Case 2:12-cv GHK-MRW Document 275 Filed 10/14/16 Page 1 of 3 Page ID #:13111

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1 Case :-cv-0-ghk-mrw Document Filed 0// Page of Page ID #: BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 00) L. Timothy Fisher (State Bar No. ) Annick M. Persinger (State Bar No. ) 0 North California Boulevard, Suite 0 Walnut Creek, CA Telephone: () scott@bursor.com ltfisher@bursor.com apersinger@bursor.com Co-Lead Class Counsel [Additional counsel on signature page] 0 0 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, v. HYLAND S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY, Defendants. Case No. :-CV-0 GHK(MRW) PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: November, 0 Time: :0 a.m. Courtroom: 0 Hon. George H. King PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

2 Case :-cv-0-ghk-mrw Document Filed 0// Page of Page ID #: 0 0 To all parties and their attorneys of record, please take notice that on November, 0 at :0 a.m. in Courtroom 0, or as soon thereafter as may be heard, Plaintiffs Enzo Forcellati and Lisa Roemmich, on behalf of themselves and all others similarly situated will, and hereby do, respectfully move for an order:. granting preliminary approval of the parties proposed class action settlement;. finding that the settlement is within the range of reasonableness and possible final approval such that class notice should be provided;. approving the form and manner of class notice;. finding that the requirements for certification of the settlement class for settlement purposes have been satisfied;. appointing Plaintiffs as the class representatives. appointing Plaintiffs counsel as class counsel;. scheduling the Fairness Hearing;. determining that the notice of the settlement and Fairness Hearing complies with all legal requirements;. directing that notice should be provided to class members; 0. appointing KCC Class Action Services, LLC as the Settlement Administrator; and. staying all proceedings other than those related to the settlement pending the Fairness Hearing. This motion is based on this Notice, Plaintiffs Memorandum in Support of Motion for Preliminary Approval, the parties Stipulation of Settlement, the Declaration of L. Timothy Fisher in Support of Preliminary Approval, the Declaration of Enzo Forcellati in Support of Preliminary Approval, the Declaration of Lisa Roemmich in Support of Preliminary Approval, and the Declaration of Patrick M. Passarella Regarding Notice and Settlement Administration. PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

3 Case :-cv-0-ghk-mrw Document Filed 0// Page of Page ID #: This motion is made following the conference of counsel. Defendants do not oppose this motion. 0 0 Dated: October, 0 BURSOR & FISHER, P.A. By: /s/ L. Timothy Fisher L. Timothy Fisher Scott A. Bursor (State Bar No. 00) L. Timothy Fisher (State Bar No. ) Annick M. Persinger (State Bar No. ) 0 North California Blvd., Suite 0 Walnut Creek, CA Telephone: () scott@bursor.com ltfisher@bursor.com apersinger@bursor.com VOZZOLO LLC Antonio Vozzolo (pro hac vice) Route South Upper Saddle River, New Jersey 0 Phone: Fax: avozzolo@vozzolo.com FARUQI & FARUQI, LLP Nadeem Faruqi rd Avenue th Floor New York, NY 00 Tel: () -0 Fax:() - nfaruqi@faruqilaw.com Co-Lead Class Counsel PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

4 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 00) L. Timothy Fisher (State Bar No. ) Annick M. Persinger (State Bar No. ) 0 North California Boulevard, Suite 0 Walnut Creek, CA Telephone: () scott@bursor.com ltfisher@bursor.com apersinger@bursor.com Co-Lead Class Counsel [Additional counsel on signature page] 0 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 0 ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, v. HYLAND S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY, Defendants. Case No. :-CV-0 GHK(MRW) PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: November, 0 Time: :0 a.m. Courtroom: 0 Hon. George H. King MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

5 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 TABLE OF CONTENTS PAGE(S) I. INTRODUCTION... II. PROCEDURAL BACKGROUND... A. Forcellati et al. v. Hyland s Inc. et al., -cv-0 GHK(MRW) (C.D. Cal.)... III. IV. B. Kaatz v. Hyland s Inc. et al., -cv-00-vb (S.D.N.Y)... CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS... 0 A. THE STANDARD FOR CLASS CERTIFICATION... 0 B. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES Ascertainability.... Numerosity - (a)().... Commonality - (a)().... Typicality - (a)().... Adequacy - (a)().... Predominance - (b)().... Superiority - (b)()... THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE... A. The Amount Offered in Settlement... B. A Comparison of the Settlement Amount to the Average Actual Damages Shows that the Amount Offered Is Fair, Adequate, and Reasonable... C. The Strength of Plaintiffs Case and the Specific Risks of This Litigation... 0 D. The Extent of Discovery and Status of Proceedings... E. Experience and Views of Counsel... V. THE PROPOSED NOTICE SHOULD BE APPROVED... A. The Manner of Notice Satisfies All Requirements... B. The Form of the Notices and Claim Form... C. KCC Should Be Appointed Settlement Administrator... VI. CONCLUSION... MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW) i

6 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 CASES TABLE OF AUTHORITIES PAGE(S) Amchem Prods., Inc. v. Windsor, U.S. ()...0 Braynen v. Nationstar Mortgage, LLC, 0 WL (S.D. Fla. Nov., 0)... Dei Rossi v. Whirlpool Corp., 0 WL 0 (E.D. Cal. June, 0)..., Erickson v. Corinthian Colleges, Inc., 0 WL 00 (C.D. Cal. Dec., 0)..., Forcellati v. Hyland's Inc., 0 WL 0 (C.D. Cal. Apr., 0)... passim Gascho v. Global Fitness Holdings, LLC, 0 WL 00 (S.D. Ohio Apr., 0)...0 Gascho v. Global Fitness Holdings, LLC, F.d (th Cir. 0)...0 Guido v. L'Oreal, USA, Inc., 0 WL (C.D. Cal. July, 0)... Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )... passim In re American Apparel, Inc. v. S'holder Litig., 0 WL 0 (C.D. Cal. July, 0)... In re Bluetooth Headset Prod. Liab. Litig., F.d (th Cir. 0)... In re Mego Financial Corp. Securities Litig., F.d (th Cir. 000)..., In re Omnivision Techs., Inc., F. Supp. d 0 (N.D. Cal. 00)... In re Pac. Enters. Sec. Litig., F.d (th Cir. )... McCrary v. Elations Co., LLC, 0 WL (C.D. Cal. Jan., 0)... Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc., F.R.D. (C.D. Cal. 00)... MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW) ii

7 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Parkinson v. Hyundai Motor America, F.R.D. 0 (C.D. Cal. 00)... Poertner v. Gillette Co., 0 WL 0 (th Cir. 0)... Rodriguez v. West Publishing Corp., F.d (th Cir. 00)...,, Shames v. Hertz Corp., 0 WL (S.D. Cal. Nov., 0)...,, 0 Sharobiem v. CVS Pharmacy, Inc., 0 WL 0 (C.D. Cal. Sept., 0)... 0,, STATUTES U.S.C. 0...,, California Business & Professions Code California Business & Professions Code California Civil Code 0... Mo. Ann. Stat N.J.S.A. :-... New York General Business Law..., New York General Business Law 0..., RULES Fed. R. Civ. P.... 0, Fed. R. Civ. P. (a)... 0, Fed. R. Civ. P. (b)... Fed. R. Civ. P. (b)(), (), or ()...0 Fed. R. Civ. P. (c)()(b)... Fed. R. Civ. P. (e)()... Fed. R. Civ. P. (f)... MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW) iii

8 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 I. INTRODUCTION After four years of vigorous litigation, the Parties in this action have reached a settlement that provides a real and substantial monetary benefit to the class. Specifically, without having to submit any proof of purchase, each Class Member may submit a claim for up to two full refunds for the children s homeopathic products at issue in this case. There is no limit on the number of full refunds that Defendants will pay to Class Members who do provide a proof of purchase. Additionally, there is no cap on the amount of money that Defendants will pay to Class Members. As a result, there is no risk that Class Members refunds will be prorated or reduced for any reason. Further, instead of coming from the same common fund, the costs of notice administration, and any incentive awards or attorney s fees will be paid separately from the refunds paid to Class Members. Thus, those costs will not affect the amount of refunds that will be paid to Class Members under the settlement. Because Plaintiffs sought to recover full refunds for Class Members based on their purchase of ineffective homeopathic products, the provision of full refunds under the settlement is an exceptional result for the class. Indeed, the settlement provides complete relief, or close to it, to Class Members who submit claims. Accordingly, the settlement proposed in the Parties Stipulation of Settlement is fair, adequate and reasonable. See Declaration of L. Timothy Fisher ( Fisher Decl. ), Ex. (Stipulation of Settlement). Given that the settlement provides real monetary relief to Class Members who purchased the products that Plaintiffs allege were misrepresented as effective, Plaintiffs request that the Court find that the settlement is within the range of possible approval. Defendants have denied, and continue to deny, all of the claims and contentions alleged in this action. Defendants, however, have considered the risks and potential costs of trial, on the one hand, and the benefits of the proposed settlement on the other, and have agreed to settle the action upon the terms and MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

9 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 conditions set forth in the Stipulation of Settlement submitted herewith. Thus, Defendants do not oppose this motion. For these reasons and the reasons below, the Parties request that the Court enter a preliminary approval order that: (a) finds that the settlement is within the range of reasonableness and possible final approval such that class notice should be provided; (b) approves the manner and form of class notice, including the Long Form Notice, the Postcard Notice, and the Short Form Notice, attached to the Stipulation as Exs. C, D, F; (c) finds that the requirements for certification of the settlement class for settlement purposes have been satisfied, and appoints Plaintiffs as the class representatives and their counsel as class counsel; (d) schedules the Fairness Hearing; (e) determines that the notice of the settlement and Fairness Hearing, complies with all legal requirements, and directs that it should be provided to the Class Members; (f) appoints KCC Class Action Services, LLC as the Settlement Administrator; and (g) stays all proceedings other than those related to the settlement pending the Fairness Hearing. See Fisher Decl. Ex., Stipulation of Settlement (Proposed Preliminary Approval Order: Ex. B). 0 II. PROCEDURAL BACKGROUND A. Forcellati et al. v. Hyland s Inc. et al., -cv-0 GHK(MRW) (C.D. Cal.) On March, 0, Plaintiff Enzo Forcellati commenced a proposed class action against Defendants Hyland s Inc., and Standard Homeopathic Company entitled Forcellati v. Hyland s Inc. et al. (United States District Court, Central District of California, Case No. -cv--ghk) (the Forcellati Action ). See Complaint, Dkt.. Plaintiff Forcellati asserted claims on behalf of himself and a proposed nationwide class of purchasers of (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey Kids, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, and (v) Nighttime Cold n Cough Kids. Plaintiff Forcellati alleged that Defendants made false and misleading statements about its kids products, such as that the kids products were Safe & Effective for treating MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

10 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #:0 0 0 cold and flu symptoms and that they were 00% Natural. See generally id. Plaintiff Forcellati further alleged that, in fact, the kids products are no better than a placebo because the homeopathic ingredients in the products are ultra-diluted. See generally id. Based on his allegation that none of Defendants kids homeopathic products could provide natural relief from illnesses, Plaintiff Forcellati brought claims individually and on behalf of a putative class for violation of the Magnuson- Moss Warranty Act, U.S.C. 0, et seq., for unjust enrichment, for breach of express warranty, for breach of implied warranty, for violation of the New Jersey Consumer Fraud Act, N.J.S.A. :-, et seq., for violation of the Consumer Legal Remedies Act ( CLRA ), California Civil Code 0, et seq., for violation of the False Advertising Law ( FAL ), California Business & Professions Code 00 et seq., and for violation of the Unfair Competition Law ( UCL ), California Business & Professions Code 00 et seq. Id. On April, 0, Defendants filed a motion to dismiss. Dkt.. On April 0, 0, Plaintiff Forcellati opposed. Dkt.. On June, 0, the Court dismissed Plaintiff s unjust enrichment claim but denied the remaining portions of Defendants motion. Dkt.. On June, 0, Hyland s answered Plaintiff Forcellati s Complaint, denying liability. Dkt.. On July 0, 0, Hyland s removed an action entitled Roemmich v. Hyland s Inc. et al. from the Superior Court of California, County of Los Angeles to the United States District Court, Central District of California (Case No. -cv-) (the Roemmich Action ). On November, 0, the Court ordered that the Forcellati and Roemmich Actions be consolidated, and appointed Bursor & Fisher, P.A. and Faruqi & Faruqi LLP as co-lead counsel in the Forcellati and Roemmich Actions (hereafter the Consolidated Action or the Action ). Dkt.. On December, 0, Plaintiff Enzo Forcellati, and Lisa Roemmich, filed a Consolidated Amended Class Action Complaint that added Lisa Roemmich as a MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

