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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TIMOTHY KERRIGAN, LORI MIKOVICH 

and RYAN M. VALLI, individually, and on 

behalf of all others similarly situated, 

Plaintiffs, 

v. 

VISALUS, INC., a corporation, et al., 

Defendants. 

Case No. 2:14-cv-12693 

Hon. Matthew F. Leitman 

ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT 

Plaintiffs Timothy Kerrigan, Lori Mikovich and Ryan Valli (“Named 

Plaintiffs”) acting individually and on behalf of the Settlement Class, filed an 

Unopposed Motion for Preliminary Approval of Proposed Settlement (the 

“Motion”). The Motion seeks preliminary approval of the Named Plaintiffs’ 

agreement with ViSalus, Inc. (“ViSalus”), Nick Sarnicola, Robert Goergen, Sr., 

Todd Goergen, Ryan Blair, Blake Mallen, Frank Varon, Kyle Pacetti, Jr., Michael 

Craig, Timothy Kirkland, Holley Kirkland, Aaron Fortner, Rachel Jackson, Tara 

Wilson, Anthony Lucero, Rhonda Lucero, Jake Trzcinski, Gary J. Reynolds, Kevin 

Merriweather, Ropart Asset Management Fund I, LLC, Ropart Asset Management 

Fund II, LLC, Living Trust Dated 9/30/1991 f/b/o Robert B. Goergen, OCD 
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Marketing, Inc., Power Couple, Inc., Arrive By 25, Inc., BAM Ventures, Inc., 

Gooder, LLC, Red Letters, LLC, M-Power Path, Inc., A Berry Good Life, Inc., 

Network Dynamics America Corp., Freedom Legacy, LLC, Residual Marketing, 

Inc., Got Heart Global, Inc., Jaketrz, Inc., Mojos Legacy, LLC, Beachlifestyle 

Enterprises, LLC, Wealth Builder International, Prospex Automated Wealth 

Systems, Inc., 9248-2587 Quebec, Inc., Jason O’Toole, and Lori Petrilli (collectively 

“Defendants”) to settle all multi-level marketing related individual and class claims 

that have, or could have, been made, Plaintiffs’ Fourth Amended Complaint. This 

Court, having reviewed the Motion and the exhibits, including the written settlement 

agreement (the “Agreement”), finds itself apprised of the issues and grants the 

Motion. Accordingly,

IT IS HEREBY ORDERED:

Preliminary Approval of the Agreement

1. This Court preliminarily approves the Agreement, between Plaintiffs 

and Defendants, subject to further consideration thereof at the Final Approval 

Hearing. The capitalized terms used in this Order have the same meaning as in the 

Agreement unless otherwise stated in this Order. 

2. The Preliminary Approval Date is the day this Court enters this Order 

and sets the timing of the events leading to this Court’s Final Approval Hearing. 

Each event shall be calculated under FED. R. CIV. P. 6. 
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3. After extensive litigation and arm’s-length negotiations by experienced 

counsel for the Parties, the Parties executed the Agreement. The Parties’ 

negotiations included extensive mediation proceedings, with the benefit of an 

experienced, neutral mediator, 

4. Under the Agreement, each Class Member may elect between two 

alternative forms of relief: first, a Cash Option that terminates the Class Member’s 

Independent Promoter (“IP”) status with ViSalus; and second, a Benefits Option 

which provides enhanced compensation, free services, and other benefits. Class 

Members who submit no Valid Election Form receive the Benefits Option. 

5. Under the Agreement, each Class Member who elects the Cash Option 

receives a cash payment of $25 or $50, subject to possible reduction depending on 

the number of Class Members choosing this option. The maximum amount to be 

paid out under the Cash Option is $4,535,000, and Class Members who elect the 

Cash Option shall be terminated as IPs and no longer eligible to receive benefits as 

IPs. 

