This is Notice of Class Action Lawsuit and Proposed Settlement ("Notice") of a proposed settlement in a class action lawsuit.
The Settlement would resolve a lawsuit brought on behalf of individuals who received
phone calls or faxes allegedly made by or on behalf of independent distributors
of Herbalife International, Inc. ("Herbalife").
Please do not call or write the Settlement Administrator to find out if you can
make a claim. If you did not receive a claim form in the mail, your right to make
a claim is based solely on your own knowledge and ability to certify that you received
a telephone call or fax that is covered by the Settlement.
What is this Lawsuit about?
This Lawsuit was filed on July 16, 2003, against Herbalife and certain independent
distributors of Herbalife’s products. The Lawsuit alleges that certain Herbalife
distributors, acting under the direction or control of Herbalife, made numerous
calls or sent faxes that violate the federal Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227. If such calls or faxes violated that law, remedies would be available
of $500 for each negligent violation and up to $1,500 for each knowing and willful
violation.
Herbalife and the Herbalife distributors contest the claims in the Complaint. They
deny that the phone calls and faxes violate the TCPA. Further, Herbalife denies
that it is responsible for the acts or omissions of its independent distributors.
Why is this a Class Action?
In a class action, one or more people, called “class representatives” (in this Case,
Ms. Mey and Mr. Collins), sue on behalf of people who have similar claims. All of
these people together are a “class” or “class members.” The Settlement, if approved
by the Court, resolves the issues for all Class Members, except for those who exclude
themselves from the Class.
Why is there a Settlement?
The Court did not decide in favor of the Plaintiffs or the Defendants. Instead,
both sides have agreed to a settlement. This avoids the cost, risk and delay of
trial. Under the Settlement, Class Members will have the opportunity to obtain a
payment in exchange for giving up certain legal rights. The Class Representatives
and the attorneys think the Settlement is best for all Class Members.
How do I know if my claims are included in the Settlement?
The Court has identified the Settlement Class consisting of the following two Classes:
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(i) a Telephone Class, defined as all Persons to whom a telephone
communication was initiated by or on behalf of any of the Defendants, their alleged
agents and/or principals, or any corporate entity owned or controlled by any Defendant,
on or after July 16, 1999 through July 2, 2007, which communication is covered by
or subject to the TCPA, the Federal Communications
Commission ("FCC") rules thereunder, or any other federal, state or local law or
regulation governing marketing by means of electronic communication; and
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(ii) a Facsimile Class, defined as all Persons to whom a facsimile communication
was initiated by or on behalf of any of the Defendants, their alleged agents and/or
principals, any corporate entity owned or controlled by any Defendant, or any third
party who provided a lead based on the facsimile communication to any of the Defendants,
any of their alleged agents and/or principals, or any corporate entity owned or
controlled by any Defendant, on or after July 16, 1999 through July 2, 2007, which
communication is covered by or subject to the TCPA, the FCC rules thereunder, or
any other federal, state or local law or regulation governing marketing by means
of electronic communication.
Excluded from the Settlement Class are the Defendants, court personnel, Counsel,
and members of their immediate families, and all persons and entities that take
the action necessary (as described below) to exclude themselves from the Settlement
Class.
To make a claim in this Case, you must complete and send in a Proof of Claim Form
("Claim Form") certifying
that you received a call or fax that you believe came from an Herbalife distributor
(or from Herbalife or a lead generating company that provides leads to Herbalife distributors).
If you cannot make the certification stated in the Claim Form based on your good
faith belief, then you cannot file a claim in this Case.
The Settlement Administrator does not have records to determine whether you received
a telephone call or fax that is covered by the Settlement.
What does the Settlement provide?
The total amount of the Settlement Fund is $7,000,000. The lawyers who brought this
Lawsuit (listed below) will ask the Court to award them $2,331,000, plus actual
costs, for the substantial time and effort they put into this Case. The Class Representatives
also will apply to the Court for payments, in the total amount of $20,000, for their
service to the Class. Any amount awarded will be paid from the Settlement Fund.