11 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Plaintiff to the Action. Dkt.. In addition to the claims in Plaintiff Forcellati s Complaint, the Consolidated Amended Class Action Complaint also asserted claims for Violation of the Missouri Merchandising Practices Act, Mo. Ann. Stat. 0.00, et seq. Id. On January, 0, Hyland s filed a motion to dismiss Plaintiffs prayer for punitive damages in the Consolidated Amended Class Action Complaint. Plaintiffs opposed. Dkt.. On February, 0, the Court denied Defendants motion. Dkt.. Following denial of Defendants second motion to dismiss, Defendants produced, and Plaintiffs reviewed, over,000 pages of documents. See Fisher Decl. 0. Documents that Plaintiffs counsel reviewed included, for example, Hyland s advertising and labeling, test results, internal communications, and sales information. Id. Following Plaintiffs review of the documents, Plaintiffs deposed Dr. Iris Bell, Defendants Director of Scientific Affairs, and Thanh-Thao Minh Le, Defendants Vice President of Marketing. Id. at. Defendants deposed Plaintiff Enzo Forcellati, and Plaintiff Lisa Roemmich. Id. On September, 0, Plaintiffs filed a motion for class certification. Dkt.. In support of that motion, Plaintiffs submitted an expert report from Arthur P. Grollman, a recognized clinical pharmacology expert. Dkt.. After deposing Dr. Grollman, on October, 0, Hyland s opposed Plaintiffs motion. Dkt. ; Fisher Decl.. In support of their opposition, Defendants submitted expert reports from Dr. Stewart, Dr. Cristofaro, Dr. Punzo, and Dr. Fisher. Before filing their reply, Plaintiffs deposed each of Defendants experts. Id. After Plaintiffs filed their reply in support of certification, pursuant to the Court s December, 0 order, on February, 0, the Parties submitted supplemental briefing on the issue of whether the proposed class was ascertainable. Dkt.,. Subsequently, on April, 0, the Court certified the following Rule (b)() class for monetary MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

12 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 relief with respect to Plaintiffs claims for violation of Magnuson-Moss Act, U.S.C. 0, et seq., breach of express warranty, breach of implied warranty, violation of the CLRA, violation of the FAL, and violation of the UCL: (a) (b) A nationwide class of all persons in the United States who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey Kids, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, and (v) Nighttime Cold n Cough Kids; A -state class of all persons in the United States except for those in California who purchased Hyland s Complete Flu Care Kids on or after March, 00. Dkt.. The Court appointed the law firms of Bursor & Fisher, P.A., and Faruqi & Faruqi, LLP as class counsel. Id. The Court appointed Plaintiffs Enzo Forcellati and Lisa Roemmich as Class Representatives. Id. The Court, however, denied Plaintiffs request to certify a Rule (b)() class for injunctive relief, and denied certification of Plaintiffs proposed New Jersey and Missouri subclasses. Id. In response to this Court s decision to certify a nationwide class, on April, 0, Hyland s filed a petition for permission to appeal pursuant to Fed. R. Civ. P. (f). Fisher Decl.. On April 0, 0, Plaintiffs filed an answer in opposition to Hyland s petition. Id. On July, 0, the Ninth Circuit denied Hyland s Fed. R. Civ. P. (f) petition. Dkt.. On August, 0, the Court issued an Order Re Form and Dissemination of Notice to the Class. Dkt.. In that Order, the Court instructed Plaintiffs to select a claims administrator and provide the Court with evidence of the selected administrator s qualifications. Id. On August, 0, Plaintiffs submitted a notice of their selection of Kurtzman Carson Consultants ( KCC ) as claims administrator. Dkt.. Along with their notice of claims administrator selection, Plaintiffs submitted a declaration from KCC that detailed their long experience with class action notice and settlement administration. Dkt. -. Based on that declaration, MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

13 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of 0 Page ID #: 0 0 on August, 0, the Court approved Class Counsel s retention of KCC as the claims administrator in this case. Dkt.. Thereafter, On September, 0, KCC sent notice to Class Members by and U.S. Mail. While notice was being sent to the Class Members, the Parties continued working with experts and taking discovery. Plaintiffs deposed Defendants marketing employees, Jennifer Jacobs and Amy Fox, as well as Mark Phillips, a Hyland s pharmacist. Fisher Decl.. Additionally, while this litigation was pending, a study on one of the products at issue, Cold n Cough Kids, was in progress at the University of Washington. Id. at 0. To evaluate that study, Plaintiffs subpoenaed and obtained study documents from the University of Washington. Id. at at 0-. Plaintiffs also deposed the chief investigator of the study, Dr. James Taylor, after interim results were produced, and again after final results were produced. Id. After the results of Defendants study were available, Plaintiffs deposed Dr. Bell a second time. Id. at. Plaintiffs and Defendants experts also issued opinions on the interim results of the study, and then supplemented their opinions once final results were available. Id. Plaintiffs deposed Defendants experts Dr. Bellavite, and Dr. Calabrese. Id. Defendants deposed Plaintiffs experts Dr. Howlett, Dr. Grollman, Dr. Bausell, Dr. Ernst, and Mr. Weir. Id. Finally, Plaintiffs deposed Hyland s CEO Dr. Borneman. Id. After the Parties completed extensive discovery, including twenty-four depositions, on September, 0, Hyland s filed a motion for summary judgment. Fisher Decl. ; Dkt.. Plaintiffs opposed in a joint brief on that same date. Dkt.. On January, 0, the Court denied Hyland s motion for summary judgment. Dkt.. Since a class had been certified and Defendants motion for summary judgment had been denied, the Parties began preparation for trial. The Parties exchanged exhibit lists, witness lists, objections, motions in limine, pre-trial MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

14 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 conference statements, and trial briefs. See e.g. Dkt. 0-,, -. Plaintiffs visited the courtroom to test their electronic presentations. Fisher Decl.. The Parties began to prepare their witnesses, and marked exhibits with the Court s official exhibit tags. Id. On October, 0, Hyland s filed an ex parte application to continue the trial based on their contention that Plaintiffs trial brief raised new issues. Dkt.. On October, 0, just days before the pretrial conference, the Court vacated all trial dates to consider Hyland s request for judicial estoppel, to consider the Parties motions in limine, and to evaluate Defendants objections to the deposition videos to be used at trial. Dkt.. At various stages of the case, the Parties attempted to resolve this matter. As early as October 0, 0, the Class Representatives and Hyland s participated in a full-day in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. Fisher Decl.. On May, 0, the Parties participated in a second full-day in-person mediation with Mr. Meyer. Id. On March, 0, the Parties participated in a full-day in-person settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. Dkt.. On October, 0, the Parties participated in a second full-day in-person settlement conference with Judge Gandhi. Dkt.. On July, 0, the Parties participated in a third full-day in-person settlement conference with Judge Gandhi. Dkt.. After continuing to work with Judge Gandhi following the July settlement conference, on July, 0, the Parties in the Consolidated Action reached the proposed settlement described herein. Fisher Decl.. There can be no question that the Parties engaged in non-collusive, arm s length negotiations. Moreover, against the background of the procedural history of this litigation, it is clear that Class Counsel conducted a thorough examination and investigation of the facts and law relating to the matters in this Consolidated Action. Class Counsel also evaluated the merits of the Parties contentions and evaluated the proposed MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

15 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 settlement. The Class Representatives and Class Counsel, after taking into account the foregoing, along with the risks and costs of further litigation, including pretrial motions and trial, represent that they are satisfied that the terms and conditions of the Stipulation of Settlement are fair, reasonable, and adequate, and that the Settlement Agreement discussed herein is in the best interest of the Settlement Class Members. Fisher Decl. ; Forcellati Decl. 0-; Roemmich Decl. -0. B. Kaatz v. Hyland s Inc. et al., -cv-00-vb (S.D.N.Y) On January, 0, Plaintiffs Marie Kaatz and Abigail Gagliardi commenced an action entitled Kaatz v. Hyland s Inc. et al. (United States District Court, Southern District of New York, Case No. :-cv-00-vb) (the Kaatz Action ), as a proposed class action, asserting claims for violation of New York General Business Law and 0, the consumer protection statutes of all fifty states, and the Magnuson-Moss Warranty Act, U.S.C. 0, et seq., as well as for breach of express warranty, for breach of implied warranty of fitness for a particular purpose, for negligent misrepresentations, and for unjust enrichment. Dkt.. The Kaatz Action asserted claims with respect to Hyland s (i) Baby Teething Gel; (ii) Baby Cough Syrup, (iii) Baby Gas Drops, (iv) Baby Infant Earache Drops, and (v) Baby Nighttime Tiny Cold Syrup. Id. Like Plaintiffs Forcellati and Roemmich, the Plaintiffs in the Kaatz Action allege that Defendants products are not effective for relieving symptoms and are not 00% natural. Compare Consolidated Complaint, Dkt., with Kaatz Complaint, Dkt.,. Also like the Plaintiffs in the Consolidated Action, the Plaintiffs in the Kaatz Action allege that the products do not provide any benefits beyond that of a placebo. Compare Consolidated Complaint, Dkt., with Kaatz Complaint, Dkt.,. Indeed, the Plaintiffs in the Kaatz Action copied word-for-word large swaths of the Consolidated Complaint in this Action. Compare e.g., Consolidated Complaint, Dkt., -, -0, -, - with Kaatz Complaint, Dkt., -, - MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

16 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0, -. Furthermore, the products in the babies line are marketed along with the products in the kids line because all of the kids and babies products are meant to fill the gap left by the FDA s determination that children under a certain age should not take other over-the-counter medications for their illnesses. See Fisher Decl. Ex., February, 0 Deposition of Amy Fox, :-:; id. at Ex. (Exhibit to Fox deposition: Finding safe medicines for babies and children is challenging for parents, says Amy Fox, vice president of product innovation at Hyland s. It s important to feel confident and secure in what you re giving your child, which is why we put so much care into the medicines we create. ); id. (specifying that that Baby Tiny Cold Tablets, and Baby Cough Syrup were safe alternatives to traditional OTC products for babies months to years, and that Cold n Cough Kids, Sniffles n Sneezes Kids, and Cough Syrup with 00% Natural Honey Kids were safe alternatives for children -); see also e.g. id. at Ex., Deposition of Amy Fox, :-; id. at Ex. (Exhibit to Fox deposition). On July, 0, the District Court for the Southern District of New York denied Defendants motion to dismiss the Complaint in the Kaatz Action, but limited the New York Plaintiffs claims under New York General Business Law and 0, breach of implied warranty of fitness for a particular purpose, for negligent misrepresentations, and for unjust enrichment to a putative class of New York purchasers. Dkt.. On July 0, 0, Defendants filed an answer to the Complaint in the Kaatz Action, denying liability. Dkt.. Given the substantial similarity between this litigation and the Kaatz Action, Defendants agreed that, with Court approval, Plaintiffs should file a Second Amended Consolidated Class Action Complaint that includes all of the products in their kids and babies lines. See Fisher Decl. Ex., Stipulation of Settlement, Recitals CC. (discussing agreement to filing of Second Amended Consolidated MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

17 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Complaint); id. at I. Definitions.,. (defining Settlement Class and Settlement Class Products to include Defendants babies line). Thus, Plaintiffs have sought to file a Second Amended Consolidated Class Action Complaint that brings claims for purchasers of products in both the babies line and the kids line of Hyland s products. See Motion for Leave to File Second Amended Complaint filed concurrently herewith. III. CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS A. THE STANDARD FOR CLASS CERTIFICATION Rule of the Federal Rules of Civil Procedures sets forth the conditions that must be fulfilled for a court to certify a class. Where the parties seek certification of a class in the settlement context, [the court s] analysis must be no less rigorous than if [the court] were determining whether to certify a class in a contested class certification motion. See Sharobiem v. CVS Pharmacy, Inc., 0 WL 0, at * (C.D. Cal. Sept., 0) (citing Amchem Prods., Inc. v. Windsor, U.S., 0 ()). The requirements of Rule are clear: First, the Class must meet the Rule (a) prerequisites of numerosity, commonality, typicality, and adequacy. Second, the parties seeking certification must also show that the action is maintainable under Fed. R. Civ. P. (b)(), (), or (). Id. (quoting Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. )). Since Plaintiffs seek conditional certification of a (b)() class, the requirements of predominance and superiority must also be met. Id. B. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES Plaintiffs seek conditional certification, for settlement purposes, of a nationwide class defined as all persons in the United Sates who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, (v) Nighttime Cold n Cough Kids, (vi) MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW) 0

18 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Complete Flu Care Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup. Excluded from the Class are: (a) Hyland s employees, officers and directors, (b) persons or entities who purchased the products for the purpose of re-sale, (c) retailers or re-sellers of the products, (d) governmental entities, (e) persons who timely and properly exclude themselves from the Class as provided herein, and (f) the Court, the Court s immediate family, and Court staff. For the following reasons, like the class already certified in this action, the Settlement Class meets the requirements of Rule (a) and (b). See Forcellati v. Hyland s Inc., 0 WL 0 (C.D. Cal. Apr., 0).. Ascertainability The requirement of an ascertainable class is met as long as the class can be defined through objective criteria. Forcellati, 0 WL 0, at * (quoting Guido v. L'Oreal, USA, Inc., 0 WL, at * (C.D. Cal. July, 0)). A class is sufficiently ascertainable if the proposed class definition allows prospective plaintiffs to determine whether they are class members with a potential right to recover. Id. (quoting Parkinson v. Hyundai Motor America, F.R.D. 0, (C.D. Cal. 00)). Here, Plaintiffs have precisely defined their class based on objective criteria: purchase of Defendants kids and babies products within a prescribed timeframe. See id. This is enough to satisfy Rule (a) s implied ascertainability requirement. Id. (citing McCrary v. Elations Co., LLC, 0 WL (C.D. Cal. Jan., 0)). Furthermore, in light of the proposed claims administration procedure (discussed below), confirming individuals class membership does not pose overwhelming manageability hurdles in this case. Id. at *. Therefore, like the class originally certified in this action, the Settlement Class is sufficiently ascertainable. See id. at * (citations omitted). MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

