014, Plaintiffs counsel served Herbalife with a ninety-four (94) page
[Joint] Stipulation on a Motion to Compel as to the certain requests for
production. (Joint Decl. 16.) Following service of that stipulation, Herbalife
agreed to meet and confer again with Plaintiffs counsel to review their discovery
responses, which the parties did the week of April 14, 2014. (Joint Decl. 16.) At
that meeting, Plaintiffs counsel agreed to narrow certain requests and Herbalife
agreed to produce responsive documents. (Joint Decl. 16.) Because of
Herbalifes agreement to produce documents relevant to class certification issues
in this meet and confer, Plaintiffs counsel did not move forward with the motion
at that time. (Joint Decl. 16).
The Court entered a stipulated Order Re Confidential Documents on April
23, 2014. (Dkt. No. 67.) Thereafter, Herbalife has been producing documents in
both the mediation context and in litigation. (Joint Decl. 17.) Overall, Herbalife
has produced over 18,500 documents (totaling approximately 148,000 pages).
(Joint Decl. 17.) Many of these documents were produced in their native form,
such as Excel spreadsheets and PowerPoint presentations. (Joint Decl. 17.) And
on April 13, 2014, Defendants produced approximately 4GB of database
materials, including approximately 3.5GB of raw data files. (Joint Decl. 17.)
These data files are equivalent to approximately 2.4 million pages of text files.
Plaintiffs counsel has reviewed these documents. (Joint Decl. 17).
Additionally, Defendants provided Plaintiffs counsel with the means to
create their own queries and reports using Defendants confidential internal
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database. (Joint Decl. 18.) Together with this database production, Defendants
also provided explanatory documentation and answered some questions
concerning the database. (Joint Decl. 18.) Herbalife supplemented its production
of database materials and reports with additional raw data files in July. (Joint
Decl. 18.) To review and analyze the database contents, Plaintiffs retained an
expert to perform database administration, run SQL queries, and assist attorneys
in analyzing relevant data sets. (Joint Decl. 18.) Among other things the data
includes distributor/member contact information, distributor/member levels, and
distributor/member purchase information. (Joint Decl. 18).
In addition to the first set of requests for production, Plaintiffs served
interrogatories, requests for admission, and more requests for production on all
Defendants. (Joint Decl. 19.) And Defendants served interrogatories, requests for
admission, and requests for production as to each named Plaintiff, to which they
responded. (Joint Decl. 19.) The parties also conducted several depositions.
Defendants deposed all of the named Plaintiffs, except for Beverly Molnar.
Plaintiffs took a 30(b)(6) deposition of Herbalifes designated Person Most
Knowledgeable (PMK). (Joint Decl. 19).
Plaintiffs counsel also investigated several Herbalife nutrition clubs and
interviewed numerous members/distributors/consumers, both current and former.
(Joint Decl. 20.) Finally, Plaintiffs counsel participated in and oversaw
anecdotal sampling of Herbalifes products, from its protein shakes, to its nutrition
bars, to its energy and vitamin supplements. (Joint Decl. 20.)
Plaintiffs counsel also inspected Herbalifes quality control facilities,
research and development facilities, and corporate headquarters. (Joint Decl. 21.)
At these locations, Plaintiffs counsel conducted detailed interviews of several
Herbalife executives and management personnel, including its Chief Financial
Officer, its director of research and development, the manager of its Los Angeles
distribution center, the director of its quality control division, the Vice President
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Sales Strategy & Analysis, and the Vice President for Distributor Business &
Compliance. (Joint Decl. 21.) There were no restrictions placed on the questions
that were asked of these Herbalife personnel, except for attorney-client privilege.
(Joint Decl. 21.)
First Amended Complaint. On July 2, 2014, the Court granted the parties
Stipulation to File First Amended Complaint. (Dkt. No. 76.) The First Amended
Complaint, filed on July 7, 2014, added Anita Vasko, Judi Trotter, Beverly
Molnar, and Chester Cote as plaintiffs. (Dkt. No. 78.) The First Amended
Complaint also removed Plaintiffs RICO causes of action. (Joint Decl. 14.) On
August 15, 2014, the parties sought a 63 day extension of certain case
management deadlines and Defendants time to respond to Plaintiffs First
Amended Complaint. (Dkt. No. 82.) The Court granted this stipulation on August
20, 2014. (Dkt. No. 83.) And on October 17, 2014, the parties sought an additional
two to three week extension of certain case management deadlines and
Defendants time to respond to Plaintiffs First Amended Complaint. (Dkt. No.
84.) The Court granted this stipulation on October 22, 2014. (Dkt. No. 85.)
Settlement was reached before Defendants had to respond to the First Amended
Complaint.
Class Certification. Plaintiffs conducted a large amount of research,
analysis and drafting in regard to class certification issues and also sought expert
analysis from a well-respected economist in that regard. (Joint Decl. 22.)
Plaintiffs, however, did not file a motion for class certification because the parties
agreed to extend dates while settlement negotiations and formal and informal
discovery continued. (Joint Decl. 26.) The parties reached settlement before
Plaintiffs filed their motion for class certification.
B. The Mediation Process and Settlement Negotiations
On December 9, 2013, the Court entered an order (the ADR Order)
directing the parties to hold proceedings with a private mediator as the ADR
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Procedure best suited to the circumstances of this case under Civil Local Rule 26-
1. (Dkt. No. 52.) Beginning on February 6, 2014, the parties began a three-step
mediation process that allowed Plaintiffs to obtain significant discovery, exchange
multiple mediation briefs involving various aspects of Plaintiffs claims and
Herbalifes defenses, and engage in thoughtful and often heated discussion about
the merits and risks of the Action. (Joint Decl. 25.)
In all, Plaintiffs conducted five formal, essentially all-day mediation
sessions with Judge Daniel Weinstein (Ret.) who is affiliated with JAMS from
February through August 2014, and one additional mediation with his co-
mediator, Cathy Yanni. (Joint Decl. 26.) In preparation for the mediations,
including, inter alia, participating in the drafting of Plaintiffs mediation briefs and
draft motion for class certification, we researched and analyzed numerous
published decisions, statutes, articles and treatises related to multi-level marketing
cases in which it was alleged the defendant was operating a pyramid scheme,
which had been litigated on a class action basis, and familiarized ourselves with
the law applicable in the Bostick case. (Joint Decl. 26.)
In addition, we engaged in direct settlement conferences with Herbalife
representatives and legal counsel in at least three additional in-person meetings
and numerous telephone conferences. (Joint Decl. 27.) Throughout these
mediations and settlement meetings, Plaintiffs asserted various positions, theories,
arguments, evidence and facts to support the named Plaintiffs claims and rebut
Herbalifes asserted defenses. (Joint Decl. 29.) These meetings and negotiations
were arms-length and often hotly contested. (Joint Decl. 27, 29.) It took months
and significant effort, work, and legal and factual research to negotiate the
monetary terms of the settlement, and once that was accomplished, the parties
spent another three months negotiating non-monetary corporate policy changes.
(Joint Decl. 30.) In the end, Judge Weinstein concluded that the monetary portion
of the proposed settlement is in a range that I believe reasonably reflects the
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parties factual, legal and damages positions. (Joint Decl. 28; Declaration of
Hon. Daniel Weinstein (Ret.), filed concurrently herewith, 12.)
Moreover, to confirm Plaintiffs valuation of the case, in the heat of these
negotiationsand without giving any notice to HerbalifePlaintiffs retained the
Hon. James Larson (Ret.), a retired Chief Magistrate Judge of the Federal District
Court for the Northern District of California, to provide Plaintiffs (only) with a
neutral, independent valuation of the case given Plaintiffs claims, alleged facts,
factual and legal developments and Herbalifes factual and legal defenses.
1
(Joint
Decl. 31.) On July 1, 2014, Plaintiffs counsel met with Judge Larson for over
four hours to discuss case evaluation, evidence, administration, weaknesses, and
damages. (Joint Decl. 32.) Prior to the meeting, we provided Judge Larson with
significant briefing and factual summaries highlighting both our perceived legal
and factual strengths and weaknesses, including a draft motion for class
certification, an in-depth written analysis of the strengths and weaknesses of both
Plaintiffs and Defendants arguments, and copies of the key reported cases
dealing with multi-level marketing and alleged pyramid schemes. (Joint Decl.
32.) At the conclusion of the July 1
st
meeting, Judge Larson provided Plaintiffs
counsel with an oral opinion as to a reasonable settlement range for all claims in
the Bostick litigation. (Joint Decl. 32.) The settlement now being proposed to this
Court by Plaintiffs is within the range that Judge Larson opined would be
reasonable given the strength of Herbalifes defenses. (Joint Decl. 32 & Ex. A.)

