1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICK PEARSON, FRANCISCO PADILLA, 

CECILIA LINARES, AUGUSTINA BLANCO, 

ABEL GONZALEZ, and RICHARD 

JENNINGS, on Behalf of Themselves and All 

Others Similarly Situated,

Plaintiffs,

v.

NBTY, INC., a Delaware corporation; and 

REXALL SUNDOWN, INC., a Florida 

corporation; TARGET CORPORATION, a 

Minnesota Corporation,

Defendants.

Case No.: 11 CV 07972

CLASS ACTION

Judge James B. Zagel

RESPONSE TO OBJECTOR THEODORE H. FRANK’S MOTION TO UNSEAL

Plaintiffs Nick Pearson, Francisco Padilla, Cecilia Linares, Augustina Blanco, Abel 

Gonzalez, and Richard Jennings (“Plaintiffs”), through their counsel; and Defendants NBTY, 

Inc.; Rexall Sundown, Inc. (“Rexall”); and Target Corporation (collectively with Rexall, 

“Defendants”), through their counsel (Plaintiffs and Defendants collectively, the “Parties”), 

request that the Court deny Objector Theodore H. Frank’s Motion to Unseal certain materials 

that the Parties filed under seal (the “Motion” or “Mot.”) [D.E. 133]. The class was given 

adequate notice of the settlement, which explained the terms of the settlement (including the 

injunctive relief) and the maximum amount of attorneys’ fees that could be requested. In filing 

their pleadings in connection with final approval, the Parties properly redacted certain 

confidential information and materials. Objector Frank and his counsel were then given the 

opportunity (as were all of the objectors) to obtain unredacted copies of the documents filed 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 1 of 17 PageID #:2740
2

under seal, upon the execution of an agreement to keep the documents confidential. Frank and 

his counsel refused to do so, apparently so they could continue their efforts to disrupt this class 

action settlement. It is difficult, if not impossible, to see how Objector Frank’s due process 

rights were deprived when he was offered unredacted versions of the very documents he seeks to 

unseal. Accordingly, the Motion should be denied.

BACKGROUND

I. THE REDACTED MATERIALS

On September 4, 2013, the Parties sought leave to file redacted versions of Exhibits B, J, 

S, and Z [D.E. 109] to their Joint Response to Objections (“Joint Response”) [D.E. 113].

Contact Information for Class Members Who Opted Out. Exhibit B is the affidavit of 

Michael E. Hamer, an employee of the settlement claims administrator Heffler Claims Group. 

The Parties redacted portions of Exhibit B to keep confidential the names and addresses of class 

members who elected to opt out of the settlement [D.E. 113-2 at 43–50; 113-3 at 1–18].

Sales Data. Exhibits J and Z are declarations by two NBTY, Inc. employees attesting to 

sales figures and the repeat purchase rate for some of the products covered by the settlement 

[D.E. 113-11; D.E. 113-27]. Two paragraphs in Exhibit J and two paragraphs in Exhibit Z were 

redacted to preserve the confidentiality of sales data that belongs to Defendants and/or their 

business associates [D.E. 113-11 at 2–3; D.E. 113-27 at 2].

Reutter Report/Marketing Strategy. The Parties redacted portions of Exhibit S, which is 

the report of Plaintiffs’ economic expert Dr. Keith Reutter, to maintain the confidentiality of 

proprietary sales information and marketing strategy discussed therein [D.E. 113-20 at 5–10, 27, 

29]. Exhibit S also included three presentations reporting on consumer testing of certain 

marketing and advertising strategies [D.E. 113-20 at 21, 23, 25], which Rexall had produced and 

designated confidential pursuant to protective orders in two related cases that are part of this 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 2 of 17 PageID #:2741
3

settlement. See Cardenas v. NBTY, Inc., No. 2:11-cv-01615-TLN-CKD, Stipulation and 

Protective Order [D.E. 58] (E.D. Cal. Aug. 17, 2012); Jennings v. Rexall Sundown, Inc., No. 

1:11-cv-11488-WGY, Joint Confidentiality Stipulation and Protective Order [D.E. 37] (D. Mass. 

June 1, 2012). 