The Settlement Fund will also cover costs associated with notice and administration
of the Settlement. These costs include the cost of publishing and mailing notice,
as well as the costs of processing claims, maintaining the Settlement website and
mailing settlement checks.
Attorney’s fees, service payments, and the expenses of notice and administration
will be deducted from the Settlement Fund before the balance is divided equally
and distributed to members of the Class.
Herbalife has also agreed to implement or continue, for at least two years, certain
business practices designed to prevent violations of the law by its independent
distributors.
How much will I be paid?
If the Court approves the Settlement, every Class Member who submits a timely and
valid Claim Form will be entitled to an equal payment from the Settlement Fund.
The amount of your payment will depend on how many Class Members return Claim Forms.
Each household is entitled to make only one claim regardless of the number of telephone
calls or faxes received. The maximum amount you will receive is $75. However,
you are likely to receive less than that amount.
How can I get a payment?
To qualify for a payment, you must send in a complete and timely Claim Form. A Claim
Form can be downloaded by clicking on this link: CLAIM FORM.
You can also get a Claim Form by contacting the Settlement Administrator at:
Mey vs. Herbalife International, Inc. Class Action
Settlement Administrator
c/o A.B. Data, Ltd.
P.O. Box 170500
Milwaukee, WI 53217
Please complete the Claim Form, sign it and return it by one of the following methods:
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1. By mail to the Settlement Administrator at the following address:
Mey vs. Herbalife International, Inc. Class Action
Settlement Administrator
c/o A.B. Data, Ltd.
P.O. Box 170500
Milwaukee, WI 53217
The Claim Form must be postmarked no later than November
13, 2007.
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2. By fax to the Settlement Administrator at 1 (414) 963-3421. If you
fax this Claim Form, you must do so no later than midnight U.S. Eastern Standard
Time on November 13, 2007.
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3. By e-mail to the Settlement Administrator at
TCPASETTLEMENT@ABDATA.COM, no later than midnight U.S. Eastern Standard
Time on November 13, 2007. If you use e-mail,
you must send the Claim Form in a format that includes a legible signature.
If you do not return the Claim Form or if you return it late, you will not get a
payment.
When will I be paid?
If the Court approves the Settlement, you will be paid as soon as possible after
the court order becomes final. If there is an appeal of the Settlement, payment
may be delayed. The Settlement Administrator will put information about the timing
of payment on this Website.
What rights am I giving up in this Settlement?
Unless you exclude yourself from this Settlement, you will be considered a member
of the Class, which means you give up your right to sue or continue a lawsuit against
Herbalife or its distributors and others related to past phone calls or facsimile
transmissions that violate state or federal law. Giving up your legal claims is
called a release. Unless you formally exclude yourself from this Settlement, you
will release your claims whether or not you submit a Claim Form and receive payment.
For more information on the Released Parties and Released Claims, you may obtain
a copy of the Stipulation and Agreement of Settlement by clicking on this link:
STIPULATION.
Can I exclude myself from the Settlement?
You may exclude yourself from the Settlement. If you exclude yourself from the Settlement,
you will not receive any payment from the Settlement Fund, but you will retain the
right to sue the Defendant[s] separately, at your own expense, for any claims you
may have.
If you exclude yourself from this class action, bring your own lawsuit, and win,
you might recover a larger amount of money than you would have received in this
class action. If you lose your lawsuit, however, you will receive nothing.
How do I exclude myself from the Settlement?
If you wish to be excluded, you must mail a written request for exclusion to the
Settlement Administrator at:
Mey vs. Herbalife International, Inc. Class Action
Settlement Administrator
EXCLUSIONS
c/o A.B. Data, Ltd.
P.O. Box 170500
Milwaukee, WI 53217
Your request for exclusion must be in writing and postmarked on or before November
13, 2007. The request must state:
"I exclude myself from the Class in Mey vs. Herbalife International, Inc., et al."
The request should be signed, with your name, address and telephone number printed
below your signature.