1
Thomas Foley had prior experience with Judge Larson when he was appointed as
a Special Master by Judge Samuel Conti of the Northern District of California
federal district court in Beauperthuy et al. v. 24 Hour Fitness et al., Case No. C 06
0715 SC. In that case and in his role as Special Master, Judge Larson focused
counsel on both sides on the strength and weaknesses of their respective cases, and
demonstrated a capacity to help counsel on both sides realistically value the
potential damages based on the strengths and weaknesses of their respective cases.
Judge Conti also appointed Judge Larson to serve as the Special Master to prepare
a report and recommendation on special hardship cases in a recent multi-level
marketing case involving Amway, which had similar legal issues as the instant
litigation, Pokorny et al. v. Quixtar et al., Case Nom 3:07-cv-00201-SC. Plaintiffs
Counsels Joint Declaration in support of motion for preliminary approval, 26.
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C. The Settlement Agreement
The Settlement Agreement provides economic relief for the Settlement Class
through cash awards and refunds for returned product and also provides agreed
upon corporate reform. (See generally Stipulation for Settlement, filed concurrently
with the Joint Motion (Settlement Agreement).) The economic value of the
quantifiable aspects of the Settlement consists of $15 million in a cash fund and up
to $2.5 million of additional cash for product returns. (Settlement Agreement 4.1.)
Herbalife also has agreed to make, or continue to implement, numerous changes to
its business model for a contractually agreed upon period of three (3) years from the
date of the Settlement. (Settlement Agreement 5.) Taken together, almost all of
the problems identified in the First Amended Complaint are addressed by the
Settlement Agreement. The Settlement Agreement, which is attached to the Notice
of Joint Motion and Joint Motion for Preliminary Approval of Class Action
Settlement filed concurrently herewith, is summarized below.
1. Economic Relief
a. Cash Settlement Fund
A Cash Settlement Fund of $15 million will be created to pay Herbalife
distributors/members who file valid claims (as described below), attorneys fees
and costs, and the costs of administering the Settlement. Claims for cash awards
focus on compensating legitimate Business Opportunity Claimants, meaning those
Class Members who joined Herbalife primarily to pursue a business opportunity
(and not primarily for personal and/or family consumption of Herbalife products)
and who, in total, lost money on Herbalife products pursuing that business
opportunity. (Joint Decl. 34, 47; Settlement Agreement 4.1.) The higher levels
of Herbalife distributors/members (i.e., GET Team and above) are not part of the
Class and thus are not eligible for any cash award to reduce conflicts between the
class. (Settlement Agreement 1.13.1.)
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Specifically, the cash awards are based on Class Members purchases of
Qualified Products from Herbalife. A Qualified Product is one that was: (i)
purchased for resale purposes; (ii) purchased from within the United States and
shipped to the Claimant at a location in the United States; (iii) not sold for at least
the cost of purchase; (iv) not returned through Herbalifes buyback program or
Herbalifes satisfaction guarantee; and (v) not the subject of a claim for recovery
from the Product Return Fund that has been filed pursuant to this Settlement.
(Settlement Agreement 4.4.) The Settlement Agreement creates two classes of
awards based on the amount of Qualified Products purchased by claimants: (i) Pro
Rata Awards, and (ii) Flat Rate Awards. (Settlement Agreement 4.4; Joint Decl.
49.) Each is discussed below.
Generally speaking, the claimants who purchased larger amounts of product
are those more likely to have invested significant funds (possibly borrowed funds)
in the purchase of product in order to obtain a higher distributor/member level.
(Joint Decl. 49.) These claimants would have more product than would be
reasonably self-consumed. (Joint Decl. 49.) Their large purchases also would
suggest that they were seeking to obtain a higher distributor status in order to
obtain a greater discount on future products such that they could more easily sell
the product for a profit. (Joint Decl. 49).
Thus, the Cash Settlement Fund payments (whether Pro Rata or Flat Rate
Awards) are designed to benefit those Class Members who were purchasing
Herbalife products with the intent to resell those products for more than they paid,
but who were unable to sell them for at least their cost. (Joint Decl. 53.) These
payments address Plaintiffs claims that the Herbalife business opportunity made
it very difficult for those whose status was lower than GET Team and who
really intended to pursue the business opportunity, to sell Herbalife products at a
profit. (Joint Decl. 53.) At least some of the evidence obtained from Herbalife
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suggests that these Class Members may make up less than one third (or possibly
one quarter) of the total Settlement Class. (Joint Decl. 53.)
i. Pro Rata Awards
A claimant who purchased at least $750 of Qualified Products during any
Claims Year may qualify for a pro rata award from the Cash Settlement Fund that
is equal to the lesser of 100% of the estimated total loss from the sale of those
Qualified Products or 50% of the price paid for the aggregate Qualified
Products. (Settlement Agreement 4.4.5.) A Claims Year is a twelve month
period beginning on the first day of the month in which a claimant became an
Herbalife member and repeating each year thereafter. (Settlement Agreement
4.4.4.) The 50% cap is used to ensure that a claimant is compensated only for his
or her loss, and not more. (Joint Decl. 51.) The $750 threshold was selected
because it would have been physically difficult, if not impossible, for someone
purchasing that amount of product to have self-consumed it in a year. (Joint Decl.
51.) But, those claimants who may have been pursuing the business opportunity
and purchased less than $750 of Qualified Products in a Claims Year could
haveas an alternative to selling it at retailsimply self-consumed all or a large
portion of the products. (Joint Decl. 51.) (Or, to the extent such claimants still
have product that is unused and unopened, they could return it as part of this
settlement. (Joint Decl. 51.)) They, therefore, obtained or could obtain a benefit
from the Qualified Products despite their inability to sell it. (Joint Decl. 51.)
Finally, if claims exceed the amount available for Pro Rata Awards, these
awards will be reduced on a proportional basis so that all valid claims can be paid.
(Settlement Agreement 4.4.5.)
ii. Flat Rate Award
Claimants who do not meet the $750 Pro Rata Award threshold but who
otherwise meet the criteria of Business Opportunity Claimants will be entitled to a
$20 Flat Rate Award to be paid from the Cash Settlement Fund. (Settlement
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Agreement 4.4.6.) The aggregate Flat Rate Award is capped at $3 million.
(Settlement Agreement 4.4.6.) If the aggregate Flat Rate Award exceeds this
amount, Flat Rate Awards will be reduced on a proportional basis so that all valid
claims can be paid. (Settlement Agreement 4.4.6.) If the aggregate Flat Rate
Award is less than $3 million, then the difference shall be available for Pro Rata
Awards. (Settlement Agreement 4.4.6.)
iii. Cy Pres
With respect to any funds remaining in the Cash Settlement Fund after
payment of the Pro Rata and Flat Rate Awards, the parties agree that the Court
may oversee the distribution of all such funds pursuant to the cy pres doctrine to
the Consumer Federation of America www.consumerfed.org, (Settlement
Agreement 4.1; Joint Decl. 54), or such other organization as the parties may
agree upon and the Court approves.
b. Product Return Fund
Up to $2.5 million of funds in addition to the Cash Settlement Fund
discussed above will be available to pay members or distributors who file valid
claims for the return of unused and unopened products (excluding International
Business Packs and Mini-International Business Packs). (Settlement Agreement
4.2.) An additional $2.5 million from the Cash Settlement Fund described above
may be used to pay for additional product returns if valid product return claims
exceed the amount of the Product Return Fund. (Settlement Agreement 4.1;
Joint Decl. 42.)
More specifically, Class Members may submit claims for the return of
unused and unopened products that they purchased more than one year prior to the
deadline for submitting claim forms and after the beginning of the Class Period.
(Settlement Agreement 4.3.) Class Members already have the right to return
unused and unopened product to Herbalife for one year, which is why the
Settlement Agreement focuses on older product purchases. (Joint Decl. 43.) This
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benefit to Class Members is significant in that Class Members may return unused
and unopened product for a refund even if the shelf life (usually two years based
on our investigation) of any such product has expired. (Joint Decl. 43.) The
Product Return benefit addresses those Class Members who were unable to sell
Herbalife products and did not want to consume them. (Joint Decl. 43.) It also
provides a monetary benefit to those who may have spent significant funds to
purchase product in an effort to qualify as a higher level member/distributor, but
who thereafter could not sell the product and, given the purchased volume, could
not consume it. (Joint Decl. 43.) These are the members who have product still in
their possession, and who did not return it within Herbalifes one-year return
period because they were trying to sell it at retail. (Joint Decl. 43.)
