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Case No. 4:11-cv-03532-CW

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Roland Tellis (SBN 186269) [email protected] Mark Pifko (SBN 228412) [email protected] BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, California 91436 Telephone: (818) 839-2333 Facsimile: (818) 986-9698 Attorneys for Plaintiff CLAIRE DELACRUZ individually, and on behalf of other members of the public similarly situated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

CLAIRE DELACRUZ, individually, and

on behalf of other members of the general

public similarly situated,

Plaintiff,

vs.

CYTOSPORT, INC., a California

Corporation,

Defendant.

Case Number: 4:11-cv-03532-CW

CLASS ACTION

PLAINTIFF’S NOTICE OF

MOTION AND MOTION FOR

PRELIMINARY APPROVAL OF

CLASS ACTION SETTLEMENT

Date: April 11, 2013

Time: 2:00 p.m.

Location: Courtroom 2, 4th Floor

1301 Clay Street

Judge: Hon. Claudia Wilken

Action Filed: July 18, 2011

Trial Date: None Set

Case4:11-cv-03532-CW Document58 Filed03/07/13 Page1 of 28

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i Case No. 4:11-cv-03532-CW


TABLE OF CONTENTS

PAGE

I. INTRODUCTION ..................................................................................................... 2

II. FACTUAL AND PROCEDURAL BACKGROUND .............................................. 3

III. SETTLEMENT TERMS ........................................................................................... 5

A. Total Settlement Value .................................................................................... 5

B. Class Members ................................................................................................ 5

C. Payments to Plaintiff and Class Members ...................................................... 5

D. Injunctive Relief .............................................................................................. 6

E. Cy Pres Payment ............................................................................................. 6

F. Class Notice and Settlement Administration .................................................. 6

G. Attorneys‟ Fees and Expenses......................................................................... 6

H. Residual Value of the Settlement .................................................................... 6

IV. THE PROPOSED SETTLEMENT MEETS THE CRITERIA FOR

PRELIMINARY APPROVAL .................................................................................. 7

A. The Proposed Settlement Resulted from Serious, Informed, and Non-

Collusive Negotiations Conducted at Arm‟s-Length ...................................... 8

B. The Proposed Settlement Is Fair, Adequate and Reasonable........................ 10

V. THE PROPOSED CLASS SHOULD BE CONDITIONALLY CERTIFIED ....... 12

A. The Class Satisfies Federal Rule of Civil Procedure 23(a) ........................... 13

1. Numerosity .......................................................................................... 13

2. Commonality ....................................................................................... 13

3. Typicality ............................................................................................ 14

4. Adequacy of Representation ............................................................... 15


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ii Case No. 4:11-cv-03532-CW


B. The Class Should be Conditionally Certified under Federal Rule of

Civil Procedure 23(b)(3) ............................................................................... 19

1. Common Questions Predominate over Individual Issues ................... 19

2. A Class Action Is the Superior Method to Settle this

Controversy ......................................................................................... 20

VI. THE PROPOSED CLASS NOTICE IS APPROPRIATE ...................................... 21

VII. CONCLUSION ........................................................................................................ 22


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iii Case No. 4:11-cv-03532-CW


TABLE OF AUTHORITIES

PAGE(S)

CASES

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) .......................................................................................... 13, 19, 21

Bias, et al., v. Wells Fargo & Company, et al.

(N.D. Cal. Case No. 4:12-cv-00664-YGR) ............................................................ 16, 18

Brad Aarons v. BMW of North America LLC

(C.D. Cal. Case No. 2:11-cv-07667-PSG-CW) ...................................................... 16, 18

Buckland v. Threshold Enterprises, Ltd.,

155 Cal. App. 4th 798 (2007) ....................................................................................... 18

Churchill Village, LLC v. Gen. Elec. Co.,

361 F.3d 566 (9th Cir. 2004) .................................................................................... 7, 21

Clark v. NeilMed Pharmaceuticals, Inc.

(S.D. Cal. Case No. 3:10-cv-01453) ............................................................................. 16

Cotton v. Hinton,

559 F.2d 1326 (5th Cir. 1977) ........................................................................................ 8

Deposit Guaranty Nat’l Bank v. Roper,

445 U.S. 326 (1980) ...................................................................................................... 20

Ellis, et al., v. J.P. Morgan Chase & Co., et al.,

(N.D. Cal. Case No. 4-12-cv-03897-YGR) ............................................................ 16, 18

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ............................................................................... passim

Hopson v. Hanesbrands Inc.,

2009 U.S. Dist. LEXIS 33900 (N.D. Cal. Apr. 3, 2009) .............................................. 11

In re Heritage Bond Litig.,

2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) .......................................... 8, 9

In re Light Cigarettes Marketing and Sales Practices Litig.,

652 F. Supp. 2d 1379 .................................................................................................... 18


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In re Mego Fin.Corp. Sec. Litig.,

213 F.3d 454 (9th Cir. 2000) ........................................................................................ 10

In re Pacific Enters. Sec. Litig.,

47 F.3d 373 (9th Cir. 1995) ............................................................................................ 7

In re Syncor ERISA Litig.,

516 F.3d 1095 (9th Cir. 2008) .................................................................................. 7, 12

In re Toys “R” Us Antitrust Litig.,

191 F.R.D. 347 (E.D.N.Y. 2000) .................................................................................. 12

In re: Alexia Foods, Inc.

(N.D. Cal. Case No. 4:11-cv-06119-PJH) .............................................................. 16, 17

In re: Avon Anti-Aging Skincare Creams and Products Marketing and Sales

Practices Litigation

(S.D.N.Y. Case No. 1:13-cv-01417) ....................................................................... 16, 17

In re: L’Oreal Wrinkle Cream Marketing and Sales Practices Litigation

(D.N.J. Case No. 2:12-cv-07869) ........................................................................... 16, 17

Lerwill v. Inflight Motion Pictures, Inc.,

582 F.2d 507 (9th Cir. 1978) ........................................................................................ 15

Local Joint Exec. Bd. Of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,

244 F.3d 1152 (9th Cir. 2001) ................................................................................ 19, 20

Marilau v. McDonald’s Corp.,

632 F. Supp. 2d 1008 (S.D. Cal. 2009)......................................................................... 18

Mazza v. Am. Honda Motor Co.,

254 F.R.D. 610 (C.D. Cal. 2008) .................................................................................. 19

Michael J. Otto v. Abbott Laboratories, Inc.,

(C.D. Cal. Case No. 5:12-1411-SVW) ................................................................... 16, 17

Officers for Justice v. Civil Serv. Comm.,

688 F.2d 615 (9th Cir. 1982) ...................................................................................... 7, 8

Parra v. Bashas’, Inc.,

536 F.3d 975 (9th Cir. 2008) ........................................................................................ 14

Poliner v. Gateway Computers

(Los Angeles Super. Ct. Case No. BC308923) ...................................................... 16, 17


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Schwartz v. Harp,

108 F.R.D. 279 (C.D. Cal. 1985) .................................................................................. 14

Simon v. Toshiba America,

2010 U.S. Dist. LEXIS 42501 (N.D. Cal. Apr. 30, 2010) ............................................ 11

Staton v. Boeing,

327 F.3d 938 (9th Cir. 2003) .................................................................................. 14, 15

Stitt, et al., v. Citibank, N.A, et al.,

(N.D. Cal. Case No. 4:12-cv-03892-YGR) ............................................................ 16, 18

Tchoboian v. Parking Concepts, Inc.,

2009 U.S. Dist. LEXIS 62122 (C.D. Cal. July 16, 2009) ............................................. 13

Van Bronkhorst v. Safeco Corp.,

529 F.2d 943 (9th Cir. 1976) .......................................................................................... 7

Wehner v. Syntex Corp.,

117 F.R.D. 641 (N.D. Cal. 1987) .................................................................................. 14

Wiener v. Dannon Co.,

255 F.R.D. 658 (C.D. Cal. 2009) ............................................................................ 18, 19

Williams v. Costco Wholesale Corp.,

2010 U.S. Dist. LEXIS 19674 (S.D. Cal. Mar. 4, 2010) .............................................. 11

Young v. Polo Retail, LLC,

2006 U.S. Dist. LEXIS 81077 (N.D. Cal. Oct. 25, 2006) .................................... 7, 8, 12

Zinser v. Accufix Research Inst., Inc.,

253 F.3d 1180 (9th Cir. 2001) ...................................................................................... 20

FEDERAL AUTHORITIES

Federal Rule of Civil Procedure 23 ............................................... 12, 13, 14, 19, 20, 21, 22

STATUTES

California Business and Professions Code § 17200 ............................................................ 4

California Business and Professions Code §17500. ............................................................ 4

California‟s Consumers Legal Remedies Act, California Civil Code § 1750 ..................... 3


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NOTICE OF MOTION AND MOTION

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on April 11, 2013 at 2:00 p.m., or as soon thereafter

as counsel can be heard, before the Honorable Claudia Wilken, at the United States

District Courthouse, Courtroom 2, Fourth Floor, 1301 Clay Street, Oakland, California

94612, Plaintiff Claire Delacruz (“Plaintiff”) will and hereby does move this Court for an

Order: (i) granting preliminary approval of the Settlement Agreement and Release

(“Settlement”) Plaintiff has entered into with Defendant CytoSport, Inc. (“Defendant” or

“CytoSport”); (ii) certifying the settlement class (“Class” or “Class Members”) for

purposes of the settlement; (iii) designating Plaintiff as representative of the Class; (iv)

appointing Baron & Budd, P.C. (“Baron & Budd”) as counsel for the Class; (v) approving

the class notice; and (vi) scheduling a hearing for final approval of the Settlement.

This motion is based upon this Notice of Motion and Motion, the following

Memorandum of Points and Authorities, the Declarations of Roland Tellis and Mark

Pifko, all exhibits attached thereto, and such other written or oral arguments that may be

presented to the Court.

Dated: March 7, 2013 By:

BARON & BUDD, P.C. Roland Tellis Mark Pifko /s/ Mark Pifko

Mark Pifko Attorneys for Plaintiff

CLAIRE DELACRUZ, individually, and on behalf of other members of the public similarly situated


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MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff Claire Delacruz (“Plaintiff”) submits this Memorandum in support of

Plaintiff‟s Motion for Preliminary Approval of Class Action Settlement.

I. INTRODUCTION

After months of negotiations and settlement discussions, Plaintiff and Defendant

CytoSport, Inc. (“CytoSport” or “Defendant”) (collectively, the “Parties”) have reached a

settlement. In sum, under the proposed Settlement Agreement and Release, CytoSport

will provide monetary compensation to members of the proposed Class, and will remove

allegedly misleading language from its product labels. The proposed Settlement resolves

all of Plaintiff‟s and Class Members‟ claims against CytoSport in this litigation.

This is a consumer class action concerning allegedly false and misleading

advertising and marketing practices conducted by CytoSport in connection with the sale

of its Muscle Milk® Ready-to-Drink (“RTD”) and Muscle Milk® Bars (“Bars”) products

(collectively, the “Products”). In short, Plaintiff alleges that CytoSport falsely and

deceptively represented to consumers that the Products were “healthy,” in violation of

state and federal regulations governing such conduct. Accordingly, Plaintiff‟s Second

Amended Complaint (the operative pleading) asserted claims against CytoSport under the

common law and California consumer statutes, which incorporate state and federal

labeling regulations.

To reach the Settlement, over the past year, Plaintiff and Defendant participated in

three formal mediation sessions, with two well-respected mediators from JAMS. In

addition to those meetings, the Parties spent a considerable amount of time and resources

investigating Plaintiff‟s claims, engaging in discovery, discussing potential resolutions to

this dispute, and ultimately negotiating the documents memorializing the Settlement. As

a result, the Parties‟ settlement is the product of informed, non-collusive negotiation, and

is fair, adequate, and reasonable. Therefore, this Court should preliminarily approve the

settlement.


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Plaintiff seeks an order (i) granting preliminary approval of the Parties‟ settlement;

(ii) conditionally certifying the Class described in the Parties settlement agreement; (iii)

designating Plaintiff as representative of the Class; (iv) appointing Baron & Budd, P.C. as

counsel for the Class; (v) approving notice of the settlement to the Class; and (vi)

scheduling a hearing for final approval of the settlement.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns advertising practices conducted by CytoSport in connection

with the sale of CytoSport‟s RTD and Bars. Plaintiff alleges that CytoSport‟s use of the

word “healthy” to advertise the Products was false and misleading, because the Products

contain significant amounts of fats, sugars, and other unhealthy ingredients. (See Second

Amended Complaint (“2AC”), Dkt. No. 35.) Plaintiff further alleges that CytoSport‟s use

of the term “healthy” in its advertising for the Products is misleading because this practice

is in direct violation of FDA regulations defining the term “healthy” in food labeling.

(Id.)

On July 18, 2011, Plaintiff filed her Complaint against CytoSport, on behalf of

herself and a class of similarly situated individuals. (Dkt. No. 1.) On September 15,

2011, Plaintiff filed her First Amended Complaint (“1AC”) against CytoSport, on behalf

of herself and a class of similarly situated individuals. (Dkt. No. 12.) On April 11, 2012,

the Honorable Claudia Wilken issued an order denying in part and granting in part

Defendant‟s motion to dismiss the 1AC. (See Dkt. No. 34.) The Court granted Plaintiff

leave to amend to provide an objective standard to support her challenges to CytoSport‟s

“healthy” representations. (Id.)

On April 18, 2012, Plaintiff filed her Second Amended Complaint. (Dkt. No. 35.)

She alleged that CytoSport‟s practices violated FDA regulations concerning the use of the

term “healthy” in food labeling. (Id.) Accordingly, Plaintiff alleged that CytoSport‟s

advertising was misleading and likely to deceive reasonable consumers. (Id.) The 2AC

asserts the same six causes of action alleged in the 1AC: (1) violation of California‟s

Consumers Legal Remedies Act, California Civil Code sections 1750 et seq. (“CLRA”);


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(2) violation of California‟s Unfair Competition Law, California Business and Professions

Code sections 17200 et seq. (“UCL”); (3) violation of California‟s False Advertising Law,

California Business and Professions Code sections 17500 et seq. (“FAL”); (4) fraud; (5)

negligent misrepresentation; and (6) unjust enrichment. (Id.) CytoSport filed a motion to

dismiss Plaintiff‟s 2AC. (Dkt. No. 36.) On June 28, 2012, this Court issued an order

upholding the bulk of Plaintiff‟s allegations in her 2AC. (See Dkt. No. 48.)