6. Under the Agreement, each Class Member that does not submit a Valid 

Election Form shall be deemed to have elected the Benefits Option and receive all 

corresponding benefits, which includes these benefits (besides any other benefits to 

which he or she may be entitled as an IP): 
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a. 25% Commission Rate on all sales (both first time sales and 

subsequent sales) personally made by the Class Member to customers who 

purchase product from ViSalus for the first time after the Effective Date (i.e., 

new customers) for one (1) year from the Effective Date; 

b. 35% Product Discount on up to $1,000.00 in product purchases 

made by the Class Member at normal IP (i.e., wholesale) prices for one (1) 

year from the Effective Date (up to $1,000.00 in product purchases for only 

$650.00); 

c. Free re-enrollment as an IP on the Basic enrollment track (no 

purchase necessary) for one (1) year from the Effective Date; 

d. Free event registration for one (1) event, if any are held, for one 

(1) year from the Effective Date, and if none are held within one (1) year, then 

free event registration for the next held event, if held within eighteen (18) 

months from the Effective Date; and 

e. Free Vi-Net Pro Subscription for: 

(i) one (1) year from the Effective Date for all Settlement Class 

Members who choose the free re-enrollment listed in Section (c) above 

and who previously paid for Vi-Net Pro; or 
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(ii) six (6) months from the Effective Date for all Settlement Class 

Members who choose the free re-enrollment listed in Section (c) above 

and who did not previously pay for Vi-Net Pro. 

7. The Agreement also requires the adoption of the following corporate 

reforms/injunctive relief for a period of three (3) years from the Effective Date: 

a. Within thirty (30) days of the Effective Date, ViSalus will 

publish and maintain a retail price list for all products on its corporate website 

which will be prominently available to all IP’s and customers; 

b. ViSalus will prominently disclose in the IP Application and the 

ViSalus Policies and Procedures that any product purchases are optional and 

that IPs are not required to purchase or stock inventory as a condition of doing 

business; 

c. ViSalus will not compensate IPs primarily for the act of 

recruiting or registering other IPs; 

d. ViSalus will maintain a policy allowing buy backs of product at 

commercially reasonable terms for a period of at least 30 days from purchase; 

e. When making sales-based bonus payments or incentives to IP’s, 

ViSalus will condition such payments or incentives on reasonably reliable 

reported levels of sales to end-user consumers (i.e., non-IP customers) and IPs 

who purchase product for personal consumption; 
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f. ViSalus will not make any false or misleading representations 

regarding IPs who are parties to a special compensation agreement with any 

IP named as a Defendant in the ViSalus Action or with ViSalus; 

g. ViSalus will maintain a compliance department and have and 

enforce rules requiring IP compliance with applicable law; and 

h. ViSalus will not make any representations regarding its current 

or former relationship with Blyth, the Goergen family, or its sales activity 

between 2010 and 2014 that are false or misleading. 

 8. This Court finds that the terms embodied in the Agreement appear, 

upon preliminary review, fair, reasonable and adequate and warranting preliminary 

approval and sending notice of the Settlement to the Class Members to consider its 

terms before the Final Approval Hearing under FED. R. CIV. P. 23(e). 

The Settlement Class 

9. This Court finds that the proposed Settlement Class likewise meets the 

requirements of FED. R. CIV. P. 23(b)(3), 23(c)(1), and 23(c)(1)(B), and 

conditionally certifies the following Settlement Class, as of the date of this Order, to 

consider the Settlement: 

All current or former independent promoters (“IPs”) of ViSalus who 

reside in the United States or Canada that lost money as a ViSalus IP 

between July 9, 2008 and the Preliminary Approval Date. In 

determining whether an IP lost money as an IP for purposes of this 

Settlement Class, the following calculation was used: 
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a. $49.00 of the cost of any ViSalus promoter system purchased (regardless 

of additional amounts spent above $49.00); plus 

b. the costs spent on Vi-Net; plus 

c. all renewal fees paid by the IP, minus 

d. all commissions received by the IP; minus 

e. the value of all free product received by the IP (including, but not limited 

to, free products received as part of the 3 for Free promotion); and minus 

f. the value of all Vi Points earned by the IP. 