The Settlement Agreement requires that claimants: (1) identify any returned
products by product SKU, which should be apparent and easily accessible on the
product containers, (2) estimate the purchase date of the products to be returned
(in order to determine if it was purchased outside Herbalifes normal return
policy), and (3) provide the actual amount paid for each returned product so that
the Claims Administrator can determine the amount of their benefit. (Settlement
Agreement 4.3.1; Joint Decl. 44.) If claimants are unable to provide the actual
amount paid for the products, they can certify as much and provide an estimated
payment. (Settlement Agreement 4.3.1.) The Claims Administrator will
calculate a claimants payment as the lesser of her estimated payment or 50% of
Herbalifes Suggested Retail Price for the product on the purchase date, i.e., the
greatest amount of discount level available for claimants under Herbalifes Sales
and Marketing Plan. (Settlement Agreement 4.3.1; Joint Decl. 45.)
Finally, as an additional benefit, Herbalife will use its current product return
process to retrieve or collect the products related to properly submitted claims,
with no additional cost to claimants. (Settlement Agreement 4.3.3; Joint Decl.
46).And should any product be returned by means of shipping (whether through
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Herbalifes product return process or otherwise), any shipping costs will be paid
by settlement funds, not by claimants. (Settlement Agreement 4.3.3; Joint Decl.
47).
2. Corporate Reforms
The Settlement Agreement requires Herbalife to institute or maintain for
three (3) years thirteen (13) specific corporate policies that benefit class members
in a way related to the claims asserted in the First Amended Complaint. (Settlement
Agreement 5; Joint Decl. 35.)
One of the claims of the First Amended Complaint was that Herbalife
violated California Business and Professions Code Sections 17200, et seq. and
17500, et seq. by charging its distributors or members a Packaging and Handling
fee simultaneously with an Order Shipping Charge. Plaintiffs claimed that
assessing both fees illegally implied that the Order Shipping Charge was a pass-
through charge and did not imply any additional income generation by Herbalife,
which it in fact did. Herbalife asserted that the charges were not unfair or
misleading. The Settlement Agreement addresses this claim by precluding
Herbalife from simultaneously and separately charging its members a Packaging
& Handling fee (or similar fee) and an Order Shipping Charge (or similar fee)
as was done during the Class Period up until Herbalife adopted its Simplified
Pricing Structure, when the two charges were combined into a single Shipping &
Handling charge. (Settlement Agreement 5; Joint Decl. 36.)
The First Amended Complaint also asserted Herbalife was an endless chain
scheme in violation of Penal Code Section 327, and that it illegally encouraged its
distributors to recruit other people to become distributors in order to buy large
amounts of product that they could not sell. Herbalife denied the allegation in part
on the basis that its products were heavily desired by the public and that the vast
majority of its distributors became Herbalife distributors for purposes of self-
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consuming Herbalife products, either personally, or as a family. (Settlement
Agreement 5; Joint Decl. 37.)
The Settlement Agreement addresses these issues in several ways. First, it
requires Herbalife to acknowledge its self-consumption position by prohibiting it
from defining all of its members as distributors. Second, it requires
implementation and enforcement of rules designed to promote the sale of product
and further discourage recruitment over sales. The Settlement Agreement
accomplishes this by requiring Herbalife to continue to (1) discourage its members
from incurring debt to buy product, (2) pay the shipping charges for product that is
legitimately returned by its members, (3) prohibit its members from selling leads to
or purchasing leads from other members, (4) prohibit the purchase of product as a
condition of being a member, (5) require experience and training of nutrition club
members, and (6) maintain procedures for enforcement of these and other rules,
including a member compliance department tasked with giving substance to these
rules and policies. (Settlement Agreement 5; Joint Decl. 38.)
The Settlement Agreement also ensures transparency of Herbalife member
success and failure rates and numbers by requiring Herbalife to include its
Statement of Average Gross Compensation (SAGC) of members with any
membership application and a requirement that any applicant actually acknowledge
having reviewed the SAGC. Moreover, the SAGC must contain the total number
and percentage of all members who do not receive any compensation payment
directly from Herbalife. In other words, Herbalife, cannot simply disclose those
who made money with the Herbalife business opportunity in the preceding year (as
it did for multiple years of the Class Period), but also must disclose those who
simply chose to consume product or who made no money pursuing the business
opportunity. Finally, the Settlement Agreement requires certain clarifications in
language in the membership agreement and sales and marketing plan designed to
make them less confusing in certain respects. These policies ensure that those
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people investigating the Herbalife business opportunity are informed of the risks by
showing statistics about those members who received no payments as well as those
who did. (Settlement Agreement 5; Joint Decl. 39.)
The changes in Defendants corporate policies that Herbalife has
implemented (or has agreed to implement) and agreed to continue to maintain for
the three-year period outlined in the Settlement Agreement enhance and improve
the protection of both members/distributors and consumers. (Joint Decl. 40.)
3. Enforcement and Release
The Settlement Agreement provides that the thirteen corporate policy changes
discussed above shall be continued for no less than three years from the date the Court
issues final approval of the Settlement Agreement. (Settlement Agreement 5.1.1.)
Accordingly, these corporate policy changes are contractually binding, and any
Plaintiff or member of the Settlement Class could seek to enforce those mutually
agreed upon terms of the Settlement Agreement if Herbalife violates them. And these
potential future claims are not included within the scope of the Release.
In return for the economic and corporate policy changes provided in the
Settlement Agreement, the Settlement Class will agree to fully release Herbalife
from all claims that were or could have been raised in the complaints in this
action. (Settlement Agreement 8.) Importantly, however, Plaintiffs counsel is
aware that the Federal Trade Commission and the Attorneys General of New
York and Illinois have publicly announced investigations into Herbalifes business
practices. (Joint Decl. 62.) To ensure that this class action and settlement do not
interfere with those ongoing investigations or similar investigations of which we
are unaware or which possibly arise in the future, and to also permit settling class
members to participate in the ultimate future outcomes of those administrative
investigations, Plaintiffs counsel insisted on the following language being
included in the Settlement Agreement and proposed release:
provided, however, that the Released Claims do not include
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claims arising out of . . . (2) federal, state, or local government
agency or similar authority retains sole jurisdiction and for
which there is no private right of action accruing to the
Settlement Class Members, either collectively or individually . . .
(Joint Decl. 62.)
Also of significance, the proposed release does not extend to claims against
any of the lead generation companies, who sell or sold in the past, lists of potential
customers that might be interested in joining Herbalife (i.e., potential leads) and
materials that would supposedly help attract such leads. (Joint Decl. 63.) These
types of companies have been publicly criticized for inducing new
members/distributors to spend large sums of money on lists of potential leads and
materials to attract potential leads that, in reality, had little value. (Joint Decl. 63.)
Because the First Amended Complaint does not name such companies as defendants
and because the proposed release does not extend to such companies, Plaintiffs and
the Settlement Class remain free to bring viable claims on either a class or individual
basis against such companies if actionable conduct occurred and resulted in
economic loss. (Joint Decl. 63.) On a related note, one of the corporate policy
reforms requires Herbalife to maintain its rule prohibiting members from selling
leads to other members or purchasing leads from any source, consistent with Rule
3.3.2 of Herbalifes Member Rules of Conduct. (Joint Decl. 63.)
In interviewing distributors who are class members, there were numerous
complaints related to third parties, referred to in the multi-level marketing industry
as lead generators, who solicited class members to become Herbalife distributors,
and then had the class members become members of the lead generators
downlines. (Joint Decl. 41.) The lead generators then encouraged the class
members to purchase lists of purported leads of individuals to whom they could
sell product, and also to purchase training courses. (Joint Decl. 41.) Based on the
corporate policy changes, Herbalife has instituted policies which will limit the
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involvement of third party lead generators in selling additional services and products
to distributors and members. (Joint Decl. 41.) The lead generators are not released
by the terms of the Settlement Agreement, and class members may pursue claims
against lead generators for losses based on their interactions with the lead generators.
(Joint Decl. 41).
4. Fees and Costs
In this case, attorneys fees were not discussed at all until after the
substantive provisions of the Settlement Agreement had been reached. (Joint Decl.
64). The Settlement Agreement provides that Plaintiffs Counsel may apply to the
Court at the Settlement Hearing for an award of attorneys fees and reimbursement
of their expenses and costs from the Cash Settlement Fund in an amount to be
determined by the Court as a percentage of the value of the monetary terms of the
settlement as a common fund, in accordance with Ninth Circuit Court of Appeals
precedent and the pertinent law. (Settlement Agreement 10.) Plaintiffs Counsel
will file a separate motion with the Court requesting an award of attorneys fees,
costs to be reimbursed, and any enhancements from the Settlement Fund in
amounts consistent with established Ninth Circuit precedent. (Joint Decl. 64).