Both prior to and following the filing of this action, Plaintiff‟s counsel conducted a

thorough investigation of Plaintiff‟s claims. (Declaration of Mark Pifko in Support of

Plaintiff‟s Motion for Preliminary Approval of Settlement (“Pifko Decl.”) at ¶ 7.) Such

efforts included, for example, testing the Products for nutritional content, consulting with

experts regarding the Products‟ nutritional content, reviewing scientific research

concerning the Products and their ingredients, and discussing claims with Plaintiff and

putative class members. (Id.)

The Parties also engaged in substantial discovery concerning Plaintiff‟s claims. (Id.

¶ 8.) Discovery efforts included reviewing of documents produced by CytoSport,

deposing several key witnesses, including executives at CytoSport and third parties

involved in the marketing of the Products, and serving numerous third-party subpoenas

for documents. (Id.) In addition, Plaintiff retained two experts who have developed and

provided detailed reports concerning her claims. (Id.)

On April 27, 2012, the Parties participated in an all-day mediation session with

Hon. Edward A. Panelli (Ret.) at JAMS in San Francisco. (Id. ¶ 10.) Then, on September

11, 2012, the Parties participated in another all-day mediation session, this time with Hon.

Judge Carl J. West (Ret.) at JAMS in Los Angeles. (Id.) Having made significant

progress towards settlement during the second mediation session, the Parties arranged for

a third mediation session, which was conducted by Judge West at JAMS in San Francisco

on September 28, 2012. (Id.) Although the Parties did not reach a settlement there, they

continued to negotiate material terms via phone and email. (Id.) Thereafter, the Parties

ultimately reached an agreement concerning the material terms, and memorialized the


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resulting Settlement Agreement and Release on February 27, 2013. (Id.)

III. SETTLEMENT TERMS

The terms of the settlement in this action are enumerated in the Settlement

Agreement and Release. (See Pifko Decl., Exh. 1) (the “Settlement”).

A. Total Settlement Value

The total value of the Settlement is $5,275,000, and includes: (1) payments to

Plaintiff and Class Members; (2) injunctive relief; (3) a cy pres award; (4) class notice and

settlement administration costs; (5) attorneys‟ fees and expenses; and (6) distribution of

the Products in kind.

B. Class Members

Under the Settlement, Class Members are defined as:

All persons who purchased the Products at retail in the United States between July 18, 2007 through December 31, 2012.

(Id.)

C. Payments to Plaintiff and Class Members

Under the Settlement, to address the alleged misrepresentations which occurred

before the Parties reached a settlement, Class Members -- both with and without proof of

purchase of the Products -- will have the opportunity to make claims for payment from the

settlement fund. (Id.) Each claimant who possesses proof of purchase of the Products

will be eligible to receive up to $30 from the settlement fund. (Id.) This monetary

compensation includes $4.00 per Muscle Milk® Ready-to-Drink (“RTD”) purchased, and

$2.50 per Muscle Milk® Bar (“Bar”) purchased. (Id.) Claimants who no longer possess

proof of purchase, but who submit a Claim Form under penalty of perjury, will be

eligible to receive up to $10 from the settlement fund. (Id.) This compensation includes

$4.00 per RTD purchased, and $2.50 per Bar purchased. (Id.) Additionally, Plaintiff, as

class representative, may receive an incentive payment, subject to approval by the Court,

of up to a maximum of $6,000.


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D. Injunctive Relief

Additionally, under the terms of the Settlement, to address the alleged

misrepresentations concerning labeling of the Products going forward, CytoSport must

remove the phrase “Healthy, Sustained Energy” from the principal display panels of the

Products for three years. (Id.) Furthermore, CytoSport also must cease using the term

“healthy fats” on the labels of its RTD products for three years, unless: 1) the product

actually contains less than 0.5 grams of saturated fat per serving, or 2) CytoSport includes

the words “See nutrition information for saturated fat content” in connection with the

phrase “healthy fats.” (Id.)

E. Cy Pres Payment

The Settlement also provides that CytoSport shall make a cy pres payment up to a

maximum of $85,000 to the American Heart Association. (Id.) This award seeks to

further the Class‟s interest in cardiovascular health.

F. Class Notice and Settlement Administration

CytoSport will pay for all costs associated with providing notice to the Class

Members and administration of the Settlement. (Id.) A Settlement Administrator will be

selected by the Parties to provide notice of the Settlement to Class Members, and to

administer the terms of the Settlement.

G. Attorneys’ Fees and Expenses

Plaintiff‟s counsel will petition the Court for an award of attorneys‟ fees. (Id.)

CytoSport will not object to payment of court-approved Plaintiff‟s reasonable attorneys‟

fees of up to 23.5% of the total settlement fund value, to be paid out of the settlement

fund. (Id.) In addition, CytoSport will not object to payment of Plaintiff‟s documented

costs up to a total of $87,500, to be paid out of the settlement fund. (Id.)

H. Residual Value of the Settlement

The residual value of the Settlement, if any, will be calculated by deducting, from

the total settlement value of $5,275,000: (1) payments to Class Members and Plaintiff;


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(2) the monetary value of injunctive relief; (3) the cy pres award; (4) attorneys‟ fees and

costs; and; (5) settlement notice and administration expenses. If residual funds remain,

then this amount will be distributed in the form of distribution of CytoSport‟s products to

the American Cancer Society, and to elderly persons and hospital patients. (Id.)

IV. THE PROPOSED SETTLEMENT MEETS THE CRITERIA FOR PRELIMINARY APPROVAL

The approval of a proposed class action settlement is a matter within the broad

discretion of the trial court. Officers for Justice v. Civil Serv. Comm., 688 F.2d 615, 625

(9th Cir. 1982) (cert. denied, 459 U.S. 1217 (1983)). In making this determination, the

Court should evaluate the fairness of the settlement in its entirety. See Hanlon v. Chrysler

Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (“It is the settlement taken as a whole, rather

than the individual component parts, that must be examined for overall fairness . . . [t]he

settlement must stand or fall in its entirety”).

There is a strong judicial policy that favors settlements in complex class action

cases. See In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008); Churchill

Village, LLC v. Gen. Elec. Co., 361 F.3d 566, 576 (9th Cir. 2004); In re Pacific Enters.

Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). This is particularly true in class actions

where substantial resources can be conserved by avoiding the time, cost and rigors of

formal litigation. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976).

At the preliminary approval stage, the Court‟s review is “to reach a reasoned

judgment that the agreement is not the product of fraud or overreaching by, or collusion

between, the negotiating parties, and that the settlement, taken as a whole, is fair,

reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d at 625.

If the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that the notice be given to the class members of a formal fairness hearing . . .

Young v. Polo Retail, LLC, 2006 U.S. Dist. LEXIS 81077, at *12-13 (N.D. Cal. Oct. 25,


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2006) (citation omitted). Thus, the factors for preliminary approval are less extensive

than the factors for final approval. In considering whether the settlement falls within the

range of possible approval, the Court should only conduct preliminary review of those

factors. Id. at *16.

In this case, as discussed below, the Settlement is the result of informed and non-

collusive negotiations between the Parties. Furthermore, it is fair, reasonable, and

adequate to all concerned. Therefore, the Court should preliminarily approve the

Settlement.

A. The Proposed Settlement Resulted from Serious, Informed, and Non-

Collusive Negotiations Conducted at Arm’s-Length

Generally, “[a] presumption of correctness is said to „attach to a class settlement

reached in arm‟s-length negotiations between experienced capable counsel after

meaningful discovery.‟” In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *32

(C.D. Cal. June 10, 2005) (quoting Manual for Complex Litigation (Third) § 30.42

(1995)). Furthermore, absent fraud and collusion, the court may not only rely upon the

judgment of experienced counsel, but should be hesitant to “substitute its own judgment

for that of counsel.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); see also

Officers for Justice, 688 F.2d 615 at 625.

In reaching the Settlement, the Parties were well-informed concerning the facts and

law underlying Plaintiff‟s claims. (Pifko Decl. ¶ 9.) Indeed, the Parties have vigorously

litigated this action for well over a year. (Id.) Counsel for Plaintiff conducted extensive

investigation of facts surrounding Plaintiff‟s claims, both before and after filing this

action. (Id. ¶¶ 7-8.) Plaintiff‟s counsel tested the Products for nutritional content,

reviewed scientific research, consulted with nutritional experts, marketing experts, and

discussed the claims with Plaintiff and putative class members, among other efforts. (Id. ¶

7.)

In addition, over the past year, the Parties engaged in substantial discovery efforts

prior to settling the case. (Id. ¶ 8.) Discovery consisted of serving and responding to


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requests for production of documents, reviewing and analyzing documents produced,

deposing several key witnesses (including CytoSport‟s executives and third party

marketing executives), and the preparation and service of numerous third party subpoenas.

(Id.) In addition, Plaintiff retained two experts who provided detailed reports concerning

her claims. (Id.) As a result, by the time the Parties began to discuss a potential

settlement, Plaintiff‟s counsel had an in-depth understanding of the strengths and

weaknesses of Plaintiff‟s claims. (Id. ¶ 9.) The Parties were then able to engage in

informed negotiation with each other. (Id.)

In addition, the Parties spent a considerable amount of time and resources

negotiating the Settlement. (Id. ¶ 10.) As discussed above, on April 27, 2012, the Parties

participated in a mediation session with the Honorable Edward A. Panelli (Ret.) at JAMS

in San Francisco. (Id .) The Parties then participated in an all-day mediation session on

September 11, 2012, with the Honorable Carl J. West at JAMS in Los Angeles. (Id.)

Having made significant progress towards a settlement, the Parties met again for a third

mediation session with Judge West on September 28, 2012, in San Francisco. (Id.)

Though a final settlement was not reached there, the Parties continued to negotiate the

material terms of a settlement via email and phone discussions. (Id.) Ultimately, the

Parties memorialized the Settlement Agreement and Release on February 27, 2013. (Id.)

Moreover, Plaintiff is represented by attorneys from the national plaintiffs‟ firm

Baron & Budd, and the attorneys who negotiated the Settlement for Class Members are

highly skilled, with extensive experience negotiating settlements of this type. (See

generally Declaration of Roland Tellis in Support of Motion for Preliminary Approval,

(“Tellis Decl.”); Pifko Decl.) (Id.)

Because the Settlement resulted from extended, informed, and non-collusive

negotiations assisted by JAMS mediators, and Plaintiff and Class Members are

represented by highly experienced counsel, the Court should “presume[e] the correctness”

of the Settlement. In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *32.


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B. The Proposed Settlement Is Fair, Adequate and Reasonable

In addition to the above, the Ninth Circuit has identified two additional factors to

determine whether a proposed settlement is fair, adequate and reasonable: (1) the strength

of the plaintiffs‟ case, including the risk, expense, complexity and likely duration of

further litigation; and (2) the amount offered in settlement. See In re Mego Fin.Corp. Sec.

Litig., 213 F.3d 454, 458-460 (9th Cir. 2000). Here, analysis of these factors supports the

conclusion that the proposed settlement is well within the range of fairness, adequacy and

reasonableness for approval.

First, considering the strength of Plaintiff‟s case, along with the risk, expense,

complexity and likely duration of further litigation, settlement here is highly preferable to

continued litigation of the claims. Litigating this action through trial would be time-

consuming and expensive. As with most class actions, Plaintiff‟s claims are complex and

risky. Indeed, the question of whether CytoSport‟s Products are “healthy” would require

further development of analysis by experts for both Parties, setting up a complex “battle

of the experts.” Moreover, class certification itself always poses a risk. Were Plaintiff

unable to certify a class, the case would effectively be over for Class Members, and they

would not be compensated. By reaching this Settlement, the Parties will avoid continued

litigation and will establish an efficient method for prompt resolution of Class Members‟

complicated claims against CytoSport. Furthermore, it immediately provides the certainty

of valuable benefits to Class Members.

Second, the Settlement contains excellent terms for Class Members and Plaintiff

alike, and also directly addresses the allegedly deceptive advertising and marketing at

issue. The Settlement provides fair compensation to Class Members for the economic

harm they allegedly suffered by purchasing the Products. Each Class Member who

possesses proof of purchase of the Products will be entitled to a payment of $4.00 per

RTD purchased and $2.50 per Bar purchased, subject to a maximum of $30.00 total

payment from the settlement fund. (Pifko Decl. Exh. 1.) In addition, each Class Member

who do not possess proof of purchase may submit a Claim Form under penalty of perjury.


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(Id.) He or she will then be entitled to payment of $4.00 per RTD purchased and $2.50

per Bar purchased, subject to a maximum of $10.00 total payment from the settlement

fund. (Id.) Thus, the Settlement fairly accounts for the fact that many Class Members are

entitled to compensation, although they understandably no longer possess written proof of

purchase.

In addition, the named Plaintiff does not receive any unduly preferential treatment

under the terms of the Settlement. Plaintiff may receive a maximum of $6,000 for her

role as class representative in this litigation. (Id.) Such incentive payments are

“presumptively reasonable.” Simon v. Toshiba America, 2010 U.S. Dist. LEXIS 42501, at

*12-13 (N.D. Cal. Apr. 30, 2010) (approving named plaintiff‟s service award of $4,000);

Hopson v. Hanesbrands Inc., 2009 U.S. Dist. LEXIS 33900, at *27-28 (N.D. Cal. Apr. 3,

2009) (“In general, courts have found that $5,000 incentive payments are reasonable”);

Williams v. Costco Wholesale Corp., 2010 U.S. Dist. LEXIS 19674, at *10 (S.D. Cal.

Mar. 4, 2010) (“Although [plaintiff] seeks a $5,000 service fee for himself which is not

available to other class members, the fee appears to be reasonable in light of [plaintiff‟s]

efforts on behalf of the class members”). Here, payment to Plaintiff is equitable because

it compensates her for the public exposure, time, and significant effort she devoted to

prosecuting this case over the past one-and-a-half years. Thus, the Settlement is fair to

Plaintiff and Class Members alike.

The Settlement requires CytoSport to modify its business practices by ceasing to

use the language challenged in this litigation on the Products‟ packaging. (Pifko Decl.

Exh. 1.) The Settlement requires CytoSport to cease using the “Healthy Sustained

Energy” phrase on the principal display panel of the Products for three years. (Id.)

