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 Case No.: 11 CV 07972

Similarly Situated,

Plaintiffs, CLASS ACTION

v. Judge James B. Zagel

NBTY, INC., a Delaware corporation; and

REXALL SUNDOWN, INC., a Florida

Corporation; and TARGET CORPORATION, a

Minnesota Corporation,

Defendants.

PLAINTIFFS’ MEMORANDUM OFLAW IN SUPPORT OFMOTION

FOR FINAL APPROVAL OFCLASS ACTION SETTLEMENT, ATTORNEYS’ FEES 

AND EXPENSES AND INCENTIVE AWARDS

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TABLE OF CONTENTS

 Page

I. INTRODUCTION ..................................................................................................................1

Procedural History and Settlement Negotiations.............................................................................4

Class Certification and Definition ...................................................................................................6

II. THE SETTLEMENT..............................................................................................................6

A. Class Relief.......................................................................................................................6

1. Compensatory Relief .................................................................................................6

2. Injunctive Relief.........................................................................................................8

B. Incentive Awards to Class Representatives......................................................................9

C. Attorneys’ Fees and Expenses..........................................................................................9

D. The Expense of Class Notice and Administration ............................................................9

Class Notice and Response by the Class........................................................................................10

III. THE COURT SHOULD APPROVE THE SETTLEMENT BECAUSE IT IS FAIR,

REASONABLE AND ADEQUATE....................................................................................12

A. Public Policy Strongly Favors Class Action Settlements..............................................12

B. The Settlement Is Procedurally Fair ...............................................................................13

C. The Settlement Is Substantively Fair..............................................................................15

1. The Strength of Plaintiffs’ Case on the Merits Measured Against the

Terms of the Settlement Supports Approval.............................................................16

a. The Value of the Fund Created for the Class Members......................................17

b. The Injunctive Relief Imparts Substantial Benefits............................................17

2. Rexall’s Ability to Pay..............................................................................................21

3. Eliminating the Complexity and Expense of Further Litigation 

Supports Approval ....................................................................................................22

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4. The Class Members have Reacted Positively to the Settlement and There is 

Little Opposition to the Settlement...........................................................................24

5. There was No Collusion in Achieving a Settlement.................................................25

6. Competent Counsel Believe that the Settlement is in the Best Interest

of the Class................................................................................................................26

7. Sufficient Discovery Was Taken ..............................................................................28

8. The Public Interest Is Served by the Settlement .......................................................29

IV. CLASS CERTIFICATION...................................................................................................29

A. Numerosity – Federal Rule of Civil Procedure 23(a).....................................................30

B. Commonality – Federal Rule of Civil Procedure 23(a)(2) .............................................31

C. Typicality – Federal Rule of Civil Procedure 23(a)(3)...................................................32

D. Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4)......................33

E. The Proposed Class Meets the Requirements of Federal Rule of Civil 

Procedure 23(b)(3)..........................................................................................................34

F. The Notice To The Class Satisfied Due Process ............................................................36

V. THE COURT SHOULD APPROVE THE REQUESTED AWARD OF ATTORNEYS’ 

FEES TO BE PAID BY REXALL TO CLASS COUNSEL................................................37

A. Class Counsel Are Entitled To Compensation ..............................................................39

B. The Requested Fees Are Well Within The Accepted Range Of Percentages................43

1. The Value of The Fund.............................................................................................44

2. The Value of the Injunctive Relief............................................................................46

3. The Percentage of the Class Benefit is Reasonable ..................................................48

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C. A Lodestar Analysis also Shows that the Requested Fee is Reasonable ........................49

D. Class Counsel is Entitled to an Award of Expenses.......................................................51

E. Incentive Awards............................................................................................................51

CONCLUSION..............................................................................................................................52

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TABLE OF AUTHORITIES

Cases Page

Allen v. City of Chicago, 

828 F. Supp. 543 (N.D. Ill. 1993). ............................................................................................ 31

Alliance to End Repression v. Chicago, 

561 F. Supp. 537 (N.D. Ill. 1982). ............................................................................................ 26

Am. Civil Liberties Union v. U.S. Gen. Servs. Admin., 

235 F. Supp. 2d 816 (N.D. Ill. 2002) ........................................................................................ 15

Am. Int’l. Grp., Inc. v. ACE INA Holdings, Inc.,

07 CV 2898, 2012 WL 651727, (N.D. Ill. Feb. 28, 2012) 

appeal dismissed, 710 F.3d 754 (7th Cir. 2013) ....................................................................... 52

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997).................................................................................................................. 35

Arenson v. Bd. of Trade, 

372 F. Supp. 1349 (N.D. Ill. 1974) ........................................................................................... 50

Armstrong v. Brd. of Sch. Directors of the City of Milwaukee, 

616 F. 2d 305 (7th Cir. 1980) overuled on other grounds, 

Fetzer v. Adreas, 134 F.3d 873 (7th Cir. 1998)......................................................................... 12

Banyai v. Mazur,

N o . 00 Civ. 9806, 2008 WL 5110912, at *4 (S.D.N.Y. Dec. 2, 2008) ................................ 39

Bellifemine v. Sanofi-Aventis U.S. LLC, 

No. 07 Civ. 2207(JGK), 2010 WL 3119374, at *4 (S.D.N.Y. Aug. 6, 2010) .......................... 48

Boeing Co. v. Van Gemert, 

444 U.S. 472 (1980)........................................................................................................... passim

Bower v. MetLife, Inc.,

No. 1:09-cv-351, 2012 U.S.Dist. LEXIS 149117, (S.D. Ohio Oct. 17, 2012)......................... 38

Butler v. Sears, Roebuck & Co., 

702 F.3d 357 (7th Cir. 2012) vacated and remanded, 133 S.Ct. 2768 (2013), 

reinstated Nos. 11-8029, 12-8030, 

 2013 U.S. App. LEXIS 17748 (7th Cir. August 22, 2013)........................................................ 35

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(Cont'd)

 

Cases Page

Carson v. Amer. Brands, Inc., 

450 U.S. 79 (1981).................................................................................................................... 16

Chemi v. Champion Mortgage,

No. 2:05-cv-1238 (WHW) 2009 WL 1470429 (D.N.J. May 26, 2009)................................. 51

Cohen v. Chilcott,

522 F. Supp. 2d 105 (D.D.C. 2005).......................................................................................... 37

Cohn v. Nelson,

375 F. Supp. 2d 844 (E.D.Mo. 2005)........................................................................................ 43

Cook v. Niedert,

142 F.3d 1004 (7th Cir. 1998).................................................................................................. 52

Cotton v. Hinton, 

559 F. 2d 1326 (5th Cir. 1977) ................................................................................................. 12

D’Amato v. Deutsche Bank, 

235 F.R.D. 78 (2d Cir. 2001)................................................................................................ 21-22

De La Fuente v. Stokely-Van Camp., Inc.,

713 F.2d 225 (7th Cir. 1983) ............................................................................................. 32, 33

DiGiacomo v. Plains All Am. Pipeline,

No. H-99-4137, 2001 WL 34633373 (S.D. Tex. Dec. 19, 2001) ............................................ 50

E.E.O.C. v. Hiram Walker & Sons, Inc., 

768 F. 2d 884 (7th Cir. 1985), cert. denied, 48 U.S. 1004 (1986)..................................... passim

Felzen v. Adreas, 

134 F.3d 873 (7th Cir. 1998) .................................................................................................... 12

Florin v. Nationsbank of Georgia, N.A., 

34 F.3d 560 (7th Cir. 1994)................................................................................................. 40, 50

Fournigault v. Independence One Mortg. Corp.,

234 F.R.D. 641 (N.D. Ill. 2006)................................................................................................ 34

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Cases Page

Gaskill v. Gordon, 

942 F.Supp. 382 (N. D. Ill. 1996) ............................................................................................. 48

Gaspar v. Linvatec Corp.,

167 F.R.D. 51 (N.D. Ill. 1996).................................................................................................. 33

Gastineau v. Wright, 

592 F.3d 747 (7th Cir. 2010)..................................................................................................... 40

Goldberger v. Integrated Resources, Inc.,

209 F.3d 43 (2d Cir. 2000)........................................................................................................ 39

Goodman v. Epstein, 

582 F.2d 388 (7th Cir. 1978) .................................................................................................... 12

Great Neck Capital Appreciation Inv. P'ship, L.P. v. PricewaterhouseCoopers, L.L.P.,

212 F.R.D. 400 (E.D. Wis. 2002)......................................................................................... 13-14

Harman v. Lyphomed, 

945 F.2d 969 (7th Cir. 1991)..................................................................................................... 40

Heekin v. Anthem, Inc., 

1:05-CV-01908-TWP, 2012 WL 5878032 (S.D. Ind. Nov. 20, 2012)...................................... 52

Hinman v. M & M Rental Ctr., Inc.,

545 F. Supp. 2d 802 (N.D. Ill. 2008). ....................................................................................... 33

Hensley v. Eckerhart, 

461 U.S. 424 (1983), ................................................................................................................ 43

Hispanics United of DuPage Cnty. v. Vill. of Addison, Ill.,

988 F. Supp. 1130 (N.D. Ill. 1997)...................................................................................... 13, 26

In re Apple Computer,Inc. Deriv. Litig.,

No. C 06-4128 JF (HRL), 2008 WL 4820784 (N.D. Cal. Nov. 5, 2008).............................. 43

In re AT&T Mobility, 

270 F.R.D. 330 (N.D. Ill. 2010).......................................................................................... 34, 35

In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 

789 F. Supp. 2d 935 (N.D. Ill. 2011)......................................................................................... 15

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TABLE OF AUTHORITIES

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Cases Page

In re Cenco, Inc. Secs. Litig.,

519 F.Supp. 322 (N.D. Ill. 1981) .............................................................................................. 50

In re Charter Comm’s., Inc. Sec. Litig.,

No. MDL 1506, 2005 WL 4045741 (ED.Mo. 2005)............................................................. 50

In re Folding Carton Antitrust Litigation, 

84 F.R.D. 245 (N.D. Ill. 1979).................................................................................................. 50

In re Gen. Motors Pick-Up Truck Fuel Tank Prod. Liab. Litig., 

55 F.3d 768 (3d Cir. 1995), cert. denied, 516 U.S. 824............................................................ 25

In re Jiffy Lube Int’l., Inc. Text Spam Litig., 

No. 3:11-MD-226-JM (JMA), 2012 WL 4849617 (S.D. Cal. Oct. 10, 2012).......................... 47

In re Kentucky Grilled Chicken Coupon Mktg. & Sales Practices Litig., 

280 F.R.D. 364 (N.D. Ill. 2011) ......................................................................................... passim

In re Lawnmower Engine Horsepower Mktg. & Sales Pracs. Litig.,

733 F. Supp. 2d 997 (E.D. Wis. 2010)...................................................................................... 23

In re Lawnmower Engine Horsepower Mktg. & Sales Practices Litig.,

MDL 08-1999, 2010 WL 4386552 (E.D. Wis. Oct. 28, 2010) ................................................. 38

In re Mexico Money Transfer Litig., 

164 F. Supp. 2d 1002 (N.D. Ill. 2000) ................................................................... 13, 24, 35, 42

In re Mexico Money Transfer Litig., 

267 F.3d 743 (7th Cir. 2001)......................................................................................... 21, 46, 47

In re NASDAQ Market-Makers Antitrust Litig.,

187 F.RD. 465 (S.D.N.Y. 1998). ............................................................................................... 49

In re Neopharm, Inc. Sec. Litig.,

225 F.R.D. 563 (N.D. Ill. 2004)................................................................................................ 33

In re PaineWebber Ltd. P’ships Litig., 

171 F.R.D. 104 (S.D.N.Y.1997) ............................................................................................... 21

In re Prudential Sec. P'ships Litig., 

163 F.RD. 200 (S.D.N.Y. 1995) .............................................................................................. 12

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Cases Page

In re Sony SXRD Rear Projection Television Class Action Litig., 

No. 06 Civ. 5173 (RPP), 2008 WL 1956267 (S.D.N.Y. May 1, 2008)............................... 21, 42

In re Synthroid Mktg. Litig., 

264 F.3d 712 (7th Cir. 2001)............................................................................................... 40, 51

In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig.,

724 F. Supp. 160 (S.D.N.Y. 1989)............................................................................................. 49

Ingram v. Coca-Cola Co.,

200 F.R.D. 685 (N.D.Ga. 2001)................................................................................................ 43

Isby v. Bayh, 

75 F. 3d 1191 (7th Cir. 1996).................................................................................. 12, 13, 16, 24

Jeffboat LLC v. Director, Office of Workers’ Compensation Programs, 

553 F.3d 487 (7th Cir. 2009)..................................................................................................... 49

Kaufman v. Am. Exp. Travel Related Svcs. Co.,

264 F.R.D. 438 (N.D. Ill. 2009)......................................................................................... 36, 37

Keele v. Wexler, 

149 F.3d 589 (7th Cir. 1998))................................................................................................... 31

Kitson v. Bank of Edwardsville, 

No. 08-507-GPM, 2010 WL 331730 (S.D. Ill. Jan. 25, 2010)................................................. 48

League of Martin v. Milwaukee, 

588 F. Supp. 1004 (E.D. Wis. 1984)......................................................................................... 21

Levitan v. McCoy, 

No. 00-C5096, 2003 WL 1720047 (N.D. Ill. Mar. 31, 2003)................................................... 30

M. Berenson Co. v. Faneuil Hall Marketplace, Inc.,

671 F. Supp. 819 (D. Mass. 1987)........................................................................................... 43

Mangone v. First USA Bank, 

206 F.R.D. 222 (S.D. Ill. 2001) .................................................................................... 13, 17, 24

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Cases Page

Mars Steel Corp. v. Continental Nat’l Bank & Trust, 

834 F. 2d 677 (7th Cir. 1987) ................................................................................... 7, 16, 25, 45

Masters v. Wilhelmina Model Agency, 

473 F. 3d 423 (2d Cir. 2007).......................................................................................................7

Maxwell v. Arrow Fin. Servs., LLC, 

No. 03 C 1995, 2004 WL 719278, at *2 (N.D. Ill. Mar. 31, 2004) .......................................... 30

McBean v. City of New York, 

233 F.RD. 377 (S.D.N.Y. 2006)................................................................................................ 42

McKinnie v. JP Morgan Chase Bank N.A., 

678 F. Supp. 2d 806 (E.D. Wis. 2009)........................................................................................7

Mercury Interactive Corp. Sec. Litig., 

618 F.3d 988 (9th Cir. 2010).............................................................................................. 37, 38

