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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Pearson, et al., 

 Plaintiffs, 

)

)

)

)

)

 v. ) 11 C 7972 

Target Corporation, et al., 

 Defendants. 

)

)

)

)

Order 

 Years ago, a consumer brought this class action challenging 

allegedly false claims about the efficacy of the dietary supplement 

glucosamine. The case was settled and the settlement approved in 

2014, but in an appeal led by class member Theodore Frank, the 

Seventh Circuit vacated and remanded after concluding that the 

settlement was not fair, reasonable, and adequate for reasons 

including the “outlandish” percentage of the settlement award 

allocated to attorneys’ fees, with any reduction the judge ordered 

in those fees to revert to defendants. Pearson v. NBTY, Inc., 772 

F.3d 778, 781 (7th Cir. 2014). A new settlement offering greater 

benefits to the class was approved in 2016 over the objections of 

three unnamed class members—Buckley, Nunez, and Sweeney—who 

appealed the settlement judgment. But before briefing began on 

their appeals, the objectors voluntarily dismissed them in 

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exchange for side-payments totaling $130,000. The district court 

then entered a second, “Post-Appeal Judgment” dismissing the case 

with prejudice, which was unaccompanied by any order for 

effectuating the settlement. Pearson v. Target Corp., 893 F.3d 

980, 983 (7th Cir. 2018) (“Pearson II”). 

Theodore Frank sought to intervene and disgorge these sidepayments, arguing that “because the appeals were brought on behalf 

of the class, the class [was] entitled to any proceeds from the 

side settlements.” Id. After briefing on Frank’s motion was set, 

the case was reassigned to another district judge who struck 

Frank’s motion (and several subsequent motions) for lack of 

jurisdiction. Frank successfully appealed, and the Seventh 

Circuit’s decision on his appeal, Pearson v. Target Corp., 968 

F.3d 227 (7th Cir. 2020) (“Pearson III”), governs the outcome of 

the motion presently before me, in which Frank seeks disgorgement 

in constructive trust of the side-payments, in their entirety, 

including any amounts allocated to attorneys’ fees and costs. 

Because that is precisely what the Seventh Circuit contemplated in 

Pearson III, and because each of the arguments Buckley and Nunez 

raise in opposition to the motion (Sweeney has filed no response) 

was either expressly rejected in Pearson III or is inconsistent 

with its holding, Frank’s motion is granted. Additionally, I agree 

with Frank that an award of interest accruing from the date of the 

Pearson III mandate is consistent with both the general rule that 

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“[i]nterest shall be allowed on any money judgment in a civil case 

recovered in a district court,” 28 U.S.C. § 1961(a), and the 

equitable considerations at play in this case. 

As for distribution of the disgorged funds, Frank asks 

preferentially that they be distributed to a portion of the class 

claimants selected at random by lottery, with each claimant’s 

chance of selection being proportionate to his or her original 

claim. Whatever the theoretical merits of such a distribution 

procedure, the Seventh Circuit has already determined that the 

remedy most consistent with the settlement terms approved in 

Pearson II is the one Frank seeks in the alternative: “ordering 

payment to the Orthopedic Research and Education Foundation,” 

which is the settlement agreement’s designated cy pres

beneficiary. Pearson III, 968 F.3d at 837. Even assuming that the 

Seventh Circuit’s observation in this respect leaves me discretion 

to order an alternative manner of distribution, I see no compelling 

reason to depart from the appellate court’s judgment. 

 

 ENTER ORDER: 

_____________________________ 

 Elaine E. Bucklo

 United States District Judge 

Dated: December 16, 2022 

Case: 1:11-cv-07972 Document #: 444 Filed: 12/16/22 Page 3 of 3 PageID #:6600