CytoSport is also required to remove the “healthy fats” statement from the RTD product

labels for three years, unless the specific product either 1) contains less than 0.5 grams of

saturated fat per serving, or 2) CytoSport includes the words “See nutrition information

for saturated fat content” in connection with the phrase “healthy fats.” (Id.)

CytoSport will also make a cy pres payment in the amount of $85,000 to the


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American Heart Association. (Id.) This term recognizes that the claim value for any

particular individual Class Member may be relatively low, and therefore, it seeks to

further Class Members‟ interests in cardiovascular health. An award to the American

Heart Association is particularly appropriate here because Plaintiff alleges that the

Products are unhealthy due to the presence of saturated fat (among other ingredients),

which is known to be harmful to heart health. (See, e.g., Dkt. No. 35, 2AC at ¶ 24.)

In addition, the residual balance of the settlement fund (after other awards, fees and

costs are deducted), if any, will be dedicated to the distribution of CytoSport‟s products in

kind, to the American Cancer Society, and to elderly persons and hospital patients. (Pifko

Decl. Exh. 1.) This distribution will serve the general public interest, by providing

calorie-rich food products to energy-deficient individuals who would benefit most from

them. The inclusion of a substantial charitable donation in the Settlement is appropriate in

situations such as this, where identification of all Class Members is difficult or

impossible. See, e.g., In re Toys “R” Us Antitrust Litig., 191 F.R.D. 347, 353-54

(E.D.N.Y. 2000) (approving defendant‟s charitable donation of toys part of the settlement

of an antitrust action, where it would be difficult and costly to identify individual

claimants harmed).

In sum, this Settlement provides fair compensation to Plaintiff and Class Members,

and many other beneficial terms directly addressing the claims at issue, while allowing the

Parties to avoid protracted and uncertain litigation. The terms of the Settlement are

reasonable, appropriate, and fall well within the range for preliminary approval. Young,

2006 U.S. Dist. LEXIS 81077, at *12-13. Accordingly, the Court should preliminarily

approve the Settlement.

V. THE PROPOSED CLASS SHOULD BE CONDITIONALLY CERTIFIED

The Ninth Circuit recognizes the propriety of certifying a settlement class to resolve

consumer lawsuits. In re Syncor ERISA Litig., 516 F.3d at 1101. When presented with a

proposed settlement, a court must determine whether the proposed settlement class

satisfies the requirements for class certification under Federal Rule of Civil Procedure 23.


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Id. In assessing those certification requirements, a court may properly consider that there

will be no trial. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted

with a request for settlement-only class certification, a district court need not inquire

whether the case, if tried, would present intractable management problems . . . for the

proposal is that there be no trial.”) Here, class certification requirements under Rule 23

are met, and therefore, the Class should be conditionally certified.

A. The Class Satisfies Federal Rule of Civil Procedure 23(a)

Federal Rule of Civil Procedure 23(a) provides the factors that the Court looks to

for class certification: (1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or

defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interest of the class.

Here, all four of these elements are satisfied by the proposed Class for settlement

purposes.

1. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a). Here, the numerosity requirement is met because it

is impracticable to join all Class Members. See Tchoboian v. Parking Concepts, Inc.,

2009 U.S. Dist. LEXIS 62122, at *12-13 (C.D. Cal. July 16, 2009). Although the exact

number of Class Members is unknown, Plaintiff contends that the Class likely includes

thousands of members. Thus, it is sufficiently large such that joinder is not practicable.

Accordingly, the numerosity requirement is satisfied here.

2. Commonality

Rule 23(a)(2)‟s commonality requirement is satisfied by the existence of a

“common core of salient facts.” Hanlon, 150 F.3d at 1019 (“The existence of shared legal

issues with divergent factual predicates is sufficient, as is a common core of salient facts

coupled with disparate legal remedies within the class”). Commonality is “construed


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permissively” and is a “flexible standard.” Parra v. Bashas’, Inc., 536 F.3d 975, 978 (9th

Cir. 2008).

In this case, the Class Members‟ claims all arise from their purchases of the

Products. The Class Members seek the same remedies under the same theories of

recovery. Additionally, Class Members share a common interest in seeking the

adjudication of the same core questions of fact and law. These “core questions” include:

1) whether CytoSport‟s representations that the Products are “healthy” are false and

misleading; and 2) whether Class Members were harmed by purchasing Products which

allegedly were deceptively advertised as “healthy.” Therefore, the commonality

requirement is met.

3. Typicality

Rule 23(a) typicality is also construed permissively, and is satisfied where the

plaintiff‟s claims are “reasonably co-extensive” with absent class members‟ claims; they

need not be “substantially identical.” Staton v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003)

(citing Hanlon, 150 F.3d at 1020). The test for typicality is “whether other members have

the same or similar injury, whether the action is based on conduct which is not unique to

the named plaintiffs, and whether other class members have been injured by the same

course of conduct.” Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985).

Here, Plaintiff‟s claims and injuries are not merely typical of those of all Class

Members -- they are identical. The “conduct” alleged is CytoSport‟s allegedly misleading

advertising of the Products. This advertising is not unique to Plaintiff in any way.

Furthermore, Plaintiff and Class Members suffered the same economic injuries, which all

arise out of CytoSport‟s allegedly false advertising. Plaintiff satisfies the typicality

requirement for settlement purposes, because her claims arise from the same factual basis

as Class Members‟ claims. Wehner v. Syntex Corp., 117 F.R.D. 641, 644 (N.D. Cal.

1987).


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4. Adequacy of Representation

In the Ninth Circuit, adequacy of representation is satisfied where (i) the named

plaintiff and counsel for the class will vigorously prosecute the action, and (ii) the

interests of the proposed class representatives are not antagonistic to the interests of the

class. Staton, 327 F.3d at 957; Hanlon, 150 F.3d at 1020.

Plaintiff‟s interests are fully aligned with those of the Class because she brings the

same claims for similar remedies under the same legal theories. There are no actual or

potential conflicts of interest between Plaintiff and the other class members from the

standpoint of assessing the fairness of the proposed Settlement. Therefore, her interests

are not antagonistic to those of Class Members. See Lerwill v. Inflight Motion Pictures,

Inc., 582 F.2d 507, 512 (9th Cir. 1978). In addition, as discussed in detail below,

Plaintiff‟s attorneys are experienced in handling class actions, other complex litigation,

and the types of claims asserted in this action. Plaintiff‟s counsel has a strong history of

vigorously prosecuting class action cases. Therefore, the Class is adequately represented

by both Plaintiff and Plaintiff‟s counsel.

a. Baron & Budd, P.C.

Baron & Budd, P.C. is a leader in complex litigation cases which include, inter

alia, consumer class actions, products liability claims, financial misconduct claims,

environmental litigation, water contamination cases, insurance litigation, Qui Tam, class

actions, antitrust cases, and general commercial litigation. (Tellis Decl. ¶¶ 3, 11.) Mr.

Tellis‟ and Mr. Pifko‟s experience exemplifies the depth and breadth of resources that

Baron & Budd provides for its clients and will provide to the Class in this action. For

over 30 years, Baron & Budd has been a leader in complex, mass tort litigation and class

actions throughout the United States. (Id.)

i. Roland Tellis

Mr. Tellis has been an attorney for seventeen years, and a shareholder at Baron &

Budd since October 2010. (Tellis Decl. ¶ 2.) Mr. Tellis co-manages the Los Angeles


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office of Baron & Budd. (Id.) Prior to joining Baron & Budd, Mr. Tellis was a partner at

the international law firm Bingham McCutchen LLP. (Id.) Mr. Tellis‟ practice focuses

on complex litigation and class actions involving consumer disputes, fraud, securities,

environmental matters, and business torts. (Id.)

Mr. Tellis has represented parties in numerous consumer class action cases

concerning false advertising and fraud. (Id. ¶¶ 4.) Class action cases in which Mr. Tellis

is counsel include: IN RE: Avon Anti-Aging Skincare Creams and Products Marketing

and Sales Practices Litigation, (S.D.N.Y. Case No. 1:13-cv-01417) (putative class action

concerning false advertising on anti-aging products‟ labels); IN RE: L’Oreal Wrinkle

Cream Marketing and Sales Practices Litigation, (D.N.J. Case No. 2:12-cv-07869)

(putative class action concerning false advertising on anti-aging products‟ labels); IN RE:

Alexia Foods, Inc. (N.D. Cal. Case No. 4:11-cv-06119-PJH) (putative class action

concerning false advertising, fraud and misrepresentation on frozen food products‟

labels); Michael J. Otto v. Abbott Laboratories, Inc., (C.D. Cal. Case No. 5:12-1411-

SVW) (putative class action concerning false advertising, fraud and misrepresentation

concerning nutritional supplement drinks); Stitt, et al., v. Citibank, N.A, et al., (N.D. Cal.

Case No. 4:12-cv-03892-YGR), Bias, et al., v. Wells Fargo & Company, et al. (N.D. Cal.

Case No. 4:12-cv-00664-YGR), and Ellis, et al., v. J.P. Morgan Chase & Co., et al.,

(N.D. Cal. Case No. 4-12-cv-03897-YGR) (putative class actions concerning banks‟

unlawful mark-ups of mortgage default service fees); and Brad Aarons v. BMW of North

America LLC (C.D. Cal. Case No. 2:11-cv-07667-PSG-CW) (putative class action

concerning car manufacturer‟s failure to disclose a safety defect to consumers). (Id. ¶¶ 4-

5.)

Additional class action cases Mr. Tellis has been involved in include: Clark v.

NeilMed Pharmaceuticals, Inc. (S.D. Cal. Case No. 3:10-cv-01453) (claims for false

designation of origin and false labeling); Poliner v. Gateway Computers (Los Angeles

Super. Ct. Case No. BC308923) (alleging failure to properly account for monetary credits


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and California Redemption Value on returns of alcohol beverages). (Id. ¶ 5.) Indeed, Mr.

Tellis has significant experience litigating class action matters.

Mr. Tellis has been recognized by his peers for his skill and experience as a

litigator. Mr. Tellis has served on the Board of Governors of the Association of Business

Trial Lawyers Los Angeles Chapter, and is a Central District Lawyer Representative to

the Ninth Circuit Judicial Conference. (Id. ¶ 8.) Mr. Tellis also serves as the Co-Chair of

the Central District Court‟s Attorney Settlement Officer Panel Committee. (Id.) Mr.

Tellis formerly served as a program chair and faculty member for the Practicing Law

Institute‟s “Taking and Defending Depositions” annual program. (Id. ¶ 9.)

ii. Mark Pifko

Mr. Pifko joined Baron & Budd‟s Los Angeles office in 2011, where he represents

clients in complex and class action litigation matters. (Pifko Decl. ¶ 2.) Mr. Pifko‟s

practice focuses on cases involving false advertising, fraud, and scientific and technical

disputes. (Id.) Mr. Pifko has been on both the prosecution and defense sides of more than

fifty class action lawsuits and other complex legal matters concerning a variety of

consumer goods, including food products, consumer electronics, dietary supplements,

vehicles, software, mortgage service fees, and other items. (Id.)

Mr. Pifko is currently counsel in a number of putative class action cases concerning

false and deceptive advertising. (Id. ¶¶ 3-4.) IN RE: Avon Anti-Aging Skincare Creams

and Products Marketing and Sales Practices Litigation, (S.D.N.Y. Case No. 1:13-cv-

01417) (putative class action concerning false advertising on anti-aging products‟ labels);

IN RE: L’Oreal Wrinkle Cream Marketing and Sales Practices Litigation, (D.N.J. Case

No. 2:12-cv-07869) (putative class action concerning false advertising on anti-aging

products‟ labels); IN RE: Alexia Foods, Inc. (N.D. Cal. Case No. 4:11-cv-06119-PJH)

(putative class action concerning false advertising, fraud and misrepresentation on frozen

food products‟ labels); Michael J. Otto v. Abbott Laboratories, Inc., (C.D. Cal. Case No.


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5:12-1411-SVW) (putative class action concerning false advertising, fraud and

misrepresentation concerning nutritional supplement drinks). (Id.)

Mr. Pifko is also currently counsel in the following putative class action cases: Stitt,

et al., v. Citibank, N.A, et al., (N.D. Cal. Case No. 4:12-cv-03892-YGR), Bias, et al., v.

Wells Fargo & Company, et al. (N.D. Cal. Case No. 4:12-cv-00664-YGR), and Ellis, et

al., v. J.P. Morgan Chase & Co., et al., (N.D. Cal. Case No. 4-12-cv-03897-YGR)

(putative class actions concerning banks‟ unlawful mark-ups of mortgage default service

fees); and Brad Aarons v. BMW of North America LLC (C.D. Cal. Case No. 2:11-cv-

07667-PSG-CW) (putative class action concerning car manufacturer‟s failure to disclose a

safety defect to consumers). (Id. ¶ 4.)

Other noteworthy complex and class action cases Mr. Pifko has had significant

involvement in include: Marilau v. McDonald’s Corp., 632 F. Supp. 2d 1008 (S.D. Cal.

2009) (class action regarding major restaurant chain‟s alleged violations of California‟s

gift card laws); Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798 (2007)

(allegations that progesterone cream products required warnings under California

consumer laws and Proposition 65); Wiener v. Dannon Co., 255 F.R.D. 658 (C.D. Cal.

2009) (class action alleging false advertising concerning yogurt products); and In re Light

Cigarettes Marketing and Sales Practices Litig., 652 F. Supp. 2d 1379 (MDL No. 2068)

(class action alleging false advertising concerning light cigarettes). (Id. ¶ 5.)

Finally, Mr. Pifko has published several articles concerning class actions and

consumer laws. (Id. ¶ 6.) Relevant articles include: “Game On!,” Daily Journal (March

14, 2011), “Getting What You Paid For,” California Lawyer Magazine (February 2010);

“California District Attorneys Enforce Gift Card Law Against Major Retailer,

Highlighting Increasing Government Enforcement Trend,” Arnold & Porter LLP Advisory

(August 2009); “California Supreme Court Rules Consumers Need Actual Injury for

CLRA Claim,” Arnold & Porter LLP Advisory (February 2009); and “AHPA Members

Fight California „Shakedown‟ Lawsuit: Potential Industry-wide Benefits,” American

Herbal Products Association (APHA) Report (October 2006). (Id.)