Meyenberg v. Exxon Mobil Corp., 

No. 3:05-cv-15-DGW, 2006 WL 5062697 (S.D. Ill. June 5, 2006).................................... 21, 47

Mills v. Electric Auto Lite Co.,

396 U.S. 375 (1970) ................................................................................................................ 39

Missouri v. Jenkins,

491 U.S. 274 (1989)...................................................................................................................49

Padilla v. Costco Wholesale Corp., 

No. 1:11-cv-07686 (N.D. Ill.)..................................................................................................... 4

Pappas v. Naked Juice Co. of Glendora, Inc., 

No. CV11-08276 JAK (PLAx) (C.D. Cal.) (August 7, 2013) .................................................. 47

Parker v. Time Warner Entm’t Co., L.P.,

631 F. Supp. 2d 242 (E.D.N.Y. 2009)....................................................................................... 21

Perez v. Asurian Corp., 

501 F.Supp.2d 1360 (S.D. Fla. 2007) ....................................................................................... 48

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TABLE OF AUTHORITIES

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Cases Page

Pope v. Harvard Banchares, Inc., 

240 F.R.D. 383 (N.D. Ill. 2006)................................................................................................ 30

Radmanovich v. Combined Ins. Co. of Am., 

216 F.R.D. 424 (N.D. Ill. 2003)................................................................................................ 32

Rosario v. Livaditis, 

963 F.3d 1013 (7th Cir. 1992)................................................................................................... 31

Saltzman v. Pella Corp.,

257 F.R.D. 471 (N.D. Ill. 2009).......................................................................................... 31, 36

Schulte v. Fifth Third Bank, 

805 F. Supp. 2d 560 (N.D. Ill. 2011)............................................................................. 16, 23, 46

Skelton v. General Motors Corp.,

860 F.2d 250 (7th Cir. 1988) .................................................................................................... 40

Smith v. Nike Retail Servs., Inc., 

234 F.R.D. 648 (N.D. Ill. 2006)................................................................................................ 30

Smith v. Qwest Communications,

No. C11-02599, 2013 WL 3200592 (N.D. Cal. June 24, 2013) .................................................7 

Smith v. Sprint Communications Co., L.P.,

37 F. 3d 612 (7th Cir. 2004) .................................................................................................... 35

Spicer v. Chi. Bd. Options Exch., Inc., 

844 F. Supp. 1226 (N.D. Ill. 1993). .......................................................................................... 51

Staton v. Boeing Corp., 

327 F.3d 938 (9th Cir. 2003) .................................................................................................... 46

Stern v. Gambello, 

480 Fed. Appx. 867 (9th Cir. 2012)............................................................................................ 7

Sutton v. Bernard, 

504 F.3d 688 (7th Cir. 2007)..................................................................................................... 40

Synfuel Techs., Inc. v. DHL Express (USA), Inc.,

463 F.3d 646 (7th Cir. 2006).................................................................................................... 15

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TABLE OF AUTHORITIES

(Cont'd)

 

Cases Page

Taubenfield v. AON Corp., 

415 F.3d 597 (7th Cir. 2005)..................................................................................................... 48

Trustees v. Greenough, 

105 U.S. 527 (1881).................................................................................................................. 39

Tylka v. Gerber Prods. Co.,

178 F.R.D. 493 (N.D. Ill. 1998)................................................................................................ 31

Uhl v. Thoroughbred Tech. & Telecomm’s., 

309 F.3d 978 (7th Cir. 2002) .................................................................................................... 12

US Airways, Inc. v. McCutchen, 

133 S. Ct. 1537 (2013)........................................................................................................... 39

Vought v. Bank of Am., N.A., 

901 F. Supp. 2d 1071 (C.D. Ill. 2012)................................................................................. 26, 48

Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541 (2011).............................................................................................................. 31

Waters v. Intern. Precious Metals Corp., 

190 F.3d 1291 (11th Cir. 1999) .................................................................................................. 7

Wear v. Sprint Communications Co. L.P.,

No. 2:11-cv-809, 2013 WL 3108312 (D. Nev. June 18, 2013)...................................................7

Whitten v. ARS Nat. Servs., Inc.,

No. 00C6080, 2001 WL 1143238 (N.D. Ill. Sept. 27, 2001).................................................... 31

Will v. Gen. Dynamics Corp., 

No. 06-698-GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) .............................................. 52

Williams v. MGM-Pathe Communications Co., 

129 F.3d 1026 (9th Cir. 1997) .................................................................................................... 7

Williams v. Rohm & Haas Pension Plan, 

658 F. 3d 629 (7th Cir 2011) .................................................................................................... 13

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Page

Other Authorities

1 Alba Conte, Attorney Fee Awards § 2.06 (2d ed.1993)........................................................... 50

2 Alba Conte and Herbert Newberg NEWBERG ON CLASS ACTIONS ¶1.18 ........................ 45

3 Alba Conte and Herbert Newberg NEWBERG ON CLASS ACTIONS § 7.20. ................................ 30

3 Alba Conte and Herbert Newberg NEWBERG ON CLASS ACTIONS § 3:5................................... 30

4 Alba Conte & Herbert Newberg, Newberg on Class Actions § 11.4 §§1 .........................25

Manual for Complex Litigation (Third) (1995) ............................................................................ 25

C.A. Wright, A. Miller & N. Kane, 

FEDERAL PRACTICE AND PROCEDURE § 1762 (2d ed. 1986)).................................................... 30

Consumer Class Actions (6th ed. 2006)....................................................................................... 39

Richard Posner, Economic Analysis of Law (2d ed. 1984)......................................................... 39

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

Gonzalez, by their counsel Bonnett, Fairbourn, Friedman & Balint, P.C. and Stewart M. 

Weltman, LLC (Of Counsel Levin Fishbein Sedran & Berman), and Richard Jennings, by his 

counsel Denlea & Carton LLP (collectively, “Plaintiffs”), respectfully submit this Memorandum 

of Law in Support of their Motion for Final Approval of the class action settlement reached in 

this matter, and the entry of a Final Judgment: (1) providing final approval of the Settlement 

Agreement as fair, reasonable, adequate, and in the best interests of the Class; (2) certifying, for 

all purposes, under Rule 23(b)(3), a Class as defined in the Settlement Agreement, and 

appointing Plaintiffs’ counsel as Class Counsel for the Class; (3) awarding attorneys’ fees and 

expenses to Class Counsel as provided for in the Settlement Agreement; (4) awarding Plaintiffs 

incentive awards as provided for in the Settlement Agreement; and (5) granting such other and 

further relief as is stated in the proposed Final Judgment and Order submitted to the Court. 

I. INTRODUCTION

NBTY, Inc. (“NBTY”), its subsidiary Rexall Sundown, Inc. (“Rexall”), and their 

affiliates (collectively, the “Settling Defendants”) manufacture, market, distribute, and sell joint 

health dietary supplements that contain glucosamine and/or chondroitin, as well as various other 

ingredients. Rexall sells these joint health dietary supplements under its own brand names, and 

also manufactures joint health dietary supplements sold under “private label” brand names and 

for other merchants such as Target and Costco (hereafter the “Covered Products”).

1

Plaintiffs are consumers of the Covered Products. They purchased the Covered Products

at various times in various locations throughout the United States. They allege consumer fraud 

 

1 The full listing of the products and the applicable time periods for which Class Members may 

make claims and for which releases will be provided pursuant to the Settlement Agreement is set 

forth in Exhibit A to the Settlement Agreement.

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claims under various state consumer protection statutes in the numerous lawsuits that are being 

resolved by the settlement before the Court. The claims arise from certain misrepresentations 

that have appeared over many years on the packaging and in the advertising of the Covered 

Products.

Rexall’s largest selling joint health glucosamine dietary supplement is a line of products 

known as Osteo Bi-Flex. Rexall’s Osteo Bi-Flex, the other Covered Products, and the majority 

of glucosamine/chondroitin products sold to consumers by the Settling Defendants make 

essentially three types of joint health benefit claims: (1) that the products rebuild or renew joints 

or cartilage; (2) that the products maintain joints and cartilage; and (3) that the products provide 

some form of palliation relief either through more joint flexibility, mobility, cushioning, or 

comfort. Plaintiffs have alleged that all three types of joint health benefit representations are 

false and misleading. 

This settlement, a by-product of arm’s-length negotiations that have resulted in a 

compromise of the Plaintiffs’ claims, is substantial and significant. The settlement provides for a 

claims made procedure, with no ceiling, such that the total potential compensatory benefits 

made available by this settlement are conservatively valued at approximately $27.3 million 

classwide, or a minimum of approximately $14.2 million based only on compensatory benefits to 

direct notice recipients. 

The Settlement also provides for a major labeling change by an industry leader and 

one of the largest sellers of glucosamine/chondroitin products in the United States. Rexall will 

remove all representations regarding rebuilding or renewing cartilage from the labeling and 

advertising for the Covered Products, including both its branded products and for the private 

label products it manufactures for others. For at least 30 months following the approval of this 

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settlement, and very likely in perpetuity,

2

purchasers of the Covered Products, including 

purchasers of Osteo Bi-Flex, will no longer be misled by these rebuilding or renewing cartilage 

misrepresentations. Dr. Keith Reutter, an expert economist, valued the benefit of these labeling 

changes to the current Class Members at approximately $7.0 million per year for the Osteo BiFlex products and at approximately $1.7 million per year for the private label products, for a 

combined value of approximately $21.7 million just for the 30-month period. See Report of 

Keith Reutter, Ph.D., at ¶¶9-12.

3

This is a substantial and robust result that not only benefits future purchasers of these 

products but also benefits the significant number of Class Members who are repeat users. 

Consumers will no longer be misled by one of the primary representations made about the 

benefits of the Covered Products. And, as Dr. Reutter opines, prices for these products are likely 

to decrease as much as 10% once these representations are removed from the labeling. Id., at ¶9. 

Apart from the monetary value of this injunctive relief, the elimination of fraud in the 

marketplace through these label changes is one of the primary purposes behind consumer fraud 

laws – protection of consumers. Thus, when such a substantial labeling change is wrought from 

 

2 The current body of clinical evidence, including the National Institutes of Health sponsored 

Glucosamine Arthritis Intervention Trial (“GAIT”) studies, the largest conducted to date, 

concluded that neither glucosamine or chondroitin, alone or in combination, rebuilt or renewed 

cartilage. See e.g., Sawitzke AD, Shi H. Finco MF, et al., “The Effect of Glucosamine and/or 

Chondroitin Sulfate on the Progression of Knee Osteoarthritis: a Report from the 

Glucosamine/Chondroitin Arthritis Intervention Trial.” Arthritis Rheum 2008; 58:3183-91. As 

demonstrated in the reports of Plaintiffs’ experts, it is very likely that no new scientific 

evidence will come to light that rebuts the current science (see, e.g., January 4, 2013 Report of 

Thomas J. Schnitzer, M.D., Ph.D., at ¶¶10-13 (attached as Exhibit U to the “Master Exhibit List,” 

which is attached to the Joint Response to Objections being filed herewith), and Report of Jeremiah 

E. Silbert, M.D., at ¶A.4-5, B.4-5, and C (attached as Exhibit V to the “Master Exhibit List”)), and 

the Settlement Agreement therefore provides a strong incentive for Rexall to keep the labeling 

changes in place, since adding them back will expose Rexall to suit. See, Settlement Agreement, 

¶13.

3 All exhibits referenced herein are submitted as part of the “Master Exhibit List,” which is 

attached to the Joint Response to Objections being filed herewith.

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4

a defendant by way of private plaintiff actions, this constitutes a major consumer fraud victory 

and one that this Court and the law should encourage by giving it final approval. 

Procedural History and Settlement Negotiations

This action is one of several pending federal court actions involving various joint health 

dietary supplements manufactured or sold by the Settling Defendants. The first of these actions, 

Cardenas, et al. v. NBTY, Inc. et al., No. 2:11-cv-01615-TLN-CKD (E.D. Cal), was filed on June 

14, 2011 against NBTY and Rexall arising out of the manufacture and sale of their Osteo Bi-Flex 

line of glucosamine and chondroitin joint health dietary supplement products. It originally 

sought a California-only class but was amended to seek a multi-state class. Jennings v. Rexall 

Sundown, Inc., No. 1:11-cv-11488-WGY (D. Mass.), was filed on August 22, 2011, also arising 

out of the manufacture and sale of the Osteo Bi-Flex line of glucosamine and chondroitin joint 

health dietary supplement products, and sought a Massachusetts-only class. Linares, et al. v. 

Costco Wholesale, Inc., No. 3:11-cv-0547-MMA-BGS (S.D. Cal.), was filed on November 2, 

2011, arising out of Costco’s sale of the Kirkland Signature Brand line of glucosamine and 

chondroitin joint health dietary supplement products and sought a California-only class.4 This 

case, Pearson v. Target Corp., No. 1:11-cv-07972 (N.D. Ill.), was filed on October 28, 2011, 

arising out of Target’s sale of its Up & Up line of glucosamine and chondroitin joint health 

dietary supplement products and sought a multi-state class. Blanco v. CVS Pharmacy, Inc., No.

5:13-cv-00406-JGB-SP (C.D. Cal.), was filed on March 4, 2013, arising out of CVS Pharmacy’s 

sale of certain CVS-brand glucosamine chondroitin dietary supplement products and sought a 

California and multi-state class. The core issues in all of the cases arise out of a common 

 

4

Padilla v. Costco Wholesale Corp., No. 1:11-cv-07686 (N.D. Ill.), a companion case to 

Linares, was filed on October 28, 2011 and recently dismissed. After the Court dismissed the 

Complaint but granted leave to amend, Plaintiff elected not to amend his Complaint because 

settlement negotiations were nearing a final agreement.

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5

nucleus of operative facts, in that they contest the veracity of joint health benefit representations 

made about the Covered Products that are covered by the Settlement Agreement.

At the time of execution of the Settlement Agreement, Linares, after surviving two 

rounds of motions to dismiss, was in the midst of class and merits discovery. Pearson, after also 

surviving two rounds of motions to dismiss, was also in the midst of class and merits discovery. 

Cardenas was in the midst of the class certification process with Plaintiffs having filed their 

opening class certification brief and expert reports, and the Defendants having completed the 

depositions of Plaintiffs’ experts. Jennings was on the eve of a pre-class certification 

“exemplar” trial of the merits of the individual plaintiff’s claims, with expert reports, expert 

depositions, and all discovery completed for both sides. Discovery in both the Cardenas and 

Jennings cases, along with the filing of expert reports and expert depositions in those cases, 

provided the Plaintiffs and their counsel a fulsome record upon which to base their settlement 

negotiations.

