NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: All persons residing in the United States who purchased fluoridated bottled water produced, marketed and sold by DS Waters of America, Inc. (“Defendant” or “DS Waters”) under the product name “Nursery® Water” due to statements and information provided on product advertisements, labeling and in store displays for Nursery® by DS Waters, including nurserywater.com, at any time from February 21, 2004 to date (“Class Period”) (“Settlement Class”).
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS.
There is now pending in the United States District Court, Central District of California an action entitled DiSimone, et al. v. DS Waters of America, Inc. , Case No. CV08-02957 MMM (Ex) ("Litigation").
Plaintiffs did not and do not claim that Nursery® Water is unsafe.
Plaintiffs in the Litigation filed a class action lawsuit against DS Waters on behalf of the class described above. Plaintiffs allege that, in the course of production, marketing and advertising, Defendant issued advertisements, labeling, and in store displays containing errors, misstatements, or misleading statements that Nursery® helps nourish infants and toddlers and strengthens their teeth, and that several prominent health care organizations sponsored, approved or certified Nursery®. Plaintiffs have asserted claims arising out of these alleged advertising, labeling, and in store displays errors, misstatements, and misleading statements pursuant to California Business and Professions Code § 17200 et seq., the Unfair Competition Law, California Civil Code § 1750 et seq., the Consumer Legal Remedies Act, and similar state statutes nationwide;
While DS Waters vigorously denies any wrongdoing and any liability whatsoever and maintains that its advertisements, labeling, and in store displays were truthful and accurate, it has decided to settle the Litigation on the terms generally set forth herein in order to avoid expense, inconvenience and interference with ongoing business operations. The Settlement Agreement has been entered into as a compromise of the disputed claims and does not mean that liability or damages would have been found or awarded.
The Court has not determined the merits of any of the parties' contentions and this Notice shall not be interpreted as an expression of any opinion by the Court as to the merits of or defenses to any of the claims.
The United States District Court, Central District of California has determined that this Litigation should proceed as a class action, for purposes of settlement only, with Plaintiffs as the representatives of the Settlement Class, and has granted preliminary approval of the settlement, subject to a final settlement hearing discussed below.
This notice explains the nature of the Litigation and the general terms of the settlement, and informs you of your legal rights and obligations. This notice is updated November 5, 2009.
THE PARTIES HAVE AGREED TO THE SETTLEMENT GENERALLY DESCRIBED BELOW. IF THE SETTLEMENT IS FINALLY APPROVED, THE FOLLOWING BENEFITS WILL RESULT:
A. In consideration for settlement and a release of all claims of the Settlement Class against DS Waters, DS Waters will offer to Settlement Class members the opportunity to obtain a certificate which may be redeemed for a one-gallon jug of water at no cost to the Settlement Class member from a participating retail store, up to a maximum of three million (3,000,000) one-gallon jugs of water for the Settlement Class. A participating Settlement Class member may obtain only one certificate per household and redeem the certificate for a free one-gallon jug of either 1) Nursery® or 2) a non-fluoridated DS Waters purified water product. Settlement Class members can access a hyperlink on Defendant’s website, www.nurserywater.com, to file their claim and Settlement Class members will receive their certificate by mail. The Settlement Class member can redeem the certificate at any retail store that carries the specified DS Waters products and accepts such certificates. DS Waters will be responsible for all costs associated with redemption of the certificates, including, but not limited to, the reimbursement of the retail price to the retail store (which may vary from store to store) and any related redemption fee and/or cost.
B. The www.nurserywater.com website hyperlink from which Settlement Class members can file their claim will remain live for a period of six months and the certificates will have an expiration date that expires thirty (30) days after the last day of the six month period.
C. At the close of the certificate redemption period, DS Waters shall prepare and submit to the Court an accounting of the total number of certificates redeemed for free one-gallon jugs of water during the six month period. In the event less than three million (3,000,000) certificates are redeemed by Settlement Class members, DS Waters shall complete its legal payment obligation to the Settlement Class by donating, to one or more of the charitable organizations listed below, one-gallon jugs in an amount equal to the difference between 3 million and the total number of certificates redeemed by Settlement Class members during the Class Period. DS Waters shall donate one-gallon jugs of either a) Nursery®, which has an average retail price of $1.59; or b) a non-fluoridated DS Waters purified water product, which has an average retail price of $1.29, and, thus, the Settlement has a monetary value to the Settlement Class members in the range of $3,900,000 to $4,770,000. The applicable charitable organizations are as follows: Feeding America (formerly named America’s Second Harvest), The American Red Cross, UNICEF, Doctors Without Borders, and AWay To Help Ministries.