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B. The Class Should be Conditionally Certified under Federal Rule of Civil

Procedure 23(b)(3)

Certification under Rule 23(b)(3) is appropriate “whenever the actual interests of

the parties can be served best by settling their differences in a single action. ” Hanlon,

150 F.3d at 1022 (internal quotation and citation omitted). Rule 23(b)(3) encompasses

those cases “in which a class action would achieve economies of time, effort, and

expense, and promote . . . uniformity of decision as to persons similarly situated, without

sacrificing procedural fairness or bringing about other undesirable results.” Amchem, 521

U.S. at 615 (citations omitted and alterations in original); Wiener, 255 F.R.D. at 668.

There are two conditions to certification under Rule 23(b)(3): (1) questions of law

or fact common to the members of the class predominate over questions affecting only

individual members; and (2) a class action is superior to other available methods for the

fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3); Local Joint

Exec. Bd. Of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152,

1162-63 (9th Cir. 2001). When assessing predominance and superiority, the Court may

consider that the class will be certified for settlement purposes only. Amchem, 521 U.S.

at 620. Here, and as explained below, these requirements are easily met, and therefore the

Class should be conditionally certified under Rule 23(b)(3).

1. Common Questions Predominate over Individual Issues

The Rule 23(b)(3) predominance inquiry “tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S., at

623. “Predominance is a test readily met in certain cases alleging consumer . . . fraud . . .”

Id. at 625. When “one or more of the central issues in the action are common to the class

and can be said to predominate, the action may be considered properly under Rule

23(b)(3) even though other important matters will have to be tried separately . . .” Mazza

v. Am. Honda Motor Co., 254 F.R.D. 610, 620 (C.D. Cal. 2008) (internal citation

omitted).

Here, all Class Members share a common interest in seeking the adjudication of the


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same core questions of fact and law. The predominating issue is that CytoSport‟s

representation that the Products are “healthy” is false, misleading, and likely to deceive

reasonable consumers. All Class Members allegedly suffered the same injury resulting

from CytoSport‟s conduct -- loss of money resulting from purchases of the Products.

Such common issues predominate and are central to this action. Therefore, Plaintiff

asserts that for settlement purposes, this requirement is met.

2. A Class Action Is the Superior Method to Settle this Controversy

The superiority requirement under Rule 23(b)(3) is satisfied where there are

“multiple claims for relatively small individual sums.” Local Joint Exec. Bd. V. Las

Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001). Rule 23(b)(3) sets forth the

relevant factors for determining whether a class action is superior to other available

methods for the fair and efficient adjudication of the controversy. These factors include:

(i) the class members‟ interest in individually controlling separate actions; (ii) the extent

and nature of any litigation concerning the controversy already begun by or against class

members; (iii) the desirability or undesirability of concentrating the litigation of the

claims in the particular forum; and (iv) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). “A consideration of these factors requires the court to focus on

the efficiency and economy elements of the class action that cases allowed under

subdivision (b)(3) can be adjudicated most profitably on a representative basis.” Zinser v.

Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (citation omitted).

In this case, it is clear that a class action is the preferred procedure for this action.

Because of the relatively small amount of damages for each individual Class Member, it is

neither economically feasible nor judicially efficient for thousands of Class Members to

pursue individual claims against CytoSport . See Hanlon, 150 F.3d at 1023; see Deposit

Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 338-39 (1980).

Additionally, the Court need not inquire into the difficulties of managing a class

action in this case, because class certification is for settlement purposes only. See


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Amchem, 521 U.S. at 620. As a result, class treatment is the superior and preferred

method for adjudicating these claims, and the Rule 23(b)(3) requirements are satisfied

here.

VI. THE PROPOSED CLASS NOTICE IS APPROPRIATE

Under Rule 23(c)(2)(B), the threshold requirement concerning class notice is that

the court directs to class members “the best notice that is practicable under the

circumstances, including individual notice to all members who can be identified through

reasonable effort.” The mechanics of the notice process are best left to the discretion of

the court, subject only to the broad “reasonableness” standards imposed by due process.

In this Circuit, it has long been the case that a notice of settlement will be adjudged

satisfactory if it “generally describes the terms of the settlement in sufficient detail to alert

those with adverse viewpoints to investigate and to come forward and be heard.”

Churchill, 361 F.3d at 575 (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338,

1352 (9th Cir. 1980)).

Here, the proposed Class Notice is written in easy and clear language, and provides

all needed information in sufficient detail, including: (1) basic information about the

lawsuit; (2) a description of the benefits provided by the Settlement; (3) an explanation of

how Class Members can obtain benefits from the Settlement; (4) an explanation of how

Class Members can opt out or object to the Settlement; (5) an explanation that any claims

against CytoSport that could have been litigated in this action will be released if the Class

Member does not opt out from the Settlement; (6) the names of counsel for the Class; (7)

information regarding attorneys‟ fees and expenses, and Plaintiff‟s incentive awards; (8)

the Settlement hearing date; (9) an explanation of eligibility for appearing at the

Settlement hearing; and (10) the web address for the Settlement website where additional

detailed information and documents, including the Claim Form, can be obtained. (See

Pifko Decl., Exh. 2.) As such, it satisfies the content requirements of Rule 23.

Additionally, the proposed dissemination of the Class Notice satisfies all due

process requirements. The Settlement provides that, following preliminary approval of


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the Settlement, a Settlement Administrator shall provide notice to Class Members through

several means. (Pifko Decl. Exh. 3.) First, the Class Notice will be published in a

nationally distributed publication and on several different websites. (Id.) Second, Class

Counsel and Defendant shall issue a joint press release upon preliminary approval of the

Settlement, to be posted on their respective websites, and provided to PR Newswire. (Id.)

Third, the Settlement Administrator shall provide the Class Notice, by e-mail, to

CytoSport‟s customers who purchased the Products during the Class Period, to the extent

that CytoSport possesses their e-mail addresses. (Id.) Finally, the Class Notice and

settlement documents, such as the Claim Forms, will be available on the settlement

website. (Id.)

In sum, the contents and dissemination of the proposed Class Notice constitutes the

best notice practicable under the circumstances and fully complies with the requirements

of Rule 23.

VII. CONCLUSION

For the reasons set forth above, Plaintiff respectfully requests that the Court (1)

conditionally certify the Class; (2) conditionally designate Plaintiff as representative of

the Class; (3) appoint Baron & Budd, P.C. as class counsel; (4) grant preliminary approval

of the Settlement; (5) approve the proposed Class Notice plan; and (6) schedule a final

approval hearing for the Settlement.

Dated: March 7, 2013 By:

BARON & BUDD, P.C. Roland Tellis Mark Pifko /s/ Mark Pifko

Mark Pifko Attorneys for Plaintiff

CLAIRE DELACRUZ, individually, and on behalf of other members of the public similarly situated


Case4:11-cv-03532-CW Document58-1 Filed03/07/13 Page1 of 5

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Case No. 4:11-cv-03532-CW

DECLARATION OF ROLAND TELLIS IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Roland Tellis (SBN 186269) [email protected] Mark Pifko (SBN 228412) [email protected] BARON & BUDD, P.C. 15910 Ventura Blvd., Suite 1600 Encino, CA 91436 Telephone: (818) 839-2333 Facsimile: (818) 986-9698 Attorneys for Plaintiff CLAIRE DELACRUZ individually, and on behalf of other members of the public similarly situated



OAKLAND DIVISION

CLAIRE DELACRUZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, vs. CYTOSPORT, INC., a California Corporation, Defendant.

Case No.: 4:11-cv-03532-CW

CLASS ACTION

DECLARATION OF ROLAND

TELLIS IN SUPPORT OF MOTION

FOR PRELIMINARY APPROVAL

OF CLASS ACTION SETTLEMENT

Date: April 11, 2013

Time: 2:00 p.m.

Location: Courtroom 2, 4th Floor,

1301 Clay Street

Judge: Hon. Claudia Wilken

Complaint Filed: July 18, 2011

Trial Date: None Set


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1 Case No. 4:11-cv-03532-CW


DECLARATION OF ROLAND TELLIS

I, Roland Tellis, declare as follows:

1. I am an attorney licensed to practice before this Court and all courts of the

State of California. Unless the context indicates otherwise, I have personal knowledge of

the following facts, and if called as a witness, I could and would testify competently to

them. I am an attorney with Baron & Budd, P.C., counsel for Plaintiff Claire Delacruz

(“Plaintiff”) in Delacruz v. CytoSport, Inc. (N.D. Cal. Case No. 4:11-cv-03532-CW). I

make this declaration in support of Plaintiff’s Motion For Preliminary Approval of Class

Action Settlement.

2. I have been an attorney for seventeen years, and a shareholder at Baron &

Budd, P.C. since October 2010. I co-manage the Los Angeles Office of Baron & Budd,

P.C. Prior to joining Baron & Budd, P.C., I was a partner in the international law firm

Bingham McCutchen LLP. My practice focuses on complex litigation and class actions

involving consumer disputes, fraud, securities, environmental matters, and business torts.

3. Baron & Budd, P.C. is a leader in complex litigation cases which include,

inter alia, consumer class actions, products liability claims, financial misconduct claims,

environmental litigation, water contamination cases, insurance litigation, Qui Tam, class

actions, antitrust cases, and general commercial litigation. With more than 50 attorneys

and approximately 175 staff members, Baron & Budd, P.C. has offices in California,

Texas, Louisiana and Florida. A copy of the firm’s resume is attached hereto as Exhibit 1.

4. I have represented parties in numerous consumer class action cases

concerning false advertising and fraud. Class action cases in which I am counsel include:

IN RE: Avon Anti-Aging Skincare Creams and Products Marketing and Sales Practices

Litigation, (S.D.N.Y. Case No. 1:13-cv-01417) (putative class action concerning false

advertising on anti-aging products’ labels); IN RE: L’Oreal Wrinkle Cream Marketing

and Sales Practices Litigation, (D.N.J. Case No. 2:12-cv-07869) (putative class action

concerning false advertising on anti-aging products’ labels); IN RE: Alexia Foods, Inc.

(N.D. Cal. Case No. 4:11-cv-06119-PJH) (putative class action concerning false


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advertising, fraud and misrepresentation on frozen food products’ labels); Michael J. Otto

v. Abbott Laboratories, Inc., (C.D. Cal. Case No. 5:12-1411-SVW) (putative class action

concerning false advertising, fraud and misrepresentation concerning nutritional

supplement drinks); Stitt, et al., v. Citibank, N.A, et al., (N.D. Cal. Case No. 4:12-cv-

03892-YGR); Bias, et al., v. Wells Fargo & Company, et al. (N.D. Cal. Case No. 4:12-cv-

00664-YGR); Ellis, et al., v. J.P. Morgan Chase & Co., et al., (N.D. Cal. Case No. 4-12-

cv-03897-YGR) (putative class actions concerning banks’ unlawful mark-ups of mortgage

default service fees); and Brad Aarons v. BMW of North America LLC (C.D. Cal. Case

No. 2:11-cv-07667-PSG-CW) (putative class action concerning car manufacturer’s failure

to disclose a safety defect to consumers).

5. Additional class action cases I have been involved in include: Clark v.

NeilMed Pharmaceuticals, Inc. (S.D. Cal. Case No. 3:10-cv-01453) (claims for false

designation of origin and false labeling); Poliner v. Gateway Computers (Los Angeles

Super. Ct. Case No. BC308923) (alleging failure to properly account for monetary credits

and California Redemption Value on returns of alcohol beverages).

7. I also represented an international broker-dealer, investment adviser and

pension fund manager in multi-district litigation involving class action claims of securities

fraud. See In re: Alger, Columbia, Janus, MFS, One Group, Putnam, (D. Md. Case No.

1:04-md-15863). In 2005, I received commendation from the United States Department

of Justice for my assistance in the successful prosecution of a multi-party, $120 million

foreign currency Ponzi scheme. Additionally, I have represented parties, including

individuals, municipalities and businesses, in complex litigation involving environmental

contamination.

8. I have served on the Board of Governors of the Association of Business Trial

Lawyers Los Angeles Chapter, and am currently a Central District Lawyer Representative

to the Ninth Circuit Judicial Conference. I am currently the Co-Chair of the Central

District Court’s Attorney Settlement Officer Panel Committee.


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9. I formerly served as a program chair and faculty member for the Practicing

Law Institute’s “Taking and Defending Depositions” annual program.

10. Baron and Budd, P.C.’s historic successes in handling complex and

protracted litigation demonstrate the firm’s ability to handle matters such as this action.

The firm has the willingness, resolve, and resources to devote the legal and financial

resources necessary to this litigation.

11. Since the firm’s founding over 30 years ago, Baron & Budd, P.C. has been a

leader in complex, mass tort litigation and class actions throughout the United States. The

firm has garnered national acclaim for its work in protecting those victimized by corporate

misconduct. Some noteworthy accolades regarding Baron & Budd, P.C. include the

following:

● In September 2010, Baron & Budd was one of only four firms chosen to

serve on both the Plaintiffs’ Executive Committee and on the Plaintiffs’

Steering Committee of the Multi-District Litigation in the Gulf Oil Spill

litigation;

● In August 2010, Baron & Budd was retained by the State of Louisiana to

provide counsel to the State’s designated Trustees in connection with issues

related to the Deepwater Horizon explosion and resulting oil spill;

● In 2002-2006, 2008, 2011-2012, Baron & Budd was named to the National

Law Journal’s “Plaintiffs’ Hot List” of exemplary plaintiffs’ firms in the

United States;

● In 2004, American Lawyer named Baron & Budd one of the sixteen most

successful plaintiffs’ firms in the country;

● In 2006, the non-profit Public Justice named a team of Baron & Budd

attorneys “Trial Lawyer of the Year” for its work on litigation that spanned

21 years, involved over 1,600 plaintiffs, and resulted in a total recovery of

more than $150 million;

● In 2007, Russell Budd and Baron & Budd attorney Burton LeBlanc were


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among 14 attorneys nationwide to be honored with the Wiedemann Wysocki

National Finance Council Award from the American Association for Justice

in recognition of their commitment to the legal profession and their efforts

to improve the civil justice system;

● In 2009, Baron & Budd was a finalist for the Public Justice Trial Lawyer of

the Year Award for its recovery of more than $400 million on behalf of

more than 150 municipalities from 17 states; and

● Baron & Budd has been repeatedly selected by The Legal 500 as one of the

country’s premier law firms in mass tort claims and class action litigation.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed this 7th day of March 2013, at Encino, California.