As a trial date was set for the Jennings “exemplar” trial and class certification papers 

were filed in Cardenas, settlement negotiations commenced on two fronts – one between 

Rexall’s and Jennings’s counsel, and the other between Rexall’s counsel and counsel for 

Cardenas/Padilla, Linares, Gonzalez, Blanco, and Pearson. After several months of arm’s-length 

negotiations between the Parties, a definitive written settlement was executed by all Parties in 

mid-April 2013. To achieve a global resolution of all of these similar cases pending across the 

United States, the Parties agreed to centralize settlement in this Court. On April 22, 2013, 

Plaintiffs filed their Second Amended Complaint by which all Plaintiffs’ claims under the 

various states’ consumer protection statutes were brought in this Court. [D.E. 64].

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By Order dated May 24, 2013, as corrected on May 30, 2013, the Court provided its 

preliminary approval of the class-action settlement, and directed that notice be provided to the 

Class pursuant to the notice plan approved by the Court. [D.E. 87].

Class Certification and Definition

Pursuant to the Settlement Agreement, Plaintiffs request that the Court certify a Class 

defined as: 

All persons in the United States who, during particular times and in certain 

U.S. locations as identified in Exhibit A to the Settlement Agreement

purchased one or more of the Covered Products.

Excluded from the Class are (i) Defendants; (ii) retailers of the Covered 

Products; (iii) the parents, subsidiaries, affiliates, officers, and directors of 

(i) and (ii); (iv) those who purchased the Covered Products for the purpose 

of resale or distribution; and (v) those persons who submit valid requests 

for exclusion from the Settlement Class.

II. THE SETTLEMENT

A. Class Relief 

1. Compensatory Relief 

Each Class member is entitled to seek monetary compensation.5 Class members who 

have adequate proof of purchase (e.g., receipts, intact boxes, or bottles that display a readable 

UPC code and readable lot number, or similar documentation that identifies the Covered Product 

and date and location of purchase) shall be entitled to reimbursement of $5 for each purchased 

bottle of the Covered Products up to ten (10) bottles. Class members who do not have adequate 

proof of purchase will be entitled to reimbursement of $3 per bottle of the Covered Products 

purchased up to a maximum of four (4) bottles upon submitting their claim form, identifying the 

Covered Product(s) purchased, the approximate date of purchase, and the location of the 

 

5 As discussed below, the Class is estimated to be in excess of 12 million households.

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purchase.6 Rexall has agreed to pay all valid claims, with no cap on the amount of monies paid 

to the Class Members. Under Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), and its progeny,

7

the total potential compensatory benefit of this settlement fund (i.e., money available to the 

Class) is either approximately $27.3 million (assuming that all 9.1 million Class Members who 

received notice of the Settlement file the minimum claim for $3) or $14.2 million (assuming that 

the approximately 4.7 million Class Members who received direct, individual notice of the 

Settlement file the minimum claim for $3).

While there is no cap, the Settlement Agreement provides for a $2 million minimum 

payment or “floor” to be paid out by Rexall. If the total dollar value of valid claims is less that 

$2 million, the payment to each Settlement Class member who submits a valid claim with 

adequate proof of purchase shall be increased pro rata up to a maximum of triple what he or she 

was entitled until the payments reach $2 million. If these increases do not exhaust the minimum 

$2 million payout, then the payment to each Settlement Class member who submits a valid claim 

without proof of purchase shall be increased pro rata up to a maximum of double what he or she 

was entitled until the total payments reach $2 million. If, after these payments, the total 

payments do not reach $2 million, the residual amount will be paid to the Orthopedic Research 

and Education Foundation (“OREF”), subject to Court approval. OREF does not and has not had 

 

6

The claim form does not require notarization, and can be submitted by U.S. Mail or on-line at 

the settlement website www.GlucosamineSettlement.com.

7 See, e.g. In re Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litigation, 280 

F.R.D. 364 (N.D. Ill. 2011); Williams v. MGM-Pathe Communications Co., 129 F.3d 1026, 1029 

(9th Cir. 1997); Stern v. Gambello, 480 Fed. Appx. 867 (9th Cir. 2012); Waters v. Intern. 

Precious Metals Corp., 190 F.3d 1291, 1297 (11th Cir. 1999); McKinnie v. JP Morgan Chase 

Bank N.A., 678 F. Supp. 2d 806, 812 (E.D. Wis. 2009); Masters v. Wilhelmina Model Agency, 

473 F. 3d 423 (2d Cir. 2007); Wear v. Sprint Communications Co. L.P., No. 2:11-cv-809, 2013 

WL 3108312 (D. Nev. June 18, 2013); and Smith v. Qwest Communications, No. C11-02599, 

2013 WL 3200592 (N.D. Cal. June 24, 2013). See also, Mars Steel Corp. v. Continental Nat’l 

Bank and Trust Co., 834 F.2d 677, 679 (7th Cir. 1987). 

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any prior relationship with Rexall and does not receive any donations or benefit from Rexall. 

(August 30, 2013 Declaration of Michael Collins, at ¶¶3-5). 

2. Injunctive Relief

The settlement agreement also provides for the removal of key labeling claims from all of 

the Covered Products currently manufactured or sold by Rexall. Numerous covered products, 

including Rexall’s largest branded selling product (Osteo Bi-Flex) and many other products sold 

by major retailers such as CVS, Costco and Target, will be impacted by these label changes.

8

 

The Settlement Agreement provides that for a period of 30 months from the date of the Final 

Approval, Rexall will not make any representations that the Covered Products will rebuild, build, 

or renew cartilage (“rebuilding cartilage representations”) on the labeling or packaging of any 

Covered Products. Settlement Agreement [D.E.73-1], ¶8. For the same 30-month period, and as 

part of the negotiations related to the other types of claims made by Rexall (e.g., claims related to 

joint comfort or pain, flare-ups, soothing, cushioning, nourishing, mobility, lubrication, or 

support) (“palliation representations”), Rexall will be required to place on the packaging and 

labeling of the same products a statement that “individual results may vary.” Id., ¶8. Rexall will 

have a period of six months from the date of Final Approval to begin shipping Covered Products 

with the label changes. Id. Rexall has an incentive to keep these labeling changes in place after 

the 30-month period expires, in that the Settlement Agreement provides that as long as it keeps 

these labeling changes in place, no Class Member who purchases a Covered Product after the 30-

month period can sue Rexall on any claim that was or could have been asserted in the litigation. 

 

8 Rexall has the authority to implement (for its branded products) or require the implementation 

of (for the private label products manufactured or supplied by Rexall), the label changes required 

by the Settlement Agreement. May 28, 2013 Declaration of Michael Collins [D.E. 73-5].

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Id., ¶13. If, however, Rexall re-introduces the “rebuild” cartilage representations after the 30-

month period, it will be subject to suit. Id.

B. Incentive Awards to Class Representatives

The Settlement agreement provides that, subject to Court approval, Rexall will pay and 

will not object to the Court awarding each of the six (6) Class representatives an incentive award 

of $5,000. Settlement Agreement [D.E. 73-1], ¶10. The payment of these incentive awards will 

be separate and apart from, and will not diminish or erode, the payment of claims to Class 

Members as set forth above. Id.

C. Attorneys’ Fees and Expenses

The Settlement Agreement provides that Rexall agrees to pay and will not object to the 

Court awarding the firm of Denlea & Carton LLP (counsel for Plaintiff Richard Jennings) an 

aggregate fees and expenses award of $2.5 million, and that Rexall agrees to pay and will not 

object to the Court awarding the firms of Bonnett, Fairbourn, Friedman & Balint, P.C.; Stewart 

M. Weltman LLC (Of Counsel Levin Fishbein Sedran & Berman); and Levin Fishbein Sedran & 

Berman, (counsel for Plaintiffs Nick Pearson, Francisco Padilla, Cecelia Linares, Augustina 

Blanco and Abel Gonzalez) an aggregate fees and expenses award of $2 million. Id., ¶9. All 

attorneys’ fees and expenses are to be paid separate and apart from, and will not diminish or 

erode, the payment of claims to Class Members. Id.

D. The Expense of Class Notice and Administration

Finally, the Settlement Agreement provides that Rexall shall pay a minimum of $1.5 

million, and a maximum of $2.5 million, for the costs associated with the dissemination of notice 

to the Class and the administration of the claims process. Id., ¶15. As with attorneys’ fees and 

expenses, Rexall is paying the cost of notice and administration separate and apart from the 

payments that will be made to Class Members who file valid claims. 

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Class Notice and Response By the Class

Pursuant to the Preliminary Approval Order entered by the Court on May 30, 2013, a 

robust notification was provided to the Class Members. Heffler Claims Group (“Heffler”) was 

appointed by the Court to serve as the claims administrator, and oversaw the process of notifying 

the Class of the proposed settlement. As demonstrated more fully in the Affidavit of Mark 

Schey, the CEO of Digital Settlement LLC (“DS”) (Exhibit A), a firm specializing in developing 

and executing targeted class action notice plans used by Heffler in creating the publication notice 

program, and the Affidavit of Michael Hamer, a Project Manager at Heffler (Exhibit B), Heffler 

designed a targeted media campaign to reach the highest number of Class Members. 

The media campaign was designed to reach all consumers who may have purchased the 

Covered Products, but was further focused on supplement users age 35 years and older, and, 

where possible, even further focused on glucosamine supplement users. 

The targeted campaign consisted of four means of communicating with the Class: (1) 

publication of the Court-approved notice in five magazines that Heffler and DS determined 

would best reach the Class (Guidepost, People, Prevention, First for Women, and Woman’s 

World) (Schey Affidavit, Exhibit A, ¶8; Exhibit B); (2) direct mailing to known consumers 

(approximately 4.7 million unique consumers who purchased Rexall products were identified 

through retail and loyalty program information and were provided direct mail notice (by postcard 

or email) of the Settlement) (Declaration of Dan Ross, Exhibit C, ¶¶5-6); Hamer Affidavit, 

Exhibit B, ¶¶10-13); (3) an Internet campaign in which over 49 million impressions were 

generated through Yahoo, Google, and AOL, alerting consumers to the settlement and directing 

them to the settlement website (www.GlucosamineSettlement.com) (Schey Affidavit, Exhibit A, 

¶9); and (4) a social media campaign involving Facebook that provided approximately 132 

million targeted alerts to consumers about the settlement. Id. The combination of these four 

means of communicating with the Class was implemented by Heffler to reach approximately 

76% of the Class Members, or approximately 9.1 million Class Members. Id., ¶10.

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The Class response has been overwhelmingly positive. As further demonstrated in the 

Affidavit of Michael Hamer, as of August 29, 2013 a total of 1,620 persons, of the approximately 

12 million Class Members, attempted to exclude themselves in some form or another from the 

Class. Id., ¶16. This is .0001% of the entire Class, and .0003% of the 4,718,651 Class Members 

who received direct notice. As reflected on the Court’s docket, only eight (8) people filed 

objections to the Settlement (which are addressed below and in the Parties’ separately filed Joint 

Response to Objections). As of August 29, 2013, approximately 19,593 people have filed claims 

with the settlement administrator. Id., ¶17. The claims process will continue through December 

3, 2013.

The claims process was designed to make filing claims as simple as possible. The Notice 

(including the Internet impressions) directed the Class Members to the settlement website, where 

Class Members can file claims on-line via an electronic form. The settlement website has all of 

the important documents posted, and Heffler has maintained an automated voice information 

system for Class Members to call for further information. Heffler is taking all actions needed to 

assess all claims. For example, during the claims administration process, one Class Member 

brought to Heffler’s attention that Rexall has a loyalty program (its “Ambassador’s Club” 

program), pursuant to which persons who purchase Osteo Bi-Flex and submit UPC codes to 

Rexall can earn reward points and receive coupons. Although Rexall does not maintain records 

showing exactly how many bottles an Ambassador’s Club member has purchased, Rexall agreed 

to check the claims made by the Class Members against Rexall’s data to determine whether any 

claimant had previously submitted proof of purchase to Rexall as part of the Ambassador’s Club, 

in order to qualify them for receiving compensation under the “proof of purchase” aspect of the 

settlement, even though claimants may not have actual proof of purchase to submit. Hamer 

Declaration, ¶15.a.

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III. THE COURT SHOULD APPROVE THE SETTLEMENT BECAUSE IT IS

FAIR, REASONABLE, AND ADEQUATE

A. Public Policy Strongly Favors Class Action Settlements

The Seventh Circuit has repeatedly recognized that “[f]ederal courts favor settlement.” 

See, e.g., Uhl v. Thoroughbred Tech. & Telecomm’s., 309 F.3d 978, 986 (7th Cir. 2002);

Goodman v. Epstein, 582 F.2d 388, 404 (7th Cir. 1978) (“[S]ettlement of claims . . . is 

recognized as essential to the continued functioning of our judicial system.”). This is particularly 

true in class action litigation. Isby v. Bayh, 75 F. 3d 1191, 1196 (7thCir. 1996) (“Federal courts 

naturally favor the settlement of class action litigation.”); E.E.O.C. v. Hiram Walker & Sons, 

Inc., 768 F. 2d 884, 888-89 (7th Cir. 1985), cert. denied, 48 U.S. 1004 (1986) (noting that there 

is a general policy favoring voluntary settlements of class action disputes); Armstrong v. Brd. of 

Sch. Directors of the City of Milwaukee, 616 F. 2d 305, 312 (7th Cir. 1980), overruled on other 

grounds, Felzen v. Adreas, 134 F. 3d 873 (7th Cir. 1998) (“It is axiomatic that the federal courts 

look with great favor upon the voluntary resolution of litigation through settlement.”). Class 

action settlements minimize the litigation expenses of the parties and reduce the strain such 

litigation imposes upon already scarce judicial resources. Armstrong, 616 F. 2d at 313 (citing 

Cotton v. Hinton, 559 F. 2d 1326, 1331 (5th Cir. 1977)). In sum, "[i]t is well established that 

there is an overriding public interest in settling and quieting litigation, and this is particularly

true in class actions." In re Prudential Sec. P'ships Litig., 163 F.RD. 200, 209 (S.D.N.Y.

1995) (emphasis added)).

