1. What is this notice and why should I read it?
This Notice advises you of a proposed class action settlement in a lawsuit entitled Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC (the “Action”), brought on behalf of the Class, and pending in the United States District Court for the Southern District of California. You need not live in California to get a benefit under the Settlement. The Settlement resolves a lawsuit over whether Heel, Inc. (“Heel” or “Defendant”) falsely or deceptively labeled and marketed Heel homeopathic products which are sold in the United States (the “Products”). Defendant stands by its labeling and marketing and denies it did anything wrong. You should read this entire Detailed Notice carefully because your legal rights are affected whether you act or not. A listing of the Products involved in this lawsuit is available here.
The Court has granted preliminary approval of the Settlement and has set a final hearing to take place on March 7, 2014 at 1:30 p.m. in the Courtroom of the Honorable Gonzalo P. Curiel, United States District Court for the Southern District of California, to determine if the Settlement is fair, reasonable and adequate, and to consider the request by Class Counsel for attorneys’ fees and expenses, and an incentive award for the class representative.
2. What is a class action lawsuit and what is this lawsuit about?
A class action is a lawsuit in which one or more plaintiffs sue on behalf of themselves and other people who may have similar claims. In this case, Plaintiff is Robert A. Mason. The Defendant is Heel, Inc. Together, Plaintiff and Defendant are referred to in this notice as the “Parties.” Defendant is the manufacturer and/or distributor of multiple homeopathic drugs, such as Traumeel and Zeel, which are advertised to provide relief for symptoms of common ailments including but not limited to pain relief remedies. This Settlement involves all existing homeopathic products manufactured and/or distributed by Defendant and sold in the United States, in any variation, format, dosage, dilution or package, from December 21, 2008 to the Opt-Out Date, as designated by the Court in its Preliminary Approval Order. Again, a listing of the Products involved in this lawsuit is available here.
Plaintiff has decided to settle the claims against the Defendant on behalf of all members of the Class by entering into a written settlement agreement called the “Settlement Agreement.” The individuals on whose behalf the Settlement has been made are called “Class Members.” The individuals who make up the Class (i.e. the Class Members) are described in Question No. 4 below.
The Settlement has already been preliminarily approved by the Court. Nevertheless, because the settlement of a class action determines the rights of all members of the proposed class, the Court in which this lawsuit is pending must give final approval to the Settlement before it can take effect.
The Court has conditionally certified the Class for settlement purposes only, so that members of the Class can be given notice and the opportunity to (i) exclude themselves from the Class, (ii) voice their support or opposition to final approval of the Settlement, and (iii) learn how to submit a Claim Form to get the relief offered by the Settlement. If the Settlement is not given final approval by the Court, or the Parties terminate it, the Settlement will be void, and the Action will continue as if there had been no Settlement and no certification of the Class.
3. Why is there a settlement?
The Court has not decided in favor of either side in the case. Defendant denies all allegations of wrongdoing or liability against it and asserts that its conduct was lawful. Defendant is settling to avoid the expense, inconvenience, and inherent risk and disruption of litigation. Plaintiff and his attorneys believe that the Settlement is in the best interests of the Class because it provides an appropriate recovery for Class Members now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals.
4. Who is included in the settlement?
The Class covered by the Settlement is defined as follows: All persons in the United States who purchased the Products for personal or household use from December 21, 2008 to the Opt-Out Date, as designated by the Court in its Preliminary Approval Order. Excluded from the Class are Defendant; and persons who during or after the Settlement Period were officers or directors of Defendant, or any corporation, trust or other entity in which any Defendant has a controlling interest; and the members of the immediate families of Defendant’s employees or their successors, heirs, assigns and legal representatives; any judicial officer hearing this Action, and their family members and employees.
5. What does the settlement provide?
A. Payments to Class Members.
Defendant will pay a sum total of $1,000,000 for (i) valid claims submitted by Class Members, (ii) Class Counsel’s attorneys’ fees and expenses, (iii) an incentive award to Plaintiff for his efforts in bringing the Action, (iv) costs of notice and claims administration, and (v) any applicable taxes. Any of the $1,000,000 remaining after payment of all claims, attorneys’ fees and expenses, incentive award, and taxes will be distributed fifty (50) percent to a Court-approved non-profit organization dedicated to informing and advocating on behalf of consumers regarding drug labeling concerns, such as Consumers Union, or a non-profit organization that provides legal services on behalf of the indigent, as set forth in California Code of Civil Procedure section 384; and fifty (50) percent to Class Member Claimants as a supplemental distribution.
If you are a member of the Class (defined in the answer to Question No. 4 above), and you do not exclude yourself from the Class, you can submit a claim to receive a cash payment.