/s/ Roland Tellis Roland Tellis


Exhibit 1


Dallas, TX 75219-4281 3102 Oak Lawn, Ave, Suite 1100

www.baronandbudd.com

Tel: 214.521.3605

Fax: 214.520.1181

Baron & Budd’s Practice and Accomplishments

Firm Overview

Baron & Budd, P.C. is among the largest and most accomplished plaintiffs’ law

firms in the country. With approximately 40 attorneys and more than 200 staff,

Baron & Budd has the expertise and resources to handle complex litigation

throughout the United States. As a law firm that prides itself on remaining at the

forefront of litigation, Baron & Budd has spearheaded many significant cases for

entities and individuals.

Since the firm was founded in 1977, Baron & Budd has achieved national acclaim

for its work on cutting-edge litigation:

In September 2010, Baron & Budd was one of only four firms chosen to

serve on both the Plaintiffs’ Executive Committee and on the Plaintiffs’

Steering Committee of the Multi-District Litigation in the Gulf Oil Spill

litigation.

In August 2010, Baron & Budd was retained by the State of Louisiana to

provide counsel to the State’s designated Trustees in connection with

issues related to the Deepwater Horizon explosion and resulting oil spill.

In 2002-2006, 2008, 2011-2012, Baron & Budd was named to the

National Law Journal’s “Plaintiffs’ Hot List” of exemplary plaintiffs’

firms in the United States.

In 2004, American Lawyer named Baron & Budd one of the sixteen most

successful plaintiffs’ firms in the country.

In 2006, the non-profit Public Justice named a team of Baron & Budd

attorneys “Trial Lawyer of the Year” for its work on litigation that

spanned 21 years, involved over 1,600 plaintiffs, and resulted in a total

recovery of more than $150 million.

In 2007, Russell Budd and Baron & Budd attorney Burton LeBlanc were

among 14 attorneys nationwide to be honored with the Wiedemann

Wysocki National Finance Council Award from the American Association

for Justice in recognition of their commitment to the legal profession and

their efforts to improve the civil justice system.


3

In 2009, Baron & Budd was a finalist for the Public Justice Trial Lawyer

of the Year Award for its recovery of more than $400 million on behalf of

more than 150 municipalities from 17 states.

Baron & Budd has been repeatedly selected by The Legal 500 as one of

the country’s premier law firms in mass tort claims and class action

litigation.

Additional information about Baron & Budd is available on the firm’s website,

www.baronandbudd.com.


http://www.baronandbudd.com/

4

Summary of Significant Areas of Litigation

Financial Litigation

$410 Million Bank of America Settlement Over Excessive Bank Overdraft Fees

Baron & Budd attorneys worked closely with other law firms in a class action

lawsuit asserting manipulation of data by banks in order to increase overdraft fee

revenue. The firm helped achieve a $410 million settlement with Bank of

America, the largest bank involved in the bank overdraft fee litigation. The case

alleged that Bank of America, along with a number of other banks, intentionally

re-ordered debit card transactions to promote overdraft fees. Not only did the case

result in repayment of these charges, but it also led to widespread changes in the

banking system. Because of the lawsuit, many large banks have changed their

overdraft fee policies, no longer “re-ordering debits” and not offering “courtesy”

overdraft services without customer consent. Bank of America, for example,

eliminated all debit card overdraft fees in 2010.

Predatory Credit Card Practices

Baron & Budd currently represents the states of West Virginia, Mississippi and

Hawaii in litigation against national banks and other financial institutions

regarding their unfair and deceptive marketing practices related to their credit card

service plans, including payment protection plans. These defendants have preyed

upon unsuspecting consumers, including the elderly and the disabled, by charging

them for products ancillary to their credit cards when the consumers either did not

authorize such charges or could never qualify to benefit from them.

Stock Option Back-Dating

Baron & Budd achieved a $20 million settlement on behalf of individuals who

purchased Semtech stock. Firm shareholder Burton LeBlanc served as co-lead

counsel in the case. Plaintiffs in the case alleged that Semtech manipulated grant

dates for stock options, which result in understatement of Semtech’s compensation

expenses and overstatement of its reported income.

Protecting Shareholders’ Interest in Corporate Transition

As co-lead counsel in In Re: 7-Eleven, Inc. Shareholders Litigation, Baron &

Budd represented shareholders in negotiations to increase the amount of an offer

in a transaction turning a publicly-traded company into a privately-held entity.

Baron & Budd achieved a $5 per share increase in the offer which provided an

additional $145 million to 7-Eleven shareholders.


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Settlement of Mutual Fund Advisors’ Breaches of Fiduciary Duties

Baron & Budd represented shareholders in recovering funds in various mutual

fund families against the fund advisors for their breach of their fiduciary duties for

failing to file proof of claim forms in settled securities cases for which the funds

were eligible. Baron & Budd reached a series of confidential settlements that

resulted in money being returned from the fund advisor to the mutual fund.

Protecting Public Investors from Corporate Self-Dealing

In 2010, Baron & Budd successfully protected the interests of public investors in

Affiliated Computer Services, Inc. (ACS). While ACS was being sold to Xerox,

ACS’s management and largest shareholder negotiated a better price for their own

shares as well as remarkable future employment compensation packages. The

insiders at the same time voted to sell ACS at a price well below its fair market

value, which would have forced public shareholders to sell their shares for less.

Working with other national law firms, Baron & Budd was able to obtain $69

million in additional compensation for ACS public shareholders.

Consumers’ Rights

Baron & Budd led the fight for victims’ rights in two landmark victories, Amchem

Products v. Windsor and Ortiz v. Fibreboard Corp., which are widely recognized

among the most appellate decisions for consumer rights.

Ortiz v. Fibreboard Corp., 526 U.S. 815, 119 S. Ct. 2295 (1999) was one of the

last decisions handed down by the United States Supreme Court in 1999. The

Court’s 7-2 decision was handed down after months of fierce debate over whether

future claims by victims of asbestos exposure should be handled as a class action.

Baron & Budd led the charge to dismiss the Fiberboard mandatory class action

settlement that would have severely limited the rights of people to pursue

individual claims based on the severity of their specific illness and specific

circumstances of their exposure.

Writing on behalf of the Court, Justice Souter questioned the fairness of the

settlement because, if allowed to go forward, Fiberboard would essentially have a

“get out of jail free card.” Fiberboard would have been able to settle all asbestos

claims, including all future claims, with only $500,000 of the company’s own

money, thus retaining virtually all of its net worth at the expense of the victims of

its asbestos-containing products.


6

The Ortiz decision corroborated an earlier Supreme Court decision in which Baron

& Budd also fought for victims’ rights: Amchem Products v. Windsor, 521 U.S.

591, 117 S. Ct. 2231, 138 L.Ed2d 689 (1997).

Environmental Litigation

Lead Role in the Gulf Oil Spill Litigation

Immediately after the explosion that caused the massive Gulf Oil Spill, Baron &

Budd got to work, helping individuals and businesses that had sustained economic

and/or physical damages. Scott Summy, shareholder and head of Baron & Budd’s

water contamination litgation group, serves on the Plaintiffs’ Executive

Committee and the Plaintiffs’ Steering Committee in the oil spill litigation.

Shareholder Burton LeBlanc was retained by the State of Louisiana to provide

counsel to the State’s designated Trustees in connection with issues related to the

Deepwater Horizon explosion and resulting oil spill. The firm currently represents

hundreds of individuals and companies in the litigation, including the Louisiana

Restaurant Association.

$423 Million National MTBE Settlement

In May 2008, Baron & Budd helped negotiate a $423 million settlement on behalf

of more than 150 water providers in 17 states regarding Methyl Teritary Butyl

Ether (MTBE) contamination in groundwater with many of the country’s leading

gas companies. The settlement requires gasoline refiners to pay water providers’

costs to remove MTBE from public drinking water wells and for refiners to pay

for treatment of qualifying wells that may become contaminated within the next 30

years.

Plaintiffs’ cases were initially filed in their respective state courts before they were

later transferred to a Multi-District Litigation (MDL) court in New York. Baron &

Budd shareholder Scott Summy, who filed the first-ever MTBE case in the United

States, served as national co-lead counsel. Baron & Budd shareholders Celeste

Evangelisti, Cary McDougal, Laura Baughman, Carla Burke and Stephen Johnston

also represented the plaintiffs.

In 2008, the team of attorneys who were involved in the MTBE litigation was

recognized as finalists for the “Trial Lawyer of the Year Award,” an annual award

given by Public Justice, a non-profit legal organization, for any attorney’s

contribution to the public interest.


7

$105 Million Atrazine Settlement

Baron & Budd served as Class Counsel in litigation regarding the contamination

of approximately 1,200 public drinking water systems by the chemical atrazine.

The firm represented over thirty water providers primarily throughout the

Midwest, including Missouri, Kansas, Ohio, and Illinois. In 2011, the Court

approved a $105 million settlement for water systems that have detected atrazine

in their water supplies to reimburse the costs of removing the chemical from

finished water.

Atrazine is a widely used agricultural chemical that is commonly applied to crops

throughout the United States to control weeds. Despite the threat of water

contamination and industry knowledge of the environmental risks, approximately

77 million pounds of atrazine is sprayed on U.S. crops each year.

Clean Air for School Children

In 2008, Baron & Budd shareholder Laura Baughman and attorney Thomas Sims

represented three San Francisco Bay-area environmental organizations in

negotiating a settlement with Laidlaw Transit, Inc. In the settlement, Laidlaw

agreed to invest a minimum of $4.7 million dollars over five years to retrofit older

buses in its California fleet with air pollution control devices to reduce harmful

diesel exhaust. Laidlaw also agreed to invest $23.6 million in its fleet over seven

years to either retrofit additional buses or purchase new buses that meet the most

stringent air pollution standards in the country, which would ultimately protect

young children from being exposed to harmful diesel exhaust. The following year,

the team settled with two additional bus companies, which helped ensure that

additional polluting buses would be replaced with newer, cleaner models or

retrofitted with pollution control devices.

Clean Groundwater in California

In 2004, Baron & Budd shareholders Scott Summy and Laura Baughman

negotiated a string of settlements on behalf of California non-profit Communities

for a Better Environment (CBE) that required several major oil companies to

upgrade gas station storage tanks, clean up groundwater contamination and take

steps to prevent gasoline leakage from thousands of underground storage tanks in

California. Monetary and injunctive relief granted in this case was valued at $107

million.

MTBE Settlement on Behalf of the City of Santa Monica

In 2003, Baron & Budd represented the City of Santa Monica in a MTBE

contamination settlement with several major oil companies. MTBE had


8

contaminated five of Santa Monica’s eleven wells, forcing the City to import

water for $3 million a year.

In total, the oil companies paid $250 million, which provided funds for the City to

build a water treatment system to clean MTBE from their supply, to continue

buying water until their own supply was clean, and to monitor groundwater quality

during and after the cleanup.

The Exxon Valdez Oil Spill

In 1993, Baron & Budd was awarded the Public Justice Award for “outstanding

contribution to environmental protection and public interest” for its work on the

rehabilitation of the damage caused by the Exxon Valdez oil spill in Alaska’a

Prince William Sound.

The Exxon Valdez oil spill occurred in remote Prince William Sound, Alaska on

March 24, 1989 when the Exxon Valdez, an oil tanker bound for Long Beach,

California, struck Prince William Sound’s Bilgh Reef, ran aground and spilled

nearly 11 million gallons of crude oil.

Much like in the recent Gulf Coast Oil Spill, the cause of Exxon Valdez can be

pointed primarily at the oil company for neglecting to properly adhere to safety

regulations. Exxon failed to repair the tanker’s Raycas radar system, which would

have warned the crew of an impending collision with the Bligh reef, because it

was just too expensive to fix and operate. The tanker had been operating for more

than a year without a functioning Raycas radar.

As a result of the Valdez spill, the Oil Pollution Act of 1990 (OPA) was passed,

allowing those who lost income or profits because of an oil spill to recover

compensation from those responsible for the spill.

Groundbreaking Water Contamination Case in Tucson, Arizona

In 1985, Baron & Budd filed a lawsuit on behalf of more than 1,600 Tucson-area

residents against an aircraft manufacturer, the City of Tucson and the Tucson

Airport Authority over TCE contamination of the community’s groundwater.

Since Tucson is the largest city in the United States that receives all of its drinking

water from underground sources, the industrial solvents used at the airport an

aircraft company were of particular concern. Spilled on the ground and seeping

through the sandy soil into the groundwater, the invisible yet harmful

contaminants caused several unusual forms of cancer and other diseases at almost

epidemic levels, particularly among children in the area.


9

The firm’s cutting-edge work on this case not only brought compensation to

individuals to help them deal with the consequences of their injuries, it helped

define Arizona law on pollution coverage issues.

As a result, the public interest legal organization Public Justice presented the

Baron & Budd legal team with its “Trial Lawyer of the Year Award” in 2006. The

award recognizes the trial attorney or attorneys who have made the greatest

contribution to the public interest each year by trying or settling a precedent-

setting case or group of cases.

Pharmaceutical Litigation

Avandia

Baron & Budd represented over 7,000 victims harmed by using the diabetes drug

Avandia. In addition, Baron & Budd currently represents the states of

Mississippi, West Virginia, South Carolina, Utah, New Mexico, Maryland and

Kentucky in their pending lawsuits against GlaxoSmithKline arising out of its

fraudulent marketing of Avandia in those states.

FenPhen

Baron & Budd played a leading role in representing people harmed by the diet

drug Fen-Phen. The firm was instrumental in negotiating the Seventh Amendment

to the AHP Settlement Agreement, which required the defendants to place an

additional $1.275 billion into a trust for those affected.

Toxic Exposure Litigation

Closing Down the West Dallas Lead Smelter

In the West Dallas Lead Smelter case, Baron & Budd took on local environmental

contamination to protect future generations of children from exposure to lead. One

of Dallas’ largest public housing projects sat in a low-income neighborhood

directly across the street from a secondary lead smelter. For many years, the

smelter converted used automotive batteries into lead components for resale.

Particulate emissions from the factory smokestacks literally blanketed the

surrounding community with lead-bearing soot.

Baron & Budd represented more than 200 families in a lawsuit that ultimately

closed the lead smelter and paid sizable confidential settlements to court-

supervised trusts for 445 children affected by lead poisoning. Although the

neurological damage to these children is irreversible, the funds recovered in the


10

settlement have enabled them to move into adulthood with medical, rehabilitative

and vocational assistance. Closing the lead smelter and requiring the company to

fund a community soil clean-up project helped prevent future damage to other

neighborhood children.