Plaintiffs Counsel anticipates requesting an award of attorneys fees of thirty
percent (30%) of the total combined economic value of the Monetary Fund, and
Product Return Fund to compensate Class Counsel for all work already performed
in the Action and all work remaining to be performed in documenting the
Settlement, securing Court approval of the Settlement, administering the
Settlement, ensuring that the Settlement is fairly administered and implemented,
and obtaining dismissal of the Action. (Joint Decl. 64). Although no additional
attorneys fees are being requested based on the value of the corporate reforms, the
reforms do further justify the anticipated amount of requested attorneys fees.
(Joint Decl. 64).
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Both firms have at all times assumed the responsibility of litigating this
Action on a contingent-fee basis and advancing all costs and expenses, such that
any attorneys fees would be paid only upon achieving a recovery for the benefit of
Plaintiffs and the Class by settlement or judgment. (Joint Decl. 64). Plaintiffs
Counsel also anticipates requesting reimbursement of their expenses and costs
from the Settlement Fund in an amount approximating $200,000. (Joint Decl. 64).
Finally, Plaintiffs Counsel in the separate motion will request an enhancement
payment of $5,000.00 to each class representative, and $10,000.00 to Dana Bostick
who served longer in the capacity as a class representative. (Joint Decl. 65.)
II. DISCUSSION
The parties Joint Motion initiates the process for judicial approval of a
class action settlement. See Fed. R. Civ. P. 23(e). When the parties to a putative
class action reach a settlement agreement prior to class certification, as here,
courts must peruse the proposed compromise to ratify both the propriety of the
certification and the fairness of the settlement. Staton v. Boeing Co., 327 F.3d
938, 952 (9th Cir. 2003). As discussed in turn below, Plaintiffs request that the
Court: (A) certify the Settlement Class; (B) appoint Plaintiffs counsel as class
counsel; (C) preliminarily approve the Settlement Agreement; (D) order
dissemination of notice to the class; and (E) schedule a fairness hearing.
A. The Court Should Certify the Settlement Class.
The Settlement Class consists of all persons who are or were Herbalife
members or distributors in the United States at any time during the Class Period,
excluding the Defendants, their employees, family members, and any member
who has been a member of Herbalifes Presidents Team, Founders Circle,
Chairmans Club, Millionaire Team, or GET Team and excluding all Herbalife
members or distributors who have agreed to be subject to the arbitration provisions
of the Arbitration Agreement for Disputes Between Members and Herbalife
contained in the Member Application Agreement revised during or after September
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2013. (Settlement Agreement 1.13). Additionally, the Class Period means the
period beginning April 1, 2009, through and including the date the Preliminary
Approval Order is entered. (Settlement Agreement 1.5).
The parties agree that the Court should certify the Settlement Class because
the requirements of Rule 23(a) and (b)(3) are satisfied here, as discussed below.
1. Rule 23(a)s Requirements Are Satisfied
Class certification is appropriate if: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of law and fact
common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In
determining the propriety of a class action, the question is not whether the plaintiff
or plaintiffs have stated a cause of action or will prevail on the merits, but rather
whether the requirements of Rule 23 are met. United Steel, Paper & Forestry,
Rubber, Mfg. Energy v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010).
Further, Rule 23(a) states four threshold requirements applicable to all class
actions, including those subject to a proposed settlement agreement. Amchem
Prod., Inc. v. Windsor, 521 U.S. 591, 613 (1997). And consumer protection claims,
like several of the claims at issue here, are ideal for class certification. See, e.g.,
Amchem Prods, 521 U.S. at 625; In re First Alliance Mortg. Co., 471 F.3d 977,
992 (9th Cir. 2006); California v. Levi Strauss & Co., 41 Cal.3d 460, 471 (1986);
Vasquez v. Superior Court, 4 Cal.3d 800, 808 (1971); Daar v. Yellow Cab Co., 67
Cal.2d 695, 704 (1967); Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 600
(E.D. Cal. 1999) (Class action certifications to enforce compliance with consumer
protection laws are desirable and should be encouraged.). As detailed below,
each of the four requirements is satisfied in this instance.
a. Numerosity
Based on discovery to date and data from Herbalife, Plaintiffs estimate that
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the Settlement Class consists of approximately 1.3 million former and current
members/distributors. Clearly, the [Settlement C]lass is so numerous that joinder
of all members is impracticable. Fed. R. Civ. P. 23(a).
b. Commonality
Rule 23(a)(2) requires there to be questions of law or fact common to the
class. This Rule has been construed permissively and may be met by just one
common issue of law or a common core of facts. Hanlon v. Chrysler Corp., 150 F.
3d 1011, 1019 (9th Cir. Cal. 1998); see also In re First Alliance Mortg. Co., 471
F.3d 977, 990-91 (9th Cir. 2006). Commonality under Rule 23(a)(2)as
distinguished from predominance under Rule 23(b)(3)is liberally construed.
To establish commonality, Plaintiffs must show that the class members
have suffered the same injury . . . [, and their claims] depend upon a common
contention . . . of such nature that it is capable of classwide resolutionwhich
means that determination of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke. Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011) (internal quotation marks and citations
omitted). In Dukes, the Supreme Court stated: What matters to class certification . .
. is not the raising of common questionseven in drovesbut, rather the capacity
of a classwide proceeding to generate common answers apt to drive the resolution
of the litigation. Id. at 2554.
Here, common answers to common questions drive the litigation. For
example:
Did Herbalife operate an endless chain as prohibited by California
Penal Code section 327?
Did Herbalife require the payment of money for (a) the right to sell a
product and (b) the right to receive, in return for recruiting others,
rewards that were unrelated to the sale of the product to retail
consumers?
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Does Section 327 allow the Amway rules as safeguards or require
similar rules as safeguards?
o If yes, what were the safeguards, were they effective, and were
they enforced by Herbalife?
Does Herbalifes Marketing Plan and the representations made under
that plan regarding the alleged business opportunity constitute an
unfair and/or deceptive trade practice under California Business and
Professions Code Section 17200, et seq. and/or false advertising under
California Business and Professions Code Section 17500, et seq.?
Did Herbalifes Statement of Average Gross Compensation of U.S.
Supervisors for years 2008, 2009, 2010, 2011, 2012 and 2013 contain
misrepresentations or omissions?
o If yes, can reasonable minds differ on the question of
materiality of such misrepresentations or omissions?
These questions, and many others like them, would generate answers
common to the class. They do not turn based on the individual class members
considered, and the answers to these questions have driven and would continue to
drive this litigation. As a result, the Court should find that there are questions of
law and fact common to the class. Fed. R. Civ. P. 23(a).
c. Typicality
Claims are typical for Rule 23(a)(3) if they: (1) arise[] from the same
event or practice or course of conduct that gives rise to the claims of other class
members; and (2) [are] based on the same legal theory as their claims. Haley v.
Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996), citing Rosario v. Livaditis,
963 F.2d 1013, 1018 (7th Cir. 1992). The purpose of the typicality requirement is
to assure that the interest of the named representative aligns with the interests of
the class. Wolin v. Jaguar Land Rover North Am., LLC, 617 F.3d 1168, 1175 (9th
Cir. 2010). Under the rules permissive standards, representative claims are
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typical if they are reasonably coextensive with those of absent class members;
they need not be substantially identical. Staton, 327 F.3d at 957, quoting Hanlon
150 F. 3d at 1020.[T]he requirement may be satisfied even though varying fact
patterns support the claims or defenses of individual class members or there is a
disparity in the damages claimed by the representative parties and the other
members of the class. 7A Charles A. Wright, Federal Practice and Procedure
1764 at 235- 41; see also Arnold v. United Artists Theatre Circuit, Inc., 158
F.R.D. 439, 449 (N.D. Cal. 1994). Factual variations are not fatal to a proposed
class when the claims arise out of the same remedial and legal theory. Sullivan v.
Chase Investment Services of Boston, Inc., 79 F.R.D. 246, 257 (N.D. Cal. 1978).
Here, the named Plaintiffs and the Settlement Class members have suffered
losses because of their shared experience as Herbalife members/distributors, and
all parties have the same legal claims arising from Herbalifes operations
identified in the First Amended Complaint. Plaintiffs counsel are not aware of
any conflicts of interest between the named Plaintiffs and the Settlement Class,
and, thus, the typicality requirement is satisfied. See, e.g., Wolin, 617 F.3d at 1176
(finding that typicality requirement was satisfied notwithstanding some factual
variations among plaintiffs situations); see also In re Matter of Johnson, 80 B.R.
791, 796 (E.D. Va. 1987) (applying Rule 23 and concluding that the plaintiffs
claims are clearly typical of the class: like all members of the proposed class, the
plaintiffs are defrauded investors in Johnsons pyramid scheme).
d. Adequacy
Rule 23(a)(4) only permits certification of a class action where the
representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a)(4). In determining whether the representation meets this
standard, courts must ask (1) whether the representative plaintiffs or counsel have
any conflicts of interest with other class members and (2) whether the class is
represented by qualified and competent counsel. See Connecticut Ret. Plans &
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Trust Funds v. Amgen, Inc., No. CV07-2536PSG, 2009 WL 2633743, at *6 (C.D.