Claims Submitted With Proof of Purchase: If you are able to provide proof of purchase from any retailer in the United States (e.g., receipt or packaging) (“Proof of Purchase”), you may submit a claim which will entitle you to a refund of the purchase price up to a maximum of $25.00 per Product, subject to a cap of $150.00 per Class Member.
Claims Submitted Without Proof of Purchase: If you are unable to provide Proof of Purchase but swear or affirm under penalty of perjury that you purchased a Product during the Class Period, you may submit a claim for the purchase price of the Product as sworn to on the claim form, up to a maximum of $25.00 per Product, with a cap of $100.00 per Class Member.
Process: To be eligible for a payment pursuant to the Settlement, a Class Member must submit a claim that (i) is postmarked (or dated, if submitted online) by the Claim Filing Deadline, which will be ninety (90) days after the date the Court enters a judgment granting final approval, and (ii) contains all of the required information and documentation set forth in the claim form. You can file a claim form online or download a claim form here. You can also get a claim form by writing to the Heel Claims Administrator, c/o Classaura, 780 Morosgo Dr #14103, Atlanta, GA 30324. If the aggregate number of claims exceeds the Net Settlement Fund, payments to Class Members may be subject to pro rata reduction.
B. Injunctive Relief.
If the Settlement is approved at the Final Approval Hearing, Heel will modify the labels and packaging for the Products and Heel’ web pages as described below on a rolling basis to be completed within eighteen (18) months of the date the Settlement becomes Final (the “Effective Date”).
Packaging Modifications: (i) FDA Disclaimer: Defendant will include the following language on the same outer label or package panel that bears the Drug Facts box: “These statements have not been reviewed by the Food and Drug Administration. They are supported by traditional homeopathic principles.” (ii) Dilution Disclaimer: The back panel of each Product’s outer label or package shall be modified to include the following language: “X is a homeopathic dilution. For more information, see the Settlement Agreement in the documents section of this website.” (iii) “Natural” claims: Unless the Product contains all natural ingredients, Heel shall use the term “natural” in a manner that is appropriately qualified (e.g., by using an asterisk that links to the phrase: “Contains [X] natural active ingredients out of [X] actives, see Drug Facts”). (iv) “Clinically Proven” claims: Heel will cease using the words “Clinically Proven,” “Proven … Effective” or any similar representation that expressly or impliedly asserts medical, scientific or clinical proof on any Products for which it does not have at least two clinical studies performed by independent researchers that utilize generally accepted protocols such as randomized, double-blind placebo-controlled trials, with publication and peer review; further, if any clinical trial are sponsored by Heel, Heel shall adequately disclose this fact to consumers. (v) “Doctor Recommended” claims: Heel shall cease using the words “Doctor Recommended” and “[U]sed by doctors worldwide” unless it also discloses to consumers the percentage of those doctors who are homeopathic practitioners and the percentage who are allopathic or any other type of medical practitioners.
Web Page Modifications: Heel will modify its main web site and all web pages it owns for each of the Products (the “Individual Product Web Sites”), as follows: (i) A new Homeopathic Dilution Page will be placed on Heel’s web site, that will be readily accessible from the web site’s home page and the home pages of each of the Individual Product Web Sites, and on every other one of Heel’s Individual Product Web Sites now existing or in development; (ii) The Homeopathic Dilution Page shall provide an explanation of the X dilution in a language understandable to the average consumer, in a question and answer format, explaining the level of dilution and method used to dilute the Products, as provided in Exhibit F of the Settlement Agreement; (iii) A link to the FDA web site for its Compliance Policy Guide § 400.400 document shall be provided on all of Heel’s web sites.
6. Who represents the Class?
A. Class Representative. For purposes of the Settlement, the Court has appointed Plaintiff Robert A. Mason to serve as the Class Representative. The Class Representative is entitled to seek an incentive award, subject to Court approval. Defendant shall have the option of responding to any such incentive award application, including by contesting the amount of the incentive award requested to the extent it exceeds $3,500. If the Court approves the Class Representative’s incentive award, it will be paid from the Settlement Fund.
B. Class Counsel. The Court has approved the appointment of The Law Offices of Ronald A. Marron as Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
From the beginning of the dispute to the present, Class Counsel have not received any payment for their services in prosecuting the case or obtaining the Settlement, nor have they been reimbursed for any out-of-pocket expenses they have incurred. Class Counsel will apply to the Court for an award of attorneys’ fees of up to thirty percent (30%) of the total value of the settlement to the class, plus actual expenses (including their court costs), subject to Court approval. To view the motion for attorney’s fees, costs and incentive award for Plaintiff Robert A. Mason, visit the Settlement Website on or after January 21, 2014. Defendant shall have the option of responding to any such application, including by contesting any fees and expenses requested to the extent it exceeds thirty percent of the value of the settlement to the Class. If the Court approves the attorneys’ fee and expense application, it will be paid from the Settlement Fund. The Class Members will not have to pay anything toward the fees or expenses of Class Counsel. Class Counsel will seek final approval of the Settlement on behalf of all Class Members. You may hire your own lawyer to represent you in this case if you wish, but it will be at your own expense.