“Thus, the Seventh Circuit has found that a District Court’s inquiry as to whether to grant 

approval ‘is limited to [the consideration of] whether the proposed settlement is lawful, fair, 

reasonable and adequate.’” In re Kentucky Grilled Chicken Coupon Mktg. & Sales Practices 

Litig., 280 F.R.D. 364, 375 (N.D. Ill. 2011) (“In re KFC”) (citing Uhl, 309 F.3d at 986); see also 

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Williams v. Rohm & Haas Pension Plan, 658 F. 3d 629, 634 (7th Cir 2011); Mangone v. First 

USA Bank, 206 F.R.D. 222, 227 (S.D. Ill. 2001) (“It is true that something could always be 

added to every class action settlement to make it more favorable to class members, but that is not 

the standard by which class action settlements should be measured.”). The Seventh Circuit also 

urges district courts to be mindful that “[t]he essence of a settlement is compromise,” so “the 

parties to a settlement will not be heard to complain that the relief afforded is substantially less 

than what they would have received from a successful resolution after trial.” Hiram Walker, 768 

F.2d at 889. A district court should not reject a settlement “solely because [the settlement] does 

not provide a complete victory to the plaintiffs.” Isby, 75 F.3d at 1200. The court is not called 

upon to determine whether the settlement reached by the parties is the best possible deal, or 

whether class members will receive as much from a settlement as they might have recovered 

from victory at trial. In re Mexico Money Transfer Litig., 164 F. Supp.2d 1002, 1014 (N.D. Ill. 

2000).

Here, the proposed Settlement is fair and supported by the vast majority of Class

members. Accordingly, the Court should grant final approval to the Settlement.

B. The SettlementIs Procedurally Fair

Rule 23 of the Federal Rules of Civil Procedure authorizes the court to approve a 

class action settlement that is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In

evaluating a settlement, the court must consider both the settlement’s substantive terms and the

negotiating process leading up to the settlement. Hispanics United of DuPage Cnty. v. Vill. of 

Addison, Ill., 988 F. Supp. 1130, 1150 n. 6 (N.D. Ill. 1997). “A strong initial presumption of 

fairness attaches to the proposed settlement when it is shown to be the result of” arm’s-length 

negotiations conducted after adequate discovery. Id.; see also Great Neck Capital Appreciation 

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14

Inv. P'ship., L.P. v. PricewaterhouseCoopers, L.L.P., 212 F.R.D. 400, 410 (E.D. Wis. 2002) (“A 

strong presumption of fairness attaches to a settlement agreement” when it is “the result of 

arm’s-length negotiations by competent counsel.”). 

There can be no serious debate about whether the Settlement Agreement was the 

result of intensive and hard-fought negotiations. As a trial date was set for the Jennings

exemplar trial and class certification papers were filed in Cardenas, negotiations commenced on 

two fronts – one between Defendants’ counsel and Jennings’s counsel, and the other between 

Defendants’ counsel and counsel for Cardenas/Padilla, Linares, Gonzalez, Blanco, and Pearson. 

On literally the eve of trial in Jennings, a Memorandum of Understanding was executed in the 

Jennings case on September 30, 2012, which required the agreement of parties in the 

Cardenas/Padilla, Linares, Gonzalez, Blanco, and Pearson cases and contemplated the 

settlement of all pending glucosamine supplement cases involving Rexall’s products. Counsel 

for all parties in all of the pending cases thereafter participated in several in-person conferences 

and conference calls, which ultimately resulted in the execution of the written Settlement 

Agreement for which the Court provided its preliminary approval on May 30, 2013.

It was only after the relief in favor of Rexall and the Settlement Class was agreed upon 

that the Parties negotiated the issue of attorneys’ fees and incentive awards for the named 

plaintiffs. This was true both in connection with the negotiation of the initial Memorandum of 

Understanding in September 2012, and in connection with the negotiation of the global 

Settlement Agreement in April 2013. Moreover, it was agreed that the payment of such amounts 

would not diminish or erode the monetary amounts made available to the Settlement Class in any 

way.

The settlement was agreed to without any collusion whatsoever on behalf of the Parties or 

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15

their counsel. At all times, the Parties were represented by competent and experienced counsel. 

Rexall was represented by the national law firm of Sidley Austin, LLP who vigorously 

advocated Rexall’s position; and Plaintiffs were represented by four separate law firms with 

nationwide class action experience and a track record of proven results on behalf of consumers 

throughout the country. The settlement is the product of thoroughly litigated cases by competent 

and experienced counsel on both sides. The robustness of the relief obtained by Plaintiffs and 

Class Counsel on behalf of the Class reflects not only the fairness and reasonableness of the 

Settlement, but also demonstrates that it is free from any collusion on the part of either side to 

the negotiations.

C. The Settlement Is Substantively Fair

The Settlement easily surpasses the test of substantive fairness established by the

Seventh Circuit. There are several factors that the Seventh Circuit has identified for analyzing 

whether a class action settlement should be given final approval: (1) the strength of plaintiffs’

case on the merits measured against the terms of the settlement; (2) the defendants’ ability to 

pay; (3) the complexity, length, and expense of continued litigation; (4) the amount of opposition 

to the settlement; (5) the presence of collusion in gaining a settlement; (6) the reaction of the 

members of the class to the settlement; (7) the opinion of competent counsel; (8) the stage of the 

proceedings and the amount of discovery completed; and (9) the public interest. Synfuel Techs., 

Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006); In re AT & T Mobility 

Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 958 (N.D. Ill. 2011); Am. Civil 

Liberties Union v. U.S. Gen. Servs. Admin., 235 F. Supp. 2d 816, 818 (N.D. Ill. 2002). In 

weighing these factors, the district court should recognize that the first factor -- the relative 

strength of the plaintiffs’ case on the merits as compared to what the defendants offer by way of 

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16

settlement -- is the most important consideration. See, e.g., Schulte v. Fifth Third Bank, 805 F. 

Supp. 2d 560, 579 (N.D. Ill. 2011).

In reviewing a proposed class settlement, a court should not decide the merits of the case 

or resolve unsettled legal questions. Carson v. Amer. Brands, Inc., 450 U.S. 79, 88, n. 14 (1981); 

Hiram Walker, 768 F.2d at 889; Isby, 75 F.3d at 1196-97. Instead, the court’s inquiry should be 

limited to the consideration of whether the proposed settlement is lawful, fair, reasonable, and 

adequate. Id., at 1196. Analysis of each factor overwhelmingly shows that the settlement is fair,

reasonable, and in the best interests of the Class, and should be approved.

1. The Strength of Plaintiffs’ Case on the Merits Measured Against the 

Terms of the Settlement Supports Approval.

The settlement provides substantial benefit to the Class, both in terms of the monetary 

compensation and the prospective labeling changes Rexall is required to make, which will 

impact one of the top selling glucosamine/chondroitin products currently in the market (Osteo 

Bi-Flex) and numerous private label products, including products sold by some of the largest 

retailers such as CVS, Costco and Target. Collectively, the total potential benefit (both monetary 

relief and injunctive relief) to the Class is conservatively estimated to be at least approximately 

$35.9 million (if the total potential benefit of the monetary relief is limited just to those 

4,718,651 million class members who received direct notice ($14.2 million) and if the total value 

of the injunctive relief is limited solely to Class Members ($21.7 million)). Given that there are 

risks involved in any such litigation, including achieving class certification and then prevailing 

on the merits, the significant benefits created by this settlement certainly militates in favor of 

final approval. See, e.g., Isby, 75 F.3d at 1200 (“essence of settlement is compromise” and a 

settlement “will not be rejected solely because it does not provide a complete victory to 

plaintiffs”); Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust, 834 F. 2d 677, 682-83 (7th 

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17

Cir. 1987) (approving settlement “possibly worth” $11.5 million over objections that case if 

tried would result in $750 million to $1.5 billion verdict); Hiram Walker, 768 F.2d at 889 

(“Thus, the parties to a settlement will not be heard to complain that the relief afforded is 

substantially less than what they would have received from a successful resolution after trial.”); 

see also Mangone v. First USA Bank, 206 F.R.D. 222, 228 (S.D. Ill. 2001) (citing above cases).

a. The Value of the Fund Created for the Class Members.

There is no limit on the number of claims that Rexall will pay. Indeed, the total potential 

compensatory benefit available to the Class is not less than $14.2 million. The Settlement 

Administrator estimates that there are approximately 12 million class members and that the publication 

notice reached more than 76% of the class, such that more than 9.1 million class members were 

exposed to the notice. More than 4.7 million class members received direct, individual notice. Under 

the terms of the Settlement, each class member has a claim for at least $3 – the minimum amount for 

one undocumented purchase. This yields a total potential monetary benefit of approximately $27.3

million (12 million class members x 76% reach x $3.00 minimum claim) or approximately $14.2

million if limited to the direct notice recipients (4.7 million direct notice recipients x $3.00). These 

amounts are conservative because class members are entitled to make multiple claims, up to $12 each 

for undocumented purchases and up to $50 for documented purchases. Thus, the Settlement has 

created a minimum total potential monetary benefit to the Class of at least $14.2 million, if limited to 

the direct notice recipients.

b. The Injunctive Relief Imparts Substantial Benefits.

In addition to the monetary relief, the settlement provides robust injunctive relief in the 

form of labeling changes that eliminate key false marketing claims alleged in these 

lawsuits. Rexall has agreed to stop making misrepresentations that its products will renew or 

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18

rebuild cartilage.

The joint/cartilage renewal/rejuvenation representation has been one of the key marketing 

messages made by Rexall and the vast majority of glucosamine/chondroitin manufacturers about 

these products for over a decade. For example, in a marketing survey conducted in 2002 to 

determine how to position the Osteo Bi-Flex products, the survey indicated that in excess of 50% 

of all surveyed deemed the repair cartilage representation a “main message.” (Rex. 0004127, 

0004132, 0004138, 0004144, 0004149, 0004155). Another 2002 marketing document reflects 

the plan to position the Osteo Bi-Flex products from “relief of pain to preventative therapy” and 

instead to feature the “rebuilds” cartilage as a main message (Rex. 0002486 and 0002490), 

stating that “[u]nlike pain relievers that offer temporary relief, the nutritional ingredients in 

Osteo Bi-Flex work naturally over time to rebuild cartilage....” (Rex. 0002492) (“Osteo Bi-Flex 

actually helps rebuild cartilage...” Rex. 0002493). This message continued to be perceived as a 

key message as late as 2011. A 2011 consumer survey report conducted on behalf of Defendants 

states, “messages about building cartilage are most likely to motivate consumers...” (Rex. 

0002324). Close to 70% of all those surveyed indicated that rebuilding cartilage was the most 

important marketing message (Rex. 0002335) (these documents (marked confidential under a 

protective order) are attached to the Declaration of Keith Reutter, Ph.D., which is being filed 

with the Court’s Electronic Case Filing System in redacted form). 

The remaining representations made about the Covered Products primarily regard 

palliation – e.g., joint comfort – and with regard to these claims, the Settlement Agreement 

requires that the labels state that “individual results may vary.” No longer will the labeling make 

unqualified representations that the Covered Products will provide relief for all persons who take 

these products. Instead, consistent with the scientific evidence that reflects that in excess of 35% 

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of users of these products experience a “placebo effect,”9consumers will now be told – up front 

– that these products may or may not work for them. In short, the injunctive/labeling relief is a 

very significant component of this settlement in that it will require the industry leader in the 

manufacture and sale of glucosamine/chondroitin products to remove a representation that is a 

proven driver of sales. As set forth at length in the accompanying Declaration of Keith Reutter, 

Ph.D., the monetary value of the label changes to the Class Members amounts to approximately 

$21.7 million just for the 30 month period. If, as is expected, the label changes remain in place 

permanently, the estimated annual monetary benefit to the Class Members is approximately $8.5

million annually.

10

As more fully set forth in his report, Dr. Reutter analyzed the effect that Rexall’s 

emphasis on rebuilding cartilage has likely had on pricing and units sold. In this regard, during 

discovery, Rexall produced several consumer surveys conducted by nationally known marketing 

and media research companies, which reflected that the “building cartilage” message is a 

deciding factor for consumers when choosing Osteo Bi-Flex. For example, in 2002, ACNielsen 

analyzed the effect on Osteo Bi-Flex sales that would occur if Rexall “restaged” its marketing 

message from “relief of pain” to “preventative therapy,” including rebuilding cartilage. This 

report indicated that the restaging would not only increase the average price for Osteo Bi-Flex by 

roughly 10%, but also that the net sales volume of Osteo Bi-Flex would increase by 4% to 8%. 

Likewise, a survey conducted in 2011 found that over 60% of current and former users of Osteo 

Bi-Flex reported that the “building cartilage” message was a deciding factor when choosing 

 

9 Schnitzer Report, ¶¶20-21, Exhibit U to the “Master Exhibit List.”.

10 The benefit to all consumers is even greater. The annual savings to all consumers who 

purchase Osteo Bi-Flex as a result of the removal of these representations will be $14.8 million, 

and the annual savings to all consumers who purchase the private label products will be $3.7 

million. Reutter Report, ¶¶10-11.

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Osteo Bi-Flex. See generally, Reutter Report, ¶¶ 6-8.

In reliance upon the marketing studies that Rexall commissioned to guide its marketing 

decisions, Dr. Reutter concluded that consumers who were previously enticed by the rebuilds 

cartilage message will no longer be misled by those representations and therefore will refrain 

from buying the Covered Products, resulting in a reduction in the sales volume for the products. 

Relying upon these contemporaneous documents, it is Dr. Reutter’s opinion that the removal of 

these key marketing messages will result in a drop in demand and also result in consumer 

savings, both to current Class Members who are repeat purchasers and future consumers, as a 

result of a 10% reduction in the pricing of Osteo Bi-Flex and the other Covered Products. See 

generally Reutter Report, ¶¶9-12.

Dr. Reutter quantified the consumer savings that will be realized as a result of the

removal of the rebuilding cartilage claims. Based upon sales data provided by Rexall, he 

concludes that the injunctive relief will result in annual savings to those Class Members who 

purchase Osteo Bi-Flex in the amount of $7.0 million, and will result in annual savings of 

approximately $1.7 million to those Class Members who purchase the private label products 

covered by the Settlement, for a total monetary benefit to the Class from the injunctive relief of 

approximately $8.7 million annually.

11

 For the 30-month period set forth in the Settlement 

Agreement, the estimated benefit to the Class from the injunctive relief set forth in the 

Settlement is approximately $21.7 million, and is approximately $46.2 million for all consumers.

In order to determine whether a proposed settlement is fair, reasonable and adequate, a 

court should evaluate the entire settlement, including “any prospective injunctive relief in 

 

11 Since, consistent with the placebo effect observed with regard to these products, 

approximately 47% of all Osteo Bi-Flex customers are repeat buyers, this injunctive relief will 

also provide monetary benefits to current Class Members through reduced prices.