Cal. Aug. 12, 2009) affd, 660 F.3d 1170 (9th Cir. 2011) affd, 133 S. Ct. 1184,
(2013); Dukes, 603 F.3d at 614. Here, and as detailed below, the five named
Plaintiffs interests are aligned with those of the proposed Settlement Class, there
are no conflicts of interest, and the Plaintiffs are adequate representatives of the
proposed Settlement Class. Further, Plaintiffs and the Settlement Class are
represented by competent counsel who has extensive experience in complex class
actions and substantial knowledge of the legal and factual issues involved in this
litigation. Thus, the Court should find that the class is adequately represented both
by Plaintiffs and Plaintiffs counsel.
i. There Are No Significant Conflicts of Interest.
A named plaintiff cannot simply be disqualified because a conflict of
interest allegedly exists. Only a conflict of interest that is apparent, imminent,
and on an issue at the very heart of the suit will disqualify a named plaintiff from
representing a class. Blackie v. Barrack, 524 F.2d 891, 909-10 (9th Cir. 1975); see
also Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1145 (8th Cir. 1999) (only "stark
conflicts" create an adequacy issue); In re MetLife Demutualization Litig., 689
F.Supp.2d 297, 351 (E.D.N.Y. 2010) (same). Named plaintiffs may represent a
class in the face of conflicts that are peripheral, and substantially outweighed by
the class members common interests. Blackie, 524 F.2d at 909-10. Here,
Plaintiffs interests are aligned with the class, and there are no conflicts relating to
issues at the heart of this case.
First, any alleged differences between Plaintiffs and the Settlement Class
relating to the amount of product purchased do not create a conflict of interest.
The type of injury the Plaintiffs have suffered is consistent among Class Members.
And the fact that Class Members will obtain varying relief (here, based on the
amount of Qualifying Products purchased) is not unusual, as [a]lmost every
settlement will involve different awards for various class members. In Re Pet
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Foods Prod. Liab. Litig., 629 F.3d 333, 346 (3rd Cir. 2010); see also 8 Newberg
on Class Actions 12:15.
Second, Plaintiffs status as past distributors does not create a conflict with
class members who have not terminated their membership/distributorship. Under
the terms of the Settlement Agreement, Herbalife members/distributors, including
those that have not yet terminated their membership/distributorship, can bring a
claim under the terms of the Settlement Agreement. In addition, the claims being
made by the Settlement Class are against Herbalife, not Herbalifes
members/distributors.
Third, and consistent with the foregoing, settlement here does not preclude
any potential claims that Settlement Class members/distributors may have against
third party lead generators, some of whom might possibly be or have been
Herbalife members/distributors. (Joint Decl. 41.) As detailed above, such claims
have not been brought in this lawsuit and are not being released by this settlement.
Plaintiffs and the Settlement Class can pursue separate causes of action against
any person or entity other than Herbalife, including lead generation companies.
(Joint Decl. 41.) Thus, differences in Plaintiffs and Class Members recruitment
experience, to the extent such differences exist, should not complicate settlement
with Herbalife. In any event, the existence of potential claims against uplines or
downlines is inherent in pyramid scheme litigation and is not a disabling
conflict that warrants denial of class certification. See Nguyen v. FundAmerica,
Inc., No. 90-2090, 1990 WL 165251, *2 (N.D. Cal. Aug. 20 1990).
Finally, the named Plaintiffs have actively participated in strategy,
discovery and settlement negotiations, and they have aggressively sought
monetary relief for the classfocusing on those who suffered greater loss from
pursuing the Business Opportunityas well as corporate reform that will benefit
current and future members/distributors. (Joint Decl. Exs. B, C, D, E & F).
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In the end, issues relating to the distribution of monetary relief and whether
claims against individual members exist, while undoubtedly important, are
nevertheless subordinate to the main issue in this casewhether Defendants are
liable under the California Penal Code, Civil Code, and Business and Professions
code as alleged in the complaint. See Amgen, Inc., 2009 WL 2633743, at *7.
Therefore, Plaintiffs are adequate representatives of the Class and any alleged
conflicts that exist are peripheral or subordinate to the core interests common to
the Class and its Representatives.
ii. Plaintiffs Are Represented by Qualified and
Competent Counsel.
Plaintiffs counsel working on this matter has substantial experience in class
action litigation as well as in suits involving violations of the Fair Labor Standards
Act, consumer fraud claims, and multiple suits involving Ponzi schemes. (Joint
Decl. 6-10.) More specifically, Thomas Foley and the law firm of Foley, Bezek,
Behle & Curtis, LLP have prosecuted class action litigation totaling over
$400,000,000 in approved settlements. (Joint Decl. 6.) Scott Petersen, Jason
Hardin, Philip Dracht and the law firm of Fabian & Clendenin also have particular
expertise litigating suits involving California Business and Professions Code
Sections 17200 and 17500, and defending large class action lawsuits in California
and elsewhere. (Joint Decl. 9.)
Plaintiffs counsel does not have any conflicts of interest with the
Settlement Class and are prepared to prosecute this complex action through
resolution, either by settlement or through continued litigation. (Joint Decl. 24.)
Further, Plaintiffs counsels experience and resources are sufficient to
satisfy the adequacy requirements of Rule 23(a) and Rule 23(g). See Xiufang Situ
v. Leavitt, 240 F.R.D. 551, 562 (N.D. Cal. 2007); Wiener v. Dannon Co., Inc., 255
F.R.D. 658, 672 (C.D. Cal. 2009). In the absence of affirmative evidence that
Plaintiffs chosen counsel is inadequate, Plaintiffs choice should be respected.
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See Mateo v. MIS KISO, 805 F. Supp. 761, 771 (N.D. Cal. 1992); Willits v. City of
Los Angeles, No. CV 10-05782 CBM RZX, 2011 WL 7767305 at *4 (C.D. Cal.
Jan. 3, 2011) (Adequate representation is usually presumed in the absence of
contrary evidence.). Accordingly, this Court should find that the Settlement Class
is represented by qualified and competent counsel.
2. Predominance and Superiority
In addition to satisfying Rule 23(a)s prerequisites, parties seeking class
certification must show that the action is maintainable under Rule 23(b)(1), (2), or
(3). Amchem Prod., 521 U.S. at 614. Here, the parties jointly move for
certification pursuant to Rule 23(b)(3), which states that a class may be
maintained if the court finds that questions of law or fact common to class
members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). Confronted with a
request for settlement-only class certification, a district court need not inquire
whether the case, if tried, would present intractable management problems.
Amchem, 521 U.S. at 620; see also Fed. R. Civ. P. 23(b)(3)(D). Admittedly,
however, other specifications of the Rule are designed to protect absentees by
blocking unwarranted or overbroad class definitions. Amchem, 521 U.S. at 620.
Thus, in deciding whether to certify a settlement class under Rule 23(b)(3),
the Court should consider the factors relevant to assessing superiority:
(A) the class members interests in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature
of any litigation concerning the controversy already begun by or
against class members; [and] (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum.
Fed. R. Civ. P. 23(b)(3)(A)-(C). The Court also should consider the substance of
the parties proposed Settlement Agreement insofar as it sheds light upon the
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adequacy of absent class members representation in the litigation and whether the
class definition is unwarranted or overbroad. Amchem, 521 U.S. at 619-20.
Further, the Court should take note that other federal courts have upheld
the predominance of common issues, and lack of disabling conflict in the pyramid
scheme context, and have granted certification to comprehensive plaintiff classes
in cases arising from similar multi-level pyramid schemes. Nguyen v.
FundAmerica, Inc., 1990 WL 165251, *2 (N.D. Cal. 1990). As discussed below,
the Court should reach the same conclusion here because all of the factors
contemplated by Rule 23(b)(3) weigh in favor of certification.
First, the value of any individual Settlement Class Members claim is likely
to range from tens of dollars up to possibly ten thousand dollars for a small
portion of the Settlement Class. Though these are significant sums, they are not
large enough to justify the cost of bringing an individual suit based on an endless
chain or consumer fraud, especially given that none of the underlying statutes
provide for recovery of attorneys fees. Thus, Settlement Class members have
only minimal interests in individually controlling prosecution of the lawsuit. Of
course, if a potential Settlement Class member would like to assert his or her own
claim, he or she can opt-out of the class and do so. See, e.g., In re Conseco Life
Ins. Co. Cost of Ins. Litigation, No. 04-1610, 2005 WL 5678842, *9 (C.D. Cal.
Apr. 26, 2005) (certifying class but allowing opt outs because some plaintiffs
with large claims may prefer to pursue actions individually).