Settlement for Central Texas Residents Harmed by Lead Exposure

Baron & Budd shareholder Laura Baughman represented more than 130 people

who were exposed to high levels of lead and other toxic substances while growing

up in a small town in Central Texas. Baron & Budd obtained a sizeable

confidential settlement for the firm’s clients, providing them with the resources to

help pay for rehabilitative, psychological and other medical expenses.

Settlement for Harms Caused by Chemical Leaks

Baron & Budd successfully represented more than 850 workers injured by

exposure to ethylene dichloride (EDC) in Lake Charles, Louisiana as a result of

the negligent and reckless conduct of Conoco, Inc., Condea Vista Chemical

Company, and a number of contractors that caused one of the largest chemical

spills in U.S. history. In addition to its status as a probable human carcinogen,

EDC exposure can cause serious damage to the heart, central nervous system,

liver, kidneys, lungs, gastrointestinal system and commonly results in depression,

memory loss and personality changes.


11

Professional Biographies

The Firm’s Shareholders

Russell W. Budd is a major force in the world of plaintiff’s attorneys, having

devoted his three-decade career to championing the rights of people and

communities injured by corporate malfeasance. Currently Mr. Budd presides over

one of the nation’s largest plaintiff’s firms, Baron & Budd, PC, headquartered in

Dallas, Texas with offices in Austin, Texas; Los Angeles, California and Baton

Rouge, Louisiana.

Mr. Budd, a shareholder of Baron & Budd since 1985 and president and managing

shareholder since 2002, has expanded the firm from its cornerstone asbestos

practice to a national firm capable of tackling the biggest defendants in areas as

diverse as water contamination, qui tam, California Proposition 65 violations,

pharmaceutical injuries, Chinese drywall, insurance claims, securities fraud, BP

Oil Spill claims, and predatory credit card practices.

Over the last decade, Mr. Budd has played significant roles in asbestos litigation

on a national level. As chair and member of several asbestos creditors’ bankruptcy

committees, Mr. Budd successfully resolved over 100,000 victims’ claims with

some of Wall Street’s biggest companies. Mr. Budd was the chief negotiator of a

$4 billion national settlement with Halliburton that established a trust fund to

protect present and future asbestos victims throughout the United States - the

largest asbestos trust fund of its kind anywhere in the world. He was on the

committee that negotiated a $3.9 billion settlement with United States Gypsum to

benefit asbestos claimants. And, he participated in negotiations that led W.R.

Grace to agree to fund a bankruptcy trust on behalf of asbestos claimants with

nearly $3 billion in cash and stock equity.

Under Mr. Budd’s direction, Baron & Budd donated $3 million to the International

Pleural Mesothelioma Program at Brigham and Women’s Hospital to research

curative therapy for Mesothelioma, a cancer caused by exposure to asbestos. The

firm has also given generously to the Asbestos Disease Awareness Organization,

Lung Cancer Alliance and to other asbestos awareness advocacy organizations.

Mr. Budd serves on the Board of Governors of the American Association for

Justice (AAJ) and previously served on the Board of Directors and Executive

Committee of the Texas Trial Lawyers Association (TTLA).


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On July 13, 2010, Mr. Budd was awarded the prestigious Harry M. Philo Award

Trial Lawyer of the Year Award from the American Association for Justice (AAJ)

at the organization’s annual conference in Vancouver, BC. The award was

presented in recognition of his dedicated and consistent leadership in protecting

the rights of individuals through the civil-justice system. In 2007, he earned the

prestigious Wiedemann Wysocki National Finance Council Award from the

American Association for Justice, an award honoring attorneys for their

commitment to the legal profession and their efforts to improve the civil justice

system.

Under Mr. Budd’s leadership, Baron & Budd has won numerous awards. The firm

was recently named by National Law Journal’s to its “Hot List” of exemplary

plaintiffs’ firms in the United States and has been included in the Hot List eight

times.

Mr. Budd and his wife are very involved in the community and one of the causes

closest to his heart is Habitat for Humanity, which gives hardworking Dallas

families a chance at first-time home ownership. He has personally contributed

generously to the “Building on Faith” project, a collaborative initiative between

the Dallas Faith Communities Coalition (DFCC), the City of Dallas and Habitat

for Humanity to build 100 affordable single-family homes in West Dallas. In

addition, Mr. Budd has donated land to the City of Dallas that enabled the

completion of a massive bike and hike trail. In 2010, Mr. Budd was the only

attorney selected to serve on the Foundation Board of the National Comprehensive

Cancer Network (NCCN).

Steve T. Baron oversees Baron & Budd’s asbestos litigation section and is one of

the law firm’s chief negotiators. Mr. Baron’s efforts have helped provide

compensation to thousands of asbestos victims. Along with Russell Budd, Mr.

Baron participated in the Halliburton and W.R. Grace negotiations that set aside

billions of dollars for the benefit of asbestos victims. Mr. Baron also serves on

advisory and claimants committees for various asbestos bankruptcy trusts to

protect the rights of asbestos victims.

Dan Alberstone co-manages the firm’s Los Angeles office. Mr. Alberstone has

nearly 30 years of broad experience prosecuting and defending major commercial

and complex business litigation matters, including extensive jury trial experience.

Mr. Alberstone has been selected as lead trial counsel by both institutional and

individual clients in their most significant and high-profile matters, including

partnership cases, real estate cases, breach of contract cases, entertainment cases,


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environmental cases, and cases alleging unfair business practices. In the real estate

sector, Mr. Alberstone has successfully prosecuted a case for the American Skiing

Company, the owner of the Canyons Ski Resort in Park City, Utah, in an action to

force the resort’s landlord to agree to an assignment of ground lease in a $123

million transaction. He also obtained a more than $14 million award for a major

real estate developer in connection with the purchase and sale of an historic bank

building in downtown Los Angeles. Mr. Alberstone acheived a more than $8

million award for the owner of the Edison Bar in downtown Los Angeles in an

action involving the purchase and sale of a large commercial building and,

successfully defended the Estate of Jonathan Ritter in an action brought to compel

specific performance of a contract to purchase three citrus farms owned by the

Estate.

In the entertainment area, he has successfully defeated an action by a union

president and three board members against the Screen Actors’ Guild and 41 other

members of its national board and successfully defended screenwriter in work-for-

hire action brought by employer claiming ownership of screenplay. He also

represented ESPN and Good Morning America reporter Erin Andrews in

connection with the prosecution of a stalker who had surreptitiously videoed Ms.

Andrews in the privacy of her hotel rooms. The Los Angeles Daily Journal

recognized Mr. Alberstone for obtaining one of the top plaintiff’s verdicts in 2009.

Laura Baughman’s position at Baron & Budd calls upon her to exercise her

knowledge as an attorney and a civil engineer.

As managing shareholder of the firm’s Qui Tam litigation team, Ms. Baughman

focuses on strategies to ferret out and litigate against those who have perpetrated

fraud against the government. Sometimes called “whistleblower” cases, Ms.

Baughman’s team handles a variety of cases in which the government has been

defrauded of Medicare, Medicaid, defense and other monies. The recently signed

Dodd-Frank Wall Street Reform and Consumer Protection Act’s provision of

monetary rewards and protection to people who speak out against bribery and

other types of financial fraud, has resulted in an increase in the firm’s handling of

such cases. Ms. Baughman is a member of Taxpayers Against Fraud, a non-profit

organization dedicated to combating fraud and educating taxpayers about the

realities of fraud.

In addition, Ms. Baughman leads the firm’s work in California involving

Proposition 65 litigation. She served as co-lead counsel in a California Proposition

65 water contamination case that required several major oil companies to clean up


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groundwater that had been contaminated by gasoline leaking from storage tanks

and to take steps to prevent similar leaks in the future. The settlement was valued

at $107 million. Ms. Baughman settled another Proposition 65 case which required

the retrofitting of school buses with devices to reduce diesel engine exhaust

emissions, a known carcinogen. Ms. Baughman is currently counsel on a case

seeking to require the disclosure of elevated levels of lead in certain brands of

children’s fruit juice, canned fruits and baby food.

In addition to her legal advocacy, Ms. Baughman has a long history of community

service. She has represented several clients on a pro bono basis through the Dallas

Volunteer Attorney Program and over the years has served as co-chair of several

committees for Attorneys Serving the Community. Formerly a member of the

Dallas Bar Association’s Community Involvement Committee, she was the chair

of the group’s “Lawyers Have Heart” 5-K run benefiting the American Heart

Association. While in law school, Baughman was the vice president of Texas Law

Fellowships, a non-profit public interest organization.

Carla M. Burke, a shareholder in Baron & Budd’s water contamination litigation

section, began her legal career with the firm’s appellate section. Ms. Burke has

taken a prominent role in the briefing and legal analysis of MTBE Multi-District

Litigation cases. She has also authored and presented numerous papers and

presentations on the topics of toxic tort and water contamination litigation and

premises liability law. In addition to her responsibilities at the firm, Ms. Burke

has served as an adjunct clinical instructor of law at the Southern Methodist

University School of Law Legal Clinic and, before law school, an English

professor at a local college.

Denyse Clancy focuses on the litigation and appeals process for asbestos cancer

cases, primarily mesothelioma.

In 2009, Ms. Clancy won two $8.5 million dollar verdicts in Philadelphia on

behalf of two asbestos victims that were included in the top 100 verdicts of the

year in the United States and the top 25 largest settlements and awards in

Pennsylvania in 2009 by Pennsylvania Law Weekly. In 2007, Ms. Clancy won a

substantial verdict from a Galveston jury on behalf of a retired pipefitter suffering

from asbestos-mesothelioma.

Ms. Clancy has also achieved substantial appellate victories on behalf of asbestos

sufferers and their families. She was lead appellate counsel in a case in which the

California Court of Appeals decision upheld a $20 million verdict on behalf of a

California asbestos sufferer and her family. In 2010, Ms. Clancy was lead


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appellate counsel in a case in which the Pennsylvania Court of Appeals upheld a

verdict against an asbestos wire manufacturer. In 2011, she was lead appellate

counsel in a case in which the California Court of Appeals reversed a summary

judgment that was granted in favor of Kaiser Gypsum Company and remanded the

case to the trial court.

Ms. Clancy lectures around the country on the issues of asbestos and asbestos

cancer. In 2011, she was invited as Visiting Faculty to speak at the Harvard

Medical School’s course on “Current Concepts and Controversies in Asbestos-

Related Disease.”

Ms. Clancy graduated Valedictorian of the Southern Methodist University School

of Law and was an Editor of the SMU Law Review.

Celeste A. Evangelisti has devoted her career to representing individuals,

municipalities, and water suppliers seeking funds to clean up contaminated

community water supplies. Along with Baron & Budd shareholder Scott Summy,

Ms. Evangelisti was part of the legal team for Communities for a Better

Environment that received the California Lawyer “Attorneys of the Year” Award

for Environmental Law for the resolution of a precedent-setting case requiring

major oil companies to clean up more than a thousand sites contaminated by the

gasoline additive MTBE. Ms. Evangelisti is a frequent speaker and presenter on

legal topics concerning the prosecution of water contamination cases involving the

gasoline additive MTBE and other water contaminants.

Stephen C. Johnston is a shareholder in Baron & Budd’s water contamination

litigation section. Prior to joining the water group, Mr. Johnston spent several

years in the firm’s asbestos litigation group, representing victims of mesothelioma

and other asbestos-related diseases. He earned his law degree at Texas Tech

University.

J. Todd Kale is a shareholder who first joined Baron & Budd in 2008 when the

firm consolidated with Dallas-based law firm Silber Pearlman. Mr. Kale worked

with mesothelioma sufferers and other victims of asbestos-related disease at Silber

Pearlman from 1993, shortly after the law firm was founded, and continues that

work at Baron & Budd. Mr. Kale oversees the firm’s Bank-ID section and workers

closely with new and potential asbestos clients.

John Langdoc is no stranger to the complex medical and scientific issues

involved in the cases he tries. Before becoming a lawyer, he was a scientist who

studied how the brain works. At Baylor College of Medicine he researched the


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brains of people with schizophrenia, depression, and autism. Earlier, in graduate

school, Mr. Langdoc helped discover that some prescription anti-depressants can

cause brain birth defects.

Mr. Langdoc melds his scientific training and experiences with a core belief that

the best way to work on a legal case is “to not do any of the stuff they teach you in

law school.”

As a lead trial attorney, Mr. Langdoc has been successful in obtaining some of the

most significant verdicts of their kind, across the country. Some of his recent

verdicts include a $9M verdict against the Dow Chemical Company for a man

who was exposed to carcinogens while working at their plant, Dow has announced

that it plans to continue to have lawyers fight the verdict on appeal; a $20M

verdict for a woman who was unknowingly exposed to carcinogens from drywall

when she helped her husband clean up on some home remodeling projects, the

verdict was upheld on appeal in California; a $12M verdict for a man who was

exposed to carcinogens at a paper mill, the verdict resulted in a settlement

agreement the day after the verdict in Pennsylvania; and an $11M verdict for a

man who was exposed to carcinogens as a painter.

Mr. Langdoc is a frequent lecturer at continuing legal education seminars for

attorneys. He is typically asked to lecture on his experiences working on

significant legal cases, and focuses on his belief that the best thing lawyers can do

is work on their cases like they were never mis-trained to spin and distort the truth.

He has been elected a Super Lawyer Rising Star, and was elected a Shareholder

and Lead Trial Attorney at Baron & Budd faster than any lawyer in the firm’s

history.

J. Burton LeBlanc, IV’s background covers the spectrum of environmental law

and securities litigation. He has extensive experience litigating complex cases and

has represented the state of Louisiana in cases against the oil and gas industry

involving the underpayment of severance taxes and royalties. In June 2008,

LeBlanc & Waddell, a firm co-founded by LeBlanc, merged with the national law

firm of Baron & Budd, P.C., based in Dallas.

Mr. LeBlanc has also represented governmental entities, including the state of

Mississippi, in complex consumer fraud litigation. Today Mr. LeBlanc

concentrates his practice in the areas of environmental law, securities litigation

and asbestos litigation. Mr. LeBlanc has worked to recover hundreds of millions of

dollars for injured working men and women in Louisiana, including multiple jury

verdicts over one million dollars.