10. Excluded from the Settlement Class, even if they meet the criteria 

above, are (i) IPs who profited from ViSalus (that is, earned more as a ViSalus IP 

than they paid ViSalus); (ii) Defendants, and any IPs owned, controlled or otherwise 

affiliated with any Defendant other than merely the IP’s status as an IP; (iii) the 

presiding judge(s) and his or her (or their) immediate family; (iv) any individual that 

elects to be excluded from the Settlement Class; and (iv) any person who has 

previously released claims against Defendants or whose claims have been fully and 

finally adjudicated by a court with jurisdiction over the claims. 

11. This Court preliminarily finds that Timothy Kerrigan, Lori Mikovich 

and Ryan M. Valli have and will fairly and adequately represent and protect the 

interests of the absent Class Members under FED. R. CIV. P. 23(a)(4). 

12. These attorneys and their respective firms have zealously litigated this 

case and the Court appoints these attorneys and their respective firms to serve as 

Class Counsel and represent the Settlement Class for the Settlement: 

Andrew Kochanowski 

Lance C. Young 
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Sommers Schwartz, P.C. 

One Towne Square, Suite 1700 

Southfield, MI 48076 

Matthew Prebeg 

Prebeg, Faucett & Abbott PLLC 

8441 Gulf Freeway, Suite 307 

Houston, TX 77017 

Edward Wallace 

Mark Miller 

Wexler Wallace LLP 

55 W. Monroe St. Suite 3300 

Chicago, IL 60603 

13. This Court preliminarily finds that Class Counsel and their respective 

firms have and will fairly and adequately represent and protect the interests of the 

absent members of the Settlement Class under FED. R. CIV. P. 23(a)(4) and (g). 

14. If the Agreement is terminated or is not consummated, Defendants shall 

be deemed to have reserved all rights they now possess to oppose class certification. 

15. This Court preliminarily approves the Settlement as described in the 

Agreement and preliminarily finds that the Settlement benefits are fair, adequate, 

and reasonable under the circumstances, considering the risks and costs of litigation 

for each party. 

Approval of Notice Plan and Schedule 

16. This Court has reviewed and approves the Notice Plan set forth by the 

Parties, which is detailed in their written Agreement, attached as Exhibit 1 to their 

Motion, and incorporated in this Order. This Court finds that the Notice, Exhibit 1-
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A, and Detailed Notice, Exhibit 1-C, both attached to the Motion, clearly and 

concisely state, in easily understood language, all the elements in FED. R. CIV. P.

23(c). In keeping with the Notice Plan that this Court herein approves, the 

Settlement Administrator shall comply with the Notice Plan set forth in Exhibit 1, 

including but not limited to the terms of Exhibit 1 (II)(C). Specifically, based on 

contact information in ViSalus’ records, the Settlement Administrator shall email 

Exhibit 1-A to the Class Members. For those emails returned as undelivered, under 

the Notice Plan, the Settlement Administration shall mail Exhibit 1-A to the Class 

Member’s address in ViSalus’ records. 

17. This Court finds that the Notice Plan affords the best practicable notice 

under the circumstances and, when completed, shall constitute fair, reasonable, and 

adequate notice of the Settlement to all persons and entities affected by or entitled 

to participate in the Settlement, in compliance with FED. R. CIV. P. 23(c)(2) and due 

process. 

18. This Court appoints Epiq Class Action & Claims Solutions, Inc. 

(“Epic”) as the Settlement Administrator. This Court finds that Epic has the 

experience and resources to act as the Settlement Administrator. 