Second, although there have been lawsuits in the past concerning
Herbalifes business opportunity, Plaintiffs counsel is unaware of any litigation
currently pending in either state or federal court against Herbalife that involve any
of the claims that are being released. And Plaintiffs counsel is unaware of any
competing class action having been filed. In reaching these conclusions, Plaintiffs
counsel inquired of such cases from Herbalife and also conducted numerous
searches on Google, Westlaw, and the nationwide Pacer case locator. (Joint Decl.
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73.) Plaintiffs suggest that the absence of such additional or competing lawsuits
indicates that this class action is a superior mechanism to resolve these claims.
Indeed, this case has progressed through the court system for over a year and a
half and represents the Settlement Class members opportunity for a meaningful
recovery.
Third, it is desirable to concentrate this litigation as a class action before
this Court, which now has a familiarity with the factual and legal issues involved.
Fourth, absent class members have been adequately represented in this
litigation, and the class definition is neither unwarranted nor overbroad. As noted
above, Plaintiffs counsel negotiated a fair release that retains Settlement Class
members ability to participate in any later-obtained government settlement and to
separately sue any third party lead generation company. Further, the proposed
Settlement Agreement allows Settlement Class members to opt-out if they so
choose. And as detailed above, the Settlement Agreement provides substantial
economic benefits for absent class members who have old product and want to
return it and who suffered losses trying to pursue the Herbalife business
opportunity. Finally, the Settlement Class excludes the higher levels of Herbalife
members/distributors, who likely made money given their level in the system and
also those who signed an arbitration agreement. As a result, the class definition is
warranted and tailored to those who potentially could have suffered an economic
loss from a failed attempt at pursuing the Herbalife business opportunity.
Accordingly, each of the Rule 23(b)(3) factors weighs in favor of
certification. Additionally, common issues of law and fact predominate because
the central issue in this litigation, namely, whether elements of Herbalifes
business model and Marketing Plan, as set forth in the First Amended Complaint,
are consistent with state and federal law. Because that business model is and has
been very consistent with respect to marketing, recruitment, pricing, and related
activities, the allegations of the First Amended Complaint can be litigated on a
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class-wide basis by analyzing Herbalifes business model and class-wide
practices. For these reasons, the Court should find that common issues
predominate and that a class action is a superior form of resolving the claims
against Herbalife.
B. The Court Should Appoint Plaintiffs Counsel as Class Counsel
After certifying the Settlement Class, the court should appoint Plaintiffs
counsel as Class Counsel. Rule 23(g)(1)(B) provides that a court that certifies a
class must appoint class counsel. Fed. R. Civ. P. 23(g)(1)(B). In making that
appointment, a court must consider (1) the work counsel has been done in
identifying or investigating potential claims; (2) counsels knowledge of
applicable law; (3) counsels experience in handling matters of the sort; and (4)
the resources that counsel will commit to representing the class. Id. Each factor
weighs in favor of appointing Foley, Bezek, Behle & Curtis, LLP and Fabian &
Clendenin, P.C. as joint Class Counsel. (The analysis applicable here also
confirms that the class is adequately represented, as required under Rule 23(a),
discussed above.)
Plaintiffs counsel has spent many hours investigating, researching and
analyzing the claims alleged in the Complaint and First Amended Complaint
defending against Defendants Motion to Dismiss, conducting massive amounts of
legal research and analysis; requesting, fighting for, and reviewing approximately
148,000 pages of documents and a large database of customer information from
Defendants; consulting and working with multiple experts, defending and taking
depositions, conducting site inspections, participating in extensive mediations and
settlement negotiations, etc. (Joint Decl. 15-22.)
Additionally, Plaintiffs counsel has extensive knowledge of the applicable
law through their involvement in similar litigation and in pursuing the claims in
this case. The strength of counsels legal work on this case is evident from their
defeating Herbalifes motion to dismiss and convincing Herbalife to produce large
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amounts of information and documents after being presented with a ninety-four
(94) page [Joint] Stipulation on a Motion to Compel. As stated above, Plaintiffs
counsel has prosecuted and defended multiple claims based on the same principles
of law at issue in this case.
Further, Plaintiffs counsel are well-respected class action attorneys, whose
firms have handled scores of complex cases resulting in well over $400,000,000 in
relief for class members. See, e.g., In Re Structured Settlement Litigation, LASC
Case No. BC 244111 (a national class action involving a Ponzi Scheme, which
resulted in settlements of $124 million paid by, inter alia, Bankers Trust
Company, Merrill Lynch, and Wells Fargo Bank); Internal Revenue Service
(IRS) 1031 Tax Deferred Exchange Litigation, Federal District Court of
Nevada, Case No. 2:07-cv-1394 (a national class action involving a Ponzi scheme
which resulted in settlements in excess of $98 Million paid by, inter alia, Union
Bank of Switzerland and Smith Barney & Company); Hunter v. Okun, et al.,
Federal District Court for the Northern District of California, Case No. 09-cv-
02079JW(RSx) (a national class action involving a Ponzi scheme for which
approximately $98 Million in settlements have been preliminarily approved by the
Court); Roark v. GTE, Santa Barbara Superior Court Case No.01035862 (a
California $18.5 Million class action settlement). (Joint Decl. 6).
In light of the experience of FBBC and Fabian and their extensive
involvement and work in this case, the Court should appoint them jointly as class
counsel.
C. The Court Should Preliminarily Approve the Settlement.
Having certified a Settlement Class and appointed Class Counsel, the Court
should preliminarily approve the Settlement Agreement. Though technically not
required, it is common for district courts to make a preliminary assessment of
proposed class action settlement agreements. See 7B Fed. Prac. & Proc. Civ.
1797.5 (3d ed.) ([T]he rule does not require or suggest that the court should
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preliminarily approve the fairness of a proposed settlement before sending notice
to the class, although some courts have followed that approach.). Whereas final
approval of a class action settlement is mandatory and requires a finding that the
settlement is fair, reasonable, and adequate, see Fed. R. Civ. P. 23(e),
preliminary approval should be granted so long as the proposed settlement
contains some merit, is within the range of reasonableness required for a
settlement offer, or is presumptively valid. In re Tableware Antitrust Litig., 484
F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (internal citations omitted). And as many
district courts have identified, analyzing a class action settlement begins with a
presumption that a class settlement is fair and should be approved if it is the
product of arms-length negotiations conducted by capable counsel with extensive
experience in complex class action litigation. See 4 Alba Conte & Herbert B.
Newberg, Newberg on Class Actions, 11:41 (4th ed. 2006).
Thus, at the preliminary approval stage, a court determines whether a
proposed settlement is within the range of possible approval and whether or not
notice should be sent to class members. In re M.L. Stern Overtime Litigation,
2009 U.S. Dist. LEXIS 31650 (S.D. Cal. 2009); see also In re Corrugated
Container Antitrust Litig., 643 F.2d 195, 205 (5th Cir. 1981). In determining
whether a settlement is fair, reasonable, and adequate, courts balance several
factors, including:
the strength of plaintiffs case; the risk, expense, complexity, and
likely duration of further litigation; the risk of maintaining class
action status throughout the trial; the amount offered in
settlement; the extent of discovery completed, and the stage of
the proceedings; the experience and views of counsel; the
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presence of a governmental participant; and the reaction of the
class members to the proposed settlement.
2

Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992), citing Officers
for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982).
All of the aforementioned considerations have been met here: Plaintiffs
counsel has extensive experience in class action litigation, (Joint Decl. 6-10), the
settlement was reached only after ample discovery and investigation, (Joint Decl.
15-22), the settlement was reached only after extensive arms-length mediation
facilitated by an experienced mediator, Honorable Daniel Weinstein (Ret.),
substantial additional negotiations about the specific terms of the settlement, and a
Plaintiffs-only, independent case valuation by another experienced mediator, Hon.
James Larson (Ret.), (Joint Decl. 25-32). See M. Berenson Co. v. Faneuil Hall
Marketplace, Inc., 671 F. Supp. 819, 822 (D. Mass. 1987) (Where, as here, a
proposed class settlement has been reached after meaningful discovery, after arms
length negotiation, conducted by capable counsel, it is presumptively fair" (citation
omitted)).
Further, as set forth below, the factors identified in City of Seattle weigh
heavily in favor of preliminary approval of the proposed settlement.
1. The Strength of Plaintiffs Case, the Complexity, Expense
and Likely Duration of Further Litigation, the Risk of
Obtaining Class Action Status, and the Risk of Prevailing at
Trial All Weigh in Favor of Preliminary Approval.
There were a number of obstacles facing the Bostick litigation if it did not
settle. While Plaintiffs counsel for the class is confident, in the absence of a
settlement, there would be several risks associated with this case going forward.