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Mr. LeBlanc currently serves as President-Elect of the American Association for

Justice (“AAJ”) f/k/a the American Trial Lawyers Association (“ATLA”), and has

previously served as vice-president, treasurer and parliamentarian. In addition, he

has been a member of the Executive Committee and the Board of Governors of the

AAJ, where he was awarded the Wiedeman Wysocki National Finance Council

Award twice, most recently in July of 2010. Mr. LeBlanc has been a member of

the AAJ National Finance Council, a member of the Board of Trustees of the AAJ

PAC Committee, Chair of the National Finance Council, and is a member of the

Leaders Forum for AAJ.

Mr. LeBlanc is a past President of the Louisiana Association for Justice (“LAJ”)

f/k/a Louisiana Trial Lawyers Association (“LTLA”) and serves on the Executive

Committee of the LAJ. He has served on the Council of Directors and the Board of

Governors for the LAJ as well as the Committee for the Environmental Law/Toxic

Tort Section of the LAJ.

In addition to being a committee member of the American Bar Association’s

Section on Toxic Torts, and a supporting member of the Trial Lawyers for Public

Justice Foundation, LeBlanc was also named to a list of top plaintiffs’ attorneys

compiled by surveys of top defense council in September 2010.

Cary L. McDougal has served as lead attorney in over 75 jury trials in state and

federal court. He has tried cases in diverse areas of the law such as premises

liability, product liability, general personal injury, medical malpractice, insurance

litigation and environmental litigation. As manager of Baron & Budd’s water

contamination litigation section, Mr. McDougal currently represents over 200

municipalities and water providers across the country that are seeking clean-up

costs for the contamination of their water supplies. His practice includes

management of Baron & Budd’s cases in the Multi-District (MDL) MTBE water

contamination litigation, which is considered one of the most complex pieces of

litigation in the country. He also manages the firm’s involvement in the BP Oil

Spill litigation.

Scott Summy is a shareholder at Baron & Budd, one of the largest and oldest

firms in the United States that specializes in environmental litigation. Mr. Summy

heads up the firm’s water contamination litigation section, whose practice is

dedicated to complex water contamination issues across the country. Mr. Summy

primarily represents public water providers, such as municipalities, water districts

and utilities, and school districts whose water has been contaminated., Mr. Summy

seeks cost recovery on behalf of his clients for treatment facilities, operation and

maintenance costs of the treatment facility, out of pocket expenses and


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administrative costs. Mr. Summy also represents private well owners around the

country whose wells are contaminated. Mr. Summy has represented

approximately 200 public water providers across the country with MTBE

contamination, and he is designated co-lead counsel for all plaintiffs. Mr. Summy

has reached settlements with most of the defendants in these cases totaling over

$450 million, including BP/Amoco.

Mr. Summy is continuing to file new MTBE cases across the country. He was

also lead counsel in landmark environmental cases in California designed to

protect natural resources. These cases were brought against all major oil

companies and were successfully resolved, earning Mr. Summy and his legal team

the ”Attorney of the Year” award from California Lawyer in 2001.

Mr. Summy also represents over 30 water providers in atrazine litigation. Baron &

Budd is the largest firm in the United States representing public water providers

and private well owners on a contingency fee basis. Through his work in water

cases across the country, Mr. Summy has obtained recoveries in excess of a billion

dollars against major oil companies, including BP. Mr. Summy has been selected

to be included in The Best Lawyers in America from 2006-2010. He and his team

were also Finalists for the Public Justice Trial Lawyer of the Year Award in 2009.

Mr. Summy currently serves on the Plaintiffs’ Executive Committee in the

Deepwater Horizon litigation.

Roland Tellis co-manages the firm’s Los Angeles office. His practice focuses on

complex, high-profile litigation, including consumer class actions, financial fraud,

business torts, corporate misconduct, automobile defect, food labeling, false

advertising, securities fraud, and environmental contamination.

Mr. Tellis has represented clients in numerous jury trials, including several multi-

million dollar disputes. In 2005, Mr. Tellis received commendation from the U.S.

Department of Justice and the Federal Bureau of Investigation for his assistance in

the successful prosecution of a $120 million securities Ponzi scheme perpetrated

by foreign currency traders. Mr. Tellis also represented a multi-national food

company in a trial involving the theft of its trade secrets by competing scientists.

Mr. Tellis represented the owner of a commercial real estate portfolio in a trial

involving hundreds of millions of dollars. Mr. Tellis also represented the Screen

Actors’ Guild and members of its national board.

Mr. Tellis has become a leader in representing plaintiffs in multi-district class

action litigation and has become a formidable force in protecting consumer rights.

Mr. Tellis is lead or co-lead class counsel in several complex class action cases,


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including cases in the financial services sector, the automobile industry and the

food and beverage group. Mr. Tellis’ experience exemplifies the depth and

breadth of resources that Baron & Budd, P.C. provides for its clients.

Some of Mr. Tellis’s most recent consumer class actions include Bias et al. v.

Wells Fargo Bank (putative class action concerning fraud in the setting of default

related bank fees); Stitt et al. v. Citibank et al. (putative class action concerning

fraud in the setting of default related bank fees); Ellis et al. v. JPMorgan Chase et

al. (putative class action concerning fraud in the setting of default related banks

fees); Payne et al. v. Bank of America, et al. (putative class action involving

manipulation of the LIBOR U.S. Dollar rate); In re L’Oreal Wrinkle Cream

Marketing and Sales Practices Litigation (putative class action involving

fraudulent marketing of skin care products); In re Avon Anti-Aging Skincare

Creams and Products Marketing and Sales Practices Litigation (putative class

action involving fraudulent marketing of skin care products);; Aarons et al. v.

BMW of North America, LLC et al. (putative class action concerning premature

transmission failure in MINI Cooper vehicles); and In re Alexia Foods, Inc.

Litigation (putative class action concerning false advertising, fraud, and

misrepresentations concerning frozen food products).

Mr. Tellis served on the Board of Governors of the Association of Business Trial

Lawyers and is a Lawyer Representative to the Ninth Circuit Judicial Conference.

Mr. Tellis is Co-Chair of the Settlement Panel of the United States District Court

for the Central District of California.

Of Counsel

Mazin A. Sbaiti works in the general litigation section of Baron & Budd. He has

successfully represented plaintiffs and defendants in matters involving securities,

antitrust, breach-of-contract, fraud, intellectual property, consumer

protection, product liability and employment matters. Often called in to represent

clients seeking to replace their counsel, Mr. Sbaiti has extensive experience

resuscitating cases from the brink of dismissal or default. Mr. Sbaiti is a former

law clerk for the U.S. Court of Appeals for the Sixth Circuit, and summer clerk for

the Eastern District of New York. He graduated with honors from Columbia Law

School where he headed the Moot Court Executive Board, served on the Editorial

Board of the Human Rights Law Review, taught first-year law students research

and writing, was a teaching fellow in financial accounting and financial statement

analysis, and published an article on Social Security Law.


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Allen Vaught is a decorated U.S. Army veteran and former Texas State

Representative. A member of the U.S. Army Reserve from 1997 until 2005, Mr.

Vaught took leave from Baron & Budd in 2003 to serve in Operation Iraqi

Freedom. He commanded one of the Army’s first units to enter Fallujah and

served as the city’s de facto mayor. Mr. Vaught heads the firm’s FLSA litigation

section, where he spearheads new litigation against employers who are not fairly

compensating their employees.


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Associates

Christopher C. Colley works with Baron & Budd clients who suffer from

mesothelioma, primarily out of the firm’s Baton Rouge office. Mr. Colley worked

with the Dallas-based law firm Silber Pearlman until the firm consolidated with

Baron & Budd in 2008. He earned his law degree from the Texas Tech University

School of Law.

Chad Cotton is an attorney with Baron & Budd’s asbestos litigation section,

representing individuals with mesothelioma and other asbestos cancers. He

concentrates his practice on the liability of employers and the owners of the

facilities where his clients were exposed to asbestos. Mr. Cotton earned his J.D.

from Southern Methodist University’s Dedman School of Law.

Irma Espino is an attorney with Baron & Budd’s water contamination litigation

section, where she works primarily with clients who have been harmed by the Gulf

Oil Spill. Espino originally joined the firm in 2002 as a case manager and later

paralegal for pharmaceutical cases. In 2004, she left the firm to attend law school

at the University of Miami School of Law, where she received honors in Litigation

Skills and Trial Advocacy Program and was a member of the Business Law

Review. She rejoined Baron & Budd in 2010.

Ann Harper has spent her career representing people who have developed

mesothelioma and other serious illnesses caused by asbestos exposure. She works

in Baron & Budd’s settlement department, where she oversees the firm’s Client

Care department and works closely with the firm’s clients to pursue claims

through asbestos bankruptcy trust funds.

Steven Lopez is an attorney with the firm’s asbestos litigation group. He joined

the firm after completing his legal education at the Baylor University College of

Law.

Mitchell McCrea is an attorney in the law firm’s water clitigation section.

Growing up on his family’s ranches and farm in southern New Mexico, Texas and

California, Mr. McCrea was constantly aware of water’s ever-increasing value and

scarcity. Following graduate studies on environmental history and the history of

the American West at the University of New Mexico, Mr. McCrea determined he

could best make a positive impact on the world’s natural resources if he was

armed with a law degree. He graduated cum laude from Texas Tech University

Law School.


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Natasha Mehta works in Baron & Budd’s commerical litigation section, which

she joined in 2011. Ms. Mehta earned her J.D. at the University of California.

Marty A. Morris works with the firm’s asbestos litigation group, representing

people with mesothelioma and other asbestos-related diseases. Mr. Morris was an

attorney with a well-known commercial litigation firm for several years before

joining Baron & Budd in 1999. He earned his J.D. at South Texas College of

Law, where he was honored with the Order of the Coif. He was also a member of

the South Texas Law Review and the Advocacy Program.

Mark Pifko represents clients in complex and class action litigation matters. Mr.

Pifko has taken on powerful corporations on cases involving false advertising,

fraud and scientific and technical disputes. Mr. Pifko’s experience on both sides of

the courtroom encompasses more than fifty class action lawsuits and other matters

concerning consumer goods, food products, dietary supplements, vehicles and

software. Mr. Pifko has been involved in a class action against McDonald’s

regarding violations of California’s gift card laws. He also worked on matters

concerning Harley Davidson Motor Company and alleged motorcycle defects.

Additionally, Mr. Pifko has experience representing clients in California

Proposition 65 litigation, with a focus on cases involving manufacturers and

retailers of dietary supplement and health-care products who failed to warn

customers about potential cancer risks. In addition to his work in the courtroom,

Mr. Pifko is a talented writer who has been published in several magazines on

class action law and consumer advocacy.

Some of Mr. Pifko’s most recent consumer class actions include Bias et al. v.

Wells Fargo Bank (putative class action concerning fraud in the setting of default

related bank fees); Stitt et al. v. Citibank et al. (putative class action concerning

fraud in the setting of default related bank fees); Ellis et al. v. JPMorgan Chase et

al. (putative class action concerning fraud in the setting of default related banks

fees); Payne et al. v. Bank of America, et al. (putative class action involving

manipulation of the LIBOR U.S. Dollar rate); In re L’Oreal Wrinkle Cream

Marketing and Sales Practices Litigation (putative class action involving

fraudulent marketing of skin care products); In re Avon Anti-Aging Skincare

Creams and Products Marketing and Sales Practices Litigation (putative class

action involving fraudulent marketing of skin care products);; Aarons et al. v.

BMW of North America, LLC et al. (putative class action concerning premature

transmission failure in MINI Cooper vehicles); and In re Alexia Foods, Inc.

Litigation (putative class action concerning false advertising, fraud, and

misrepresentations concerning frozen food products).


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M. Cristina Sanchez is an attorney with the firm’s water contamination litigation

section, representing municipalities, water providers and private well owners

seeking clean-up costs for polluted drinking water supplies. She earned her J.D. at

Southern Methodist University’s Dedman School of Law, where she was the

National Champion, recipient of the Best Brief Award and Second Place Oralist in

the 2002 Hispanic National Bar Association Moot Court Competition. She also

won First Place in the 2001 Southern Methodist University Client Counseling

Competition and served as Chief Counsel for SMU’s Criminal Defense Legal

Clinic in 2002.

Thomas M. Sims has worked on a variety of environmental cases, ranging from

water contamination to air pollution. In the Tucson, Arizona groundwater

contamination case, Mr. Sims served as trial counsel in two lengthy bench trials

that led to favorable verdicts for his clients. Mr. Sims also served on the legal

team that was awarded the 2006 Public Justice “Trial Lawyer of the Year” Award

for their work on this Tucson water contamination case. Mr. Sims earned his law

degree, with honors, from the University of Texas School of Law.

Peter Smith brings a wealth of real estate and commercial expertise to Baron and

Budd. Whether it’s representing individuals or corporations in trial or arbitration,

Mr. Smith works to reach the best solution for his clients. His practice focuses on

cases involving property, partnership disputes, fraud, antitrust, breach of contract,

breach of fiduciary duty, unfair business practices and copyright. In one of his

notable cases, Mr. Smith worked on an action for the American Skiing Company,

the owner of the Canyons Ski Resort in Park City, Utah, to compel the resort’s

landlord to agree to a lease in a $123 million transaction. He also worked on a trial

team that successfully defended the estate of actor John Ritter in an action brought

to compel specific performance of a contract to purchase three citrus farms owned

by the Ritter estate.

Natalie J. Velasco began her career working as an adminstrative assistant at a

plainittifs’ law firm, where she later discovered a passion for the law. Ms. Velasco

works with clients throuoghout the settlement process. She earned her J.D. at

Southern Methodist University Dedman School of Law.


[PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION Case No.: 4:11-cv-03532-CW SETTLEMENT, PROVISIONALLY CERTIFYING CLASS, AND SCHEDULING HEARING

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BARON & BUDD, P.C. ROLAND TELLIS, SBN 186269 [email protected] MARK PIFKO, SBN 228412 [email protected] 1999 Avenue of the Stars, Suite 3450 Los Angeles, CA 90067 Telephone: 310.860.0476 Fax: 310.860.0480 Attorneys for Plaintiff CLAIRE DELACRUZ individually, and on behalf of other members of the public similarly situated GIBSON, DUNN & CRUTCHER LLP G. CHARLES NIERLICH, SBN 196611 [email protected] TIMOTHY W. LOOSE, SBN 241037 [email protected] MATTHEW L. BERDE, SBN 260615 [email protected] 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: 415.393.8200 Fax: 415.393.8306 Attorneys for Defendant CYTOSPORT, INC., a California Corporation



OAKLAND DIVISON

CLAIRE DELACRUZ, individually, and on behalf of other members of the general public similarly situated,

Plaintiff,

v.