19. This Court authorizes the Settlement Administrator to provide notice of 

the Settlement to the Settlement Class and administer the claims of the Class 

Members as provided in the Agreement. 
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20. This Court further orders the Settlement Administrator to implement 

the notice events identified in the Notice Plan, using the forms attached as Exhibit 

1-A & C to this Order under this schedule: 

EVENT DATE 

Settlement Notice emails sent to Class 

Members 

No later than 30 days after the 

Preliminary Approval Date 

Objections to the Settlement

21. Any Class Member who objects to the Agreement shall file a written 

objection with this Court, with a copy served on Class Counsel and ViSalus’ counsel, 

pursuant to this schedule: 

EVENT DATE 

Deadline to File and Serve Objections 

and Deadline of Notice to Appear at the 

Final Fairness Hearing

No later than 75 days after the 

Preliminary Approval Date 

22. This Court will not consider a Class Member’s objection to the Settlement 

unless that Class Member files a written objection. This Court will not hear from any 

Class Member at the Final Approval Hearing unless that Class Member’s written 

objection states he or she wishes to appear before this Court. All written objections 

must: (a) be marked as “Written Objections to Settlement Agreement” in Kerrigan 

et al. v. ViSalus et al., Civil Action No. 14-cv-12693; (b) state the objector’s full 
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name, address, and telephone number; (c) set forth a brief statement regarding the 

objections; (d) state the reasons for the objections; (e) include copies of any papers 

that support the objections; (f) the objector’s signature and verification under oath 

that the objector believes he or she is a Class Member; and (g) if the objector wants 

to be heard at the Final Approval Hearing, state that the objector intends to appear 

at the Final Approval Hearing. If an attorney makes the objection, the written 

objection must provide the attorney’s name, address, email address, and telephone 

number. Counsel for the Parties may file any responses to the objections submitted 

(if any) at least five (5) days before the date of the Final Fairness Hearing. 

Requests to be Excluded from the Settlement 

23. Any Class Member who wishes to be excluded from the Settlement 

Class shall mail written notice of exclusion to the Settlement Administrator, pursuant 

to this schedule: 

EVENT DATE 

Deadline to Postmark or Send 

Electronically the Notice of 

Exclusion

No later than 75 days after Preliminary 

Approval Date 

24. Any Class Member’s notice of exclusion shall include all of the 

following: (a) full name, (b) phone number, (c) current address, (d) a statement that 
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the person wishes to be excluded from the Settlement and (e) the signature of the 

person who wishes to be excluded. 

25. Any Class Member who submits a timely notice of exclusion that 

complies with the requirements in this Order shall not be bound by the Settlement, 

the Agreement, or the Final Order and Judgment. At least weekly after receiving an 

exclusion, the Settlement Administrator shall provide copies of each notice of 

exclusion to Class Counsel and ViSalus’ counsel. 

26. Any Class Member who does not properly and timely mail a notice of 

exclusion as set forth herein shall be included in the Settlement Class and shall be 

bound by the Settlement, the Agreement and the Final Order and Judgment. 

27. Any Class Member who submits a notice of exclusion that complies 

with the requirements of this Order and objects to the Settlement shall be deemed to 

have excluded himself or herself from the Settlement Class. The Court will not 

consider an objection to the Settlement from a person that has excluded himself or 

herself from the Settlement Class. 

Administration of Communications from Class Members 

28. To effectuate the Settlement and the Notice Plan, the Settlement 

Administrator shall be responsible for receiving all notices of exclusion and Election 

Forms. The Settlement Administrator shall preserve (on paper or transferred into 
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electronic format) all documents received from Class Members in response to the 

notices for three (3) years, or under a further order of this Court. 

29. Each Class Member may submit a Valid Election Form by email or mail 

to the Settlement Administrator. Valid Elections Forms may be submitted no later 

than 75 days after the Preliminary Approval Date. 

30. Any Class Member who does not submit a Valid Election Form shall 

receive the Benefits Option. 

31. Any information received by the Settlement Administrator for this 

Settlement that pertains to a Class Member, or information submitted with a notice 

of exclusion (other than the identity of the person requesting exclusion), shall not be 

disclosed to any person other than Class Counsel, ViSalus’ counsel, and this Court, 

or as otherwise provided in the Settlement Agreement. 

Final Fairness Hearing

32. This Court will have the Final Fairness Hearing no earlier than 100 days 

after the Preliminary Approval Date. Specifically, this Court will hold the Final 

Fairness Hearing in Courtroom 127 of the United States District Court for the 

Eastern District of Michigan, 600 Church Street, Flint, MI 48502 on October 1, 2019 

at 10:00 a.m. At the Final Fairness Hearing, this Court will consider the Settlement, 

including the following: 
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a. whether the Settlement Class should be finally certified for the 

entry of a final judgment; 

b. whether the Agreement is fair, reasonable and adequate; 

c. whether the claims should be dismissed with prejudice and final 

judgment entered in this matter; 

d. whether Named Plaintiffs should be granted incentive awards in 

the following amounts: (i) Timothy Kerrigan, $15,000.00; (ii) 

Lori Mikovich, $10,000.00; and (iii) Ryan Valli, $10,000.00. 

e. whether Class Counsel’s motion for attorneys’ fees and expenses 

should be granted, such fees and expenses not to exceed 

$4,265,000. 

33. Class Counsel shall file with this Court a memoranda or other materials 

to support this Court’s final approval of the Settlement no later than 85 days after 

the Preliminary Approval Date. Class Counsel shall file their application(s) for 

attorneys’ fees and expenses, and service awards, with this Court no later than 65 

days after the Preliminary Approval Date. 

34. If finally approved, every term and provision of the Agreement (except 

as modified by the Final Approval Order) shall be deemed incorporated into the 

Final Order and Judgment and shall have the full force and effect of an Order of this 

Court. 
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Service of Objections, Notices of Intent to Appear and Other Documents

35. When this Order directs that papers, briefs, objections, notices and other 

documents be served upon Class Counsel and ViSalus’ counsel, service shall be 

made to the attorneys listed below by the United States Mail, first class, addressed 

as follows: 

Class Counsel

Andrew Kochanowski 

Sommers Schwartz, P.C. 

One Towne Square, Suite 1700 

Southfield, MI 48076 

akochanowski@sommerspc.com

Counsel for ViSalus 

Edward A. Salanga 

Quarles & Brady LLP 

2 North Central Avenue 

Renaissance One 

Phoenix, AZ 85004 

Edward.Salanga@quarles.com

Status of Litigation and Settlement

36. There shall be no discovery and other pretrial proceedings for the 

Settlement Class, pending Final Approval of the Class Settlement, except for such 

proceedings as provided for in the Agreement, or which may be necessary to 

implement the Settlement, the Agreement, or this Order. 
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37. Pending Final Approval, no Class Member, either directly, 

representatively, or in any other capacity (other than a Class Member who validly 

and timely elects to be excluded from the Settlement Class), shall commence, 

continue or prosecute against any or all Released Persons any action or proceeding 

in any court or tribunal asserting any of the matters, claims or causes of action that 

are to be released upon Final Approval under the Agreement, and are enjoined from 

so proceeding. 

38. Upon Final Approval, all Class Members who do not file a timely notice 

of exclusion shall be forever enjoined and barred from asserting any of the matters, 

claims or causes of action released pursuant to the Agreement, and any such 

Settlement Class Member shall be deemed to have forever released the Released 

Persons from any and all such matters, claims and causes of action as provided for 

in the Agreement. 

39. If the Agreement is terminated and the Settlement is not fully 

consummated, all proceedings had in connection therewith shall be null and void, 

without prejudice to the status quo rights of any party that existed before the Parties 

executed the Agreement. 
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40. Neither this Order nor the Agreement shall constitute any evidence or 

admission of liability by any Defendant, nor shall they be offered into evidence in 

this or any other proceeding except to consummate or enforce the Agreement or the 

terms of this Order. 

 IT IS SO ORDERED. 

/s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: June 14, 2019 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on June 14, 2019, by electronic means and/or ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9764