19 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0. Numerosity - (a)() Defendants concede that they have sold millions of units of their children s cold and flu products nationwide. Forcellati, 0 WL 0, at *. The addition of the babies line of products only increases the number of purchasers in the class. Accordingly, the numerosity requirement is satisfied here. Id.. Commonality - (a)() Rule (a)() requires a showing that there are questions of law or fact common to the class. Plaintiffs allege that Defendants uniformly misrepresented that the products for children and babies offer effective and all natural relief from the symptoms of illness. Specifically, Defendants made the following uniform claims on the product labels: Sniffles n Sneezes Kids: Safe and Effective relief of cold symptoms, 00% Natural, and provides Natural Relief. Cold Relief with Zinc: Fast relief from cold symptoms, Relieves: Runny nose, Sneezing [and] Sore throat, and 00% Natural. Cold n Cough Kids: relieves the symptoms of colds including, Sneezing & runny nose, Nasal congestion, Sore throat, Cough, 00% Natural, and provides Natural Relief. Complete Flu Care Kids: Relieves Fevers & Chills, Body Aches, Headaches, and Coughs and Congestion, Fights Flu Naturally, and provides Natural Relief. Nighttime Cough n Cold Kids: Temporarily relieves the symptoms of the common cold, including Sore Throat, Nasal Congestion, Cough, Runny nose and Sneezing, and provides Natural Relief. Cough Syrup with 00% Natural Honey: Temporarily relieves the symptoms of the common cold including moist, dry, tight or tickling coughs, and chest congestion, and provides Natural Relief. Baby Cough Syrup: Relief of Coughs Due to Colds, and provides Natural Relief. Baby Nighttime Tiny Cold Syrup: Relief of Runny Nose, Congestion and Sleeplessness Due to Colds, and provides Natural Relief. Baby Gas Drops: Natural Relief of Gas Discomfort and Pain. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

20 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #:0 0 0 Baby Infant Earache Drops: Fast Soothing Relief of Ear Pain and Irritability, and provides Natural Relief. Baby Teething Gel: Fast Relief of Pain and Irritability from Teething, and provides Natural Relief. See e.g. Proposed Second Amended Complaint - (depicting labels). Plaintiffs further contend that common evidence shows that the products are not all natural and are nothing more than placebos. See e.g., id.. As a result, here, all of Plaintiffs claims share the same fundamental premise: Defendants misrepresent that their products are all natural and that they effectively treat the symptoms of illness when, in fact, they are not natural and do not have any medicinal value whatsoever. See Forcellati, 0 WL 0, at *. Because a determination of the truth or falsity of Defendant[s ] representation of [the products ] efficacy will resolve an issue that is central to the validity of each one of the claims in one stroke, and the products efficacy can be established on a class-wide basis through clinical studies and expert testimony, Plaintiffs have sufficiently shown commonality. Id. It is immaterial that the kids and babies products contain different ingredients because Plaintiffs challenge the products common homeopathic preparation. Id. Accordingly, because Plaintiffs central theory of the case is susceptible to classwide proof, Plaintiffs have satisfied the commonality requirement. Id. at *0.. Typicality - (a)() Under [Rule s] permissive standards, representative claims are typical if they are reasonably coextensive with those of absent class members; they need not be substantially identical. Forcellati, 0 WL 0, at *0 (quoting Hanlon, 0 F.d at 00). The typicality inquiry turns on Plaintiffs legal theory, not the specific fact from which it arose. Id. (quotations omitted). Here, Plaintiffs claims are typical of the class because Plaintiffs theory of the case that the products are uniformly ineffective, applies equally to both Plaintiffs and the Settlement Class Members. See id. Further, it makes no difference that Plaintiffs and the Settlement MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

21 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Class Members may have purchased different kids and babies products because the typicality requirement does not mandate that the products purchased... must be the same as those of absent class members. Id. (internal quotations omitted). Here, Plaintiffs allege that the same homeopathic preparation renders all of Defendants products ineffective, and that misrepresentations about the products efficacy are uniformly made across Defendants product line. Id. Accordingly, the various products purchased... do not negate a finding of typicality because Plaintiffs allege that the class members injuries arise[ ] from a common wrong. Id. (quotations omitted). Plaintiffs claims are therefore reasonably co-extensive with those of absent class members. Id. (quoting Hanlon, 0 F.d at 00).. Adequacy - (a)() Based on Plaintiffs showing with their motion for class certification, this Court has already concluded that the named Plaintiffs and their counsel will fairly and adequately protect the interests of the class. Forcellati, 0 WL 0, at *; see also Plaintiffs Memorandum in Support of Class Certification, Dkt., at :-:. Since a class was certified in this action, Plaintiffs have continued to perform their duties as class representatives. See Forcellati Decl. -; Roemmich Decl. -0. For example, Plaintiffs prepared to appear at trial, and consulted with their counsel concerning the proposed settlement to ensure that it was in the best interest of the Settlement Class Members. Id. Plaintiffs have no conflicts of interest with the class, have the same interests as the Class Members, and have retained competent counsel. Id. Thus, Plaintiffs have adequately represented the interests of the Class Members, and should be appointed Class Representatives of the Settlement Class. Plaintiffs counsel, including Bursor & Fisher, Faruqi & Faruqi, and Vozzolo LLC, have also continued to perform their duties as Class Counsel. See Fisher Decl. Exs. - (firm resumes). Following class certification, Class Counsel MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

22 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 defeated Defendants motion for summary judgment, prepared for trial and reached a settlement that provides full refunds to Class Members the exact relief that Plaintiffs sought on behalf of themselves and the Class Members. Therefore, Class Counsel should be appointed to represent the interests of the Settlement Class Members.. Predominance - (b)() This Court has already concluded that individual questions do not overwhelm the far more substantial common questions that drive Plaintiffs theory of the case because the crux of Plaintiffs allegations is that Defendants products contain no active ingredients at all because of their common homeopathic dilution. Forcellati, 0 WL 0, at *. As a result, the products unique ingredients are relatively unimportant and do not threaten to predominate. Id. Accordingly, Plaintiffs have sufficiently shown that common questions present a significant aspect of the case to satisfy the predominance requirement. Id. at (quoting Hanlon, 0 F.d at 0).. Superiority - (b)() Rule (b)() also requires that a class action [be] superior to other available methods for fairly and efficiently adjudicating the controversy. Given that class members have no other realistic way to pursue such low-value claims, class treatment cannot fairly be construed as an inferior method of adjudication here. Forcellati, 0 WL 0, at *; see also id. at *. Class treatment is superior. As a result, each of the requirements of Rule are met, and the Court should conditionally certify the Settlement Class, for settlement purposes. IV. THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE In the class action context, district courts must evaluate whether a proposed settlement is fundamentally fair, adequate, and reasonable. Erickson v. Corinthian Colleges, Inc., 0 WL 00, at * (C.D. Cal. Dec., 0) (citing Hanlon, MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

23 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of 0 Page ID #: F.d at 0). To make such a determination, courts consider a number of 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 presence of a governmental participant; and () the reaction of the class members to the proposed settlement. Id. Because some of these factors cannot be fully assessed at the preliminary approval stage, [courts] look to the applicable factors to determine whether the proposed settlement is within the range of possible approval such that notice should be sent to Class Members who can further weigh in on the fairness of the proposed settlement. Id. Here, each of the factors considered for settlement approval show that the Parties proposed settlement is within the range of possible approval. A. The Amount Offered in Settlement The Parties proposed settlement provides a real and substantial monetary benefit to the class whether or not Class Members can provide proof of purchase. See e.g., Dei Rossi v. Whirlpool Corp., 0 WL 0 (E.D. Cal. June, 0) (granting preliminary approval of claims made settlement that required Whirlpool to make a cash payment or give a rebate whether or not class members provided documentation). Specifically, to all Class Members who submit a valid Claim Form, Defendants will pay a full refund of the MSRP of or the actual purchase price, as follows: Without Proof of Purchase. Claims for a full refund of the MSRP for up to two () unit purchases of Settlement Class Products will be paid without requiring proof of purchase. With Proof of Purchase. Claims for a full refund for three () or more unit purchases of Settlement Class Products will be paid with proof of purchase to avoid fraudulent claims. Class Members who submit proof of purchase that reveals the actual price paid for a Settlement Class Product will receive a refund of the actual price paid. If proof of purchase does not reveal the actual MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

24 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 price paid for a Settlement Class Product, the Settlement Class Member will be receive a refund of the MSRP for each Settlement Class Product. Fisher Decl. Ex., Stipulation of Settlement, III. MSRP means Hyland s average suggested retail price for the Settlement Class Products, as follows: (i) Cold n Cough Kids $. (ii) Cough Syrup with 00% Natural $. Honey (iii) Sniffles n Sneezes Kids $.0 (iv) Cold Relief Strips Kids with Zinc $. (v) Nighttime Cold n Cough Kids $. (vi) Complete Flu Care Kids $. (vii) Baby Teething Gel $. (viii) Baby Cough Syrup $0. (ix) Baby Gas Drops $. (x) Baby Infant Earache Drops $0. (ix) Baby Nighttime Tiny Cold Syrup $. See id.; see also Fisher Decl. Ex. (MSRP spreadsheet). Notably, there is no limit to the number of refunds that Defendants will pay to the class as a whole, and Class Members full refunds will not be prorated for any reason. Additionally, the settlement provides that Hyland s will provide a money back guarantee on their website. Defendants have also agreed to pay the costs of class notice, two incentive awards in the amount of $,000, and a fee and expense award of $. million. Notably, the costs of notice and claims administration, as well as the fee and incentive awards will not be drawn from the same fund as the refunds to Class In recognition of the time and effort that the Class Representatives expended in pursuing this Consolidated Action and in fulfilling their obligations and responsibilities as Class Representatives, including responding to discovery, attending their depositions, and preparing to appear at trial, Class Counsel will submit an application for Incentive Awards of $,000 to each Class Representative. Fisher Decl. Ex., Stipulation of Settlement, III; see also Forcellati Decl. -; Roemmich Decl. -0. Class Counsel will make an application to the Court for an Attorneys Fee and Expense Award in an amount not to exceed $. million, which includes reimbursement of Class Counsel s costs and expenses. Fisher Decl. Ex., Stipulation of Settlement, III. At final approval, Class Counsel will also include detailed time records sufficient to enable the Court to do a lodestar analysis. Fisher Decl.. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

25 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Members and will not detract from the Class Members recovery. In short, the settlement constitutes an excellent recovery for the class and should be approved. B. A Comparison of the Settlement Amount to the Average Actual Damages Shows that the Amount Offered Is Fair, Adequate, and Reasonable To assess whether the amount offered is fair, the Court may compare the settlement amount to the parties estimates of the maximum amount of damages recoverable in a successful litigation. See Shames v. Hertz Corp., 0 WL, at * (S.D. Cal. Nov., 0) (citing In re Mego Financial Corp. Securities Litig., F.d, (th Cir. 000)). Here, the amount available under the settlement mirrors the total recovery that Plaintiffs could have obtained if they successfully proceeded through trial on their claims. Since Class Members can receive full refunds with proof of purchase and two full refunds without submitting any proof of purchase, most Class Members are receiving exactly the amount that Plaintiffs sought on their behalf in this action. Forcellati, 0 WL 0 at *. The court s decision to approve a claims-made settlement in Shames is instructive. There, the plaintiffs averred that the maximum amount of damages that each class member would be entitled to if plaintiffs were successful in the litigation was approximately $ for each day that the class members rented a car from Defendants. Shames, 0 WL, at *. Under the settlement, the class could choose from two options: () $ for each rental day, with a minimum payment of $ no matter the length of the rental, or () a voucher for - days of rentals. Id. at *. In finding that the settlement amount was fair and reasonable in light of actual damages, the court noted that [w]hen compared to the estimated actual damages [of $ a day], the $ cash option represents a recovery of at least % of actual damages. Id. at *. The court further concluded that the cash option compensates each class member for all of or slightly more than his or her actual damages. Id. Similarly, here, the maximum amount of damages that each class member MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

26 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 would be entitled to recover if Plaintiffs were successful at trial would be the retail price of each of the products that each class member purchased. Under the settlement, Class Members can receive a full refund for each product that they can submit proof of purchase for, or a full refund for up to two products that they cannot submit a proof of purchase for. As a result, most Class Members will receive all of their actual damages. See Shames, 0 WL, at *. Therefore, the settlement is clearly fair to those Class Members The only Class Members who will not receive their actual damages are Class Members who purchased more than two Hyland s products but cannot provide proof of purchase. The two product limit, however, does not render the settlement unfair to Class Members who bought more than two products but do not have proof of purchase. First, the two product limit is a balance between awarding such Class Members their full recovery and the inability of those same Class Members to prove their purchases. Put another way, the number of full refunds that Class Members without proof of purchase can claim is limited to deter fraudulent claims. As Plaintiffs explained at class certification, because the Products are inexpensive, for a claimant to gain a meaningful sum through fraud would require many false claims. See Joint Ascertainability Brief, Dkt., at -0. Second, in this case, each class member without proof of purchase likely purchased only a few of the products. In that connection, unlike a beverage or other food product, for example, many Class Members did not purchase Hyland s products on a daily or weekly basis. Rather, they more likely purchased a few products while their children were under the FDA age-limit for other over the counter medications. Thus, a refund of the value of two products without a proof of purchase, is commensurate with the average injury in this case. In other words, the limited group of Class Members who purchased more than two products but do not have proof of purchase will still receive an average recovery in this case of between MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

27 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 $. to $., or the value of the MSRP purchased multiplied by two available refunds without proof of purchase. See also Gascho v. Global Fitness Holdings, LLC, 0 WL 00, at * (S.D. Ohio Apr., 0) (finding that a claims made average recovery of $. for class members was significant where the estimated average injury included improper charges such as a $. monthly charge, a $0 cancellation fee, and/or a $ facility fee); see also Gascho v. Global Fitness Holdings, LLC, F.d (th Cir. 0) (affirmed). Finally, the difference between a recovery of the value of two products and any additional products purchased is of no moment because the settlement in this case provides for an immediate and substantial cash payment to class members, considering the value of the claims and the risks of protracted litigation. See Gascho, 0 WL 00, at * C. The Strength of Plaintiffs Case and the Specific Risks of This Litigation Although Plaintiffs continue to believe that they could prove to a jury that the products are mere placebos, Plaintiffs also understand that proceeding to trial poses serious risks. Indeed, a jury in a similar case involving Defendants homeopathic products concluded that Plaintiffs had not met their burden of proof and found for Defendants on every claim. See Allen v. Hyland s Inc., Case No. -cv-00- DMG-MAN, Dkt. (Verdict Form); see also Lewert v. Boiron, Inc., -cv-00, Dkt. (Verdict Form). The result of the Allen trial is sobering. While Plaintiffs are confident that, with the study on one of the products at issue in this case, they would have prevailed, the Allen trial makes clear that a favorable result could not be guaranteed for the class. There is no guarantee that the verdict in this action would be any different than the verdict in the Allen action. See Shames, 0 WL, at * ( Plaintiffs faced significant uncertainty and risk of nonrecovery at trial, making a pre-trial settlement a reasonable tactical choice. ). There is no guarantee that the jury would have been more persuaded by Plaintiffs experts than by MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW) 0

28 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 Defendants experts. There is no guarantee that Plaintiffs would have prevailed on their motions in limine, or that Plaintiffs would have successfully opposed Defendants motions in limine. There is no guarantee that the majority of Defendants evidentiary objections to the video depositions of key witnesses Dr. Taylor and Dr. Borneman would have been overruled. There is no guarantee that the Court would have given the jury instructions requested by Plaintiffs an issue that was highly contentious in this case. By settling Plaintiffs avoid the risk of trial and guarantee a recovery to the class. Since the risks of proceeding to trial are substantial, this bird in the hand is worth two in the bush, and the settlement warrants preliminary approval. See e.g., Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc., F.R.D., (C.D. Cal. 00) ( The Court shall consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, It has been held proper to take the bird in hand instead of a prospective flock in the bush. (citations omitted)). D. The Extent of Discovery and Status of Proceedings Under this factor, courts evaluate whether class counsel had sufficient information to make an informed decision about the merits of the case. See In re Mego Financial Corp. Securities Litigation, F.d at. The settlement was reached on the eve of trial, after four years of litigation, during which time, Plaintiffs completed extensive discovery. Given the procedural history of this case, there can be no doubt that Class Counsel had sufficient information to make an informed decision about the merits of this case as compared to the benefit provided by the proposed settlement. See supra II. Additionally, substantial settlement negotiations have taken place between the Parties. Notably, when a settlement is negotiated at arm s-length by experienced counsel, there is a presumption that it is fair and reasonable. See In re Pac. Enters. Sec. Litig., F.d, (th Cir. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

29 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 ). The Parties also worked closely with Judge Gandhi, an experienced mediator who ultimately led the Parties to resolution. In re Bluetooth Headset Prod. Liab. Litig., F.d, (th Cir. 0) ( [The] presence of a neutral mediator [is] a factor weighing in favor of a finding of non-collusiveness. ). E. Experience and Views of Counsel The recommendations of plaintiffs counsel should be given a presumption of reasonableness. In re American Apparel, Inc. v. S holder Litig., 0 WL 0, at * (C.D. Cal. July, 0) (citation omitted); accord In re Omnivision Techs., Inc., F. Supp. d 0, 0 (N.D. Cal. 00). Deference to Class Counsel s evaluation of the Settlement is appropriate because [p]arties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party s expected outcome in litigation. Rodriguez v. West Publishing Corp., F.d, (th Cir. 00). Here, the Settlement was negotiated by counsel with extensive experience in consumer class action litigation. See Fisher Decl. Exs. - (firm resumes). Based on their experience, Class Counsel concluded that the settlement provides exceptional results for the class while sparing the class from the uncertainties of continued and protracted litigation. Fisher Decl.. V. THE PROPOSED NOTICE SHOULD BE APPROVED Once preliminary approval of a class action settlement is granted, notice must be directed to class members. For class actions certified under Rule (b)(), including settlement classes like this one, the court must direct to 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. (c)()(b). In addition, Rule (e)() applies to any class settlement and requires the Court to direct notice in a reasonable manner to all class members who would be bound by a proposal. Fed R. Civ. P Rule (e)(). When a court is presented MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

30 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #:0 0 0 with class notice pursuant to a settlement, both the class certification notice and notice of settlement may be combined in the same notice. Manual,. at -. This notice allows Class Members to decide whether to opt out of or participate in the class and/or to object to the Settlement and argue against final approval. Id. A. The Manner of Notice Satisfies All Requirements The proposed notice program informs the Class Members of their rights and includes a comprehensive plan for delivery of notice by , U.S. Mail, a settlement website, publication, and internet banner ads. See Fisher Decl. Ex., Stipulation of Settlement, V; Passarella Decl., -. The Parties proposed notice program is the best notice practicable under the circumstances. After certifying a class in this action, this Court reviewed competing notice programs and assured that class members received the best notice practicable under the circumstances. See Notice Order, Dkt.. Mindful of the fact that this Court carefully structured the notice plan at class certification, the Parties modeled the notice on that plan, as follows: Notice: Notices will be ed to all, Settlement Class Members for whom address have been identified; U.S. Mail Notice: Notices will be mailed to approximately, Settlement Class Members for whom they do not have an address but do have a mailing addresses; Settlement Website: The Long Form Notice and Claim Form shall be posted on a dedicated website with links to important case documents; Publication Notice: The Short Form Notice shall be published in the National Edition of USA Today once a week for four consecutive weeks; Internet Banner Ad Campaign: The Short Form Notice shall also be publicized with an internet campaign targeting parents, and people who may have purchased a homeopathic product; and CAFA Notice: KCC shall also cause to be disseminated the notice to public officials required by the Class Action Fairness Act ( CAFA ) in accordance with the provisions of that Act. Compare Order re: Form and Dissemination of Notice to the Class, Dkt. with Fisher Decl. Ex., Stipulation of Settlement, V; see also Passarella Decl. -. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

31 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 The notice plan set forth in the Stipulation of Settlement satisfies due process. B. The Form of the Notices and Claim Form The Parties drafted the Long Form Notice, the Short Form Notice, the Postcard Notice, and the Claim Form so that they are clear and easy for a layperson to understand. The Notices adequately inform Class Members of the settlement s material terms, including the definition of the Settlement Class, the claims that will be released by the Settlement Class, the amount available to the Class in refunds, the procedure to follow to submit a valid and timely claim, the procedure for opting out of the Settlement Class, that incentive awards and attorney s fees will be sought at final approval, and the procedure for objecting to the settlement. See Fisher Decl. Ex., Stipulation of Settlement (Notices: Exs. C, D, F). The Notices explicitly state that only Class Members who submit timely, written objections may voice their objections at the hearing. See id.; Erickson, 0 WL 00, at *. The Notices also make clear that a Class Member can object to the proposed settlement, the proposed reimbursements to Class Members, the attorneys fee and expense award, the incentive awards, and/or the costs of claims administration. See id. As such, the forms of the Notices proposed by the Parties comply with applicable standards for class action settlements like this one. See id.; see generally Passarella Decl. With respect to claim forms, this Court has recognized: Generally, claim forms are used in consumer class actions in which class members are difficult to identify. In those cases, the form helps identify members and substantiate that they are part of the class. Sharobiem, 0 WL 0, at *. Since a claim form is necessary to establish class membership, here, a claim form is necessary. See id.; see also Poertner v. Gillette Co., 0 WL 0, at * (th Cir. 0) (approving claims made settlement where the claiming process-completing a one-page form and submitting it either online or by mail-particularly [was not] difficult or burdensome ); Braynen v. Nationstar Mortgage, LLC, 0 WL, at * (S.D. Fla. Nov., 0) MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

32 Case :-cv-0-ghk-mrw Document - Filed 0// Page of 0 Page ID #: 0 0 (approving claims made settlement and stating that [t]he Claim Form should take no more than a few minutes for the average Claimant to complete and request the submission of no supporting materials that would be required in an individual lawsuit ). Like the Notices, the Parties drafted the Claim Form so that it would be clear and easy for a lay person to understand. First, the Claim Form explicitly states in itemized form and in one location what must be sent to the Settlement Administrator and how a Class Members should send it. See Fisher Decl. Ex., Stipulation of Settlement (Claim Form: Ex. A); Cf. Sharobiem, 0 WL 0, at *. Second, the Claim Form emphasizes that Class Members must submit the form to claim any benefit. See id. Third, the Claim Form also provides clearly demarcated boxes for Class Members to provide their mailing and address, defines the Class by objective criteria, provides boxes to enter the number of products purchased, delineates the dollar amount that will be refunded, and reminds Class Members that they are submitting the form under penalty of perjury. See id. Plaintiffs request that the Court approve the Notices, and Claim Form. C. KCC Should Be Appointed Settlement Administrator The Parties request that the Court appoint KCC as the Settlement Administrator. KCC is a well-qualified and experienced claims administrator that has overseen claims administration in countless class actions settlements. Passarella Decl. -. In fact, based on a declaration from KCC, on August, 0, this Court approved KCC as the claims administrator that would send notice following class certification. See Dkt. ; see Dkt. - (KCC Decl.). After Court approval, KCC sent notice to the class. As a result, KCC is familiar with the issues in this case and is uniquely qualified to serve as Settlement Administrator. VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant preliminary approval. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

33 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of 0 Page ID #: 0 0 Dated: October, 0 BURSOR & FISHER, P.A. By: L. Timothy Fisher L. Timothy Fisher Scott A. Bursor (State Bar No. 00) L. Timothy Fisher (State Bar No. ) Annick M. Persinger (State Bar No. ) 0 North California Blvd., Suite 0 Walnut Creek, CA Telephone: () scott@bursor.com ltfisher@bursor.com apersinger@bursor.com VOZZOLO LLC Antonio Vozzolo (pro hac vice) Route South Upper Saddle River, New Jersey 0 Phone: Fax: avozzolo@vozzolo.com FARUQI & FARUQI, LLP Nadeem Faruqi rd Avenue th Floor New York, NY 00 Tel: () -0 Fax:() - nfaruqi@faruqilaw.com Co-Lead Class Counsel MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

34 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 BURSOR & FISHER, P.A. VOZZOLO LLC Scott A. Bursor (State Bar No. 00) Antonio Vozzolo (pro hac vice) L. Timothy Fisher (State Bar No. ) Route South Annick M. Persinger (State Bar No. ) Upper Saddle River, NJ 0 0 North California Boulevard, Suite 0 Phone: Walnut Creek, CA Fax: Telephone: () 00- avozzolo@vozzolo.com scott@bursor.com ltfisher@bursor.com apersinger@bursor.com FARUQI & FARUQI, LLP Nadeem Faruqi rd Avenue th Floor New York, NY 00 Tel: () -0 Fax:() - nfaruqi@faruqilaw.com Co-Lead Class Counsel UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, v. HYLAND S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY, Defendants. Case No. :-CV-0 GHK(MRW) DECLARATION OF L. TIMOTHY FISHER IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY APPROVAL Date: November, 0 Time: :0 a.m. Courtroom: 0 Hon. George H. King FISHER DECLARATION IN SUPPORT OF PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

35 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 I, L. Timothy Fisher, declare as follows:. I am an attorney at law licensed to practice in the State of California. I am also a member of the bar of this Court and a partner at Bursor & Fisher, P.A., counsel of record for Plaintiffs. I have personal knowledge of the facts set forth in this declaration, and, if called as a witness, could and would competently testify thereto under oath.. Attached hereto as Exhibit is a true and correct copy of the parties Stipulation of Settlement, including all exhibits thereto.. Attached hereto as Exhibit is a true and correct copy of excerpts from the deposition of Amy Fox.. Attached hereto as Exhibit is a true and correct copy of Exhibit to the Fox deposition, which is an article entitled Hyland s Inc. showcasing natural solutions for big coughs and tiny colds at ABC Kids Expo, October -, 0.. Attached hereto as Exhibit is a true and correct copy of Exhibit to the Fox deposition, which is an article entitled Hyland s, Inc. launches Hyland s Baby Cough Syrup for infants months and older.. Attached hereto as Exhibit is a true and correct copy of Bursor & Fisher s firm resume.. Attached hereto as Exhibit is a true and correct copy of Vozzolo LLC s firm resume.. Attached hereto as Exhibit is a true and correct copy of Faruqi & Faruqi LLP s firm resume.. Attached hereto as Exhibit is a spreadsheet prepared by Defendants that lists the average retail price for each product for each year during the class period, as well as the average retail price for each product over the entire class period. FISHER DECLARATION IN SUPPORT OF PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

36 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: The parties completed extensive discovery. Defendants produced, and Plaintiffs reviewed, over,000 pages of documents. Documents that Plaintiffs counsel reviewed included, for example, Hyland s test results, internal communications, and sales information. Additionally, while this litigation was pending, a study on one of the products at issue, Cold n Cough Kids, was in progress at the University of Washington. To evaluate that study, Plaintiffs obtained study documents from the University of Washington.. The parties completed twenty-four depositions. Plaintiffs deposed Dr. Iris Bell, Defendants Director of Scientific Affairs. Plaintiffs also deposed Defendants marketing employees, Thanh-Thao Minh Le, Ms. Jacobs and Ms. Fox, as well as Mr. Phillips, a Hyland s pharmacist. Plaintiffs deposed the chief investigator of Defendants Cold n Cough Kids study, Dr. James Taylor, after interim results were produced, and again after final results were produced. After the results of Defendants study were available, Plaintiffs deposed Dr. Bell a second time. Plaintiffs and Defendants experts all issued opinions on the interim results of the study, and then supplemented their opinions once final results were available. Plaintiffs deposed Defendants experts Dr. Bellavite, and Dr. Calabrese. In addition to Plaintiff Forcellati and Plaintiff Roemmich, Defendants deposed Plaintiffs experts Dr. Howlett, Dr. Grollman, Dr. Bausell, Dr. Ernst, and Mr. Weir. Finally, Plaintiffs deposed Hyland s CEO Dr. Borneman.. In response to this Court s decision to certify a nationwide class, on April, 0, Hyland s filed a petition for permission to appeal pursuant to Fed. R. Civ. P. (f). On April 0, 0, Plaintiffs filed an answer in opposition to Hyland s Petition. On July, 0, the Ninth Circuit denied Hyland s petition.. To prepare for trial, in the fall of 0, Plaintiffs counsel began prepping their witnesses, including the Plaintiffs and their experts. Plaintiffs counsel also visited the Courtroom to practice setting up their electronic FISHER DECLARATION IN SUPPORT OF PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

37 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 presentations. Additionally, Plaintiffs counsel marked exhibits with the Court s official exhibit tags.. Throughout this litigation, the Parties worked on settlement. As early as October 0, 0, the Class Representatives and Hyland s participated in a fullday in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. On May, 0, the Parties participated in a second full-day in-person mediation with Mr. Meyer. On March, 0, the Parties participated in a full-day in-person settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. On October, 0, the Parties participated in a second full-day in-person settlement conference with Judge Gandhi. On July, 0, the Parties participated in a third full-day in-person settlement conference with Judge Gandhi. After continuing to work with Judge Gandhi following the July settlement conference, on July, 0, the Parties in the Consolidated Action reached the proposed Stipulation of Settlement, which is attached hereto as Exhibit.. Class Counsel, after taking into account the their thorough examination and investigation of the facts and law in this action, along with the risks and costs of further litigation, including pretrial motions and trial, represents that they are satisfied that the terms and conditions of the Stipulation of Settlement are fair, reasonable, and adequate, and that the Settlement Agreement discussed herein is in the best interest of the Settlement Class Members.. At final approval, Class Counsel will provide the Court with detailed time records sufficient to enable the Court to do a lodestar analysis. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on October, 0. L. Timothy Fisher L. Timothy Fisher FISHER DECLARATION IN SUPPORT OF PRELIMINARY APPROVAL CASE NO. :-CV-0 GHK (MRW)

38 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: EXHIBIT

39 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 00) L. Timothy Fisher (State Bar No. ) Annick M. Persinger (State Bar No. ) 0 North California Boulevard, Suite 0 Walnut Creek, CA Telephone: () scott@bursor.com ltfisher@bursor.com apersinger@bursor.com Co-Lead Class Counsel NORTON ROSE FULBRIGHT US LLP Jeffrey Margulies, State Bar No. 00 Spencer Persson, State Bar No. 0 Stephanie Stroup, State Bar No. 0 Jade Jurdi, State Bar No.0 South Flower Street Forty-First Floor Los Angeles, CA 00 Telephone: () jeff.margulies@nortonrosefulbright.com spencer.persson@nortonrosefulbright.com stephanie.stroup@nortonrosefulbright.com jade.jurdi@nortonrosefulbright.com Attorneys for Defendants [Additional counsel on signature page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ENZO FORCELLATI and LISA ROEMMICH, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, v. HYLAND S, INC., STANDARD HOMEOPATHIC LABORATORIES, INC., and STANDARD HOMEOPATHIC COMPANY, Defendants. Case No. :-CV-0 GHK(MRW) STIPULATION OF SETTLEMENT Hon. George H. King STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

40 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #:0 0 TABLE OF CONTENTS PAGE(S) RECITALS... I. DEFINITIONS... II. CERTIFICATION OF THE SETTLEMENT CLASS... III. SETTLEMENT CONSIDERATION... IV. CLASS COUNSEL S FEE AND EXPENSE AWARD AND CLASS REPRESENTATIVES INCENTIVE AWARDS... V. NOTICE TO THE CLASS AND ADMINISTRATION OF SETTLEMENT... VI. CLASS SETTLEMENT PROCEDURES... 0 VII. RELEASES... VIII. SUBMISSION OF THE SETTLEMENT TO THE COURT... IX. MISCELLANEOUS PROVISIONS STIPULATION OF SETTELEMNT CASE NO. :-CV-0 GHK (MRW) i

41 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 This Stipulation of Settlement is made by and among Enzo Forcellati, and Lisa Roemmich, (the Class Representatives ), on behalf of themselves and the Settlement Class (defined below), on the one hand, and Hyland s, Inc., Standard Homeopathic Laboratories Inc., and Standard Homeopathic Company ( Defendants or Hyland s ), on the other. RECITALS A. On March, 0, Plaintiff Enzo Forcellati commenced a proposed class action against Defendants Hyland s Inc., and Standard Homeopathic Company entitled Forcellati v. Hyland s Inc. et al. (United States District Court, Central District of California, Case No. -cv--ghk) (the Forcellati Action ). Plaintiff Forcellati asserted claims on behalf of himself and a proposed nationwide class of purchasers of (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey Kids, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, and (v) Nighttime Cold n Cough Kids for violation of the Magnuson-Moss Warranty Act, U.S.C. 0, et seq., unjust enrichment, breach of express warranty, breach of implied warranty, violation of the New Jersey Consumer Fraud Act, N.J.S.A. :-, et seq., violation of the Consumer Legal Remedies Act ( CLRA ), California Civil Code 0, et seq., violation of the False Advertising Law ( FAL ), California Business & Professions Code 00 et seq., and violation of the Unfair Competition Law ( UCL ), California Business & Professions Code 00 et seq. Plaintiff Forcellati alleged that Hyland s made false and misleading statements about its Children s Cold and Flu Products, such as that the Children s Cold and Flu Products were Safe & Effective for treating cold and flu symptoms and that they were 00% Natural. Plaintiff Forcellati further alleged that, in fact, the Children s Cold and Flu Products are no better than a placebo because the homeopathic ingredients in the Products are ultra-diluted. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

42 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 B. On April, 0, Defendants filed a motion to dismiss. On April 0, 0, Plaintiff Forcellati opposed. On June, 0, the Court dismissed Plaintiff s unjust enrichment claim but denied the remaining portions of Defendants motion. C. On June, 0, Hyland s answered Plaintiff Forcellati s Complaint, denying liability. D. On July 0, 0, Hyland s removed an action entitled Roemmich v. Hyland s Inc. et al. from the Superior Court of California, County of Los Angeles to the United States District Court, Central District of California (Case No. -cv-) (the Roemmich Action ). E. On October, 0, the Court ordered that the Forcellati and Roemmich actions be consolidated. The Court further ordered that the parties were to meet and confer to determine the appropriate lead counsel. F. On October 0, 0, the Class Representatives and Hyland s participated in a full-day in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. G. On October, 0, the parties reported that Bursor & Fisher, P.A. and Faruqi & Faruqi, LLP would serve as co-lead counsel in the consolidated cases. H. On November, 0, the Court ordered that the Forcellati and Roemmich Actions be consolidated, and appointed Bursor & Fisher, P.A. and Faruqi & Faruqi LLP as co-lead counsel in the Forcellati and Roemmich Actions (hereafter the Consolidated Action or the Action ). I. On December, 0, Plaintiff Enzo Forcellati, and Lisa Roemmich, filed a Consolidated Amended Class Action Complaint that added Lisa Roemmich as a Plaintiff to the Action. In addition to the claims in Plaintiff Forcellati s Complaint, the Consolidated Amended Class Action Complaint also asserted claims for Violation of the Missouri Merchandising Practices Act, Mo. Ann. Stat. 0.00, et seq. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

43 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of Page ID #: 0 0 J. On January, 0, Hyland s filed a motion to dismiss Plaintiffs prayer for punitive damages in the Consolidated Amended Class Action Complaint. Plaintiffs opposed. On February, 0, the Court denied Hyland s motion. K. On May, 0, the Parties participated in a second full-day in-person mediation with Robert A. Meyer of Loeb & Loeb LLP. L. On September, 0, Plaintiffs filed a motion for class certification. On October, 0, Hyland s opposed Plaintiffs motion. Pursuant to the Court s December, 0 order, on February, 0, the Parties submitted supplemental briefing on the issue of whether the proposed class was ascertainable. M. On April, 0, the Court certified the following Rule (b)() class for monetary relief with respect to Plaintiffs claims for violation of Magnuson-Moss Act, U.S.C. 0, et seq., breach of express warranty, breach of implied warranty, violation of the CLRA, violation of the FAL, and violation of the UCL: (a) (b) A nationwide class of all persons in the United States who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey Kids, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, and (v) Nighttime Cold n Cough Kids; A -state class of all persons in the United States except for those in California who purchased Hyland s Complete Flu Care Kids on or after March, 00. The Court appointed the law firms of Bursor & Fisher, P.A., and Faruqi & Faruqi, LLP as class counsel. The Court appointed Plaintiffs Enzo Forcellati and Lisa Roemmich as Class Representatives. The Court denied Plaintiffs request to certify a Rule (b)() class for injunctive relief, and denied certification of Plaintiffs proposed New Jersey and Missouri subclasses. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

44 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 N. On April, 0, Hyland s filed a petition for permission to appeal pursuant to Fed. R. Civ. P. (f). On May, 0, Plaintiffs filed an answer in opposition to Hyland s petition. On July, 0, the United States Court of Appeals for the Ninth Circuit denied Hyland s Fed. R. Civ. P. (f) petition. O. On August, 0, the Court issued an Order Re Form and Dissemination of Notice to the Class. P. On September, 0, the claims administrator Kurtzman Carson Consultants ( KCC ) sent notice to class members by and U.S. Mail. Q. On September, 0, Hyland s filed a motion for summary judgment. Plaintiffs opposed in a joint brief on that same date. On January, 0, the Court denied Hyland s motion for summary judgment. R. On March, 0, the Parties participated in full-day in-person settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. S. On October, 0, the Parties participated in a second full-day inperson settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. T. On October, 0, Hyland s filed an ex parte application to continue the trial, originally set for October, 0, based on the fact that Plaintiffs presented a new case theory in their trial brief and Motions in Limine. U. On October, 0, the Court vacated all trial dates to consider Hyland s request for judicial estoppel, to consider the parties Motions in Limine and to evaluate Defendants objections to deposition exhibits to be used at trial. V. On February, 0, the Court held that Plaintiffs were judicially estopped from changing their theory of the case. W. On January, 0, Plaintiffs Marie Kaatz and Abigail Gagliardi commenced an action entitled Kaatz v. Hyland s Inc. et al. (United States District Court, Southern District of New York, Case No. :-cv-00-vb) (the Kaatz STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

45 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 Action ), as a proposed class action, asserting claims for violation of New York General Business Law and 0, the consumer protection statutes of all fifty states, and the Magnuson-Moss Warranty Act, U.S.C. 0, et seq., as well as breach of express warranty, breach of implied warranty of fitness for a particular purpose, negligent misrepresentations, and unjust enrichment. The Kaatz Action asserted claims with respect to Hyland s (i) Baby Teething Gel; (ii) Baby Cough Syrup, (iii) Baby Gas Drops, (iv) Baby Infant Earache Drops, and (v) Baby Nighttime Tiny Cold Syrup. Like Plaintiffs Forcellati and Roemmich, the Plaintiffs in the Kaatz Action allege that Defendants Products are not effective for relieving symptoms and are not 00% natural. Also like the Plaintiffs in the Consolidated Action, the Plaintiffs in the Kaatz Action allege that the Products do not provide any benefits beyond that of a placebo. X. On June, 0, the Court ordered the Parties in the Consolidated Action to participate in a settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. Y. On July, 0, the Parties in the Consolidated Action participated in a third full-day in-person settlement conference with the Hon. Jay C. Gandhi, United States Magistrate Judge. Z. On July, 0, the District Court for the Southern District of New York denied Defendants motion to dismiss the Complaint in the Kaatz Action, but limited the New York Plaintiffs claims under New York General Business Law and 0, breach of implied warranty of fitness for a particular purpose, negligent misrepresentations, and unjust enrichment to a putative class of New York purchasers. AA. On July, 0, the Parties in the Consolidated Action reached a settlement in the Consolidated Action. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

46 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 BB. On July 0, 0, Defendants filed an answer to the Complaint in the Kaatz Action, denying liability. CC. Following execution of this Stipulation of Settlement, with Defendants agreement and Court approval, Plaintiffs will file a Second Amended Complaint that brings claims for violation of the Magnuson-Moss Act. U.S.C. 0, et seq., breach of express warranty, breach of implied warranty, violation of the Consumer Legal Remedies Act ( CLRA ), California Civil Code 0, et seq., violation of the False Advertising Law ( FAL ), California Business & Professions Code 00 et seq., and violation of the Unfair Competition Law ( UCL ), California Business & Professions Code 00 et seq. on behalf of: All persons in the United States who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, (v) Nighttime Cold n Cough Kids, (vi) Complete Flu Care Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup. DD. The Class Representatives allege in this Consolidated Action, inter alia, that Hyland s deceived customers by representing that products for children and babies are effective at treating illness when, in fact, the ultra-diluted ingredients have no pharmacological effect beyond that of a placebo. EE. Hyland s denies the material allegations made in the Consolidated Action, and denies any and all liability with respect to all facts and claims alleged therein, and further denies that any of the Settlement Class Members (defined below) or anyone has suffered any harm or damage or is entitled to any monetary or relief whatsoever in connection with the Consolidated Action. FF. Class Counsel conducted an examination and investigation of the facts and law relating to the matters in this Consolidated Action, including, but not limited STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

47 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 to, engaging in discovery, review and analysis of Hyland s documents and data, as well as Hyland s testing of the Settlement Class Products. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Class Counsel also evaluated the merits of the Parties contentions and evaluated this Settlement, as it affects all Parties, including the Settlement Class Members. The Class Representatives and Class Counsel, after taking into account the foregoing, along with the risks and costs of further litigation, including pretrial and trial, represent that they are satisfied that the terms and conditions of this Stipulation of Settlement are fair, reasonable, and adequate, and that the Settlement Agreement set forth herein is in the best interest of the Settlement Class Members. GG. Hyland s, while continuing to deny all allegations of wrongdoing and disclaiming all liability with respect to all claims, considers it desirable to resolve the Consolidated Action on the terms stated herein to avoid further expense, inconvenience and burden and, therefore, has determined that this Settlement on the terms set forth herein is in Hyland s best interests. HH. Substantial settlement negotiations have taken place between the Parties, including five full day mediation sessions, the first two with Robert A. Meyer of Loeb & Loeb LLP, and the final three with the Hon. Jay C. Gandhi, United States Magistrate Judge. In consideration of the covenants and agreements set forth herein, and of the releases and dismissals of claims as described below, and other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged by each of the Parties, the Class Representatives, on behalf of themselves and the Settlement Class Members, and Hyland s agree to the Settlement described herein, subject to Court approval, under the following terms and conditions: I. DEFINITIONS. As used in this Stipulation of Settlement, the following capitalized terms have the meanings specified below. Unless otherwise indicated, defined terms

48 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 include the plural as well as the singular.. Action or Consolidated Action shall mean the class action lawsuit entitled Forcellati et al. v. Hyland s, Inc. et al., Case No. :-CV-0 GHK(MRW) pending in the United States Central District of California, which encompasses the higher-numbered action Roemmich v. Hyland s Inc. et al., Case No. -CV-.. Claim Deadline means 0 days after the Notice Date, by which Settlement Class Members must submit a claim to obtain the Class Benefit described in III of this Stipulation of Settlement.. Claim Form means the form substantially in the form attached hereto as Exhibit A to be submitted by Class Members seeking to recover the Class Benefit described in this Stipulation of Settlement in Section III. The format of the Claim Form may be modified by the Court in the Preliminary Approval Order, substantially in the form attached hereto as Exhibit B, or to meet the requirements of the Settlement Administrator. Claimant means a Class Member who submits a claim for cash as described in Section III of this Settlement Agreement.. Class Benefit has the meaning set forth in Section III below.. Class Counsel means Bursor & Fisher, P.A., Vozzolo LLC, and Faruqi & Faruqi, LLP.. Class Notice means the Court-approved Notice of Class Action Settlement, which includes the Long Form Notice, the Short Form Notice, the Postcard Notice, the Notice, and the Publication Notice.. Class Representatives means Enzo Forcellati, and Lisa Roemmich..0 Court means the United States District Court, Central District of California. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

49 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0. Defendants Counsel, or Defense Counsel means the law firm of Norton Rose Fulbright US LLP.. Notice means the Short Form Notice that will be sent via to all Class Members for whom an address is available. The Notice will contain the Short Form Notice content in the body of the message and will contain a link to the Settlement Website, and the Long Form Notice.. Fairness Hearing means the hearing that is to take place after entry of the Preliminary Approval Order, the Notice Date, and the Claim Deadline for purposes of: (a) determining the fairness, adequacy, and reasonableness of the Settlement Agreement; and (b) ruling upon an application by Class Counsel for a Fee and Expense Award and Plaintiffs Incentive Awards. The Parties shall request that the Court schedule the Fairness Hearing for a date that is in compliance with the provisions of U.S.C. (d).. Fee and Expense Award means the amount awarded to Class Counsel by the Court for attorneys fees, costs, and expenses.. Final Settlement Approval Date means the date that is 0 days after service of notice of entry of the Settlement Approval Order and Final Judgment on the Parties and all objectors to the Settlement Agreement, if any, without any appeal being taken, or if an appeal or request for review has been taken, the date on which the Settlement Approval Order and Final Judgment has been affirmed by the court of last resort to which an appeal or request for review has been taken and such affirmance is no longer subject to further appeal or review, or the date of denial of review after exhaustion of all appellate remedies.. Incentive Award(s) means any award sought by application to and approved by the Court that is payable to the Class Representatives.. Long Form Notice means the notice (substantially in the form attached hereto as Exhibit C) to be posted in English and Spanish on the Settlement STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

50 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #:0 0 0 Website. The website and the Long Form Notice will be accessible through a hyperlink embedded in the Notice and Internet Banners.. MSRP means Hyland s average suggested retail price for the Settlement Class Products during the Settlement Class Period as follows: (i) Cold n Cough Kids $. (ii) Cough Syrup with 00% Natural $. Honey (iii) Sniffles n Sneezes Kids $.0 (iv) Cold Relief Strips Kids with Zinc $. (v) Nighttime Cold n Cough Kids $. (vi) Complete Flu Care Kids $. (vii) Baby Teething Gel $. (viii) Baby Cough Syrup $0. (ix) Baby Gas Drops $. (x) Baby Infant Earache Drops $0. (ix) Baby Nighttime Tiny Cold Syrup $.. Notice Date means 0 days following the Preliminary Approval Order..0 Notice of Missing or Inaccurate Information means the notice sent by the Claims Administrator to a Claimant who has submitted a Claim Form with inaccurate, disqualifying, incomplete, or missing information that is required for the Claimant to be considered eligible for the Class Benefit.. Objection Deadline means the date, to be set by the Court, by which Settlement Class Members must file objections, if any, to the Settlement Agreement in accordance with Section VI of this Stipulation of Settlement. The Parties shall request that the Court set an Objection Deadline 0 days after the Notice Date. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) 0

51 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0. Opt-Out Date means the date, to be set by the Court, by which a Request for Exclusion must be sent to the Settlement Administrator for a Class Member to be excluded from the Settlement Class. The Parties shall request that the Court set an Opt-Out Date 0 days after the Notice Date.. Parties means Enzo Forcellati, Lisa Roemmich on the one hand, and Hyland s, Inc., Standard Homeopathic Laboratories Inc., and Standard Homeopathic Company on the other.. Postcard Notice means the notice (substantially in the form attached hereto as Exhibit D) to be sent via regular mail to all class members for whom the Parties do not have a valid address but do have a mailing address.. Preliminary Approval means that the Court has entered an order preliminarily approving the terms and conditions of this Stipulation of Settlement, including the manner of providing and content of Class Notice to Settlement Class Members.. Preliminary Approval Date means the date on which the Court enters the Preliminary Approval Order.. Preliminary Approval Order means the Court s order, substantially in the form attached hereto as Exhibit B, preliminarily approving the Settlement Agreement set forth in this Stipulation of Settlement and approving the Settlement Notice Plan.. Proof of Purchase means receipts, packaging of Settlement Class Products, bottles or other containers of Settlement Class Products, or other documentation from a third-party commercial source reasonably establishing the purchase during the Settlement Class Period of one or more of the Settlement Class Products claimed to have been purchased by the Settlement Class Member.. Publication Notice means publication of the Short Form Notice in the National Edition of USA Today once a week for four consecutive weeks, and a STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

52 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 Facebook campaign targeting people who have expressed an interest in or like pages related to Hyland s, homeopathy, homeopathic medicine, and wellness as well as those people who have expressed an interest in or like pages related to parenting..0 Released Claims means the claims released by the Settlement Class Members, as described in Section VII below, who do not submit a valid Request for Exclusion.. Released Persons means Hyland s Inc., Standard Homeopathic Laboratories Inc., and Standard Homeopathic Company; all of their past and present respective parents, subsidiaries, divisions, affiliates, persons and entities directly or indirectly under its or their control in the past or in the present; all of their respective assignors, predecessors, successors, and assigns; and all past or present partners, shareholders, managers, members, directors, officers, employees, agents, attorneys, insurers, accountants, and representatives of any and all of the foregoing.. Request for Exclusion means the written communication that must be sent to the Settlement Administrator and postmarked on or before the Opt-Out Date by a Settlement Class Member who wishes to be excluded from the Settlement Class.. Settlement Administrator means KCC Class Action Services, LLC (or KCC ) and its successors and assigns.. Settlement Agreement means the agreement set forth by the terms of this Stipulation of Settlement.. Settlement Approval Order and Final Judgment means an order and judgment issued and entered by the Court, substantially in the form as that attached hereto and made a part hereof as Exhibit E, approving this Settlement Agreement as binding upon the Parties and the Settlement Class Members, entering final judgment, and setting the Fee and Expense Award, to Class Counsel by the Court. The Settlement Approval Order and Final Judgment shall constitute a judgment within STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

53 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of Page ID #: 0 0 the meaning and for purposes of Rule of the Federal Rules of Civil Procedure. The Parties jointly shall request the Court to enter the proposed Settlement Approval Order and Final Judgment substantially in the form attached hereto and made a part hereof as Exhibit E.. Settlement Class Members, Class Members, Class, or Settlement Class means: STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) All persons in the United States who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, (v) Nighttime Cold n Cough Kids, (vi) Complete Flu Care Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup. Excluded from the Class are: (a) Hyland s employees, officers and directors, (b) persons or entities who purchased the Products for the purpose of re-sale, (c) retailers or resellers of the Products, (d) governmental entities, (e) persons who timely and properly exclude themselves from the Class as provided herein, and (f) the Court, the Court s immediate family, and Court staff.. Settlement Class Period means the period of time from March, 00 through the Notice Date.. Settlement Class Products means: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, (v) Nighttime Cold n Cough Kids, (vi) Complete Flu Care Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup.. Settlement Notice and Other Administrative Costs means all costs and expenses actually incurred by the Settlement Administrator in the publication and sending of Class Notice, establishment of the Settlement Website, and the processing, handling, reviewing, and paying of claims made by Claimants.

54 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: Settlement Notice Plan means the Settlement Administrator s plan to disseminate Class Notice to Settlement Class Members, as described in Section V below.. Settlement Website means a website operated and maintained by the Settlement Administrator solely for purposes of making available to the Settlement Class Members the Long Form Notice, documents, information, and online claims submission process referenced in Sections V and VI, below.. Short Form Notice means the notice, (substantially in the form attached hereto as Exhibit F), that will be published in the national edition of USA Today once a week for four consecutive weeks, and that will be sent by to all class members for whom addresses are identified.. Stipulation of Settlement means this document and its exhibits, attached hereto and incorporated herein, including all subsequent amendments agreed to in writing by the Parties and any exhibits to such amendments. II. CERTIFICATION OF THE SETTLEMENT CLASS. The Parties agree, for settlement purposes only, that the Settlement Class shall be certified and proceed as a class action under Federal Rule of Civil Procedure (b)(), with a class consisting of all Settlement Class Members, and with Plaintiffs Forcellati and Roemmich as Class Representatives and with Class Counsel as counsel for the Settlement Class Members.. Any certification of a conditional, preliminary or final Settlement Class, pursuant to the terms of this Stipulation of Settlement, shall not be construed as an admission on the part of Hyland s that the Settlement Class is appropriate for class treatment under the Federal Rules of Civil Procedure or any similar state or federal class action statute or rule.. In the event that the Court does not preliminarily or finally approve the Settlement Agreement, nothing herein shall be construed to alter the Court s April, STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

55 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: certification of the following Rule (b)() classes: (a) A nationwide class of all persons in the United States who purchased the following Hyland s products on or after March, 00: (i) Cold n Cough Kids, (ii) Cough Syrup with 00% Natural Honey Kids, (iii) Sniffles n Sneezes Kids, (iv) Cold Relief Strips Kids with Zinc, and (v) Nighttime Cold n Cough Kids; (b) A -state class of all persons in the United States except for those in California who purchased Hyland s Complete Flu Care Kids on or after March, 00. III. SETTLEMENT CONSIDERATION. Class Benefits. In full, complete, and final settlement and satisfaction of the Consolidated Action and all Released Claims, and subject to all of the terms, conditions, and provisions of this Stipulation of Settlement, Hyland s agrees to provide the following consideration to Settlement Class Members: (a) STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) To each Settlement Class Member who follows the procedures set forth in Section VI of this Stipulation of Settlement and submits a valid Claim Form, Hyland s will pay a full refund of the MSRP or the actual purchase price, as follows: (i) Without Proof of Purchase. Claims for a full refund of the MSRP for up to two () unit purchases of Settlement Class Products will be paid without requiring proof of purchase. (ii) With Proof of Purchase. Claims for a full refund for three () or more unit purchases of Settlement Class Products will be paid with proof of purchase to avoid fraudulent claims. Settlement Class Members who submit proof of purchase that reveals the actual price paid for a Settlement Class Product will receive a refund of the actual price paid. If proof of purchase does not reveal the actual price paid for a Settlement Class Product, the Settlement Class Member will be receive a refund of the MSRP for each Settlement Class Product. website.. Injunctive Relief. Hyland s will include a money back guarantee on its

56 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0. Costs of Class Notice and Claims Administration. Hyland s will pay the costs of the Settlement Administrator.. Fee and Expense Award. Hyland s will pay a Fee and Expense Award and Incentive Awards as described in Section IV. IV. CLASS COUNSEL S FEE AND EXPENSE AWARD AND CLASS REPRESENTATIVES INCENTIVE AWARDS. Incentive Awards. In recognition of the time and effort that the Class Representatives expended in pursuing this Consolidated Action and in fulfilling their obligations and responsibilities as Class Representatives, including responding to discovery, attending their depositions, and preparing to appear at trial, Class Counsel will submit an application for Incentive Awards of $,000 to each Class Representative. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Any Court-ordered Incentive Award will be paid to the Class Representatives by Hyland s no later than days after the Final Settlement Approval Date.. Fee and Expense Award. Class Counsel will make an application to the Court for an Attorneys Fee and Expense Award in an amount not to exceed $. million, which includes reimbursement of Class Counsel s costs and expenses. (a) Such Class Counsel s Fee and Expense Award shall be paid by wire transfer to Class Counsel, subject to Court approval, as follows: $0,000 within days after Preliminary Approval, and the remainder in quarterly installments over four years from the date of final approval, subject to paragraph.(b) below. The quarterly installments shall be paid on dates to be agreed on by the Parties following entry of the Settlement Approval Order and Final Judgment. (b) The Fee and Expense Award shall be the total obligation of Hyland s to pay for attorneys fees, costs, and/or expenses of any kind (including, but not limited to, travel, filing fees, court reporter, and videographer expenses, expert fees, and costs, and document review and production costs) related to this Consolidated Action or any claims asserted in the Consolidated Action.

57 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 Notwithstanding the foregoing, if the Final Settlement Approval Order and Final Judgment or any part of it is vacated, overturned, reversed, or rendered void or unenforceable as a result of any appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, then Class Counsel shall, within 0 days, repay to Hyland s the full amount of the attorneys fees and costs paid by Hyland s to Class Counsel. Class Counsel shall provide an undertaking satisfactory to Defendants Counsel and the Settlement Administrator to repay to Hyland s all attorneys fees and costs paid by Hyland s to Class Counsel if the Settlement is not finally approved or the award of attorneys fees and expenses is later modified or reversed for any reason. Such undertaking may be in the form of a promissory note or letter of credit acceptable to Defendants and the Settlement Administrator.. Class Counsel shall have the sole and absolute discretion to allocate the Fee and Expense Award amongst Plaintiffs Counsel and any other attorneys for Plaintiffs. Hyland s shall have no liability or other responsibility for allocation of any such attorney s fees and expenses awarded, and, in the event that any dispute arises relating to allocation of fees, Class Counsel agree to hold Hyland s harmless from, and indemnify Hyland s with respect to, any and all such liabilities, costs, and expenses, including attorneys fees and costs of such dispute. V. NOTICE TO THE CLASS AND ADMINISTRATION OF SETTLEMENT. The Class Notice shall conform to all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clauses), the Class Action Fairness Act of 00, U.S.C., and any other applicable law, and shall otherwise be in the manner and form approved by the Court.. General Notice Terms. The Class Notice Shall: STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

58 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 (a) inform Settlement Class Members that, if they do not exclude themselves from the Class, they may be eligible to receive the relief under the proposed Settlement Agreement; (b) contain a short, plain statement of the background of the Consolidated Action, the Class certification for settlement purposes and the proposed Settlement Agreement; (c) describe the proposed settlement relief outlined in this Stipulation of Settlement; (d) state that any relief to Settlement Class Members is contingent on the Court s final approval of the proposed Settlement Agreement; (e) inform Settlement Class Members of their rights to exclude themselves form the Settlement Class or object to the proposed Settlement Agreement as described in Section VI below.. Time and Manner of Notice. Class Notice shall be provided in the manner that Class Notice was provided upon Class Certification in this Consolidated Action, as follows: (a) On or before the Notice Date, which is 0 days following Preliminary Approval, the Settlement Administrator shall cause a copy of the Short Form Notice to be sent by to all class members for whom addresses are identified. The Notice will provide prominent links to the Long Form Notice, the Claim Form, and the Settlement Website; (b) On or before the Notice Date, the Settlement Administrator shall cause a copy of the Postcard Notice to be sent by regular mail to all class members for whom the Parties do not have a valid address but do have a mailing address. The Short Form Notice will prominently provide information for accessing the Settlement Website, the Claim Form, and the Long Form Notice; STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

59 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 (c) STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) On or before the Notice Date, Class Counsel shall cause a copy of the Long Form Notice, in both English and Spanish, to be posted on a dedicated website together with links to the Claim Form, and important case documents, such as the Preliminary Approval Order, this Stipulation of Settlement, the Consolidated Amended Class Action Complaint, Defendants Answer to Consolidated Amended Class Action Complaint, and any Second Amended Class Action Complaint; (d) Class Counsel shall have registered for this purpose, along with several additional domains that will mirror and/or link to that website, including Class members will be directed to the website by hyperlinks embedded in the version of the Short Form Notice and by references in the Postcard, and Short Form Notices. website will allow Class Members to submit Claim Forms online and will contain information relevant to Class Members, including but not limited to all applicable deadlines, this Stipulation of Settlement, Class Notice, a downloadable Claim Form, all papers filed by the Parties in support of the proposed Settlement Agreement (including Plaintiffs anticipated motion for a Fee and Expense Award), orders of the Court pertaining to this Stipulation of Settlement, and contact information for the Settlement Administrator for a toll-free telephone number, , and U.S. mail. The Parties shall use reasonable efforts to agree on all information and documents to be posted on this website and no information shall be posted or provided on the website without the Parties express approval. The website shall be rendered inactive 0 days after the Final Settlement Approval Date; and (e) The Commencing on or before the Notice Date, the Settlement Administrator shall undertake Publication Notice as provided in Section... Notice Period. The Notice Period shall run for 0 days following the Notice Date. The Long Form, Short Form, and Postcard Notices shall inform Class

60 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #:0 0 0 Members of the Opt-Out Deadline and the Objection Deadline, which will be set by the Court in the Preliminary Approval Order. Any Class Member who does not file a valid and timely Request for Exclusion will be bound by the Settlement Agreement set forth in this Stipulation of Settlement and by Final Judgment concluding this Consolidated Action.. Responsibilities of Settlement Administrator. The Settlement Administrator will help implement the terms of this Stipulation of Settlement. The Settlement Administrator shall be responsible for administrative tasks, including, without limitation, (a) notifying the appropriate state officials about the Settlement Agreement, (b) arranging, as set forth in this Section and in the Preliminary Approval Order, for distribution of Class Notice (in the form approved by the Court) and Claims Forms (in the form approved by the Court) to Settlement Class Members, (c) answering inquiries from Settlement Class Members and/or forwarding such written inquiries to Class Counsel or their designee, (d) receiving and maintaining on behalf of the Court and the Parties any Settlement Class Member correspondence regarding Requests for Exclusion from the Settlement Agreement, (e) posting notices on the Settlement Website, Claim Forms, and other related documents, (f) receiving and processing claims and distributing cash payments to Settlement Class Members, and (g) otherwise assisting with implementation and administration of the Settlement Agreement terms. The actual costs and expenses of the Settlement Administrator will be paid by Hyland s as part of the Settlement Consideration as described in Section III above. VI. CLASS SETTLEMENT PROCEDURES. Settlement Class Member Eligibility Requirements. To be eligible to receive relief under the Settlement Agreement, Settlement Class Members must submit a claim to the Claims Administrator by completing and certifying the online Claim Form on the Settlement Website or completing, certifying and mailing the STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) 0

61 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 Claim Form to the Claims Administrator. The Claim Form must be submitted online or postmarked no later than the Claim Deadline. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Claim Forms submitted or postmarked after the Claim Deadline shall be denied by the Claims Administrator and Hyland s will not be obligated to make any payment on such claims.. Requirements for Valid Claim Forms. No Claim Form will be deemed valid unless it is signed in hard copy or in online form by the Settlement Class Member under penalty of perjury, and is postmarked or submitted online on or before the Claim Deadline.. Review by Claims Administrator. The Claims Administrator shall review all submitted Claim Forms within a reasonable time to determine each Settlement Class Member s eligibility for relief, and the amount of such relief, if any. Copies of submitted Claim Forms shall be provided to Defense Counsel and to Class Counsel upon request. Settlement Class Members who submit valid Claim Forms shall be entitled to relief as set forth in paragraph.(a) of this Stipulation of Settlement. Settlement Class Members who submit Claims Forms that do not meet the Eligibility Requirements or the Requirements for Valid Claim Forms, as described in this Section VI of this Stipulation of Settlement, shall not be entitled to the relief set forth in paragraph.(a) of this Stipulation of Settlement. The Claims Administrator shall use standard and customary procedures to prevent the payment of fraudulent claims and to pay only legitimate claims.. Incomplete Claim Forms. Failure to provide all information requested in the Claim Form will not result in nonpayment of a claim. Instead, the Settlement Administrator will take customary steps to determine whether the Settlement Class Member is eligible for payment and to determine the amount of the payment based on the information contained in the Claim Form or otherwise submitted, or based on other reasonably available information. Claim Forms that omit essential or required information that cannot be identified from reasonably available information shall be

62 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 returned by the Claims Administrator with a Notice of Missing or Inaccurate Information via to the Settlement Class Member s address indicated on the Claim Form. If the Claims Administrator is unable to return the Claim Form with a Notice of Missing or Inaccurate Information as a result of omitted information, the Claims Administrator will reject that Settlement Class Member s claim, and Hyland s will not be obligated to provide the Class Benefit set forth in paragraph.(a) above.. Inaccurate Claim Forms. Claim Forms submitted with inaccurate or disqualifying information shall be returned by the Claims Administrator with a Notice of Missing or Inaccurate Information via to the Settlement Class Member s address indicated on the Claim Form. If the Claims Administrator is unable to return the Claim Form with a Notice of Missing or Inaccurate Information as a result of inaccurate information, the Claims Administrator will reject that Settlement Class Member s claim, and Hyland s will not be obligated to provide the Class Benefit set forth in paragraph.(a) above.. Resubmission of Claim Forms following Notice of Missing or Inaccurate Information. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Settlement Class Members whose Claim Forms are returned with a Notice of Missing or Inaccurate Information shall have until the Claim Deadline, or 0 days from when the Notice of Missing or Inaccurate Information was ed by the Settlement Administrator, whichever is later, to respond to the Notice of Missing or Inaccurate Information with a revised Claim Form that is complete and contains no inaccurate or disqualifying information. If a Settlement Class Member fails to timely respond to the Notice of Missing or Inaccurate Information, or resubmits a Claim Form that is incomplete or inaccurate the Claims Administrator shall reject that Settlement Class Member s Claim Form, and Hyland s will not be obligated to provide the Class Benefit set forth in paragraph.(a) above.