2
Case law has held that this factor is often better gauged at the final approval
hearing. See Sandoval v. Tharaldson Employee Mgmt., 2009 U.S. Dist. LEXIS
111320 (C.D. Cal. November 19, 2009).
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First, Defendants have contested liability and class certification vigorously in
this case, and it is believed that Defendants would continue to vigorously oppose the
merits of the claims even in the event certification is granted. While Plaintiffs
Counsel is confident in obtaining class action status, and in ultimately prevailing at
trial, there are always risks inherent in litigation, and the class acknowledges that
there are always challenges in proving liability and damages, as well as the
possibility that Defendants will raise meritorious defenses to the claims. This is
especially true in class action litigation. As one court observed:
It is known from past experience that no matter how confident
one may be of the outcome of litigation, such confidence is often
misplaced. Merely by way of example, two instances in this
Court may be cited where offers of settlement were rejected by
some plaintiffs and were disapproved by this Court. The trial in
each case then resulted unfavorably for plaintiffs; in one case
they recovered nothing and in the other they recovered less than
the amount which had been offered at settlement.
West Virginia v. Chas. Pfizer & Co., 314 F. Supp. 710, 743-44 (S.D.N.Y. 1970),
aff'd, 440 F.2d 1079 (2d Cir. 1971), cert. denied, 404 U.S. 871 (1971) but
disapproved on other grounds by Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).
Second, and more specifically, although Plaintiffs successfully opposed
Herbalifes Motion to Dismiss, there remain substantial arguments that Herbalife
has made, and which it could make on summary judgment or at trial should the
Action continue to be litigated. (Joint Decl. 55.) For example, based on the
results of multiple surveys, Herbalife claims that approximately 73% of its
participants became members/distributors for the purpose of purchasing product
for self-consumption, as opposed to pursuing the business opportunity. (Joint
Decl. 56.) If proven to be true, following Herbalifes arguments, a finder of fact
could find that such members/distributors have not paid valuable consideration
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for the chance to receive compensation for introducing one or more additional
persons into participation in the scheme or for the chance to receive compensation
when a person introduced by the participant introduces a new participant. Cal.
Penal Code. 327. (Joint Decl. 56.) Instead, such members/distributors could be
found to have been not purchasing in order to participate in the scheme, but
instead purchasing to consume Herbalife products, which a fact-finder could
reasonably conclude is not a violation of Section 327. (Joint Decl. 56.) In this
way, Herbalife claims to be more like a buyers club (e.g., Costco or Sams Club)
than a pyramid scheme. (Joint Decl. 56.)
Plaintiffs obtained the underlying surveys in discovery. (Joint Decl. 57). In
the opinion of Plaintiffs counsel, the survey questions and limited response
options could have been better. (Joint Decl. 57). Despite such shortcomings, the
surveys could be persuasive and increase the risk for continued litigation. (Joint
Decl. 57). Indeed, another survey with a differently framed question found that
approximately half of respondents joined Herbalife with no expectation of making
any money at all. (Joint Decl. 57). This too could undercut Plaintiffs endless
chain theory. (Joint Decl. 57.)
In addition to 327, Plaintiffs also claim violations of Business &
Professions Code Sections 17200 and 17500 for unlawful, fraudulent and
deceptive representations and false advertising regarding the business
opportunity of Herbalife. Plaintiffs claim Herbalife (through its IBP, mini-IBP,
publications, etc.) promises wealth, success, and opportunity, filled with luxury
homes, cars, spacious ranches, and vacations. (Joint Decl. 58.) Plaintiffs claim
very few that become Herbalife distributors can achieve the claimed results
because the system is designed for failure. (Joint Decl. 58.) Distributors buy
product at inflated prices to pay the few at the top. (Joint Decl. 58.) They pay
inflated and misleading shipping, handling, and freight charges. (Joint Decl. 58.)
And in the end, they cannot sell any Herbalife product at a price near Herbalifes
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SRP. (Joint Decl. 58.) Further, until recently, Herbalife only disclosed the
winners in its business opportunity and failed to disclose the hundreds of
thousands of members/distributors each year that make no money (i.e., the 88 plus
percent of members/distributors who received no payments from Herbalife in a
year). (Joint Decl. 58.) Plaintiffs claim that had the truth been told to class
members before joining or during the period in which they could renounce their
distributorships, they would not have joined Herbalife in the first place or would
quickly ask for their money back. (Joint Decl. 58.)
In response, Herbalife states, and has produced some documents and
information indicating, that it has policies and procedures prohibiting its
members/distributors from making false or misleading statements about Herbalife
or its products and that Herbalife enforces those policies and procedures. (Joint
Decl. 59.) Second, Herbalife claims that the stories and characterizations it
provides are not indicative of ensured results and that such caveats are clearly
noted in its Marketing Plan and various promotional material. (Joint Decl. 59.)
Third, and potentially of most significance, Herbalife claims, and has produced
some documents and information indicating, that, since it began to publishing the
information regarding the winners and losers in its 2012 Statement of Average
Gross Compensation, the number of people becoming new Herbalife members has
not declined at all. (Joint Decl. 59.) In fact, new memberships have increased.
(Joint Decl. 59.) In other words, Herbalife argues that after it began disclosing
more information about those who received no payment from Herbalife in its
SAGCs, there was no impact on the number of people who wanted to become
Herbalife members. (Joint Decl. 59.) Although not dispositive, such evidence
underscores the risks inherent in continued litigation. (Joint Decl. 59.)
Overall, based upon (1) the extensive formal and informal discovery to date,
(2) the review and analysis of all of the documents produced by Herbalife as well as
others obtained through independent investigation, (3) the claims and defenses
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asserted by the parties, (4) the massive amounts of legal research and analysis
performed, (5) detailed expert analyses, (6) the independent case valuation of Judge
Larson, (7) analyses and discussions with the mediators, (8) the corporate reforms
that Defendants have agreed to implement and maintain regarding the manner in
which they operate their business with regard to distributors/members, and (9) the
totality of the circumstances, Plaintiffs Counsel believes a finder of fact could
reasonably conclude that Herbalife is not currently in violation of California Penal
Code Section 327 as Plaintiffs Counsel understands that statute has been and is
being enforced. (Joint Decl. 60.) Furthermore, Plaintiffs Counsel believes a finder
of fact could reasonably conclude that: (1) there is substantial demand for
Herbalifes products for personal and/or family consumption by both non-members
and members and (2) a vast majority of Herbalife members become members
primarily for that purpose. (Joint Decl. 60.) Plaintiffs Counsel is not stating that
such conclusions are in fact true or that the law compels such conclusions. (Joint
Decl. 60.) Indeed, a finder of fact could reasonably conclude otherwise. (Joint Decl.
60.) But, these statements explain some of the rationale for why settlement at this
point in time is fair, adequate, and reasonable under the circumstances.
3
(Joint Decl.
60.)
Third, based on discovery and investigation conducted to date, it also appears
there would be complicated damages issues in view of the difficulties in valuing the
damage or estimating the impact that can be attributed to Defendants former
corporate policies as applied to members/distributors.

3
Plaintiffs counsel certainly is not making, or intending to make, any admissions
in regard to the claims or facts at issue herein, as the Settlement Agreement
expressly notes. (Settlement Agreement 3.2; Joint Decl. 60.) Also, Plaintiffs
counseland no doubt the Courtis aware of third party hedge fund investors
who have substantial economic self-interest in Herbalifes business model not
being successful, or being successful. Plaintiffs counsel has scrupulously avoided
becoming involved in any way with representatives of either of those groups and
has instead focused on litigating this case and, if possible, settling the claims in the
best interests of the Settlement Class based on a reasonable assessment of the risks
and benefits. (Joint Decl. 61).
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Lastly, there would be extensive discovery regarding the class damages, and
the calculation of damages or impact would have required expert analysis. There
was extensive document production in this case, and Plaintiffs Counsel have
consulted with an economist expert witness regarding calculating damages on a
class-wide basis and the complexities of such calculations. (Joint Decl. 22.)
Overall, these factors weigh in favor of preliminary approval of the settlement.
2. The Settlement Amount and Corporate Reforms Are
Significant and Fair and Support Preliminary Approval.
As discussed in detail above, the Settlement Agreement confers significant
benefits upon the Settlement Class. It provides for substantial product refunds
beyond Herbalifes normal one year return period and for product that has
expired, so long as it is unopened and unused. The Settlement Agreement also
provides substantial monetary awards, divided into Pro Rata and Flat Rate
Awards, dependent upon the quantified or estimated loss. And lastly it provides
substantial corporate reform that is contractually guaranteed for three years.