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addition to any tangible benefits [ ] conveyed to the class.” Meyenberg v. Exxon Mobil Corp., 

No. 3:05-cv-15-DGW, 2006 WL 5062697 (S.D. Ill. June 5, 2006); In re Mexico Money Transfer 

Litig., 267 F.3d 743, 748 (7th Cir. 2001) (prospective relief provided in a settlement “is not an 

outcome to be sneered at.”). The total benefits of the settlement - both monetary and consumer 

protection - must then be measured against the risks and uncertainty of litigation. The immediate 

benefits that will devolve to the Class from the Settlement far outweigh the risk that the Class 

could recover nothing, and far outweigh the delay and expense that will be inherent in continued 

litigation. “The essence of a settlement is compromise,” and “the parties to a settlement will not 

be heard to complain that the relief afforded is substantially less than what they would have 

received from a successful resolution after trial.” Hiram Walker, 768 F.2d at 889. Settlement 

here is a substantial victory for Plaintiffs and the Class.

2. Rexall’s Ability to Pay.

Rexall has agreed to pay the amounts proposed in the Settlement and has made no 

suggestion of hardship; this factor is not at issue. See League of Martin v. Milwaukee, 588 F. 

Supp. 1004, 1021-22 (E.D. Wis. 1984). Even if it were at issue, “‘the fact that a defendant is 

able to pay more than it offers in settlement does not, standing alone, indicate the settlement is 

unreasonable or inadequate.’” Parker v. Time Warner Entm’t. Co., L.P., 631 F. Supp. 2d 242, 261 

(E.D.N.Y. 2009) (citing In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 129 

(S.D.N.Y.1997)) (alteration in original). It is well-established that “a defendant is not required to 

‘empty its coffers’ before a settlement can be found adequate.” In re Sony SXRD Rear Projection 

Television Class Action Litig., No. 06 Civ. 5173 (RPP), 2008 WL 1956267, at *8 (S.D.N.Y. May 

1, 2008). Where the other factors weigh in favor of approval, the defendant’s ability to withstand 

a greater judgment does not alone suggest that a settlement is unfair. D’Amato v. Deutsche Bank, 

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235 F.R.D. 78 ( 2d Cir. 2001). 

Here, Rexall may be able to withstand a judgment in favor of the Class, but this factor is 

outweighed by all of the other factors which support the Settlement. This is not a significant 

factor for the Court to consider.

3. Eliminating the Complexity and Expense of Further Litigation 

Supports Approval.

This class action litigation involves a number of complex legal, factual, and scientific 

questions. Some are inherent in the Class’s claims, while others would be injected by Rexall in 

opposing class certification and defending the efficacy of its products. These disputed issues 

include:

 The tremendous amount of scientific literature and medical studies relating to 

glucosamine and chondroitin, some of which suggest that consumers may gain some 

benefit (at a minimum a perceived/placebo effect) from the products;

 The extent to which Class Members may have relied upon the disputed 

misrepresentations about the efficacy of the products, and whether or not those 

misrepresentations may have caused Class Members to purchase the products;

 The fact that individualized issues might preclude class certification given the many 

different reasons why consumers may have purchased the products;

 Whether Class Members obtained some benefit from the use of the products, and 

whether the products are entirely ineffective;

 The fact that individualized issues might preclude class certification given the varied 

benefit levels received by users of the products;

 Whether Rexall’s claims are in fact deceptive or misleading pursuant to the standards 

of the various state consumer protection statutes that Plaintiffs’ claims are filed under; 

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 Whether Plaintiffs are entitled to a nationwide class; and

 Whether Class Members are entitled to damages.

Plaintiffs and Class Counsel believe that they have a very strong case on the merits of the 

above issues, but they also realistically recognize the uncertainties that are inherent in any 

lawsuit. Plaintiffs and Class Counsel also recognize that it is possible that a Court would refuse 

to certify a class. See Schulte, 805 F. Supp. 2d at 582. They also realistically recognize that a 

finding of no liability is possible, and that if they were successful at trial establishing Rexall’s 

liability, there might be extensive litigation following that finding in order to litigate causation, 

damages, limitations and other defenses. Even if the Class were to prevail on both class 

certification and the merits, Rexall would likely appeal, and it could be years before Class 

Members saw any recovery or other benefit, if at all. 

Compared to these risks, the benefits that Class Members will enjoy and the consumer 

protections that will take effect if the Settlement is approved are real and substantial. Class 

members are entitled to compensation, and Rexall will no longer make certain claims regarding 

the efficacy of its products, including being prohibited from claiming that its products will 

rebuild or renew cartilage. Here, “[s]ettlement allows the class to avoid the inherent risk, 

complexity, time, and cost associated with continued litigation.” Schulte, 805 F. Supp. 2d at 586. 

Accordingly, this factor also weighs in favor of settlement. See, e.g., In re Lawnmower Engine 

Horsepower Mktg. & Sales Pracs. Litig., 733 F. Supp. 2d 997, 1008 (E.D. Wis. 2010) (“The 

‘complexity, length and expense of further litigation’ factor strongly favors this settlement, in 

that further litigation would be enormously complex, lengthy and expensive.”). 

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4. The Class Members have Reacted Positively to the Settlement and 

there is Little Opposition to the Settlement.

12

In addition to the factors set forth above, the Court should also look at the reaction of 

Class Members when considering the approval of a settlement. The lack of any meaningful 

opposition strongly supports approval. See Mangone, 206 F.R.D. at 227 (concluding that 19,637 

opt outs (representing “a mere 0.10614%” of the class”) and 97 objections (“a mere 0.0052%” of 

the class), was “minuscule when compared to the Class as a whole” and such “overwhelming 

support by class members is strong circumstantial evidence supporting the fairness of the 

Settlement”); In re Mexico Money Transfer Litig., 164 F.Supp.2d at 1020-21 (acceptance rate of 

99.9% of class members “is strong circumstantial evidence in favor of the settlements”); Isby, 75 

F.3d at 1200 (affirming approval of settlement where “[o]nly thirteen per cent of the class 

submitted written objections in response to the notice of settlement.”).

Here, the Settlement Class is estimated to comprise approximately 12 million consumers. 

As of August 20, 2013, a total of 1,620 persons have sought to exclude themselves from the 

Class. Declaration of Michael Hamer, ¶16. Only 8 people filed objections (4 of which are (or 

are represented by) professional objectors (see the Parties’ Joint Response to Objections, Section 

VI)). In percentage terms, .0001% of the Class sought to exclude themselves, and .000001% of 

the Class objected. These infinitesimally small numbers alone demonstrate that the Class has 

reacted overwhelmingly positively to the Settlement, and is “strong circumstantial evidence 

supporting the fairness of the Settlement.” Mangone, 206 F.R.D. at 227. This is particularly so

given that that more than 4.7 million class members received direct/individual notice. 

The very few objections that were filed lack merit, and should be overruled, as set forth 

in the Parties’ separately filed Joint Responses to Objections. 

 

12 For the sake of brevity, the discussion of factors 4 and 6 have been combined.

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5. There Was No Collusion in Achieving a Settlement.

As a matter of law, a court should presume that settlement negotiations were conducted 

in good faith and that the resulting agreement was reached without collusion in the absence of 

evidence to the contrary. Mars Steel, 834 F.2d at 681-82. “Courts are entitled to rely on the 

opinion of competent Class Counsel that the settlement is fair, reasonable and adequate, where 

Class Counsel are qualified, and where discovery and settlement negotiations are extensive and 

thorough.” In re KFC, 280 F.R.D. at 378; see also In re Gen. Motors Pick-Up Truck Fuel Tank 

Prod. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995), cert. denied, 516 U.S. 824 (“This preliminary 

determination establishes an initial presumption of fairness when the court finds that: (1) the 

negotiations occurred at arm’s length [and] (3) the proponents of the settlement are 

experienced in similar litigation. . . .”); see also 4 Alba Conte & Herbert Newberg, Newberg on 

Class Actions § 11.4 §§1 at 90 (4th ed. 2002); Manual for Complex Litigation (Third) § 30.42 

(1995). The instant settlement – the product of extensive negotiations between skilled counsel –

is entitled to this presumption of fairness. 

Settlement here was achieved through arm’s-length discussions. As reflected more fully 

in the accompanying Declarations of Class Counsel, after the Memorandum of Understanding 

was entered into in the Jennings matter on September 30, 2012 just before the “exemplar” trial 

was to start, the Parties began global settlement discussions that concluded in April 2013 when 

the definitive Settlement Agreement was signed. Numerous conference calls, in-person meetings 

and written exchanges occurred between counsel for the Parties, during which offers and 

demands were exchanged. At both stages, first with regard to the negotiation of the 

Memorandum of Understanding and then with regard to the global Settlement Agreement, only 

after the relief to the Class was agreed upon did the Parties discuss the issue of attorneys’ fees 

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and incentive awards. At no time did counsel for the Parties collude, and at all times counsel for 

the Parties strenuously advocated their respective positions. In fact, the settlement discussions 

were conducted in tandem with trial preparation in Jennings and class certification and merits 

discovery in Cardenas, so that the Parties were all in a sufficient position to evaluate the overall 

strengths and weaknesses of one another’s case.

6 . Competent Counsel Believe that the Settlement is in the Best Interest 

of the Class.

“The opinion of competent counsel is another relevant consideration in determining 

whether a proposed settlement is fair, reasonable and adequate.” Vought v. Bank of Am., N.A., 

901 F. Supp. 2d 1071, 1096 (C.D. Ill. 2012). “Courts are entitled to rely on the opinion of 

competent Class Counsel that the settlement is fair, reasonable and adequate, where Class 

Counsel are qualified, and where discovery and settlement negotiations are extensive and 

thorough.” In re KFC, 280 F.R.D. at 378; Hispanics United, 988 F. Supp. at 1170 (“In 

determining the fairness of a class settlement, the Court is entitled to rely heavily on the opinion 

of competent counsel.”) (internal quotations and citation omitted). “Judges should not substitute

their own judgment as to optimal settlement terms for the judgment of the litigants and their 

counsel.” Alliance to End Repression v. Chicago, 561 F. Supp. 537, 548 (N.D. Ill. 1982).

Here, Class Counsel determined that the proposed settlement is fair, reasonable, and 

adequate, and is in the best interests of the Class. That conclusion is based on an investigation 

into the claims and underlying events and transactions alleged in the complaints; legal research;

motion practice, including numerous motions to dismiss based upon numerous legal grounds, a 

motion for summary judgment in the Jennings case, and class certification briefing in Cardenas;

evidence obtained in discovery and in preparation of the “exemplar” trial in Jennings, which was 

complete before the settlement was agreed upon; class certification discovery in Cardenas; 

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consultations with experts; expert disclosures and depositions; and arguments made by all Parties 

as to the merits of the action. Class Counsel have a thorough understanding of the case. While 

they strongly believe that the claims asserted in the Complaint have merit, they also recognize 

the uncertainties in any litigation. There is no certainty that the Class would prevail at trial, 

despite Class Counsels’ belief in the strength of their position.

Throughout the litigation, Rexall has consistently denied any wrongdoing, and has 

maintained that its actions were lawful in all respects. It proffered a vigorous defense, largely 

focused on attempting to establish that the products do in fact provide the benefits claimed. 

Moreover, Rexall was vigorously opposing class certification, and raised a number of defenses 

that, if accepted by the Court or a jury at trial, could limit the extent of a recovery by the Class or 

prevent any recovery altogether. Plaintiffs’ (and their counsels’) decision to settle the actions

takes account of these risks. Additionally, even if the Class was to prevail, litigating the case 

through trial and likely appeal would take a considerable amount of time, perhaps years, in cases 

that have already been pending for over two years. The Class settled here is a nationwide class, 

which is permissible in a settlement class context where manageability is not at issue, but which 

is not a certain result if the parties were to litigate class certification to decision. Thus, this 

settlement benefits a larger class than otherwise might have been certified if the parties were to 

litigate. 

The proposed Settlement has none of these drawbacks, and confers substantial and 

immediate benefits on the Settlement Class. If the Court approves the Settlement, compensation 

to Class Members and changes in Rexall’s labeling are assured rather than uncertain. The 

agreed-upon benefits in favor of the Class will be implemented promptly after Final Approval of 

the Settlement - much more rapidly than if the parties were to proceed to class certification, 

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further expert discovery, summary judgment motions, a trial and likely appeal, and the postjudgment processing of claims that would be necessary for any award of damages in a contested 

class action.

In sum, in agreeing to settle the action, Class Counsel have taken into account the 

substantial benefits available to the Settlement Class through settlement; the considerable 

expense and length of time that would likely be necessary to continue to prosecute the claims 

through trial, post-trial motions, and likely appeals; and the significant uncertainties in predicting 

the outcome of this litigation. Considering all of these factors, and balancing them against the 

certain, substantial, and immediate benefits of the Settlement to the Class, they have concluded 

that the Settlement is fair, reasonable, adequate, and superior to the risks and delays associated 

with further litigation.

7. Sufficient Discovery Was Taken.

When the Settlement was agreed upon, there had been sufficient discovery to enable the 

Parties and their counsel to evaluate their respective cases. At the time of execution of the 

Settlement Agreement, Linares, after having survived two rounds of motions to dismiss, was in 

the midst of class and merits discovery. Pearson, after having survived two rounds of motions to 

dismiss, was also in the midst of class and merits discovery. Cardenas was in the midst of the 

class certification process including a document production received from Rexall, the Plaintiffs 

having filed their opening class certification brief and expert reports, and the Defendants having 

completed the depositions of Plaintiffs’ experts. Jennings was on the eve of a pre-class 

certification “exemplar” trial of the merits of the individual plaintiff’s claims, with expert 

reports, expert depositions, and all discovery completed for both sides. Two employees of 

Rexall, who are responsible for substantiating the claims that Rexall makes for its products, were 

deposed, after a large production of documents was made. Rexall produced its “substantiation 

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file” consisting of over 7,000 pages of documentation which it claimed supported the 

representations made on its labels. And, in Jennings, three expert witnesses were disclosed (with 

accompanying Rule 26 expert disclosures) and deposed, thus enabling both Parties to understand 

the legal, scientific and medical aspects of this case.

Discovery in both the Cardenas and Jennings cases, along with the filing of expert 

reports and expert depositions in those cases, provided Plaintiffs and their counsel a thorough 

record upon which to base their opinion that settlement is in the best interest of the Class 

8. The Public Interest Is Served by the Settlement.

Finally, the interest of the public will be served by the Settlement, not only in terms of 

Class Members receiving compensation, but also because of the labeling changes that Rexall will 

be required to implement as part of the Settlement. A key goal of these cases was to obtain a 

judgment that would compel Rexall to remove the claim that its branded products “rebuild” or 

“renew” cartilage because those claims are false and deceptive to consumers. The settlement, 

which requires Rexall to remove this language from the labels of its branded and private label 

products as part of the injunctive relief, will ensure that Class Members will no longer purchase 

glucosamine/chondroitin products manufactured and/or sold by Rexall based on these false 

representations. Thus, the Settlement is both substantively and procedurally fair, adequate, and in 

the best interest of the Class, and the Court is respectfully requested to grant final approval of the 

Settlement.