CYTOSPORT, INC., a California Corporation,

Defendant.

CASE NO.: 4:11-cv-03532-CW

[PROPOSED] ORDER PRELIMINARILY

APPROVING CLASS ACTION SETTLEMENT,

PROVISIONALLY CERTIFYING A

NATIONWIDE SETTLEMENT CLASS,

APPROVING PROPOSED NOTICE, AND

SCHEDULING FAIRNESS HEARING


1 [PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION Case No.: 4:11-cv-03532-CW SETTLEMENT, PROVISIONALLY CERTIFYING CLASS, AND SCHEDULING HEARING

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Upon review and consideration of the Settlement Agreement And Release, and the

attachments thereto, which have been filed with the Court, it is HEREBY ORDERED, ADJUDGED

and DECREED as follows:

1. The Court has carefully reviewed the Settlement Agreement And Release, as well as

the files, records, and proceedings to date in the Action. The definitions in the Settlement Agreement

And Release are hereby incorporated as though fully set forth in this Order, and capitalized terms

shall have the meanings attributed to them in the Settlement Agreement And Release.

2. The parties have agreed to settle the Action upon the terms and conditions set forth in

the Settlement Agreement And Release, which has been filed with the Court. The Settlement

Agreement And Release, including all exhibits thereto, is preliminarily approved as fair, reasonable,

and adequate. Plaintiff in the Action, by and through her counsel, has investigated the facts and law

relating to the matters alleged in her complaint, including extensive pretrial discovery, pretrial

motions practice, legal research as to the sufficiency of the claims, and an evaluation of the risks

associated with continued litigation, trial, and/or appeal. The settlement was reached as a result of

extensive arm’s length negotiations between counsel for Plaintiff, on the one hand, and counsel for

CytoSport, on the other hand, occurring over approximately one year and multiple mediation sessions

with two respected mediators—the Honorable Edward A. Panelli and the Honorable Carl J. West,

both currently affiliated with JAMS. The settlement confers substantial benefits upon the Settlement

Class, particularly in light of the damages that Plaintiff and Class Counsel believe are potentially

recoverable or provable at trial, without the costs, uncertainties, delays, and other risks associated

with continued litigation, trial, and/or appeal.

3. The Court conditionally certifies, for settlement purposes only: a class of all persons

who purchased one or more Muscle Milk® Ready-to-Drink beverages (the “RTD”) and/or Muscle

Milk® bars (the “Bar,” together with the RTD, the “Products”) at retail in the United States from July

18, 2007 through December 31, 2012 (the “Settlement Class”). Excluded from the Settlement Class

are all persons who are employees, directors, officers, and/or agents of CytoSport or its subsidiaries

and affiliated companies, as well as the Court and its immediate family and staff.



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4. The Court conditionally finds, for settlement purposes only and conditioned upon the

entry of this Order and the Final Order and Judgment, and the occurrence of the Effective Date, that

the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil

Procedure have been satisfied in that: (a) the number of Settlement Class Members is so numerous

that joinder of all members thereof is impracticable; (b) there are questions of law and fact common

to the Settlement Class; (c) the claims of the Plaintiff are typical of the claims of the Settlement Class

they seek to represent for purposes of settlement; (d) the Plaintiff has fairly and adequately

represented the interests of the Settlement Class and will continue to do so, and the Plaintiff has

retained experienced counsel to represent her; (e) for purposes of settlement, the questions of law and

fact common to the Settlement Class Members predominate over any questions affecting any

individual Settlement Class Member; and (f) for purposes of settlement, a class action is superior to

the other available methods for the fair and efficient adjudication of the controversy. The Court also

concludes that, because this Action is being settled rather than litigated, the Court need not consider

manageability issues that might be presented by the trial of a nationwide class action involving the

issues in this case. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). In making these

findings, the Court has exercised its discretion in conditionally certifying the Settlement Class on a

nationwide basis. See Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998).

5. The Court appoints the law firm of Baron & Budd, P.C. as counsel for the Class

(“Class Counsel”). For purposes of these settlement approval proceedings, the Court finds that this

law firm is competent and capable of exercising its responsibilities as Class Counsel. The Court

designates named Plaintiff Claire Delacruz as the representative of the Settlement Class.

6. The Final Fairness Hearing shall be held before this Court on , at , to

determine whether the Settlement Agreement And Release is fair, reasonable, and adequate and

should receive final approval. The Court will rule on Class Counsel’s application for an award of

attorneys’ fees, costs, and expenses (the “Fee Application”) at that time. Papers in support of final

approval of the Settlement Agreement And Release and the Fee Application shall be filed with the

Court according to the schedule set forth in Paragraph 15 below. The Final Fairness Hearing may be

postponed, adjourned, or continued by order of the Court without further notice to the Settlement



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Class. After the Final Fairness Hearing, the Court may enter a Final Order and Judgment in

accordance with the Settlement Agreement And Release that will adjudicate the rights of the

Settlement Class Members (as defined in the Settlement Agreement And Release) with respect to the

claims being settled.

7. Pending the Final Fairness Hearing, all proceedings in the Action, other than

proceedings necessary to carry out or enforce the terms and conditions of the Settlement Agreement

And Release and this Order, are stayed.

8. The Court approves, as to form and content, the Long Form Notice and Summary

Notice, attached as Exhibits “D” and “E,” respectively, to the Settlement Agreement And Release.

As soon as possible after the entry of this Order, but not later than sixty (60) days after the entry of

this Order, CytoSport will coordinate with the Settlement Administrator to provide notice to the

Settlement Class as follows:

(a) publishing, on or before (the “Notice Date”), the Summary Notice in

accordance with the plan of publication described in Exhibit F to the Settlement Agreement; and, in

addition, posting of the mutually agreed-upon press release described in Exhibit F on the websites of

both Class Counsel and Defendant.;

(b) providing a link in the Long Form Notice and the Summary Notice to a

settlement website to be designed and administered by the Settlement Administrator that will contain

the settlement documents (including but not limited to the Long Form Notice and the Claim Form), a

list of important dates, and any other information to which the parties may agree; and

(c) having the Settlement Administrator contact by email all of CytoSport’s

customers who purchased the Products during the Class Period for whom CytoSport has valid email

addresses, to provide such customers with the Summary Notice.

9. The Court finds that the Long Form Notice and Summary Notice are reasonable, that

they constitute due, adequate, and sufficient notice to all persons entitled to receive notice, and that

they meet the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.

Specifically, the Court finds that the manner of dissemination of the Long Form Notice and Summary

Notice described in Paragraph 8 complies with Rule 23(e) of the Federal Rules of Civil Procedure as



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it is a reasonable manner of providing notice to those Settlement Class Members who would be

bound by the settlement. The Court also finds that the manner of dissemination of the Long Form

Notice and Summary Notice described in Paragraph 8 complies with Rule 23(c)(2), as it is also the

best practicable notice under the circumstances, provides individual notice to all Settlement Class

Members who can be identified through a reasonable effort, and is reasonably calculated, under all

the circumstances, to apprise the members of the Settlement Class of the pendency of this Action, the

terms of the settlement, and their right to object to the settlement or exclude themselves from the

Settlement Class. See, e.g., Farinella v. PayPal, Inc., 611 F. Supp. 2d 250, 256-57 (E.D.N.Y. 2009)

(court approved plan disseminating notice by email, internet posting, and publication); In re Grand

Theft Auto Video Game Consumer Litig., 251 F.R.D. 139, 145 (S.D.N.Y. 2008) (same); see also Todd

v. Retail Concepts, Inc., No. 07-0788, 2008 WL 3981593, at *2 (M.D. Tenn. Aug. 22, 2008) (court

approved plan disseminating notice by email, in-store posting, and website posting).

10. Settlement Class Members will have until , to submit their Claim Forms,

which is due, adequate, and sufficient time.

11. Each Settlement Class member who wishes to be excluded from the Settlement Class

and follows the procedures set forth in this Paragraph shall be excluded. Putative members of the

Settlement Class who wish to opt out of the settlement must send a letter by fax, U.S. mail, or e-mail

in the form specified in the Settlement Agreement And Release and Long Form Notice to: CytoSport

Settlement Administrator, , postmarked (or the equivalent for fax

or e-mail), with copies to Class Counsel and Defense Counsel, postmarked (or the equivalent for fax

or e-mail) no later than . All persons or entities who properly elect to opt out of the

settlement shall not be Settlement Class Members and shall relinquish their rights to benefits with

respect to the Settlement Agreement And Release, should it be approved.

12. Any member of the Settlement Class who has not timely submitted a written request

for exclusion from the Settlement Class, and thus is a Settlement Class Member, may object to the

proposed settlement contained in the Settlement Agreement And Release, the certification of the

Settlement Class, the entry of the Final Order and Judgment, the amount of fees requested by Class

Counsel, and/or the amount of the incentive awards requested by the named Plaintiffs. Any



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Settlement Class Member who intends to object to the Settlement Agreement And Release must send

a written objection by fax, U.S. mail, or e-mail to the Settlement Administrator, with copies to Class

Counsel and Defense Counsel at the addresses set forth below, postmarked (or the equivalent for fax

or e-mail) no later than . Settlement Class Members who fail to file and serve timely

written objections in the manner specified above shall be deemed to have waived all objections and

shall be foreclosed from making any objection (whether by appeal or otherwise) to the settlement.

No Settlement Class Member shall be entitled to be heard at the Final Fairness Hearing (whether

individually or through separate counsel) or to object to the settlement, and no written objections or

briefs submitted by any Settlement Class Member shall be received or considered by the Court at the

Final Fairness Hearing, unless written notice of the objecting class member’s intention to appear at

the Final Fairness Hearing and copies of any written objections and/or briefs shall have been filed

with the Court and served on Class Counsel and Defense Counsel by . Settlement Class

Members who object must set forth their full name, current address, and telephone number.

Settlement Administrator

Delacruz v. CytoSport, Inc. CytoSport Settlement Administrator c/o Garden City Group, Inc. P.O. Box 9832 Dublin, OH 43017-5732

Counsel for the Class

Baron & Budd, P.C.

Roland Tellis

Mark Pifko

15910 Ventura Boulevard, Suite 1600

Encino, California 91436

Telephone: 818.839.2333

Facsimile: 818.986.9698

E-mail: [email protected]

Counsel for CytoSport

Gibson, Dunn & Crutcher LLP

G. Charles Nierlich

Timothy W. Loose

Matthew L. Berde

555 Mission St., Suite 3000



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San Francisco, CA 94105

Telephone: 415.393.8200

Facsimile: 415.393.8306

E-mail: [email protected]

13. Class Counsel shall file their Fee Application on or before .

14. Papers in support of final approval of the Settlement Agreement And Release, and in

response to objections to the Settlement Agreement And Release or the Fee Application, shall be

filed with the Court on or before .

15. In summary, the dates of performance are as follows:

(a) The Notice Date shall occur within sixty (60) days after the entry of this Order;

(b) Settlement Class members may submit Claim Forms or may submit requests

for exclusion postmarked no later than 90 days following the Notice Date;

(c) Class Counsel shall file their Fee Application on or before 75 days following

the Notice Date;

(d) All objections to the Settlement Agreement And Release and written notices of

the objecting class member’s intention to appear at the Final Fairness Hearing shall be filed and

served no later than 90 days following the Notice Date;

(e) Papers in support of final approval of the Settlement Agreement And Release,

and in response to objections to the Settlement Agreement And Release or the Fee Application, shall

be filed with the Court on or before 120 days following the Notice Date; and

(f) The Final Fairness Hearing shall be held on , at .

16. These dates of performance may be extended by order of the Court, for good cause

shown, without further notice to the Settlement Class. Settlement Class Members must check the

settlement website at [WEBSITE ADDRESS] regularly for updates and further details regarding

extensions of these dates of performance.

17. In the event the Settlement Agreement And Release is not approved by the Court, or

for any reason the parties fail to obtain a Final Order and Judgment as contemplated in the Settlement

Agreement And Release, or the Settlement Agreement And Release is terminated pursuant to its



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terms for any reason or the Effective Date does not occur for any reason, then the following shall

apply:

(a) All orders and findings entered in connection with the Settlement Agreement

And Release shall become null and void and have no force and effect whatsoever, shall not be used or

referred to for any purposes whatsoever, and shall not be admissible or discoverable in this or any

other proceeding;

(b) The conditional certification of the Settlement Class pursuant to this Order

shall be vacated automatically, and the Actions shall proceed as though the Settlement Class had

never been certified pursuant to this Settlement Agreement And Release and such findings had never

been made;

(c) Nothing contained in this Order is, or may be construed as, a presumption,

concession or admission by or against CytoSport or Plaintiff of any default, liability or wrongdoing

as to any facts or claims alleged or asserted in the Action, or in any actions or proceedings, whether

civil, criminal or administrative;

(d) Nothing in this Order or pertaining to the Settlement Agreement And Release,

including any of the documents or statements generated or received pursuant to the claims

administration process, shall be used as evidence in any further proceeding in this case; and

(e) All of the Court’s prior Orders having nothing whatsoever to do with class

certification shall, subject to this Order, remain in force and effect.

18. Pending final determination of whether the proposed settlement should be approved,

no Settlement Class Member directly, derivatively, in a representative capacity, or in any other

capacity, shall commence or continue any action against any of the Released Parties (as that term is

defined in the Settlement Agreement And Release) in any court or tribunal asserting any of the

Released Claims (as that term is defined in the Settlement Agreement And Release).

19. Garden City Group, is hereby appointed as Settlement Administrator for this

settlement and shall perform all of the duties of the Settlement Administrator set forth in the

Settlement Agreement And Release.



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20. Class Counsel and Defense Counsel are hereby authorized to use all reasonable

procedures in connection with approval and administration of the settlement that are not materially

inconsistent with this Order or the Settlement Agreement And Release, including making, without

further approval of the Court, minor changes to the form or content of the Long Form Notice,

Summary Notice, and other exhibits that they jointly agree are reasonable or necessary.

IT IS SO ORDERED, this __ day of _______, 2013

__________________________________________

THE HONORABLE CLAUDIA WILKEN

UNITED STATES DISTRICT COURT JUDGE


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