Reasons For Settlement NCD Liquid Zeolite

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REASONS FOR SETTLEMENT

  1. The Plaintiffs in this Litigation have been represented by James P. Gitkin, Esq. and Anthony Lagrassa, Esq., of the law firm of Salpeter Gitkin, LLP, and Nolan Klein, Esq., of the Law Offices of Nolan Klein, P.A., as well as special insurance counsel Jason Mazer, Esq. and Cary Steklof, Esq. of the law firm of Ver Ploeg & Lumpkin, P.A. (“Plaintiffs’ Counsel”). Plaintiffs’ Counsel has thoroughly investigated the facts and circumstances surrounding this case and legal claim, and has reviewed the law underlying the Litigation. Plaintiffs’ Counsel also considered the defenses available to Waiora, LLC.

    The parties engaged in extensive arms’ length settlement negotiations beginning in earnest in November 2012, and continuing through January 2013. The parties were able to arrive at the Stipulation of Settlement, which details all of the terms and conditions of the proposed settlement between the Plaintiffs, Class Members, and the Defendants, subject to the final approval by the Court. The parties to the Stipulation of Settlement believe that the terms of the Stipulation of Settlement are fair, adequate, and in the best interest of the liquid zeolite Class Members. The parties reached this conclusion after investigating and considering, among other things, the strengths and weaknesses of the Class Members’ claims against Waiora, LLC, the financial condition and financial details of Waiora, LLC, insurance available to Waiora, LLC for this claim, the uncertainties inherent in complex litigation, and the benefits provided by the Stipulation of Settlement to the Class Members. While vigorously denying any liability in this Litigation, Waiora, LLC considered it desirable and in its best interest that this Litigation be dismissed on the terms set forth in the Stipulation of Settlement to avoid further expense, inconvenience, distraction and litigation.

    This Notice does not indicate any expression or opinion by the Court concerning the merits of the respective claims or defenses asserted in this Litigation. This Notice is sent merely to advise Class Members of the proposed settlement and of the Class Members’ rights in connection therewith.

    1. ATTORNEY’S FEES, CLASS REPRESENTATIVE FEES, AND LITIGATION COSTS AND EXPENSES

    The Defendants have agreed, subject to Court approval, that in addition to the benefit to the Settlement Class set forth in Section III, above, Defendants will pay the following:

    1. Attorney’s Fees

    The Defendants have agreed to pay Plaintiffs’ Counsel a fee and cost amount separate and apart from the benefit negotiated for the class; the agreed fee and cost award is $830,000.00 which is the approximate equivalent of less than 7% of the cash value of the benefit conferred on the class, and would constitute full and final satisfaction of all attorney’s fees and costs incurred in this case. To date, Plaintiffs’ Counsels have not received any payment for their efforts.

    At the Fairness Hearing, the Court will consider the agreement of the parties and enter an award of attorneys’ fees and expenses in an amount the Court deems appropriate, but not to exceed the amounts set forth above. Plaintiffs’ Counsel will be proposing a split of the fees and costs in accordance with an agreement of counsel.

    1. Incentive Payments

    The Defendants have also agreed, subject to Court approval, to pay an incentive award to the Plaintiffs who brought the instant lawsuit. The Plaintiffs will receive a total of $20,000.00 (or $5,000.00 to each of the four named Plaintiffs) as an incentive award and in furtherance of their efforts and contributions in the instant action.

    1. Litigation Costs and Expenses

    In addition, the Defendants have agreed to pay the costs of providing this Notice, the costs of a forensic accounting firm investigating the capacity to pay of the Defendants and reasonableness of the settlement, and the costs and fees of the Settlement Administrator, which payments will be made by Defendants in addition to and separate from all other fees, consideration and remedies paid to and available to the Settlement Class members, Settlement Class representatives, and Plaintiffs’ Counsel.

    1. RELEASES

    In addition to the binding effect, and all other effects, of any Final Judgment entered in accordance with the Settlement of this Litigation, upon the settlement being approved by the Court, the Defendant Waiora, LLC, and all other Defendants named in this Litigation, and all of their past, present and future officers affiliates, predecessors in interest, successors in interest, parent corporations, subsidiary corporations, assigns, counsel, attorneys, contractors, independent contractors, agents, distributors, directors, managers, employees, and each of their respective heirs, affiliates, predecessors in interest, successors in interest assigns, counsel, attorneys and agents (the “Released Parties”) will, to the fullest extent permitted by law, be released and forever discharged by the Plaintiffs, Class Members, and all other claimants who are included in, or will benefit from, the proposed settlement, as well as their respective heirs, successors, agents and assigns (the “Releasing Parties”), from any and all claims, rights, demands, suits, matters, obligations, damages, including consequential damages, losses or costs, punitive or exemplary damages, fines, penalties, attorney’s fees and costs, actions or causes of action, of every kind and description, whether based on or under a federal law or regulation, the laws or regulations of any state or subdivision or agency, that the Releasing Parties had, or may have, against the Released Parties, arising out of or related in any way to the subject matter of this Litigation, whether known or unknown, suspected or unsuspected, accrued, or which may thereafter accrue, including, but not limited to, and regardless of the legal theory and type of relief or damages sought, claims for damages, injunctive or declaratory relief, arising out of or related to the marketing, sale, or use of Natural Cellular Defense (NCD, Liquid Zeolite) at any time between April 2008 and October 2011 (the “Released Claims”). The Released Claims include, but are not limited to, claims arising under the theories of consumer fraud, fraud, negligence, nuisance, unjust enrichment, and all other state or federal statutory, regulatory, and common-law causes of action.

    1. LIMITS OF CONSIDERATION

    The consideration, fees, costs, and expenses set forth in this Notice and the Stipulation of Settlement are the only consideration, fees, costs, or expenses that Defendant Waiora, LLC or the Released Parties shall be obligated to give any Plaintiff, Class Member, or Plaintiffs’ Counsel in connection with the settlement and release of the Released Parties.

    1. DENIAL OF LIABILITY

    Defendants and the Released Parties do not admit any wrongdoing or liability and vigorously deny the allegations of the Plaintiffs and Class Members. The proposed settlement is a compromise of disputed claims and does not mean that Defendants are liable for any of the claims or causes of actions asserted by the Plaintiffs in the Class Action Complaint or in the First Amended Class Action Complaint.

    1. RIGHTS AND OPTIONS OF CLASS MEMBERS

    Each member of the Purchaser Class and Non-Purchaser Class has the following rights and options: … (continued on page 4)

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