D. DS Waters agrees that, as of August 15, 2009, it will publish a statement in any future advertisement of Nursery®, including on nurserywater.com, that refers to the American Dental Association (“ADA”), the Centers for Disease Control and Prevention (“CDC”), the American Academy of Pediatricians (“AAP”) or other organizations in the context of bottled water and/or fluoride, that any referenced entity does not endorse, sponsor, approve or certify the product Nursery®. To the extent that any organization, including the ADA, AAP or CDC, does sponsor, approve or certify Nursery® Water in the future, the statement may be changed accordingly.
IF THE SETTLEMENT IS APPROVED, YOU WILL RELEASE CLAIMS AGAINST DEFENDANTS AND RELATED PARTIES.
If the Court approves the proposed settlement, it will enter a judgment that will dismiss the Litigation on the merits and with prejudice as to all Settlement Class members. All Settlement Class members shall be forever barred from prosecuting their own lawsuits and shall be deemed to have released DS Waters and all other related persons or entities from all claims, causes of action or losses of any kind whatsoever, which any Settlement Class member has or may claim to have against DS Waters, and all other related persons or entities, which are based upon, arising out of or in any way relating to any of the acts, omissions or other conduct that has been alleged or otherwise referred to, or could have been alleged or referred to in the Litigation, whether those claims are known or unknown, excepting claims for bodily injury or other personal injury or health related claims. California Civil Code § 1542 provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” All Settlement Class Members will be deemed to have waived this protection or the protection afforded by any law of the United States or its several states or principle of common law that is similar, comparable or equivalent to California Civil Code § 1542.
IF YOU DO NOT WISH TO PARTICIPATE IN THE SETTLEMENT AND BE BOUND BY ITS PROVISIONS, YOU MUST REQUEST EXCLUSION FROM THE SETTLEMENT CLASS IN THE MANNER SPECIFIED IN PARAGRAPH 4 OF THE “WHAT YOU CAN DO” SECTION OF THIS NOTICE.
A. DS Waters will separately pay an award of attorneys’ fees, costs and litigation expenses to Class Counsel and will not object to a request by Class Counsel to the Court for an award of attorneys’ fees up to $975,000. DS Waters will pay Nicole DiSimone and Janelle Nelson each $10,000.00 as an incentive award for acting as class representatives in this case and helping to secure the relief set forth above for the members of the putative Settlement Class. The amount of attorneys’ fees, costs, litigation expenses and the class representatives’ award will be considered by the Court at a hearing where the Court will also determine whether to enter the judgment approving this proposed settlement and dismissing the Litigation. Such fees, costs and litigation expenses awarded shall not in any manner reduce the Settlement Class benefits payable under this settlement. In no instance will any Settlement Class member be responsible for attorneys’ fees, costs or litigation expenses.
On January 11, 2010, at 10:00 a.m., a hearing will be held on the fairness of the proposed settlement. At the hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed settlement. The hearing will take place before the Honorable Margaret M. Morrow in Courtroom 780 of the United States District Court, Central District of California, located at the Edward R. Roybal Federal Building and Courthouse, 255 East Temple Street, Los Angeles, California.
1. If you are a member of the Settlement Class, you do not have to do anything at this time. You will be represented by counsel for the Settlement Class. As a member of the Settlement Class you will not be personally responsible for any attorneys’ fees or costs of the Litigation unless you exercise your right to retain your own counsel, in which case, you will be responsible for your own counsel’s fees and costs.
2. If you wish to obtain a certificate by mail redeemable for one (1) one-gallon jug of water, the claim form will be available at www.nurserywater.com commencing thirty (30) days after the date of final Court approval and ending six months thereafter.
3. Pursuant to Court order, a hearing regarding the settlement and class counsel’s application for award of attorneys’ fees, costs and litigation expenses will be heard on January 11, 2010 at 10:00 a.m. in the courtroom of the Honorable Margaret M. Morrow in Courtroom 780 of the United States District Court, Central District of California, located at the Edward R. Roybal Federal Building and Courthouse, 255 East Temple Street, Los Angeles, California, for the purpose of determining whether the settlement is fair, adequate and reasonable. You may, but are not required, to appear and be heard. The hearings may be continued without further notice by order of the Court.