In addition, a participant in an endless chain scheme, as defined in Section
327 of the Penal Code, may rescind the contract upon which the scheme is based and
may recover all consideration paid pursuant to the scheme, less any amounts paid or
consideration provided to the participant pursuant to the scheme. Cal. Civ. Code
1689.2. As argued by the parties in the Motion to Dismiss, there is a disagreement
as to whether damages under the Endless Chain Scheme are limited to rescission
(Defendants position) or if they can also include restitution (Plaintiffs
position). California Civil Code section 1689.2 is silent as to general damages. The
Product Return Fund component of the proposed settlement addresses the issue of
class members obtaining a full refund for product returned, representing the
rescissionary remedy. In addition, qualifying class members are entitled to a cash
payment from the Business Opportunity Fund, representing a restitutionary remedy
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because it is centered around losses incurred in the retailing of the product purchased
by class members.
Finally, [i]n order to assess the reasonableness of a settlement in cases
seeking primarily monetary relief, the present value of the damages plaintiffs would
likely recover if successful, appropriately discounted for the risk of not prevailing,
should be compared with the amount of the proposed settlement. In re Warfarin
Sodium Antitrust Litigation, 391 F.3d 516 (3
rd
Cir. 2004). The Settlement Agreement
here was the product of lengthy settlement negotiations conducted under the
supervision of a well-respected former judge with an independent analysis by
another well-respected former judge. The declarations of these former judges, Judge
Weinstein (Ret.) and Judge Larson (Ret.), filed in support of this Joint Motion for
Preliminary Approval of Settlement confirm that the monetary component of the
proposed settlement is substantial and reasonable. (Joint Decl. 28, 32.)
When viewed in light of the potential risks discussed above as well as the fact
that, in the absence of the settlement, class members might not get any monetary
recovery at all, the Court should find that the settlement is significant and fair, which
weighs in favor of preliminary approval of the proposed settlement.
3. The Extent of Discovery Completed and the Stage of the
Proceedings Support Preliminary Approval.
This factor requires the Court to evaluate whether the parties have sufficient
information to make an informed decision about settlement. Linney v. Cellular
Alaska Pship, 151 F.3d 1234, 1239 (9th Cir. 1998). The status of the litigation and
discovery is discussed in detail in paragraphs 11 to 22 of the Joint Declaration. As
the Ninth Circuit reiterated, [i]n the context of class action settlements, formal
discovery is not a necessary ticket to the bargaining table where the parties have
sufficient information to make an informed decision about settlement.'" In re Mego
Financial Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). In this instance,
discovery and investigation by Plaintiffs counsel included: (1) preparing the named
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plaintiffs for, and defending their depositions, with the exception of Beverly Molnar,
(2) preparing for and taking the 30(b)(6) depositions of Herbalifes designated
Persons Most Knowledgeable, (3) preparing and overseeing massive written
discovery to Herbalife and discovery responses by the named Plaintiffs, (4)
overseeing discovery disputes and resolutions between the parties, including the
preparation of a ninety-four (94) page motion to compel, (5) overseeing analysis of
over 148,000 pages of internal Herbalife documents which were produced, several
gigabytes of confidential Herbalife database productions, documents provided by
former Herbalife members or distributors and other persons, and review of
Herbalifes public materials and other publicly available documents, (6)
participating in interviews with former Herbalife members or distributors, (7)
participating in site inspections of Herbalifes quality control facilities, research and
development facilities, Los Angeles distribution center and a Los Angeles area
nutrition club, and (8) selecting and consulting with experts (including an economist
for class certification). (Joint Decl. 15-22.) Thus, it is clear that Plaintiffs have
sufficient information to make an informed decision about settlement, and this factor
weighs in favor of preliminary approval of the proposed settlement.
4. The Experience and Views of Plaintiffs Counsel Support
Preliminary Approval.
The judgment and views of experienced counsel entering into a settlement are
entitled to great weight. Plaintiffs counsel has extensive experience in complex
class action litigation and success in litigating class actions and fully supports this
settlement. (Joint Decl. 6-10.) The fact that qualified and well-informed counsel
endorse the settlement as being fair, reasonable and adequate heavily favors this
Courts approval of the settlement. Courts recognize that the view of the attorneys
conducting the litigation is entitled to significant weight. Fisher Bros. v.
Cambridge-Lee Industries, Inc., 630 F. Supp. 482, 488 (E.D. Pa. 1985).
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Overall, the Court should find that the Settlement Agreement is reasonable,
both as a matter of process and substance and that it warrants preliminary
approval, especially in light of this circuits strong judicial policy that favors
settlements, particularly where complex class action litigation is concerned.
Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also
Hanlon, 150 F.3d at 1027 (district court should give proper deference to the
private consensual decision of the parties); In re Syncor, 516 F. 3d 1095, 1101-02
(9th Cir. 2008) (citing Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615,
624 (9th Cir. 1982)); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th
Cir. 1992).
D. The Court Should Order the Proposed Notice Be Sent to the
Settlement Class.
Notice must be sent to the potential Settlement Class Members to inform
them that a class has been certified and that a settlement has been proposed. See
Fed. R. Civ. P. 23(c)(2) (certification notice); Fed. R. Civ. P. 23(e)(1) (settlement
notice); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (discussing
due process implications of notice requirement). Where, as here, the class is
certified under Rule 23(b)(3), the settlement notice must inform the class of the
nature of the action; the definition of the class certified; the class claims, issues, or
defenses; that a class member may enter an appearance through an attorney; that
the court will exclude from the class any member who requests exclusion; the
time and manner for requesting exclusion; and the binding effect of a class
judgment. See Fed. R. Civ. P. 23(c)(2)(B). Moreover, the settlement notice must
alert the Settlement Class to the existence of the Settlement Agreement. See Fed.
R. Civ. P. 23(e)(1); see also Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575
(9th Cir. 2004).
In addition to these substantive requirements, class notice is subject to
procedural mandates. As to the class certification notice, the court must direct to
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class members the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through
reasonable effort. Fed. R. Civ. P. 23(c)(2)(B). As to the settlement notice, [t]he
court must direct notice in a reasonable manner to all class members who would
be bound by the proposal. Fed. R. Civ. P. 23(e)(1).
Here, the parties proposed notice and plan for notice dissemination comply
with all applicable legal requirements, and they should be approved. A proposed
notice, summary notice, and claim form are attached to the Settlement Agreement
as Exhibits. Procedurally, notice will be distributed through various avenues, with
efforts being made to mail or email notice to each Settlement Class member
during the Class Period.
The notice also will be posted to the Claims Administrators website, and a
summary notice will be published in appropriate public forums. Substantively, the
notice is written in plain-English, along with an accompanying Spanish
translation, so as to inform each potential Settlement Class member of the nature
of the litigation and his or her rights and obligations in connection therewith. See
Fed. R. Civ. P. 23(c)(2)(B). It contains information about all topics that are subject
to the requirements of Rule 23(c)(2)(B), and it also provides an overview of the
terms of the Settlement Agreement, along with instructions for obtaining more
information. See, e.g., Rodriguez v. West Publishing Corp., 563 F.3d 948, 963 (9th
Cir. 2009) (It describes the aggregate amount of the settlement fund and the plan
for allocation, thereby complying with what we require.). To facilitate
distribution of the settlement fund and to streamline the claims application
process, a claims form will be enclosed with the notice, along with instructions for
seeking compensation. This information too will be in both English and Spanish.
E. The Court Is Requested to Schedule a Fairness Hearing
Once potential Settlement Class Members have been notified of the Courts
class certification decision and of the proposed Settlement Agreement, they will
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have an opportunity to object, opt-out, or file a claim form. At that point, the
Court must hold a hearing to take into account the objectors comments and to
assess the fairness, reasonableness, and adequacy of the Settlement Agreement.
See Fed. R. Civ. P. 23(e)(2). The parties propose that the Court schedule such a
hearing approximately 130 days after entering an order granting preliminary
approval of the Settlement Agreement and that the deadline for objections and
requests for exclusion be set 30 days before that hearing. This schedule will give
the parties sufficient time to direct notice to the Settlement Class, and it will give
Settlement Class members adequate time to opt-out or object if they so choose.
III. CONCLUSION
For the foregoing reasons, Plaintiffs ask this Court to enter an order
certifying the Settlement Class, appointing Plaintiffs counsel as class counsel,
preliminarily approving the Settlement Agreement, directing notice in accordance
with the terms of the Settlement Agreement, and scheduling a fairness hearing. A
proposed order to this effect is filed concurrently with the Joint Motion.

DATED: October 31, 2014 FABIAN & CLENDENIN, P.C.

FOLEY BEZEK BEHLE & CURTIS, LLP


/s/Thomas G. Foley, Jr.
Philip D. Dracht
Scott M. Petersen
Jason W. Hardin

Thomas G. Foley, Jr.
Justin P. Karczag

Attorneys for Plaintiffs


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