Because confidential information from Exhibits J, S, and Z was revealed in Plaintiffs’ 

Response to Objections (“Pl. Resp. to Objections”) [D.E. 120] and Plaintiffs’ Memorandum of 

Law in Support of Their Motion for Final Approval of Class Action Settlement (“Final Approval 

Brief”) [D.E. 121], Plaintiffs separately sought leave to file those briefs under seal [D.E. 118; 

D.E. 122]. The redactions to these briefs were likewise minimal [D.E. 120 at 4–5, 7–8 (redacting 

portions of two paragraphs); D.E. 121 at 31, 32–33 (redacting portions of three paragraphs and 

one footnote)]. Mr. Frank was served with the motions for leave to file under seal, but did not 

file any opposition thereto, instead waiting until the Court had granted the motions before 

moving to unseal.1

 The Court granted all of the motions to seal on September 11, 2013 [D.E. 

129].

II. OBJECTORS ARE GIVEN ACCESS TO THE SEALED DOCUMENTS.

The Parties provided all objectors with a fair opportunity to review the sealed materials in 

advance of the October 4, 2013 fairness hearing. On August 27, 2013 – a week before moving 

for leave to file these materials under seal – Defendants’ counsel informed the objectors –

included Objector Frank – of the Parties’ intent to file materials under seal in accordance with 

the Cardenas and Jennings protective orders. See Ex. A (emails from Christopher Gaul to the 

objectors or their counsel). The objectors were told that they could obtain unredacted versions of 

 

1 Even then, Frank did not file his motion to unseal until almost two weeks after the Court sealed 

the documents and noticed the Motion for the date of the hearing instead of the Court’s regular 

Tuesday/Thursday motion call.

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 3 of 17 PageID #:2742
4

these materials by executing the Confidentiality Undertaking from the Cardenas case. See id. 

Objector John Michael Buckley executed and returned the Confidentiality Undertaking on 

August 27, 2013. See id. at 1; Ex. B. Objector Frank’s counsel first indicated that she would 

sign the Confidentiality Undertaking, see Ex. A at 3, but ultimately decided not to execute it, 

apparently in hopes of preserving Frank’s putative standing to challenge the sealing of these 

documents (Mot. [D.E. 133] at 4 n.3). At no time prior to the filing of the Motion did Objector 

Frank raise any issue with the motion to seal.

Defendants’ counsel provided the objectors with another opportunity to execute the 

Confidentiality Undertaking when they mailed hard copies of the redacted Joint Response to 

Objections to the Objectors on September 4, 2013. Ex. C (Sept. 4, 2013 letters from Kara 

McCall to the objectors or their counsel). After Objector Anthony Leardi subsequently executed 

the Confidentiality Undertaking, see Ex. D, Defendants’ counsel mailed copies of the materials 

filed under seal to him, see Ex. E (Sept. 17, 2013 letter). The Parties have received no inquiries 

about the sealed materials, or other responses, from the other objectors.

ARGUMENT

I. THE CLASS RECEIVED ADEQUATE NOTICE OF THE SETTLEMENT’S 

TERMS.

Mr. Frank asserts that the minimal redactions to the sealed materials “deprived class 

members from fully analyzing the purported value of the injunctive relief” and that “class 

members cannot fully assess the adequacy and fairness of the settlement, as well as class 

counsel’s fee application, if deprived of such information” (Mot. [D.E. 133] at 8). What 

Objector Frank disregards is that in not objecting, the vast majority of the class has already 

concluded, based upon the class notice and its description of the settlement, that the settlement is 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 4 of 17 PageID #:2743
5

fair and adequate. So these class members are not being deprived of anything; it is only the 

objectors who have shown any interest in further details about the settlement.

Objector Frank focuses on the redactions to Dr. Reutter’s explanation of his basis for 

valuing the injunctive relief [D.E. 113-20 at 10–11]. The redactions to Dr. Reutter’s report were 

minor, see id. at 7–10 (redacting portions of 3 paragraphs and 5 footnotes), and do not prevent 

class members from seeing and understanding Dr. Reutter’s valuation of the injunctive relief.2 

At any rate, Frank cannot claim that the redactions at issue deprived him or the other objectors of 

the opportunity to assess the value of the injunctive relief because the Parties afforded all 

objectors access to the sealed materials. Indeed, it is apparent that Frank chose not to execute 

the Confidentiality Undertaking solely to create another spurious obstacle to finalizing the 

settlement of this class action (Mot. [D.E. 133] at 4 n.3 (explaining that “Objector Frank did not 

execute a Confidentiality Undertaking in order not to waive any argument regarding the 

impropriety of the motions to seal”)). The Parties remain willing to provide Frank with copies of 

all materials filed under seal, provided that he executes the Confidentiality Undertaking.3

 

Indeed, Frank could have signed the Confidentiality Undertaking, viewed the documents, and 

then could have argued that the documents were in fact not confidential. That Frank did not do 

so reflects that he is not interested in what the documents actually say, but rather that he, in 

reality, wanted a second bite at the apple to argue his already-pled objections.