IV. CLASS CERTIFICATION

A Settlement Class was certified for preliminary approval by Order of the Court dated

May 30, 2013, and there is no basis to depart from the Court’s earlier finding that the Class 

readily meets the requirements for class certification under Rule 23(b)(3) of the Federal Rules of 

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Civil Procedure. The Class meets each of the requirements of Rules 23(a) and (b)(3), and 

therefore, certification is appropriate.

A. Numerosity — Federal Rule of Civil Procedure 23(a).

Rule 23(a)’s first requirement, numerosity, is satisfied where “the class is so numerous 

that joinder of all members is impractical.” Fed. R. Civ. P. 23(a)(1). There is no specific 

number required, nor is a plaintiff required to state the exact number of potential class members. 

Smith v. Nike Retail Servs., Inc., 234 F.R.D. 648, 659 (N.D. Ill. 2006); see also 3 NEWBERG ON 

CLASS ACTIONS § 7.20, at 66. Instead, courts are permitted “to make common-sense 

assumptions that support a finding of numerosity.” Maxwell v. Arrow Fin. Servs., LLC, No. 03 C 

1995, 2004 WL 719278, at *2 (N.D. Ill. Mar. 31, 2004). Generally, where the membership of 

the proposed class is at least 40, joinder is impracticable and the numerosity requirement is met. 

Pope v. Harvard Banchares, Inc., 240 F.R.D. 383, 387 (N.D. Ill. 2006). The requirement that 

joinder be impracticable does not mean that joinder is impossible. Rather, it need only be 

“extremely difficult or inconvenient to join all members of the class.” Levitan v. McCoy, No. 00-

C5096, 2003 WL 1720047, at *3 (N.D. Ill. Mar. 31, 2003) (quoting C.A. Wright, A. Miller & N. 

Kane, FEDERAL PRACTICE AND PROCEDURE § 1762, at 159 (2d ed. 1986)). 

Here, Rexall’s products are sold throughout the United States. The Class of purchasers of 

the Covered Products is reasonably estimated to be in excess of 12 million households. See 

Settlement Agreement Notice Plan, D.E. 73-1. Accordingly, the Class satisfies the numerosity 

requirement – particularly since class members are geographically dispersed. See 3 NEWBERG 

ON CLASS ACTIONS § 3:5, at 243-46 (“Class actions under the amended Rule 23 have frequently 

involved classes numbering in the hundreds, or thousands. . . . In such cases, the impracticability 

of bringing all class members before the court has been obvious, and the Rule 23(a)(1) 

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requirement has been easily met.”). For the foregoing reasons, the Class satisfies the numerosity 

requirement of Fed. R. Civ. P. 23(a)(1).

B. Commonality — Federal Rule of Civil Procedure 23(a)(2).

Rule 23(a)(2)’s commonality element requires that “there are questions of law or fact 

common to the class.” Fed. R. Civ. P. 23(a)(2). In this case, the questions that drive this 

litigation – Rexall’s conduct and questions of Rexall’s liability – are the same for each class 

member. Rexall’s liability to each class member can thus be determined in one stroke and the 

commonality requirement presents no barrier to certification. 

Commonality exists if a common nucleus of operative fact exists. Rosario v. Livaditis, 

963 F.3d 1013, 1017 (7th Cir. 1992); Saltzman v. Pella Corp., 257 F.R.D. 471, 478 (N.D. Ill. 

2009). “If ‘at least one question of law or fact [is] common to the class,’ then commonality is 

typically found.” Tylka v. Gerber Prods. Co., 178 F.R.D. 493, 496 (N.D. Ill. 1998) (quoting 

Allen v. City of Chicago, 828 F. Supp. 543, 551 (N.D. Ill. 1993)). Where, as here, the 

“defendants have engaged in standardized conduct toward the members of the proposed class[,]”

the commonality requirement is easily met. Whitten v. ARS Nat. Servs., Inc., No. 00C6080, 2001 

WL 1143238, at *3 (N.D. Ill. Sept. 27, 2001) (quoting Keele v. Wexler, 149 F.3d 589, 594 (7th 

Cir. 1998)); Tylka, 178 F.R.D. at 496-97; see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 

2541, 2551 (2011) (stating that “commonality requires that the claims of the class simply depend 

upon a common contention . . . of such a nature that it is capable of class-wide resolution—

which means that determination of its truth or falsity will resolve an issue that is central to the 

validity of each one of the claims in one stroke”).

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As alleged in Plaintiffs’ Second Amended Class Action Complaint, all Class members 

share common questions of fact and law that predominate over issues affecting only individual 

Class members. The common factual and legal issues include:

 Whether the representations or omissions that Rexall made about the 

Covered Products were or are misleading, or likely to deceive;

 Whether Plaintiffs and the Class members were deceived in some manner 

by Rexall’s representations;

 Whether the alleged conduct constitutes violations of the laws asserted 

herein;

 Whether Plaintiffs and Class members have been injured and the proper 

measure of their losses as a result of those injuries; 

 Whether Plaintiffs and Class members are entitled to an award of 

compensatory/actual damages; and 

 Whether Plaintiffs and the Class are entitled to injunctive, declaratory or 

other equitable relief.

For the foregoing reasons, the proposed Settlement Class satisfies the commonality 

requirement of Fed. R. Civ. P. 23(a)(2).

C. Typicality — Federal Rule of Civil Procedure 23(a)(3).

Rule 23 also requires that the named plaintiff’s claims are “typical” of other class 

members’ claims. Fed. R. Civ. P. 23(a)(3). “The issue of typicality is closely related to the 

commonality and should be liberally construed.” Pella, supra at 257 F.R.D. at 479 (citing De La 

Fuente v. Stokely-Van Camp., Inc., 713 F.2d 225, 232 (7th Cir. 1983)). Typicality is satisfied if 

the plaintiff’s claims arise from “the same course of conduct that gives rise to the claims of other 

class members and all of the claims are based on the same legal theory.” Id.; see also

Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 432 (N.D. Ill. 2003) (internal 

quotations omitted). The existence of factual differences will not preclude a finding of 

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typicality. Id.; see also De La Fuente, 713 F.2d at 232; In re Neopharm, Inc. Sec. Litig., 225 

F.R.D. 563, 566 (N.D. Ill. 2004) (“Typicality does not mean identical”) (citing Gaspar v. 

Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996)).

Here, Plaintiffs and the other Class members all purchased and consumed at least one of 

the Covered Products. Accordingly, Plaintiffs and the other Class Members were all exposed to

Rexall’s common misrepresentations, which caused them consumer injury and damage under 

state consumer protection laws. Moreover, none of the named Plaintiffs is subject to a unique 

defense or claim that would differentiate them from the rest of the proposed Class. Accordingly, 

Plaintiffs’ claims are typical of the other Settlement Class members’ claims.

D. Adequacy of Representation — Federal Rule of Civil Procedure 23(a)(4).

The final Rule 23(a) prerequisite requires that a proposed class representative “fairly and 

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy 

requirement is satisfied where the class representative(s) “(1) has retained competent counsel, (2) 

has a sufficient interest in the outcome of the case to ensure vigorous advocacy, and (3) does not 

have interests antagonistic to those of the class.” Pella, 257 F.R.D. at 480; see also Hinman v. M 

& M Rental Ctr., Inc., 545 F. Supp. 2d 802, 807 (N.D. Ill. 2008). 

Here, Plaintiffs’ interests are completely aligned with the interests of the other Settlement 

Class members - all have been injured by Rexall’s conduct. Furthermore, Plaintiffs have no 

interests antagonistic to the interests of the other Settlement Class members. Plaintiffs’ counsel 

and their firms have decades of experience acting as lead class counsel in numerous consumer 

fraud class actions and other class actions. See, Declarations of Jeffrey I. Carton, Stewart M. 

Weltman, and Elaine A. Ryan (which are being filed contemporaneously herewith). Moreover, 

Courts find counsel adequate where “they have invested substantial time and resources in [a] 

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case by investigating the underlying facts, researching the applicable law, and negotiating a 

detailed settlement.” In re AT&T Mobility, 270 F.R.D. at 344. Here, proposed class counsel 

engaged in substantial and detailed pre-filing investigation, including research and review of the 

scientific research regarding glucosamine and chondroitin as well as the other ingredients 

contained in the Covered Products. Moreover, at their own expense, counsel for Plaintiffs 

Pearson, Padilla, Linares, Gonzalez, and Blanco have engaged a nationally and internationally 

regarded expert in the field of osteoarthritis, musculoskeletal pain, and glucosamine and 

chondroitin, Dr. Thomas J. Schnitzer M.D., Ph.D., of the Northwestern University Feinberg 

School of Medicine. Likewise, at their own expense, counsel for Plaintiff Jennings have retained 

Jeremiah E. Silbert, M.D., a renowned physician retired from Harvard Medical School who has 

been studying glucosamine for several decades. Accordingly, both Plaintiffs and their counsel 

satisfy the adequacy requirement of Rule 23(a)(4). 

E. The Proposed Class Meets the Requirements of Federal Rule of Civil 

Procedure 23(b)(3).

In addition to the four requirements of Fed. R. Civ. P. 23(a), Plaintiffs must also satisfy 

one of the three requirements of Rule 23(b). Here, Plaintiffs seek certification under Fed. R. Civ. 

P. 23(b)(3), and thus must show “that the questions of law or fact common to the class members 

predominate over any questions affecting only individual members, and that a class action is 

superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. 

“‘Considerable overlap exists between the court’s determination of commonality and a finding of 

predominance. A finding of commonality will likely satisfy a finding of predominance because, 

like commonality, predominance is found where there exists a common nucleus of operative 

facts.’” Pella, 257 F.R.D. at 484 (quoting Fournigault v. Independence One Mortg. Corp., 234 

F.R.D. 641, 644 (N.D. Ill. 2006)). The predominance requirement “trains on the legal or factual 

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questions that qualify each class member’s case as a genuine controversy” and “tests whether 

proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem 

Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

Here, “Plaintiffs claim that Defendants engaged in standardized conduct that violated 

laws that are common [to the class], and the class and subclasses will therefore be cohesive.” In 

re AT&T Mobility, 270 F.R.D. at 345 (citing Amchem Prods., 521 U.S. at 623). Further, because 

a settlement class is sought here, the Court need not inquire whether the case, if tried, would 

present manageability problems. Smith v. Sprint Communications Co., L.P., 37 F. 3d 612, 614 

(7th Cir. 2004) (quoting Amchem Prods., 521 U.S. at 591). At its essence, “[p]redominance is a 

question of efficiency.” Butler v. Sears, Roebuck & Co., 702 F.3d 357, 362 (7th Cir. 2012), 

vacated and remanded, 133 S.Ct. 2768 (2013), reinstated, Nos. 11-8029, 12-8030, 2013 U.S.

App. LEXIS 17748 (7th Cir. Aug. 22, 2013). Without a doubt, “[a] class action is the more 

efficient procedure for determining liability and damages in a case such as this, involving a 

[common misrepresentation] that may have [harmed] tens of thousands of consumers yet not 

[harmed] any one of them [] enough to justify the expense of an individual suit.” Id. 

In this case, common questions predominate because Defendants’ alleged unlawful 

conduct is identical with regard to all members of the proposed Settlement Class. Thus, the 

predominance and the superiority requirements are satisfied because liability and damages would 

have been decided predominantly, if not entirely, based on common evidence and Plaintiffs and 

the Class share a common grievance against Defendants. In Re Mexico Money Transfer Litig., 

164 F. Supp. 2d at 1013. 

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F. The Notice To The Class Satisfied Due Process.

The notice provided to the Class fully complied with due process: it informed Class 

Members of their right to opt-out or exclude themselves from the settlement, their right to appear 

through their own counsel, their right to object to the terms of the settlement along with the form 

that the objection must take, and detailed the deadlines for opt-out/exclusion or objection, the 

date of the final approval hearing, the scope of the claims released if a Class member does not 

opt-out and remains in the Class, the relief available and how to participate in same, and the 

amounts requested for the named plaintiffs’ incentive awards and fees and expense awards. See, 

e.g., Kaufman v. Am. Exp. Travel Related Svcs. Co., 264 F.R.D. 438, 445-46 (N.D. Ill. 2009).

The proposed Settlement Class is comprised of approximately 12 million consumer 

households. In false advertising cases, where the identity of individual class members typically 

cannot readily be ascertained from the transaction records, publication notice is the only means 

of informing settlement class members of the existence of the settlement and its terms. 

Saltzman, 257 F.R.D. at 476 (“Notice by publication has been used in cases where potential class 

member names were confidential or impracticable to ascertain.”). The media part of the notice 

plan was based upon an analysis of print publications and the potential Internet usage by 

consumers who may have purchased a glucosamine product. Based upon the Settlement 

Administrator’s analysis of publications likely to reach the target audience, five national 

magazines were chosen for publication notice: Guidepost, People, Prevention, First for Women, 

and Woman’s World. In addition to the print notice, notice was placed in three of the largest 

groups of Internet sites: Yahoo, Google, and AOL. The Notice Plan also used social media 

through Facebook. 

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Here, the notice plan went far beyond these threshold requirements. Over 4.7 million

persons capable of being readily identified (approximately 40% of the Class) received direct mail 

notice of the settlement. As noted by the Claims Administrator, “[d]irect notice of this type

(approximately 40% of the class) is rare in a case like this one where the product involved is an 

over-the-counter consumer product.” Schey Affidavit, ¶10. For those Class Members who were 

not capable of being identified, the notice plan provided for multiple publications in several 

national magazines, placement on several of the largest Internet sites, and use of the largest 

social media tool, Facebook. The notice to the class clearly satisfied due process. See, e.g., In 

re KFC, 280 F.R.D. at 374-75 (approving a notice plan consisting of publication in Parade, 

Internet advertising, the maintenance of a website containing the notice, and targeted on-line 

advertising and sponsored key-word search advertisements); Kaufman, 264 F.R.D. at 446 

(publication of notice in “a national newspaper of wide circulation, plus an online publication, 

constitutes sufficient notice by publication.”); Cohen v. Chilcott, 522 F. Supp. 2d 105 (D.D.C. 

2005) (approving notice plan consisting of publication in USA Today and an Internet campaign 

targeted to the demographics of the class members). 