4. If you are a member of the Settlement Class and do not wish to remain a member, you may exclude yourself from the Settlement Class by submitting by mail or delivery a request for exclusion in writing that you have personally signed. Requests for exclusion must be postmarked no later than November 27, 2009 (45 days prior to the date of the final settlement hearing), and sent to the following addresses:
Christopher
P. Ridout, Esq. Maury
A. Herman, Esq.
Devon
M. Lyon, Esq. David
A. McKay, Esq.
RIDOUT
& LYON, LLP HERMAN
GEREL, LLP
555
East Ocean Blvd., Suite 500 230
Peachtree St., NW, Suite 2260
Long
Beach, California 90802 Atlanta,
Georgia 30303
Any request for exclusion must refer to the name and number of this Litigation, DiSimone, et al. v. DS Waters of America, Inc., Case No. CV08-02957 MMM (Ex), and state your name, your address and your telephone number, and that you elect to be excluded from the Settlement Class and from any judgment entered pursuant to the settlement. Your request must be dated and signed. The address of an attorney alone is insufficient. If you validly request exclusion from the Settlement Class, (a) you will be excluded from the Settlement Class, (b) you will not share in the benefits of the Settlement Agreement described herein, (c) you will not be bound by any judgment entered in the Litigation and (d) you will have no rights with respect to this settlement.
In the event that more than fifty (50) class members submit written notices to opt out using this procedure, DS Waters may at its election withdraw from and terminate the terms of the settlement agreement and the parties shall be restored to their respective positions in the litigation as they stood prior to the execution of the settlement agreement.
5. If you object to the settlement, you may intervene in the Litigation and/or object to the terms of the settlement under the procedures set forth below. If your objection is rejected, you will be bound by the final judgment just as if you had not objected You may appear either in person or through counsel at the hearing scheduled on January 11, 2010, to show cause why the settlement should not be approved by the Court or why class counsel’s application for fees and costs should not be awarded, provided that you have, no later than December 22, 2009 (twenty (20) days prior to the date of the final settlement hearing), filed with the Court a written notice of your intention to appear, all supporting papers and a sworn statement under penalty of perjury that you are in fact a member of the Settlement Class, and have served such notice and papers upon counsel for Plaintiffs and counsel for Defendant at the following addresses:
|
Christopher P. Ridout, Esq. Devon M. Lyon, Esq. RIDOUT & LYON, LLP 555 East Ocean Blvd., Suite 500 Long Beach, California 90802 Maury A. Herman, Esq. David A. McKay, Esq. HERMAN GEREL, LLP 230 Peachtree St., NW, Suite 2260 Atlanta,
Georgia 30303 |
Rita M. Haeusler, Esq. Noah Graff, Esq. HUGHES HUBBARD & REED LLP 350 South Grand Ave., Suite 3600 Los Angeles, California 90071 |
|
Counsel for Plaintiff Class |
Counsel for DS Waters of America, Inc. |
The sworn statement must be signed by the party filing the objection and must include the objector’s name, business name and address. To be considered, the notice and papers must be received by the Court and postmarked to Plaintiffs’ counsel and Defendant’s counsel no later than December 22, 2009 (twenty (20) days prior to the date of the final settlement hearing). CLASS MEMBERS WHO DO NOT TIMELY MAKE THEIR OBJECTIONS IN THIS MANNER WILL BE DEEMED TO HAVE WAIVED ALL OBJECTIONS AND SHALL NOT BE ENTITLED TO BE HEARD AT THE FINAL SETTLEMENT HEARING.
You may, but need not, enter an appearance through counsel of your choice. If you do, you will be responsible for your personal attorneysŐ fees and costs.
This description of the case and the settlement is general and does not cover all of the issues and proceedings thus far. In order to see the complete file, including the individual terms of the settlement, in DiSimone, et al. v. DS Waters of America, Inc., you should visit the office of the Clerk of the Court of the United States District Court, Central District of California, located at the U.S. Courthouse, 312 North Spring Street, Los Angeles, California. The Clerk will make the file relating to this lawsuit available to you for inspection and copying at your own expense.
DO NOT ADDRESS
ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT
OR TO THE JUDGE.
Dated:
__________________
Order of the United States District Court,
Central District of California
HONORABLE MARGARET M. MORROW
U.S. DISTRICT JUDGE