63 Case :-cv-0-ghk-mrw Document - Filed 0// Page 0 of Page ID #: 0 0. Provision of Class Benefit. All Settlement Class Members who are eligible and who submit a valid Claim Form shall be sent cash awards, or a letter explaining the rejection of their Claim Form, within calendar days of the Final Settlement Approval Date. Hyland s shall pay the Settlement Administrator the aggregate value of all cash awards to be distributed to Settlement Class Members no later than calendar days after the Final Settlement Approval Date. All cash awards to Settlement Class Members will be in the form of checks, and such checks will state that the must be redeemed within 0 calendar days of the Final Settlement Approval Date or they will become void.. Requests for Exclusion. Any individual who would otherwise be a Settlement Class Member but who does not wish to obtain the Class Benefit or to be bound by the terms of this Stipulation of Settlement must postmark a written Request for Exclusion to the Claims Administrator no later than the Opt-Out Date. The Request for Exclusion must be in writing and include a statement of intention to be excluded from the Settlement Class. Exclusion must contain: cv- GHK (MRWx); and STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Additionally, to be valid, a Request for (a) the name of this lawsuit, Forcellati v. Hyland's Inc., Case No. - (b) (c) the individual s name, current address, and telephone number; the individual s signature.. Each Request for Exclusion must be submitted individually. Each Request for Exclusion may not be submitted on behalf of more than one individual. So-called mass or class Requests for Exclusion shall not be allowed..0 Any individual who submits a timely and valid Request for Exclusion will not be bound by this Stipulation of Settlement or have any right to object, appeal or comment thereon.

64 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0. At least seven calendar days prior to the Fairness Hearing, Class Counsel shall prepare or cause the Settlement Administrator to prepare a list of the persons who have excluded themselves in a valid and timely manner from the Settlement Class, and Class Counsel shall file that list with the Court.. Objections. Settlement Class Members shall have the right to appear and present objections as to any reason why the terms of this Stipulation of Settlement and the Settlement Agreement set forth herein should not be given Final Approval. Any objection must be in writing and filed with the Court, with a copy delivered to Class Counsel and Defense Counsel at the addresses set forth in the Class Notice, no later than the Objection Deadline to be set by the Court. Additionally, to be valid, objections must: (a) STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) include the Settlement Class Member s name, current address, and telephone number, or the Settlement Class Member s lawyer s name, current address and telephone number; (b) contain a caption or title that identifies it as an objection to the Settlement Agreement in Forcellati v. Hyland s, Inc., Case No. -cv- GHK (MRWx); (c) contain a clear and concise statement of the Settlement Class Member s objection, including the facts supporting the objection and the legal grounds on which the objections is based; (d) Fairness Hearing; and (e) whether the Settlement Class Member intends to appear at the include documents sufficient to establish membership in the Settlement Class such as a verification under oath as to the date and location of their purchase of a Settlement Class Product or a Proof of Purchase as defined herein.. No Settlement Class Member shall be entitled to be heard at the Fairness Hearing (whether individually or through separate counsel) or to object to

65 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 the Settlement Agreement, and no written objections or briefs by any Settlement Class Member shall be considered by the Court at the Fairness Hearing unless a written objection is filed with the Court and delivered to Class Counsel and Defense Counsel by the Objection Deadline.. Class Counsel, on behalf of Plaintiffs and the Settlement Class, and Defense Counsel, on behalf of Hyland s, shall have the right to respond to any objection prior to the Fairness Hearing.. Settlement Class Members who do not request exclusion and who fail to file and timely serve written objections in the manner specified herein shall be deemed to have waived any objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to Final Approval of the Settlement Agreement, and shall be bound, to the extent allowed by law, by the terms of this Stipulation of Settlement. VII. RELEASES. Release by Settlement Class Members. Effective as of the Final Settlement Approval Date, each and every Settlement Class Member (except any such person who has filed a proper and timely Request for Exclusion) shall release and forever discharge, and shall be forever barred from asserting, instituting or maintaining against any or all of the Released Persons, any and all claims, demands, actions, causes of action, lawsuits, arbitrations, damages, or liabilities whether legal, equitable, or otherwise, relating in any way to the claims asserted or the factual allegations made in the Consolidated Action, including without limitation the allegation that Settlement Class Products ingredients are ineffective, the allegation that the Settlement Class Products are not all natural, and/or the purchase of any of the Settlement Class Products during the Settlement Class Period (collectively, the Claims ). With respect to the Claims released pursuant to this paragraph, each Settlement Class Member shall be deemed to have waived and relinquished, to the STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

66 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 fullest extent permitted by law, the provisions, rights and benefits of California Civil Code section (and equivalent, comparable, or analogous provisions of the laws of the United States of America or any state or territory thereof, or of the common law or civil law). Section provides that: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Each and every term of this paragraph shall inure to the benefit of each and all of the Released Persons, and each and all of their respective successors and personal representatives, which persons and entities are intended to be beneficiaries of this paragraph.. Effectuation of Settlement. None of the above releases include releases of claims or otherwise affects the rights to enforce the terms of this Stipulation of Settlement.. No Admission of Liability. This Stipulation of Settlement and the Settlement Agreement set forth herein reflects, among other things, the compromise and settlement of disputed claims among the Parties, and neither this Stipulation of Settlement nor the releases given herein, nor any consideration therefor, nor any actions taken to carry out the terms of this Stipulation of Settlement, are intended to be, nor may they be deemed or construed to be, an admission or concession of liability, or the validity of any claim, defense, or of any point of fact or law on the part of any party. Hyland s denies the material allegations of the Consolidated Amended Class Action Complaint and any Second Amended Complaint that may be filed in this Consolidated Action following execution of this Stipulation of Settlement. Neither this Stipulation of Settlement, nor the fact of the Settlement Agreement set forth herein, nor the settlement proceedings, nor the settlement STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

67 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 negotiations, nor any related document, shall be used as an admission of any fault or omission by any or all of the Released Persons, or be offered or received in evidence as an admission, concession, presumption, or inference of any wrongdoing or liability by any or all of the Released Persons in any proceeding, other than such proceedings as may be necessary to consummate, interpret or enforce this Stipulation of Settlement. VIII. SUBMISSION OF THE SETTLEMENT TO THE COURT. As soon as is practicable following the signing of this Stipulation of Settlement, Class Counsel shall apply to the Court for entry of the Preliminary Approval Order, for the purpose of, among other things: (a) Finding that the Settlement Agreement is within the range of reasonableness and possible Final Approval such that the Class Notice should be provided pursuant to this Stipulation of Settlement; (b) Approving the Class Notice, including the Long Form Notice, the Postcard Notice, and the Short Form Notice, substantially in the form set forth at Exhibits C, D, and F; (c) Finding that the requirements for certification of the Settlement Class for settlement purposes have been satisfied, appointing Plaintiffs as the representatives of the Class, and their counsel as Class Counsel; (d) Scheduling the Fairness Hearing on a date ordered by the Court, provided in the Preliminary Approval Order, and in compliance with applicable law, to determine whether the Settlement Agreement should be approved as fair, reasonable, and adequate, and to determine whether a Final Order and Final Judgment should be entered; (e) Determining that the Notice of the Settlement Agreement and of the Fairness Hearing, as set forth in this Stipulation of Settlement, complies with all STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

68 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 legal requirements, including but not limited to the Due Process Clause of the United States Constitution; (f) Administrator; (g) STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Appointing KCC Class Action Services, LLC as the Settlement Directing that Class Notice shall be given to the Class as provided in Section V of this Stipulation of Settlement; (h) to submit a Claim Form; (i) Providing that Class Members will have until the Claim Deadline Providing that any objections by an Class Member to the certification of the Settlement Class and the proposed Settlement Agreement set forth in this Stipulation of Settlement, and/or entry of the Final Order and Final Judgment, shall be heard and any papers submitted in support of said objections shall be considered by the Court at the Fairness Hearing only if, on or before the Objection Deadline set by the Court, such objector files with the Court a written objection and notice of the objector s intention to appear, and otherwise complies with the requirements set for in Section VI of this Stipulation of Settlement; (j) Establishing the dates by which the Parties shall file and serve all papers in support of the application for final approval of the Settlement Agreement and/or in response to any valid and timely objections; (k) Providing that all Settlement Class Members will be bound by the Final Order and Final Judgment unless such members of the Settlement Class timely submit a valid Request for Exclusion in the manner set forth in Section VI of this Stipulation of Settlement; (l) Providing that Settlement Class Members who wish to exclude themselves from the Settlement Agreement will have until the Opt-Out Date to submit a valid Request for Exclusion in the manner set forth in Section VI of this Stipulation of Settlement;

69 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 (m) STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Directing the Parties, pursuant to the terms and conditions of this Stipulation of Settlement, to take all necessary and appropriate steps to establish the terms and conditions of this Stipulation of Settlement and the Preliminary Approval Order; and (n) Pending the Fairness Hearing, staying all proceedings in the Consolidated Action, other than the proceedings necessary to carry out or enforce the terms and conditions of this Agreement and the Preliminary Approval Order, and enjoining Class Members from bringing or prosecuting any action relating to the Released Claims.. At the Fairness Hearing, the Parties shall seek to obtain from the Court a Final Order and Final Judgment. The Final Order and Final Judgment shall, among other things: (a) Find that the Court has personal jurisdiction over all Settlement Class Members, the Court has subject matter jurisdiction over the claims asserted in the Consolidated Action, and that venue is proper; (b) the Federal Rules of Civil Procedure; (c) (d) Finally approve the Settlement Agreement pursuant to Rule of Certify the Settlement Class for settlement purposes only; Find that the Class Notice complied with all laws and requirements, including, but not limited to, the Due Process Clause of the United States Constitution; (e) Incorporate and effectuate the release set forth in the Stipulation of Settlement make the Release effective as of the Final Settlement Approval Date; Settlement; (f) (g) relating to the Released Claims; and Authorize the Parties to implement the terms of the Stipulation of Enjoin Class Members from bringing or prosecuting any action

70 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #:0 0 0 (h) Dismiss the Consolidated Action with prejudice, except that the Court will retain jurisdiction relating to the administration, consummation, enforcement, and interpretation of the Stipulation of Settlement, the Final Order and Final Judgment, any final order approving an Attorneys Fees and Expenses Award and Incentive Awards, and for any other necessary purpose.. The Parties acknowledge that each intends to implement the terms of this Stipulation of Settlement. The Parties shall, in good faith, cooperate and assist with and undertake all reasonable action and steps to accomplish all required events on the schedule set by the Court, and shall use reasonable efforts to implement all terms and conditions of this Stipulation of Settlement. In the event that the Court does not preliminarily or finally approve the Settlement Agreement, the Parties further agree to continue to cooperate in good faith to address any deficiencies raised by the Court in an expeditious manner.. Effect if Settlement Is Not Approved. This Stipulation of Settlement was entered into only for purposes of settlement, subject to and without waiver of the Parties respective rights. If the Court does not enter the Preliminary Approval Order or does not grant final approval, or if the final Settlement Approval Order and Final Judgment is vacated, overturned, reversed, or rendered void as a result of an appeal, the Parties shall be restored to their respective positions immediately preceding execution of this Stipulation of Settlement. IX. MISCELLANEOUS PROVISIONS. The Parties agree that the recitals are contractual in nature and form a material part of this Stipulation of Settlement.. This Stipulation of Settlement and its accompanying exhibits set forth the entire understanding of the Parties. No change or termination of this Stipulation of Settlement shall be effective unless in writing and signed by Plaintiffs Counsel STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) 0

71 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 and Hyland s Counsel. No extrinsic evidence or parol evidence shall be used to interpret this Stipulation of Settlement.. All of the Parties warrant and represent that they are agreeing to the terms of this Stipulation of Settlement based upon the legal advice of their respective attorneys, that they have been afforded the opportunity to discuss the contents of this Stipulation of Settlement with their attorneys and that the terms and conditions of this document are fully understood and voluntarily accepted.. The waiver by any party of a breach of any term of this Stipulation of Settlement shall not operate or be construed as a waiver of any subsequent breach by any party. The failure of a party to insist upon strict adherence to any provision of the Stipulation of Settlement shall not constitute a waiver or thereafter deprive such party of the right to insist upon strict adherence.. The headings in this Stipulation of Settlement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this document.. This Stipulation of Settlement may be executed by facsimile signature and in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. The date of execution shall be the latest date on which any party signs the Stipulation of Settlement.. This Stipulation of Settlement has been negotiated among and drafted by Class Counsel and Defense Counsel. STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW) Plaintiffs, Plaintiffs Counsel, Class Members, and Defendants shall not be deemed to be the drafter of this Stipulation of Settlement or of any particular provision, nor shall they argue that any particular provision should be construed against its drafter or otherwise resort to the contra proferentem canon of construction. Accordingly, this Stipulation of Settlement should not be construed in favor of or against one party as to the drafter, and the

72 Case :-cv-0-ghk-mrw Document - Filed 0// Page of Page ID #: 0 0 Parties agree that the provisions of California Civil Code and common law principles of construing ambiguities against the drafter shall have no application. All Parties agree that counsel for the Parties drafted this Stipulation of Settlement during extensive arm s-length negotiations. No parol or other evidence may be offered to explain, construe, contradict, or clarify its terms, the intent of the Parties or their counsel, or the circumstances under which this Stipulation of Settlement was made or executed.. Any disagreement and/or action to enforce this Stipulation of Settlement shall be commenced and maintained only in the Court in which this Consolidated Action is pending.. The Parties reserve the right, subject to the Court s approval, to agree to any reasonable extensions of time that might be necessary to carry out any of the provisions of this Stipulation of Settlement..0 In the event any one of the provisions contained in this Stipulation of Settlement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions if Defense Counsel and Class Counsel, on behalf of the Parties, mutually elect to proceed as if such invalid, illegal, or unenforceable provision had never been included in this Stipulation of Settlement. [Intentionally Left Blank; Signatures on Following Page(s)] STIPULATION OF SETTLEMENT CASE NO. :-CV-0 GHK (MRW)

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