When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing ("Hearing") at January 15, 2008
at 10 a.m. The address of the Court appears below. At the Hearing,
the Court will consider whether the proposed Settlement is fair, reasonable and
adequate. The Court will hear objections to the Settlement, if any. At the Hearing,
the Court will also decide how much to pay Class Counsel. After the Hearing, the
Court will decide whether to approve the Settlement. We do not know how long the
Court will take to make its decision. In addition, the Hearing may be continued
at any time by the Court without further notice to you.
Do I have to attend the Hearing?
No. You are not required to attend the Hearing. But you are welcome to attend the
Hearing at your own expense, and you may ask the Court’s permission to speak. To
do so you must send a letter stating that it is your intention to appear in Mey
vs. Herbalife International, Inc., et al.. Be sure to include your name,
address, telephone number and signature. Your letter stating your intention to appear
must be received no later than November 13, 2007, and be sent to
the Clerk of the Court, Class Counsel, and Defense Counsel at the addresses below.
You may not speak at the Hearing if you have excluded yourself from the Settlement.
Once you have excluded yourself, the Settlement does not affect your legal rights.
What if I want to object to the Settlement?
You may object to the Settlement if you do not believe it should be approved by
the Court. If you wish to object, you must write a letter to the Court stating the
specific reason for your objection, and describe any evidence you wish to introduce
to support your objection. You must include your name, address, telephone number
and your signature. Your letter must be mailed to all of the locations listed below,
postmarked by November 13, 2007. You may combine your objection
with a letter stating your intention to appear.
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Court
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Class Counsel
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Clerk of the Court
Ohio County Circuit Court
1500 Chapline Street, 4th Floor
City/County Building
Wheeling, WV 26003
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Gary Klein, Esq.
RODDY KLEIN & RYAN
727 Atlantic Ave., 2nd Floor
Boston, MA 02111
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Counsel for Herbalife
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Counsel for Nancy Willis, Dana Knapp and N&D Enterprises, Inc.
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Deana S. Peck, Esq.
QUARLES & BRADY LLP
One Renaissance Square
Two North Central Avenue
Phoenix, AZ 85004
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Jeffrey M. Wakefield, Esq.
FLAHERTY, SENSABAUGH & BONASSO, PLLC
200 Capitol Street
P.O. Box 3843
Charleston, WV 25301
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What if I do nothing?
If you do nothing, you will get no money from the Settlement Fund. Unless you exclude
yourself from the Settlement, you will not be able to sue or continue a lawsuit
against Herbalife or its distributors regarding the legal issues in this Case.
What will happen if the Court does not approve the Settlement?
If the Court does not approve the Settlement, or if it approves the Settlement and
the approval is reversed on appeal, or if the Settlement does not become final for
some other reason, you will not be paid at this time and the Case will continue.
The parties may negotiate a different settlement or the Case may go to trial.
Who represents the Class?
The attorneys who have been appointed by the court to represent the Class are:
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Brian A. Glasser, Esq.
John W. Barrett, Esq.
BAILEY & GLASSER LLP
227 Capitol Street
Charleston, WV 25301
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James A. Byrum, Jr., Esq.
SCHRADER BYRD & COMPANION, PLLC
The Maxwell Centre
32–20th Street, Suite 500
Wheeling, WV 26003
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Edward A. Broderick, Esq.
THE LAW OFFICE OF
EDWARD A. BRODERICK
727 Atlantic Avenue, Suite 2F
Boston, MA 02111
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Matthew P. McCue, Esq.
THE LAW OFFICE OF
MATTHEW P. MCCUE
179 Union Avenue
Framingham, MA 01702
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Robert L. Hamer, Esq.
MIRICK O’CONNELL
100 Front Street
Worcester, MA 01608
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Gary Klein, Esq
RODDY KLEIN & RYAN
727 Atlantic Avenue, 2nd Floor
Boston, MA 02111
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Where can I get additional information?
This Notice is only a summary of the proposed Settlement of this Lawsuit. You can
obtain a copy of the Stipulation and Agreement of Settlement by clicking on this
link: STIPULATION.
All pleadings and documents filed in Court may be reviewed or copied in the office
of the Clerk, Circuit Court of Ohio County, Wheeling, West Virginia. Please do not
call the Judge or the Clerk of the Court about this Case. They will not be able
to give you advice on your options.