7. How can I exclude myself from the Class?
You can get out of the Settlement and the Class by “excluding” yourself (also called “opting-out”). If you exclude yourself, you will not be able to submit a claim form, and you will not be entitled to claim any of the relief offered by the Settlement. If you choose to exclude yourself from the Class, you may pursue whatever legal rights you may have in any separate proceeding if you choose to do so, but you will have to do so at your own expense.
To exclude yourself from the Class, you must send a letter saying that you want to be excluded from the class in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC. “Mass,” or “class” opt-outs shall not be accepted. Your exclusion request must include your name, address, telephone number, signature, and a signed statement to the effect that: “I hereby request to be excluded from the proposed Class in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC.” Your exclusion request must be postmarked no later than February 5, 2014, and sent via first class mail to the Claims Administrator at the following address: Heel Claims Administrator, c/o Classaura, 780 Morosgo Dr #14103, Atlanta, GA 30324.
A request for exclusion that does not include all the above information, that is sent to an address other than the one listed above, or that is not received on time, will not be valid and the person(s) asking to be excluded will be considered a member(s) of the Class, and will be bound as a Class Member(s) by the Settlement.
If you elect to opt-out, you will (i) not have any rights as a Class Member pursuant to the Settlement, (ii) not be able to receive any payments as provided in the Settlement, (iii) not be bound by any further orders or judgments in this case, and (iv) remain able to pursue the claims alleged in the case against Defendant by filing your own lawsuit at your own expense. If you proceed on an individual basis, you might receive more, or less, of a benefit than you would otherwise receive under this Settlement or no benefit at all.
8. How can I tell the Court what I think about the Settlement?
If you do not exclude yourself from the Class, you or your attorney can comment in support of or opposition to the Settlement and have the right to appear before the Court to do so. Your objection to or comment on the Settlement must be submitted in writing to the Claims Administrator at the following address: Heel Claims Administrator, c/o Classaura, 780 Morosgo Dr #14103, Atlanta, GA 30324, by February 5, 2013. You must also file your comment or objection with the Court and send a copy of your comment or objection to the attorneys for the Parties at the following addresses, no later than February 5, 2013:
United States District Court
Southern District of California
333 West Broadway, Suite 420
San Diego, CA 92101-8900
Ronald A. Marron
Law Offices of Ronald A. Marron, APLC
651 Arroyo Drive
San Diego, CA 92103
Matthew G. Ball
K&L Gates LLP
4 Embarcadero Center, Suite 1200
San Francisco, CA 94111
The objection or comment must be in writing and contain a caption or title that identifies it as “Objection to Class Settlement in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC,” and also contain: (a) the Class Member’s full name and current address; (b) a signed declaration that he or she is a Class Member; (c) the factual basis and legal grounds for the objection, including any documents sufficient to establish the basis for their standing as a Class Member such as verification under oath as to the approximate date(s) and location(s) of their purchase(s) of the Products; (d) identification of the case name, case number, and court for any prior class action lawsuit in which the objector has objected to a proposed class action settlement, the general nature of such prior objection(s), and the outcome of said prior objection(s); (e) identification of the case name, case number, and court for any prior class action lawsuit in which the objector and the objector’s attorney (if applicable) has objected to a proposed class action settlement, the general nature of such prior objection(s), and the outcome of said prior objection(s); (f) the payment terms of any fee agreement between the objector and the objector’s attorney with respect to the objection; and (g) any attorneys’ fee sharing agreement or referral fee agreement between or among the objector, the objector’s attorney, and/or any third party, including any other attorney or law firm, with respect to the objection.
If you wish to appear at the hearing, you will need to file a notice of intention to appear, either in person or through an attorney, with the Court and list the name, address and telephone number of the attorney, if any, who will appear. This notice of intention to appear will need to be filed no later than February 5, 2013.
If you do not submit a written comment on the proposed Settlement or the applications of the Class Representative and Class Counsel for an incentive award and attorneys’ fees and expenses, respectively, in accordance with the deadline and procedure set forth above, and you are not granted relief by the Court, you will waive your right to be heard at the fairness hearing.
If you do not object as described above, and you do not exclude yourself from the Class, you will be deemed to have consented to the Court’s certification of, and jurisdiction over, the Class, and to have released the Released Claims (defined in the Settlement Agreement).