Finally, the amount of money set aside (and to be paid by Rexall) for notice and 

settlement administration is significant, with a floor of $1.5 million and a ceiling of $2.5 million, 

and will not erode or diminish the benefits available to the Class. 

V. THE COURT SHOULD APPROVE THE REQUESTED AWARD OF 

ATTORNEYS’ FEES TO BE PAID BY REXALL TO CLASS COUNSEL.

Procedural objections to Class Counsels’ fee applications were filed based upon Mercury 

Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010). In Mercury, the Ninth Circuit held 

that Rule 23(h) requires that class members be allowed the opportunity to object to Class 

Counsel’s fee motion itself, not merely to the preliminary notice that such a motion will be filed. 

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Mercury is not binding upon this Court, and “it appears that no court outside the Ninth Circuit 

has ever followed its conclusion that Rule 23(h) requires a fee petition to be filed before the 

objection deadline.” Bower v. MetLife, Inc., No. 1:09-cv-351, 2012 U.S. Dist. LEXIS 149117, at 

*15-16 (S.D. Ohio Oct. 17, 2012). As noted in Bower, Rule 23(h) does not by its plain language 

require that a fee petition be submitted at any specific time. Furthermore, here the Court’s 

preliminary approval order authorized the notice to the Class, which informed Class Members 

that Class Counsel would seek remuneration of $4.5 million, such that the Class was clearly 

informed of the maximum amount of fees and expenses, which comports with Rule 23(h). See, 

e.g., In re AT & T Mobility, 789 F. Supp. 2d at 972 (“class notice [that] enabled Class Members 

to learn that Class Counsel would seek ‘a fee no greater than the lesser of ten percent (10%) of 

the aggregate value of the Settlement or twenty-five percent (25%) of the amounts refunded by 

taxing jurisdictions to the Settlement Class’ [was] adequate notice [of fee request].”); In re 

Lawnmower Engine Horsepower Mktg. & Sales Practices Litig., MDL 08-1999, 2010 WL 

4386552, at *1-2 (E.D. Wis. Oct. 28, 2010) (Notice informing class members that (1) “class 

counsel had not yet submitted a request for attorneys’ fees and expenses,” and (2) “class counsel 

would make a fee request of no more than one-third of the cash benefits, plus $14 million as 

compensation for obtaining the warranty benefits, plus an unspecified amount of litigation 

expenses,” was sufficient, even in light of Mercury decision). See also, Response to Objections, 

Section III.A.

Notwithstanding that Mercury is not binding upon this Court, Class Counsel will submit 

their fee application on September 4, 2013 – one month before the Final Approval Hearing. This 

will allow the Objectors more than sufficient time to review the papers being submitted in 

support of the fee petitions. 

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A. Class CounselAreEntitled ToCompensation

According to the common fund rule, “‘a litigant or a lawyer who recovers a common 

fund for the benefit of persons other than himself or his client is entitled to a reasonable 

attorney’s fee from the fund as a whole.’” US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 

1545 (2013) (citing Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)); see also Mills v. Electric

Auto Lite Co., 396 U.S. 375, 392 (1970) (recognizing counsel’s right to compensation for

obtaining a common benefit on behalf of the class). This rule has existed in federal courts for 

more than a century now. See Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 47 (2d Cir. 

2000) (citing to Trustees v. Greenough, 105 U.S. 527 (1881)).

In economic terms, “[t]he attorney fee award is the compensation for the effort 

expended to benefit the class. Counsel will not undertake actions of this nature unless they

can receive adequate compensation for (i) their time, (ii) the risk of not prevailing, (iii) the

delay in receipt of fees, [and] (iv) the investment (money as well as time) that must be made

in a case.” Stuart T. Rossman & Charles Delbaum, Consumer Class Actions § 15.2.1 (6th ed.

2006). Indeed, the contingency fee awarded to class counsel must be greater than the fees

that the same attorneys would charge their clients in non­contingency cases. As Judge

Posner has explained:

A contingent fee must be higher than a fee for the same legal services paid

as they are performed. The contingent fee compensates the lawyer not only

for the legal services he renders but for the loan of those services. The

interest rate on such a loan is high because the risk of default (the loss of the

case, which cancels the debt of the client to the lawyer) is so much higher

than that of conventional loans.

Richard Posner, Economic Analysis of Law § 21.9 (2d ed. 1984). Federal courts have adopted

similar reasoning in approving fee awards for class counsel. See Banyai v. Mazur, N o . 00

Civ. 9806, 2008 WL 5110912, at *4 (S.D.N.Y. Dec. 2, 2008) (“A lawyer whose compensation

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is contingent on services can be expected to receive more than she would receive if she were

charging an hourly rate.”) (citations omitted).

In the Seventh Circuit, a district court awarding attorneys’ fees may use the lodestar 

method, the percentage of recovery method, or some combination of the two. Florin v. 

Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994); Harman v. Lyphomed, 945 F.2d 969 

(7th Cir. 1991). The base lodestar may be adjusted upward via a multiplier to reflect the benefit 

of the settlement to the Class as well as the contingent nature of the attorneys’ undertaking based 

on a likelihood of success in obtaining a judgment or settlement measured at the time the 

attorney began work on the case. Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) 

(citations and quotations omitted); Skelton v. General Motors Corp., 860 F.2d 250, 255 (7th Cir. 

1988) (citations and quotations omitted). The court’s task is to do its “best to award counsel the 

market price for legal services, in light of the risk of nonpayment and the normal rate of 

compensation in the market” at the outset of the litigation when the risk of loss still existed. 

Sutton v. Bernard, 504 F.3d 688, 692 (7th Cir. 2007), citing In re Synthroid Mktg. Litig., 264 F.3d 

712, 718 (7th Cir. 2001). 

In In re Synthroid, the Seventh Circuit held that the market rate for legal fees depends in 

part on the following: (1) the risk of nonpayment a firm agrees to bear, in part, (2) the quality of 

its performance, in part on (3) the amount of work necessary to resolve the litigation, and in part 

on (4) the stakes of the case. Id., at 721. Consideration of these factors confirms that an 

aggregate award of $4.5 million to Class Counsel is reasonable and appropriate. 

First, Class Counsel incurred a significant risk of nonpayment by prosecuting these cases.

For example, as a result of the high placebo effect for these products, there is a general 

perception that these products work. Thus, while Plaintiffs’ counsel believe that there is 

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substantial scientific evidence supporting their claims, this public perception of efficacy - both 

amongst jurists and fact finders - made these cases a very risky undertaking. At the inception of 

the lawsuits there was no certainty that Plaintiffs would succeed, or that the cases would settle

and there are, as discussed above, numerous procedural and merits hurdles that pose risks to the 

success of these cases. 

Second, Class Counsel have performed excellently. They have collectively navigated 

numerous motions to dismiss and a motion for summary judgment, have embarked upon class 

certification motion practice, have retained expert witnesses, and, in the Jennings case, prepared 

for a trial upon five months’ notice, completing extensive fact and expert discovery and 

announcing themselves “ready for trial” in a relatively short period of time. The settlement that 

Class Counsel have achieved is significant, not only in terms of the funds made available to the 

Class, but also in terms of the prospective injunctive relief that will prohibit Rexall from making 

key misrepresentations regarding the numerous Covered Products. 

Third, Class Counsel expended a tremendous amount of work to prepare the cases and 

achieve a resolution. As shown in the respective Declarations of Class Counsel, Plaintiffs and 

their attorneys invested considerable time and expense investigating the claims, initiating the 

lawsuits, responding to motions, conducting discovery, preparing for trial in Jennings,

prosecuting class certification in Cardenas, proffering very qualified experts to support the 

claims, and otherwise vigorously prosecuting the cases on behalf of a Class of 12 million 

consumers. 

Given the great risk taken and the substantial result obtained, under either the percentage 

of recovery method or the lodestar method, Class Counsels’ fee applications are eminently 

reasonable and should be granted in their entirety. Again, it must be stressed that attorneys’ fees 

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are not being paid out of the fund that has been made available for Class Members to claim 

against, and Rexall has agreed to pay all attorneys’ fees separate and apart from the recovery in 

favor of the Class. Attorneys’ fees will not diminish or erode the funds made available to the 

Class. As a result, the fee award will have no impact whatsoever on the benefit made 

available to the Class. 

The Federal Rules of Civil Procedure expressly authorize the court to “award 

reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties'

agreement.” Fed. R Civ. P. 23(h) (emphasis added). When the settling defendant agrees to

pay class counsel's fees from its corporate treasury, independent of the benefit obtained for

the class, “the Court's fiduciary role in overseeing the award is greatly reduced, because there

is no conflict of interest between attorneys and class members.” McBean v. City of New York, 

233 F.RD. 377, 392 (S.D.N.Y. 2006). 

Here, Rexall has agreed to pay Class Counsels’ fees and expenses, as a result of which

the fee award will not diminish or erode the total potential benefit (both monetary and 

injunctive) that will be available to the Class. “Thus regardless of the size of the fee award, 

class members ... will receive the same benefit; the fee award does not reduce the recovery to

the class. Under these circumstances, the danger of conflicts of interest between attorneys

and class members is diminished." In re Sony SXRD, 2008 WL 1956267 at *15. Thus, 

courts routinely have approved the payment of class counsel fee awards by the defendant, rather

than the class members. See In re Mexico Money Transfer Litig., 164 F. Supp. 2d at 1033 

(“Because the attorneys fees award was separately negotiated and separately funded, it does not 

reflect any diminished recovery to class members.”).

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length by the parties, especially when the fee is to be paid by the defendant rather than the

class members. This is particularly true where, as here, the Parties agreed upon the material 

terms of the settlement in favor of the Class Members before negotiating the attorneys’ fee 

award. Moreover, the agreed amount of attorneys’ fees was negotiated by sophisticated

counsel familiar with complex class action litigation. See Ingram v. Coca-Cola Co., 200 

F.R.D. 685, 695 (N.D. Ga. 2001) (giving “substantial weight to a negotiated fee amount”); In

re Apple Computer, Inc. Deriv. Litig., No. C 06-4128 JF (HRL), 2008 WL 4820784, at *3

(N.D. Cal. Nov. 5, 2008) (“A court should refrain from substituting its own value for a

properly bargained-for agreement”); Cohn v. Nelson, 375 F. Supp. 2d 844, 861 (E.D. Mo. 2005)

(“[W]here, as here, the parties have agreed on the amount of attorneys’ fees and expenses,

courts give the parties’ agreement substantial deference.”) (citation omitted).

The Supreme Court has endorsed this type of consensual resolution of attorneys’ fee

issues as the ideal toward which litigants should strive. In Hensley v. Eckerhart, 461 U.S.

424, 437 (1983), the Supreme Court stated: “A request for attorney’s fees should not result

in a second major litigation. Ideally, of course, litigants will settle the amount of a fee.” See

also M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F. Supp. 819, 829 (D. Mass.

1987) (noting that in class actions, “ideally the parties will settle the amount of the fee

between themselves”).

B. The Requested Fees Are Well Within The Accepted Range

Of Percentages.

Under the percentage of recovery theory, if one looks only at the minimum total potential 

value of the direct compensation prong of the Settlement (the $14.2 million made available for 

claims by the direct mail recipients, plus $1.5 million notice and administration costs and $4.5 

million in attorneys’ fees and expenses), without regard to the injunctive relief, the agreed-to 

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aggregate fee of $4.5 million in attorneys’ fees and expenses amounts to approximately 22% of 

the total potential benefit to the Class. If one adds to this $20.2 million total potential value the 

$21.7 million minimum value of the injunctive relief, the agreed-to aggregate fee of $4.5 million 

amounts to approximately 11% of the total potential benefit to the Class. 

1. The Value of The Fund.

The fund available for Class Members is uncapped, and has a minimum value of 

approximately $14.2 million (if limited to the direct mail recipients). There are over 12 million 

Class Members, and publication notice reached over 76% of the Class, such that more than 9.1

million Class Members were exposed to the notice. More than 4.7 million Class Members 

received direct, individual notice. Under the terms of the Settlement, each class member has a 

claim for at least $3 – the minimum amount for one undocumented purchase. This yields a 

minimum total potential benefit to the Class of approximately $27.3 million (12 million class 

members x 76% reach x $3.00 minimum claim) or $14.2 million (4.7 million direct notice 

recipients x $3.00). These amounts are conservative because class members are entitled to make 

multiple claims, up to $12 each for undocumented purchases and up to $50 for documented 

purchases. See generally, Declaration of Keith Reutter, Ph.D., ¶13.

Class Counsels’ fees may be determined on the basis of the amount of the total potential 

benefit made available to the Class. This rule of law stems from the Supreme Court’s decision in 

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980). In Boeing, the Supreme Court was faced with 

the issue of whether a proportionate share of the fees awarded to lawyers who represented the 

successful class may be assessed against the unclaimed portion of the fund created by the 

judgment. The Court held as follows:

Once the class representatives have established the defendant’s liability and the total 

amount of damages, the members of the class can obtain their share of the recovery by 

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proving their individual claims against the judgment fund. This benefit devolves with 

certainty upon the identifiable persons whom the court has certified as members of the 

class. Although the full value of the benefit to each class member cannot be determined 

until he presents his claim, a fee award against the entire judgment fund will shift the 

costs of litigation to each absentee in the exact proportion that the value of his claim 

bears to the total recovery. 

Boeing, 444 U.S. at 479.

Courts in this Circuit adhere to this rule. In Mars Steel, supra, the Seventh Circuit 

concluded that the defendant bank’s agreement to provide 23,000 corporate borrowers the 

opportunity for new loans up to $100,000 for a one-year period if found creditworthy, was worth 

approximately $500 per class member. Based upon class members being given this opportunity 

– as opposed to their actually taking it - the court concluded that the “maximum” value of the 

settlement was $11.5 million (23,000 class members times the potential $500 benefit). Thus, the 

settlement was valued at $11.5 million even though, unlike here, there was no certainty that any 

class member might gain this benefit (1) because they may not have needed a loan during the 

following year and (2) they might not have met the bank’s creditworthiness standards upon 

application. Nevertheless, the court found that this settlement “possibly worth as much as $11.5 

million to the plaintiffs” was “generous and certainly adequate . . .” Id. at 682.

In a very recent consumer class action claims-made settlement in this District, the court 

in In re KFC citing Boeing, noted: 

Absent extenuating circumstances, fees are based on the benefit made available 

to the class, as opposed to the amounts actually claimed. This approach 

promotes the deterrence goals of class actions. See, e.g., Boeing, 444 U.S. at 480, 

100 S.Ct. 745; 2 NEWBERG ON CLASS ACTIONS§ 1.18 (3d Ed.1992) (“[I]t is 

now settled that class counsel may seek a fee award based on the total potential 

benefit to the class, rather than being limited by the total amount of claims 

actually exercised by class members.”) 

280 F.R.D. at 386 n.7 (emphasis added)

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In addition, the amounts paid by Rexall for notice and administration, attorneys’ fees and

costs should be added to the total class benefit for purposes of calculating attorneys’ fees. 

Schulte, 805 F. Supp. 2d at 600-601; Staton v. Boeing Corp., 327 F.3d 938, 975 (9th Cir. 2003) 

("We conclude that where the defendant pays the justifiable cost of notice to the class - but not, 

as here, an excessive cost - it is reasonable (although certainly not required) to include that cost 

in a putative common fund benefiting the plaintiffs for all purposes, including the calculation of 

attorneys’ fees.”).

In considering the fee petition, the Court should therefore allocate the percentage on the 

basis of the total potential benefit made available for Class Members to claim against, whether 

those funds are claimed or not. Class Counsel have succeeded in creating an uncapped fund for 

Class Members to access, with a conservative minimum potential benefit of approximately $14.2

million (if limited to the direct notice recipients and not including the value of the injunctive 

relief), and the award of attorneys’ fees should be calculated based upon the full potential 

benefit made available to the Class.

2. The Value of the Injunctive Relief.

As noted above, it is estimated that the Settlement will provide the prospective injunctive 

relief which is valued at approximately $21.7 million for members of the Class for the 30-month 

period. This benefit provides real value to the Class and valuable consumer protection which the 

Court can consider when awarding fees. 

In In re Mexico Transfer Litigation, 267 F.3d 743, 748 (7th Cir. 2001), in evaluating the 

overall fairness and reasonableness of the settlement, the Seventh Circuit noted that the 

prospective relief provided in that settlement “is not an outcome to be sneered at.” There, like 

here, the defendants were required to change their representations about their products so that 

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future consumers, consisting of some whom were current class members, were going to possibly 

purchase defendants’ products in the future. Id. 

Moreover, in order to determine whether a proposed settlement is fair, reasonable and 

adequate, the Court should evaluate the entire settlement, including “any prospective injunctive 

relief in addition to any tangible benefits [ ] conveyed to the class.” See Meyenburg 2006 WL 

5062697, at *8 (citing In re Mexico Money Transfer Litigation, 267 F.3d at 748-49). Meyenburg 

considered all aspects of the settlement and found there was “substantial benefit to the class” 

where, inter alia, defendant “agreed to modify its business practices for three years,” which, like 

here, involved injunctive relief that “specifically encompasses and addresses the challenged 

conduct,” “insures a benefit to all class members, whether or not they file a claim,” and “was 

initiated solely as a result of the Settlement.” Id., at *4, *8. The Meyenburg court further noted 

the injunctive relief was an important factor to weigh in evaluating whether the settlement was 

fair and reasonable, “regardless of the dollar value of this [injunctive relief] component to the 

Settlement.” Id. at *8. Yet, as set forth in the expert report of Dr. Reutter, here the injunctive 

relief has a quantifiable dollar value, making it even more significant.

Courts – in this Circuit and elsewhere – have similarly recognized that injunctive relief –

especially the type of significant relief provided for here – may properly be considered when 

determining the reasonableness of the settlement, and in turn an award of attorneys’ fees. See, 

e.g., Pappas v. Naked Juice Co. of Glendora, Inc., No. CV11-08276 JAK (PLAx) (C.D. Cal.), 

Order at 5 (August 7, 2013) (court took into account “injunctive relief valued at $1.4 million” as 

part of the settlement fund for purposes of determining whether the settlement was reasonable) 

(attached as Exhibit W to the “Master Exhibit List,”); In re Jiffy Lube Int’l., Inc. Text Spam 

Litig., No. 3:11-MD-226-JM (JMA), 2012 WL 4849617, at *2 (S.D. Cal. Oct. 10, 2012) 

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(preliminarily approved settlement as fair and reasonable when considering all aspects of the 

recovery to the class, including the injunctive relief); Bellifemine v. Sanofi-Aventis U.S. LLC, No. 

07 Civ. 2207(JGK), 2010 WL 3119374, at *4 (S.D.N.Y. Aug. 6, 2010) (court considered the 

“substantial” injunctive relief in finding the settlement was fair and reasonable); Perez v. Asurian 

Corp., 501 F.Supp.2d 1360, 1381 (S.D. Fla. 2007) (finding the prospective injunctive relief at 

issue “weigh[s] heavily in favor of approving this Settlement”); Vought v. Bank of America, 

N.A., 901 F.Supp.2d at 1089-1092 (value of injunctive relief was considered in determining 

whether to approve the settlement). 

3. The Percentage of the Class Benefit is Reasonable.

 “In this Circuit, the range of percentage of fund awards is between 30% and 40%. See

e.g., Taubenfield v. AON Corp., 415 F.3d 597, 600 (7th Cir. 2005) (approving attorneys’ fees in 

the amount of 30% of a $7.5 million settlement); Gaskill v. Gordon, 942 F.Supp. 382, 386 (N. D. 

Ill. 1996) (awarding a 38% fee); Kitson v. Bank of Edwardsville, No. 08-507-GPM, 2010 WL 

331730 (S.D. Ill. Jan. 25, 2010) (33% fee award). Because no cap is placed on the amount of 

money Rexall will pay to the Class Members, and because each Class Member is entitled to 

make at least one undocumented claim for $3, the total potential compensatory benefit created by 

the Settlement is at least $14.2 million (if the calculation is limited to the approximately 4.7 

million Class Members who received direct, individual notice) or $27.3 million (if the 9.1 

million Class Members who were reached by the combination of direct and publication notice 

are considered). As noted above, under several different approaches, either limiting the 

percentage analysis to the minimum total potential benefit of the compensatory relief being made 

available to Class Members or including the value of the injunctive relief, the aggregate agreedto amount of $4.5 million in fees and expenses is well within the acceptable percentage range. 

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For example, the minimum total potential benefit of the overall settlement is approximately 

$41.9 million (consisting of the minimum total potential benefit made available to Class 

Members who received direct notice of $14.2 million, $1.5 million in notice and administration 

costs, agreed-to fees of $4.5 million, and the $21.7 million value of the injunctive relief), and the 

aggregate agreed-to fees and expenses of $4.5 million amounts to approximately 11% - well 

within the range of percentages awarded in this Circuit. 

C. A Lodestar Analysis also Shows that the Requested Fee is Reasonable

As more fully set forth in Class Counsels’ respective Declarations, the fee request is also 

reasonable under the lodestar method. Class Counsel invested substantial effort in bringing about 

the settlement on behalf of approximately 12 million consumers. As set forth more fully in Class 

Counsels’ respective Declarations, to arrive at a base lodestar, Class Counsel multiplied the total 

hours by the current hourly rates of the attorneys who worked on this class-action case. A 

reasonable hourly rate should be in line with the prevailing community rate charged for similar 

services by lawyers of reasonably comparable skill, experience and reputation. Jeffboat LLC v. 

Director, Office of Workers’ Compensation Programs, 553 F.3d 487, 489 (7th Cir. 2009). Each 

petitioning firm’s Declaration details the calculation of hours for each attorney that worked on 

the case (which were compiled from contemporaneous time records maintained by each attorney) 

and the prevailing hourly rate charged by those attorneys. As set forth in their respective 

Declarations, Class Counsel respectfully submit that the number of hours expended on the 

litigation were reasonable and necessary, and that the hourly rates prevailing for the attorneys 

involved are also reasonable.13

 

13 The Supreme Court has approved the use of current hourly rates to compensate for inflation and

loss of use of funds. Missouri v. Jenkins, 491 U.S. 274, 284 (1989). See also In re Union Carbide

Corp. Consumer Prods. Bus. Sec. Litig., 724 F. Supp. 160, 163 64 (S.D.N.Y. 1989) (citing cases); In

re NASDAQ Market-Makers Antitrust Litig, 187 F.RD. 465, 489, n.25 (S.D.N.Y. 1998).

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As their respective Declarations demonstrate, the fees requested are reasonable and 

justified under either a straight lodestar approach, a percentage of recovery approach, or a crosschecked approach. 14

 Class Counsel’s contingency risk, the quality of representation, the 

outstanding result achieved, and other relevant factors support the application of the very 

reasonable multipliers requested by Class Counsel. 

As explained in their Declarations, Class Counsel each believe that the multiplier 

requested by them is unquestionably within the range of multipliers found reasonable by courts, 

and is fully justified in light of the effort undertaken by Class Counsel, the recovery achieved, 

and risks involved. “ Typical multipliers awarded in comparable class action litigation average 

around 4, but are often much higher.” In re KFC, 280 F.R.D. at 381. Indeed, courts have 

approved multipliers of up to and beyond four (4). In re Cenco, Inc. Secs. Litig., 519 F.Supp. 

322 (N.D. Ill. 1981) (multiplier of 4); In re Folding Carton Antitrust Litigation, 84 F.R.D. 245 

(N.D. Ill. 1979) (multipliers ranging from 1.3 to 3); Arenson v. Bd. of Trade, 372 F. Supp. 1349 

(N.D. Ill. 1974) (multipliers of 3 and 4); DiGiacomo v. Plains All Am. Pipeline, No. H-99-

4137, 2001 WL 34633373, at *10-11 (S.D. Tex. Dec. 19, 2001) (awarding percentage fee that

resulted in multiplier of 5.3); In re Charter Comm’s., Inc. Sec. Litig., No. MDL 1506, 2005

WL 4045741, at *18 (ED. Mo. 2005) (approving 20% fee yielding 5.61 lodestar multiplier as

"within the range of multipliers found reasonable for cross-check purposes") (citations 

omitted); 1 Alba Conte, Attorney Fee Awards § 2.06, at 39 (2d ed.1993) ("When a large

common fund has been recovered and the hours are relatively small, some courts reach a

 

14 Class Counsel further notes that their work in this case is not complete. They are filing this 

application for attorneys’ fees prior to final approval of the settlement, and therefore the lodestar 

calculation description of the work set forth herein does not account for all of the time that Class 

Counsel will spend on this case.

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reasonable fee determination based on large multiples of 5 or 10 times the lodestar.”).

A district court may use the lodestar method, the percentage of recovery method, or 

some combination of the two. Florin, 60 F.3d at 1247, n. 2. Here, where the percentage of 

recovery is well within the range permitted in this Circuit, the lodestar may be used as a “crosscheck” to confirm the reasonableness of the award. Accord Chemi v. Champion Mortgage, No.

2:05-cv-1238 (WHW), 2009 WL 1470429, at *12 (D.N.J. May 26, 2009). That is

particularly true here, as Rexall will pay Class Counsels’ fees and the multiplier is well within

the range of those approved by the courts in the past.

D. Class Counsel Is Entitled to an Award of Expenses

Additionally, Class Counsel are entitled to an award of costs pursuant to Fed. R. Civ. P. 

23(h), which provides that the court may award “reasonable attorney’s fees and non-taxable costs 

that are authorized by law or by the parties’ agreement.” Courts regularly award reimbursement 

for expenses that are reasonable and necessarily incurred. Spicer v. Chi. Bd. Options Exch., Inc., 

844 F. Supp. 1226, 1256 (N.D. Ill. 1993). As shown in Class Counsels’ respective Declarations, 

Class Counsel advanced significant costs litigating these cases, including costs associated with 

discovery, travel, court fees, and, perhaps most significantly, to retain expert witnesses that were 

instrumental in providing critical evidence addressing Rexall’s claims regarding the efficacy of 

the products. As with the attorneys’ fees, the Court’s award of the costs incurred by Class 

Counsel will not diminish or erode the benefit to the Class Members, because all costs and fees 

are being paid by Rexall independent of compensation to the Class.

E. Incentive Awards

The parties have agreed that each of the named Plaintiffs will be awarded an incentive 

payment of up to $5,000, to be paid by Rexall in addition to the funds made available to the 

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Class. Incentive awards are justified when necessary to induce individuals to become named 

representatives. In re Synthroid, 264 F.3d at 722. In deciding whether an incentive award is 

proper, and, if so, in what amount, relevant factors include the action the plaintiff has taken to 

protect the interests of the class, the degree to which the class has benefited from those actions, 

and the amount of time and effort the plaintiff expended in pursuing the litigation. Cook v. 

Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (approving incentive award of $25,000). As shown 

in Class Counsels’ Declarations, the named Plaintiffs were active participants in the prosecution 

of these cases, willingly undertook the responsibilities and burden associated with serving as a 

class representative, and helped to achieve a substantial settlement for the Class Members. They 

are certainly deserving of the reasonable remuneration for their efforts in the amount of $5,000 

each. 

A $5,000 incentive award for each Plaintiff, to be paid by Rexall, is entirely

reasonable. See In re KFC, 280 F.R.D. at 383 (approving as reasonable aggregate incentive 

award of $25,000.00, which amounted to $5,000 award to each named plaintiff); see also Cook v. 

Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (affirming district court’s incentive award of 

$25,000 to named plaintiff); Heekin v. Anthem, Inc., 1:05-CV-01908-TWP, 2012 WL 5878032, at 

*1 (S.D. Ind. Nov. 20, 2012) (authorizing payment of $25,000 incentive award to named 

plaintiffs); Am. Int’l. Grp., Inc. v. ACE INA Holdings, Inc., 07 CV 2898, 2012 WL 651727, at 

*17 (N.D. Ill. Feb. 28, 2012) appeal dismissed, 710 F.3d 754 (7th Cir. 2013) (awarding named 

plaintiffs incentive awards of $25,000 each); Will v. Gen. Dynamics Corp., No. 06-698-GPM, 

2010 WL 4818174, at *4 (S.D. Ill. Nov. 22, 2010) (same). 

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CONCLUSION

For all the foregoing reasons, Plaintiffs, the Class, and Class Counsel respectfully request 

that the Court should grant final approval of the Settlement and approve the requested attorneys' 

fees and incentive awards to be paid by Rexall.

Dated: September 4, 2013

By: /s/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:

Elaine A. Ryan (admitted pro hac vice)

Patricia N. Syverson (admitted pro hac vice)

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 

By: /s/ Peter N. Freiberg_______________ 

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

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CERTIFICATE OF SERVICE

I hereby certify that on September 4, 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: Plaintiffs’ Memorandum of 

Law in Support of Motion for Final Approval of Class Action Settlement, Attorneys’ Fee 

and Expenses and Incentive Awards. 

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

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2

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 (0074094OH) 

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

/s/ Peter N. Freiberg

One of Plaintiffs’ Attorneys

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