 

2 Frank’s focus on this section of Dr. Reutter’s report is immaterial given that Frank’s argument 

against valuing the injunctive relief is legal, not economic, in nature [D.E. 133].

3 Frank noticed the Motion to Unseal for the same day as the fairness hearing, and asked the 

Court for “an opportunity after the fairness hearing to respond” in the event the Court does 

unseal the redacted materials [D.E. 133 at 8]. There is no reason to prolong the final approval 

process any further, especially in light of the Parties’ willingness to provide the sealed materials 

to Frank and the other objectors.

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 5 of 17 PageID #:2744
6

Objector Frank’s claim that absent class members were deprived of their due process 

rights is also unfounded (Mot. [D.E. 133] at 4). The absent class members were afforded due 

process because the class notice provided pursuant to the Court’s Preliminary Approval Order 

satisfied the Due Process Clause and the requirements of Rule 23. See generally Final Approval 

Brief [D.E. 121] at 23 (describing notice program). The notice given to the class met all of the 

requirements under Rule 23: it described the nature of the action; defined the class, the claims, 

and the defenses; explained the terms of the settlement, including the scope of the release; 

identified the maximum amount of attorneys’ fees that could be requested; and provided the 

opportunity to appear through counsel, opt-out, or object. See Rule 23(e), (c)(2). Neither 

Objector Frank nor any of the other objectors challenged the adequacy of the notice program in 

their objections, and the program’s adequacy was not somehow retroactively vitiated by the fact 

that limited portions of a handful of documents were redacted when Plaintiffs filed their papers 

in support of final approval.

Further, neither of the cases Objector Frank cites support his novel theory that the Due 

Process Clause or Rule 23 require that class members who never objected to the settlement be 

provided with access to an expert’s basis for valuing a class action settlement. In re Cendant 

Corp., 260 F.3d 183, 188–89 (3d Cir. 2001), is inapposite because that case involved the 

propriety of sealing bids that attorneys submitted in hopes of being named class counsel for a 

securities fraud action. In concluding that the bidding process had been improperly sealed, the 

Third Circuit observed that “the information sealed in this case and kept secret from most of the 

parties was of the utmost importance in the administration of the case; it was directly relevant to 

the selection of lead counsel.” Id. at 193. Moreover, the court noted that sealing the auction 

process contravened Congress’s intent in enacting the Private Securities Litigation Reform Act 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 6 of 17 PageID #:2745
7

(“PSLRA”), which was intended “to transfer control of securities class actions from the attorneys 

to the class members (through a properly selected lead plaintiff).” Id. at 197. The wholesale 

sealing of an attorney bidding process in the context of a PSLRA class action bears no 

resemblance to the Parties’ redaction of a handful of documents that Frank and the other 

objectors were offered a fair opportunity to review prior to the fairness hearing. 

Frank’s reliance on Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002), 

is likewise misplaced. There, the Seventh Circuit disapproved the practice of permitting class 

counsel to submit their entire application for attorneys’ fees in camera. Id. at 286. Here, 

Plaintiffs’ counsel’s fee applications are matters of public record that contain no redactions [D.E. 

124; D.E. 125].

Finally, in making his baseless Due Process argument, Frank disregards the procedural 

safeguards actually provided by Rule 23. The Court, acting in its fiduciary capacity to the class, 

can evaluate the redacted materials, such that it is neither necessary nor appropriate to require 

that all such materials be made public and that all class members be provided the kind of 

information that Frank seeks to unseal. See Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 785 

(7th Cir. 2004) (“district judges presiding over such actions are expected to give careful scrutiny 

to the terms of proposed settlements in order to make sure that class counsel are behaving as 

honest fiduciaries for the class as a whole”). The Parties settled this litigation only after 

conducting substantial discovery, briefing numerous issues, retaining scientific and economic 

experts, and engaging in hard-fought negotiations. See Final Approval Brief [D.E. 121] at 17–18 

(summarizing history of this litigation). Under Rule 23, the Court must determine, among other 

things, whether “the representative parties . . . fairly and adequately . . . protect[ed] the interests 

of the class,” Fed. R. Civ. P. 23(a)(4); whether reasonable notice was directed to “all class 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 7 of 17 PageID #:2746
8

members who would be bound by the proposal,” id. 23(e)(1); and whether the proposed 

settlement is “fair, reasonable, and adequate,” id. 23(e)(2). In light of the safeguards afforded by 

Rule 23, it is unnecessary to make available to absent class members – who by definition did not 

object to the proposed settlement – the finely grained details that Frank seeks to unseal. The 

requirements of Due Process and Rule 23 are more than met if the Court and any objectors are 

given access to all redacted materials.4 This is precisely what has been done; Objector Frank’s 

claim that Due Process requires more should be rejected.

II. THE MATERIALS FILED UNDER SEAL WERE PROPERLY REDACTED.

Frank’s contention that the redactions deprived class members of their ability to assess 

the fairness of the settlement is also belied by the limited scope of the redactions. With respect 

to Exhibit B, the Parties properly redacted the names and addresses of class members who 

elected to opt out of the settlement (Joint Response [D.E. 113-2 at 43–50; 113-3 at 1–18]). 

Protecting the anonymity of such individuals is a common and accepted practice. See, e.g., Sabo 

v. U.S., 102 Fed. Cl. 619, 624 (2011) (noting that the parties filed a joint motion to seal various 

exhibits listing the names of opt outs); In re Prudential Ins. Co. of Am. Sales Pracs. Litig., 962 F. 

Supp. 450, 565 (D.N.J. 1997) (noting that a “list of those persons who have timely excluded their 

policies from the class has been filed with the Court under Seal, and is made a confidential part 

 

4 The case law indicates that the Parties were not even necessarily obligated to share the sealed 

filings with the objectors. See, e.g., Jaffe v. Morgan Stanley & Co., Inc., No. C 06-3903, 2008 

WL 346417, at *2 (N.D. Cal. Feb. 7, 2008) (concluding that objector was not entitled to discover 

workforce data and privileged work product contained in a declaration submitted by class 

counsel under seal because the Court had “sufficient facts before it to intelligently evaluate the 

settlement, and discovery would cause unnecessary delay”). An objector’s right to access 

materials filed under seal is not absolute because the court, not the objector, is the arbiter of the 

proposed settlement’s fairness, reasonableness, and adequacy. See Hemphill v. San Diego Ass’n 

of Realtors, Inc., 225 F.R.D. 616, 619–20 (S.D. Cal. 2005).

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 8 of 17 PageID #:2747
9

hereof”); In re CertainTeed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 492 (E.D. 

Pa. 2010) (concluding that it was acceptable to file under seal an exhibit listing the names of

objectors who eventually withdrew their objections).

The remaining documents were redacted to preserve the confidentiality of Defendants’ 

sales data and marketing strategy. The below chart summarizes the nature and scope of these 

redactions:

Document Subject Matter Scope of Redactions

Exhibit J – Declaration of 

Michael Collins [D.E. 113-

11 at 2–3]

Sales data 2 paragraphs

Exhibit S – Report of Dr. 

Reutter [D.E. 113-20 at 5–

10, 21, 23, 25, 27, 29]

Sales data and marketing 

research and strategy

3 paragraphs, portions of 3 

additional paragraphs, 6 

footnotes, 3 internal 

marketing presentations, 

and figures in 2 charts

Exhibit Z – Declaration of 

Jorge Granja [D.E. 113-27 

at 2]

Sales data 2 paragraphs

Final Approval Brief [D.E. 

121 at 31, 32–33]

Sales data and marketing 

strategy

Portions of 3 paragraphs and 1 

footnote

Plaintiffs’ Response to 

Objections [D.E. 120 at 4–

5, 7–8]

Sales data and marketing 

strategy

Portions of 2 paragraphs

These redactions were appropriate because Defendants’ property and privacy interests outweigh 

the public’s interest in knowing, for instance, the percentage of consumers who purchase Osteo 

Bi-Flex more than once per year or specific marketing strategies Defendants have considered 

implementing.

Contrary to Objector Frank’s contention, a litigant’s ability to seal materials is “not 

limited to very few categories of information” (Mot. [D.E. 133] at 5). The proper test is whether 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 9 of 17 PageID #:2748
10

the litigant’s “property and privacy interests” predominate over the public’s interest in accessing 

the confidential information “in the particular case.” Citizens First Nat’l Bank of Princeton v. 

Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999); see also Nixon v. Warner Commc’ns, 

Inc., 435 U.S. 589, 598 (1978) (“access [to judicial records] has been denied where court files 

might have become a vehicle for improper purposes”). Disclosure of the information at issue 

here would detrimentally impact Defendants by allowing their competitors to learn, for example, 

the amount of consumer loyalty to the Osteo Bi-Flex brand, or, as another example, what type of 

labeling claims motivate purchasers. A competitor could undoubtedly attempt to exploit this 

type of information. The Supreme Court has recognized the risk of competitive harm as a 

legitimate basis for sealing judicial records. Id. (stating that “courts have refused to permit their 

files to serve . . . as sources of business information that might harm a litigant’s competitive 

standing” (citations omitted)). By comparison, the general public’s interest in knowing the 

repeat purchase rate for Osteo Bi-Flex is negligible given that the persons best positioned to 

ensure the fairness of this settlement – class counsel, the Court, and the objectors – are free to 

access all information that has been redacted. The case law bears out the propriety of the modest 

redactions made here.

The cases on which Frank relies are distinguishable in several respects. In Citizens First 

Nat’l Bank, 178 F.3d at 944 (Mot. [D.E. 133] at 4), the Seventh Circuit criticized the entry of a 

protective order that “granted a virtual carte blanche to either party to seal whatever portions of 

the record the party wanted to seal.” Based on this protective order, one of the parties sought to 

file an entire appendix of materials under seal on appeal. Id. Because the Seventh Circuit did 

not “know enough about the case to be able to assess the order’s current validity,” the case was 

remanded “for the limited purpose of enabling [the district judge] to advise us whether in his 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 10 of 17 PageID #:2749
11

view good cause exists for . . . allowing the appendix to be filed under seal.” Id. The 

circumstances here are different because the Parties provided the Court with unredacted versions 

of all materials they sought to file under seal, redactions were limited, and there is no reason to 

believe the Court did not make a document-by-document determination that the redactions were 

appropriate.

Frank’s reliance on Union Oil Co. of Calif. v. Leavell, 220 F.3d 562 (7th Cir. 2000) (Mot. 

[D.E. 133] at 4–5), is also misguided because the issue in that case was the sealing of an entire 

proceeding, not the redaction of portions of a handful of materials that were publicly filed. Id. at 

567–68. Likewise, Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545–46 (7th Cir. 2002) (Mot. 

[D.E. 133] at 5–6), addressed a blanket motion to seal that did not attempt to “separate genuinely 

secret documents” from others “that could be released without risk.” Further, the Seventh 

Circuit made clear that it was addressing the standard for disclosing documents essential to the 

appellate record. Id. at 548 (“The strong presumption of public disclosure applies only to the 

materials that formed the basis of the parties’ dispute and the district court’s resolution.”). 

Because the Parties appropriately redacted the materials filed under seal, Frank’s Motion should 

be denied.

III. OBJECTOR FRANK’S “REPLY” ARGUMENTS CONCERNING THE VALUE 

OF THE INJUNCTIVE RELIEF ARE IMPROPER AND BASELESS.

In the guise of his Motion to Unseal, Objector Frank attempts to resuscitate his 

previously-debunked contentions about the reasonableness of attorneys’ fees. As a threshold 

matter, this Court should reject Frank’s attempts to argue the merits of his objections in his 

motion to unseal; the objection briefing schedule did not allow for reply briefs. To the extent 

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 11 of 17 PageID #:2750
12

that the Court considers the improper arguments made in footnote 1 and the Introduction of his 

brief, Frank’s arguments should be rejected.5

A. BOEING IS GOOD LAW IN THIS CIRCUIT.

In response to the Parties’ citation of Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), in 

their Joint Response [D.E. 113 at 14], Objector Frank contends that Boeing was “superseded by 

the 2003 amendments to Federal Rule of Civil Procedure 23, which created Rule 23(h)” (Mot. 

[D.E. 133] at 2 n.1). But Rule 23(h) merely provides that “the court may award reasonable 

attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” 

Neither the Rule nor its comments even mention Boeing, much less supersede it. Moreover, the 

2003 comments to Rule 23(h) note that “results achieved” is simply a “basic starting point” for a 

percentage approach to fee measurement and further recognize that “in some class actions the 

monetary relief obtained is not the sole determinant of an appropriate attorney fees award” 

(citing Blanchard v. Bergeron, 489 U.S. 87, 95 (1989)). Subsequent to the 2003 amendments, 

numerous courts in this District and elsewhere have continued to apply the Boeing approach to 

the calculation of the monetary benefits provided by a settlement in awarding fees, and have 

continued to value injunctive relief (see Joint Response [D.E 113] at 14, 16 n.6; Pl. Resp. to 

Objections [D.E. 120] at 6–13). Objector Frank’s citation to a law review article and a Third 

Circuit case (In re Baby Products Antitrust Litig.) discussing the Class Action Fairness Act’s fee 

 

5 Frank completely reargues his previous objection about the timing of the fee applications (Mot. 

[D.E. 133] at 3). The Parties already responded to this objection (see Joint Response [D.E. 113] 

at 21–22), citing to case law limiting the holding of In re Mercury Interactive Corp. Secs. Litig., 

618 F.3d 988 (9th Cir. 2010), and additional case law finding that Rule 23(h) requires only that 

the existence and amount of the attorneys’ fee request (and not the complete basis for any such 

request) be disclosed in a notice to settlement class members (Joint Response [D.E. 113] at 12–

14).

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 12 of 17 PageID #:2751
13

provisions related to coupon settlements (Mot. [D.E. 133] at 2 n.1) is equally unavailing, given 

that the Settlement before this Court does not involve coupons.

B. THE INJUNCTIVE RELIEF IN THIS SETTLEMENT HAS REAL 

VALUE.

Objector Frank contends yet again, without citation to any authority, that the injunctive 

relief “is wholly irrelevant in analyzing the fairness of the settlement and in awarding attorneys’ 

fees” (Mot. [D.E. 133] at 2). As Plaintiffs explained in earlier briefing (see, e.g., Final Approval 

Brief [D.E. 121] at 30–34), the injunctive relief offered here is relevant to the fairness of the 

settlement and an award of attorneys’ fees, in that it furthers the primary purposes of consumer 

fraud laws – consumer protection (see, e.g., Pl. Resp. to Objections [D.E. 120] at 6–8). Even 

Objector Frank’s keystone case, In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th 

Cir. 2011), recognized that future injunctive relief should be taken into consideration in 

determining an award of fees “to ensure compensation for counsel undertaking socially 

beneficial litigation.” Id. at 941.

Objector Frank also contends that “Plaintiffs’ settlement valuation wrongly assumes that 

future labeling changes can compensate class members for their past injuries” (Mot. [D.E. 133] 

at 2–3) (citing Synfuel Techs. Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 654 (7th Cir. 

2006), and Crawford v. Equifax Payment Servs., 201 F. 3d 877, 880 (7th Cir. 2000)).6

 Plaintiffs’ 

settlement valuation, however, does not assume that labeling changes alone will compensate 

 

6 Most notably, in Crawford, amongst numerous other problems (including the fact that the class 

did not receive notice), the settlement provided no benefits for any absent class members. 

Crawford, 201 F.3d at 882. Additionally, unlike Synfuels and Crawford, where the purported 

injunctive relief was nebulous at best, here the injunctive relief is robust – resulting in the 

removal of a representation prominently made on the front label of the Defendants’ products. 

Thus, the valuation of the injunctive relief is highly relevant to the reasonableness and fairness of 

the settlement as a whole and the award of attorneys’ fees.

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 13 of 17 PageID #:2752
14

class members for their past injuries. Rather, the uncapped monetary award compensates class 

members for their past injuries. In addition to the monetary compensation for past injuries 

provided by the settlement, the injunctive relief is a further and important benefit provided by the 

settlement. Thus, Plaintiffs’ expert’s valuation of the injunctive relief sets forth how, in addition 

to the monetary compensation component of this settlement, the injunctive relief provided by the 

settlement will provide substantial and quantifiable monetary benefits to both current class 

members and future consumers (Reutter Rep. at 6–9 [D.E. 113-20 at 7–11]). Indeed, according 

to Plaintiffs’ expert, the value of the injunctive relief just to the members of the Class and just for 

the 30-month period is approximately $21.7 million.

CONCLUSION

In conclusion, and based on the foregoing reasons, Plaintiffs and Defendants hereby 

request that Objector Frank’s Motion to Unseal be denied.

Dated: September 30, 2013 By: /s/ Kara L. McCall

Kara L. McCall

Michael W. Davis

Theodore R. Scarborough, Jr.

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

Telephone: (312) 853-7000

Counsel for Defendants NBTY, Inc.; Rexall 

Sundown, Inc.; and Target Corp.

Stewart M. Weltman

STEWART M. WELTMAN, LLC

53 W. Jackson, Suite 364

Chicago, Illinois 60604

Telephone: (312) 588-5033

(Of Counsel: Levin Fishbein Sedran & Berman)

Of Counsel:

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 14 of 17 PageID #:2753
15

Elaine A. Ryan 

Patricia N. Syverson

Lindsey M. Gomez-Gray

BONNETT, FAIRBOURN, FRIEDMAN & 

BALINT, P.C.

2325 E. Camelback Rd., Suite 300 

Phoenix, Arizona 85016

Telephone: (602) 274-1100

Attorneys for Plaintiffs Nick Pearson, Francisco 

Padilla, Cecilia Linares, Augustina Blanco, and 

Abel Gonzalez

Peter N. Freiberg (admitted pro hac vice)

Jeffrey I. Carton (admitted pro hac vice)

DENLEA & CARTON LLP

One North Broadway, Suite 509

White Plains, New York 10601

Telephone: (914) 920-7400

Attorneys for Plaintiff Richard Jennings

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 15 of 17 PageID #:2754
16

CERTIFICATE OF SERVICE

I hereby certify that on September 30, 2013, a true and correct copy of the following 

document was electronically filed and served on all counsel of record in this action who are 

deemed to have consented to electronic service via the Court’s CM/ECF system: Response to 

Objector Theodore H. Frank’s Motion to Unseal.

I also certify that the foregoing document is being served by U.S. Mail this day on all 

counsel of record or pro se parties identified below who are not authorized to receive 

electronically Notices of Electronic Filing.

C. Jane Radlinski

309 E. Church Street

Jacksonville, FL 32202-2725

(904) 633-2699

Pro se Objector

John Michael Buckley

370 Canyon Spring Dr.

Rio Vista, CA 94571

(707) 374-3853

Pro se Objector

Peggy Thomas

2109 N.W. 12th Avenue

Ft. Lauderdale, FL 33311

(954) 761-1589

Pro se Objector

Simone Thomas

2109 N.W. 12th Avenue

Ft. Lauderdale, FL 33311

(305) 903-6935

Pro se Objector

Rhonda L. Paulson

13383 E. Marie Creek Road

Couer d’Alene, ID 83814

Pro se Objector

Donald Charles Koneval

8314 Manorford Drive

Parma, OH 44129-5309

(440) 842-6232

Pro se Objector

Anthony Leardi 

1813 Renwick Street

Bethlehem, PA 18017

(610) 865-7821

Pro se Objector

Joseph Darrell Palmer

Law Office of Darrell Palmer PC

603 N. Highway 101, Suite A

Solana Beach, CA 92075

(858) 792-5600

Attorney for Objectors Kathleen McNeal 

and Alison Paul

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 16 of 17 PageID #:2755
17

Melissa A. Holyoak

Center for Class Action Fairness

1718 M Street NW, No. 236

Washington, DC 20036

(573) 823-5377

Attorney for Objector Ted Frank

Jonathan E. Fortman #40319

250 Saint Catherine Street

Florissant, Missouri 63031

(314) 522-2312

Attorney for Objector Pamela Easton

Steve A. Miller

Steve A. Miller, PC

1625 Larimer Street, No. 2905

Denver, CO 80202

(303) 892-9933

Attorney for Objector Pamela Easton

Maureen Connors

6625 Pearl Road

Parma Heights, OH 44130

(216) 640-9860

Attorney for Objector Pamela Easton

John C. Kress (53396MO)

The Kress Law Firm, LLC

4247 S. Grand Blvd.

St. Louis, MO 63111

(314) 631-3883

Attorney for Objector Pamela Easton

Case: 1:11-cv-07972 Document #: 135 Filed: 09/30/13 Page 17 of 17 PageID #:2756