9. What is the effect of final settlement approval?
If the Court grants final approval of the Settlement, the Court will enter a final order and judgment, and dismiss the case. The release by Class Members will then take effect. All Class Members will release, with the exception of claims for personal injury, any and all claims, demands, rights, suits, liabilities, and causes of action of every nature and description whatsoever, known or unknown, matured or unmatured, at law or in equity, existing under federal and/or state law, contingent or non-contingent, suspected or unsuspected, against Defendant and the Released Persons (as defined in Section 1.29 of the Settlement Agreement) and which arise out of, in connection with, or related in any way, directly or indirectly to Defendant’s advertising, marketing, packaging, labeling, promotion, manufacture, sale or distribution of the Products, that have been brought, could have been brought, or are currently pending, by any Class Member against the Released Persons in any forum in the United States (including their territories and Puerto Rico), up to the Effective Date. Class Members and Plaintiff will also release any claims that are alleged or could have been alleged in the Action. Please refer to Section 6 of the Settlement Agreement for a full description of the claims and persons that will be released upon final approval of the Settlement. Further, by the Settlement, Class Members expressly waive and relinquish any rights or benefits available to them under Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
There is a certain amount of time to appeal the final order and judgment. Once that time has expired with no appeal having been filed, or when any appeal that has been filed is conclusively resolved, claim forms and payments under the Settlement will then be processed, and claims payments will then be distributed.
Whether you consider the Settlement favorable or unfavorable, any and all Class Members who do not exclude themselves from the Class will not be permitted to continue to assert Released Claims in any other litigation or proceeding against Defendant or other persons and entities covered by the release. You can obtain a copy of the Settlement Agreement from the Clerk of the Court, online in the documents section of this website, or by writing to the Claims Administrator at Heel Claims Administrator, c/o Classaura, 780 Morosgo Dr #14103, Atlanta, GA 30324. If you do not wish to be a Class Member, you must exclude yourself from the Class (see Question No. 7 above).
If the Settlement is not approved, the case will proceed as if no settlement had been attempted or reached. There can be no assurance that if the Settlement is not approved and the case resumes, the Class will recover more than is provided for under the Settlement, or will recover anything at all.
10. When and where will the Court hold a hearing on the fairness of the Settlement?
A fairness hearing has been set for March 7, 2014 at 1:30 p.m., before Judge Gonzalo P. Curiel in Courtroom 2D, Second Floor, at the United States District Court for the Southern District of California, 221 West Broadway, San Diego, California, 92101. At the hearing, the Court will hear any properly submitted comments, objections, and arguments concerning the fairness of the proposed settlement, including the amount requested by Class Counsel for attorneys’ fees and expenses and incentive award for the Class Representatives. If you have filed an objection to the Settlement, you or your own lawyer need to attend this hearing to have the objection considered by the Court. Note: The date and time of the fairness hearing are subject to change by Court Order. Check the Settlement Website as the date nears, to verify the final approval hearing date has not changed.
11. Do I have to come to the fairness hearing? May I speak at the hearing?
You do not need to attend the fairness hearing to remain a Class Member or submit a claim for a cash payment. You or your own lawyer may attend the hearing if you wish, at your own expense. If you do not exclude yourself from the Class, you may ask the Court for permission to speak at the hearing concerning the proposed Settlement or the application of Class Counsel for attorneys’ fees and expenses and incentive award for the Class Representatives by following the instructions in Question No. 8 above.
12. How do I receive my share of the Settlement?
If you do not exclude yourself from the Class, and would like to receive money, you must submit a timely and valid claim form as set forth in the answer to Question No. 5 above. Claim forms must be submitted online or postmarked by the Claim Filing Deadline, which will be ninety (90) days after the date the Court enters the final judgment. You can file a claim online or download a copy of the claim form here, or obtain a copy of the claim form by writing to the Claims Administrator at Heel Claims Administrator, c/o Classaura, 780 Morosgo Dr #14103, Atlanta, GA 30324 or calling toll-free (877) 283 – 2947.
13. What happens if I do nothing at all?
If you do nothing, you will receive no payment from the Settlement. You will still be part of the Class, however, and subject to the release described in Section 6 of the Settlement Agreement and Question No. 9 above. This means you will not be permitted to continue to assert released claims in any other case against Defendants or other persons or entities covered by the release. Please refer to Section 6 of the Settlement Agreement for a full description of the claims and persons who will be released upon final approval of the Settlement.
14. Where do I get additional information?
This notice provides only a summary of the matters relating to the Settlement. For more detailed information, you may wish to review the Settlement Agreement. You can view the Settlement Agreement and get more information in the documents section of this website. You can also get more information by calling toll-free (877) 283 – 2947. The Settlement Agreement and all other pleadings and papers filed in the case are available for inspection and copying during regular business hours at the office of the Clerk of the United States District Court for the Southern District of California, 333 West Broadway, Suite 420, San Diego, CA 92101-8900.
15. I have a question that is not answered here. How can I get additional information?
If you would like additional information, you can also write to Class Counsel at the address listed in Question No. 8 above.
PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT.