LAWSUIT was PENDING IN THIS COURT for ATKINS

[Guest guest]

http://forum.lowcarber.org/showthread.php?t=108912 http://atkinscenter.com/img/assets/866/atkins_legal_notice_041003.pdf IN THE CIRCUIT COURT OF JEFFERSON COUNTY,ALABAMABESSEMER DIVISIONTIM BRYSON, et al., ) CV 02-1511Plaintiffs, )v. )ATKINS NUTRITIONALS, INC., )Defendant. )________NOTICE OF CLASS ACTION, APPROVAL OFSETTLEMENT, AND DISTRIBUTION OFSETTLEMENT AMOUNTS________TO: ALL MEMBERS OF THE SETTLEMENT CLASS INTHE ABOVE-CAPTIONED LITIGATIONPLEASE READ THIS NOTICE CAREFULLY. YOURRIGHTS MAY BE AFFECTED BY A LAWSUIT NOW PENDINGIN THIS COURT.This Notice is given to inform you of a final approved settlement(the “Settlement”) of certain class action litigation (“Class Action”or “Litigation”) now pending in the Circuit Court of the State ofAlabama, County of Jefferson (Bessemer Division), and to permityou, if eligible, to participate in the allocation of certain refunds andother benefits provided for under the terms of the Settlement. TheSettlement is between the Settlement Class (as defined below) anddefendant Atkins Nutritionals, Inc., not with the Other Defendants(as defined below) in the Litigation.I. The LitigationIn the Circuit Court of the State of Alabama, County of Jefferson(Bessemer Division), a lawsuit was brought on behalf of, amongother things, all retail consumer purchasers of any AtkinsNutritionals, Inc. (“Atkins”) food products that were distributed byor for Atkins and did not include glycerin, polydextrose, xylitol,maltitol or dietary fiber within the “Total Carbohydrate” count inthe Nutrition Facts Panel (“NFP”) of the labels (“Atkins’ OldLabels”) of such products (“Atkins’ Old Products”).On or about August 28, 2001, the Named Plaintiffs (Tim Bryson,Gina Savagio and Linda Paul) commenced this Class Action by filinga Summons and Complaint with the Jefferson County Clerk’sOffice. The complaint, and the amendments thereto, allege, in general,that Atkins and other defendants (Rexall Sundown, Inc., RexallRichardson Labs, MET-Rx, WorldWide Sport Nutrition, NaturalSupplement Association, Incorporated, Labrada BodybuildingNutrition, Inc., TwinLab Corporation, Universal Nutrition Systems,NBTY, Inc., Optimum Nutrition, Inc., Premier Nutrition, NextProteins, Inc., Fictitious Defendants A through Z, and FictitiousDefendants AA through ZZ [collectively, the “Other Defendants”])engaged in “unlawful misbranding” of their food products becauseNamed Plaintiffs contend that such products “actually containsubstantially higher carbohydrate amounts than disclosed” byAtkins and the other defendants (the “Initial Claims”). Thus, NamedPlaintiffs contended that the labeling of Atkins’ food products onthe Atkins’ Old Labels was “intentionally misleading with regard tothe characterization of the actual number of carbohydrates” containedin such products and, based thereon, Named Plaintiffs soughtdamages and equitable relief from Atkins for alleged causes ofaction for unjust enrichment, theft by deception, fraudulent suppression,outrage, breach of implied and express warranty, negligence,wantonness and negligence per se (the “Claims”).Atkins has denied vigorously all allegations of wrongdoing setforth in the complaint and amended complaints and contended,among other things, that it did not mislead Named Plaintiffs or theClass (as defined in Section II, below) because Atkins’ Old Labelswere truthful and not misleading, and Atkins contended that neitherthe Named Plaintiffs nor the Class has been damaged in any mannerwhatsoever. In addition, Atkins raised numerous affirmative defensesto the Claims.As of February 1, 2002, Atkins was distributing all food productsthat previously had the Atkins’ Old Labels with new labels thatinclude glycerin, polydextrose, xylitol, maltitol and dietary fiberwithin the “Total Carbohydrate” count in the Nutrition Facts Panel(“NFP”) of the labels of such products (the “Atkins’ New Labels”).On February 14, 2003, after a Fairness Hearing and publicationNotice of the Settlement and Settlement Hearing to the SettlementClass, the Circuit Court of Jefferson County, Alabama, approved afinal Settlement between the Named Plaintiffs, the Settlement Classand Atkins.II. Class Action DeterminationFor purposes of this Settlement only, the Court has ordered thatthe Claims against Atkins shall be maintained as a class actionbrought by the Named Plaintiffs as class representatives, pursuantto Rule 23(b)(3) of the Alabama Rules of Civil Procedure, on behalfof a nationwide class consisting of all retail consumer purchasers ofany Atkins’ food products with an Atkins’ Old Label at any timefrom January 1, 1995 through March 28, 2003 (the “SettlementClass” or the “Class”).The Court has designated the Named Plaintiffs to act as representativesfor the Settlement Class and has designated NamedPlaintiffs’ counsel — S.C. Middlebrooks and Sam Hill of Gardner,Middlebrooks, Gibbons & Kitrell, P.C., and James McFerrin ofMcFerrin, Stirling & Hood, L.L.C. — as Class Counsel.Communications with the class representatives and Class Counselmay be directed to the attention of either James H. McFerrin ofMcFerrin, Stirling & Hood, 1920 Huntington Road, Birmingham,Alabama 35209, or Sam Hill of Gardner, Middlebrooks, Gibbons & Kitrell, P.C., 2013 First Avenue, North, Suite 400, Birmingham,Alabama 35203.III. Approved Settlement, Dismissal and ReleaseAwritten agreement of settlement between the Class and Atkins,dated September 26, 2002 (the “Agreement”) has been approved bythe Court. The terms of the Agreement are summarized below andreference is made to the Agreement on file with the Clerk of theCourt for a more detailed explanation. Consistent with theAgreement, the Court has issued an Injunction that enjoins Atkinsfrom the further distribution of the Atkins’ Old Label on Atkins’food products, unless and until the law or FDA regulations are modifiedto change how glycerin, polydextrose, xylitol, maltitol and/ordietary fiber are to be reflected in the Total Carbohydrate countinside the NFP box, in which case the Injunction will automaticallybe deemed to be similarly modified.In addition to the Injunction, subject to the terms of theAgreement and as outlined more specifically below, Atkins hasagreed to provide a refund to Members of the Settlement Class whosubmit the required documentation to the Claims Administratorbefore the deadline to submit such claims. In general, any Memberof the Settlement Class is entitled to a refund not to exceed the fullpurchase price of any of the Atkins’ products bearing the Atkins’Old Labels, provided such Member of the Settlement Class submitsto the Claims Administrator, within 60 days of this Notice (i.e., onor before June 9, 2003), the attached proof of claim form with supportingdocumentation in the form of either: (i) a retail receipt bearinga purchase date prior to February 1, 2002 that identifies one ofthe Atkins’ Old Products; or (ii) for Members of the SettlementClass who purchased between February 1, 2002 and June 24, 2002,both a retail receipt identifying an Atkins’ Old Product which bearssuch a purchase date and an Atkins’ Old Label for the Atkins’ OldProduct(s) purchased. All Members of the Settlement Class whocomply with this procedure will receive a full refund of the purchaseprice shown on the receipt, except that if the total claims forrefund exceed $100,000.00 (One Hundred Thousand Dollars) (“theMaximum Refund Amount”), each qualifying claim will share prorata in the Maximum Refund Amount of $100,000.00. Atkins willnot be required to pay in refunds more than the Maximum RefundAmount of $100,000.00. No refunds will be paid to any qualifyingMember of the Settlement Class until all claims have been submittedfrom all qualifying Members of the Settlement Class, the 60-dayperiod for making claims has expired, and the total amount ofclaims is known. No Member of the Settlement Class will receive arecovery for the purchase of more than 10 units of the Atkins’ OldProducts. No Member of the Settlement Class purchasing theAtkins’ products containing Atkins’ Old Labels after June 24, 2002is eligible for a refund. Submissions of claims must be postmarkedon or before June 9, 2003 in order to be eligible to participate in therefund benefit. Proof of claim forms shall be mailed to: ClaimsAdministrator, P.O. Box 12151, Birmingham, Alabama 35202.Additionally, subject to the terms of the Agreement, Atkins hasagreed to provide discount coupons to retail consumers. In general,Atkins is making available to consumers one coupon entitling consumersto $.50 off the future purchase of any Atkins’ products, upto a maximum of 50% of the purchase price, whichever is lower.The coupons will be circulated in the form of (a) a free-standinginsert distributed with or included in certain prominent news publications;and (b) an e-coupon to be available on Atkins’ web site(one coupon per user or web address) for a 180-day period, effectiveimmediately. The e-coupon can be obtained by visiting Atkins’website at www.Atkinscenter.com. The e-coupon is available andvalid until October 31, 2003. The free-standing insert coupon isvalid until March 31, 2004. The coupons will be redeemable at thepoint of sale. No proof of prior purchase will be required to utilizethe coupons.IV. Additional InformationAny question which you may have concerning the matters containedin this Notice should be directed in writing to Class Counselat either of the addresses listed in Section II above.DATED: Birmingham, Alabama BY ORDER OF THE COURT:February 14, 2003CLERK OF THE COURTCIRCUIT COURT OFSTATE OF ALABAMACOUNTY OF JEFFERSONPROOF OF CLAIM FORM TO SHARE IN REFUNDBENEFITS REGARDING PURCHASE OF ATKINS FOODPRODUCTS DISTRIBUTED WITH ATKINS’ OLD LABELPURSUANT TO CLASS ACTION SETTLEMENTNOTICE: PLEASE READ THE ATTACHED NOTICEBEFORE SUBMITTING THIS FORM. THE CIRCUITCOURT OF JEFFERSON COUNTY,ALABAMA, HAS DIRECTED THAT THISCLAIM FORM BE DELIVERED TO YOU PURSUANTTO A CLASS ACTION SETTLEMENTDESCRIBED IN THE ATTACHED NOTICE. THEINFORMATION REQUESTED IN THIS FORMWILL HELP THE CLAIMS ADMINISTRATORTO DETERMINE IF YOU ARE ENTITLED TOCERTAIN BENEFITS UNDER THE APPROVEDCLASS SETTLEMENT.ONLY PERSONS WHO SUBMIT THIS FORMAND WHO ALSO QUALIFY UNDER THETERMS OF THE SETTLEMENT WILL BE ELIGIBLETO RECEIVE REFUND BENEFITSUNDER THE SETTLEMENT. THE BENEFITSAND ELIGIBILITY REQUIREMENTS AREEXPLAINED IN THE ATTACHED NOTICE ANDEXPLAINED MORE SPECIFICALLY IN THESETTLEMENT AGREEMENT ON FILE WITHTHE COURT.DEFINITIONSThe following words or phrases, whenever they appear in this Proofof Claim Form, shall have the following meaning ascribed to them,and the singular includes the plural, and the plural the singular:The “Atkins’ Old Label” or the “Atkins’ Old Labels” shall meanany Atkins food labels which appeared on any Atkins’ food productsthat were distributed by or for Atkins and which did notinclude glycerin, polydextrose, xylitol, maltitol or dietary fiberwithin the “Total Carbohydrate” count in the Nutrition Facts Panel(“NFP”) of such labels.The “Atkins’ New Label” or the “Atkins’ New Labels” shall meanany Atkins food labels which appeared on any Atkins’ food productsthat were distributed by or for Atkins and which did or doinclude glycerin, polydextrose, xylitol, maltitol and dietary fiber (tothe extent that such ingredients are included in the formula) in the“Total Carbohydrate” count in the Nutrition Facts Panel (“NFP”) ofsuch labels.The “Atkins’ Old Products” shall mean any and all Atkins’ foodproducts with an Atkins’ Old Label and include all flavors of thefollowing types of products: Advantage Bars, Chocolate Shake Mix,Endulge Bars, Bake Mix and Breakfast Bars.The “Atkins’ New Products” shall mean any and all Atkins’ foodproducts with an Atkins’ New Label.The “Settlement Class” or the “Class” shall mean a nationwideclass of all retail consumer purchasers of any Atkins’ food productswith an Atkins’ Old Label at any time from January 1, 1995 throughMarch 28, 2003.“Class Members” shall mean a member of the Settlement Class orthe Class.“Class Counsel” shall mean, collectively, the law firm of Gardner,Middlebrooks, Gibbons & Kitrell, P.C., and McFerrin, Stirling & Hood, LLC, who appear in the Litigation for or on behalf of theClass or any Named Plaintiffs prior to the Effective Date.The term “Labels” or “labels” shall mean and encompass any wrapper,labeling, packaging, seals, or any other marking or advertisingaccompanying an Atkins’ food product.INSTRUCTIONS: Class Members are entitled to submit thisclaim form only if:(i) you produce with this claim form a retail receipt bearing apurchase date prior to February 1, 2002 that identifies a purchase ofone of the Atkins’ Old Products; or(ii) for Class Members who purchased Atkins’ Old Productsbetween February 1, 2002 and June 24, 2002, you produce with thisclaim form both a retail receipt identifying an Atkins’ Old Productwhich bears such a purchase date and an Atkins’ Old Label for theAtkins’ Old Product(s) purchased.IF YOU SATISFY (i) AND (ii) ABOVE, YOU MUST SUBMITTHIS CLAIM FORM ON OR BEFORE JUNE 9, 2003. IF YOUDO NOT SUBMIT THIS CLAIM FORM BY THAT DATE, YOUWILL NOT BE ELIGIBLE FOR ANY PORTION OF THEREFUND BENEFITS OF THE SETTLEMENT DESCRIBED INTHE NOTICE AND PARAGRAPH II-7 OF THE SETTLEMENTAGREEMENT. YOU WILL REMAIN ELIGIBLE FOR THEOTHER BENEFITS OF THE SETTLEMENT WHETHER ORNOT YOU SUBMIT THIS FORM.IF YOU SUBMIT THIS FORM, YOU MUST ATTACH COPIESOF YOUR RECEIPT REFLECTING THE DATE OF PURCHASEAND, TO THE EXTENT YOU SEEK A REFUND FOR PURCHASESOF ATKINS’ OLD PRODUCTS BETWEEN FEBRUARY1 AND JUNE 24, 2002, THE RECEIPT AND A PRODUCTLABEL FOR THE ATKINS’ OLD PRODUCT PURCHASED.If you submit this form, you will be notified at a later date of theinitial determination as to whether you are entitled to share in therefund benefits under the Settlement, and the size of the refund towhich you are entitled.Your entitlement to benefits will be determined in accordance withthe terms of a Class Action Settlement (the “Settlement”), a copy ofwhich may be reviewed during regular business hours at the Officeof the Clerk of the Circuit Court of Jefferson County, Alabama,located in Bessemer, Alabama. IF YOU DO NOT SUBMIT THISFORM BEFORE JUNE 9, 2003, YOU WILL NOT BE ELIGIBLEFOR REFUND BENEFITS UNDER THE SETTLEMENT. PERSONSWHO SUBMIT THIS FORM BUT ARE NOT MEMBERSOF THE CLASS, OR WHO ARE NOT “ENTITLED TO SUBMITTHIS FORM,” AS DESCRIBED IN INSTRUCTIONS (i) AND (ii)ABOVE, WILL NOT BE ELIGIBLE FOR REFUND BENEFITSUNDER THE SETTLEMENT.PLEASE PROVIDE THE FOLLOWING INFORMATION:(1) State whether you ever purchased an Atkins food product bearingan Atkins’ Old Label. Yes _______ No _______If your answer to (1) was “yes,” state the name(s) of the product(s)you purchased. _________________If your answer to (1) was “yes,” state the number of units of suchproduct(s) you purchased. _________________If your answer to (1) was “yes,” state the date(s) you purchasedsuch product(s). _________________If your answer to (1) was “yes,” state the amount you paid for suchproduct(s). _________________NOTE: If you answered “no” to question (1), then you are not eligiblefor refund benefits under the Settlement and thereforeyou should not complete the rest of this Proof of ClaimForm and you should not submit this Proof of Claim Form.NOTE: All Members of the Settlement Class who comply with thisprocedure and are otherwise qualified to share in the refundbenefits will receive a full refund of the purchase priceshown on the receipt, except that if the total claims forrefund exceed $100,000.00 (“the Maximum RefundAmount”), each qualifying claim will share pro rata in theMaximum Refund Amount of $100,000.00.NOTE: No refunds will be paid to any qualifying Class Memberuntil all claims have been submitted from all qualifyingClass Members, the 60-day period for making claims hasexpired, and the total amount of claims is known.NOTE: No Member of the Settlement Class will receive a recoveryfor the purchase of more than 10 units of the Atkins’ OldProducts.NOTE: No Member of the Settlement Class who purchased theAtkins’ products containing Atkins’ Old Labels after June24, 2002 will be eligible for a refund.NOTE: IF YOU SUBMIT THIS FORM, YOU MUST ATTACHCOPIES OF YOUR RECEIPTS REFLECTING THATYOU PURCHASED AN ATKINS’ OLD PRODUCTWITH AN ATKINS’ OLD LABEL AND, IF YOU PURCHASEDSUCH PRODUCT BETWEEN FEBRUARY 1AND JUNE 24, 2002, THE ORIGINAL LABEL THATACCOMPANIED SUCH PRODUCTS, AS WELL AS ARECEIPT REFLECTING THE PURCHASE OF ANATKINS’ OLD PRODUCT. YOU WILL NOT RECEIVE AREFUND IF YOU DO NOT SUBMIT THIS PROOF OFCLAIM FORM BY JUNE 9, 2003 WITH THE APPROPRIATERECEIPT(S) AND/OR LABEL(S).I HAVE READ THIS FORM AND I HEREBY SWEAR ORAFFIRM UNDER PENALTY OF PERJURY THAT I HAVE COMPLETEDTHIS FORM TRUTHFULLY TO THE BEST OF MYKNOWLEDGE AND RECOLLECTION.Sign Your Name HerePrint Your Full NamePrint Your Address:__IMPORTANT: YOU MUST MAIL THIS FORM AND COPIES OFYOUR RECEIPT(S) AND, IF APPLICABLE, YOUR LABEL(S) TO:CLAIMS ADMINISTRATORP.O. BOX 12151BIRMINGHAM, AL 35202THE CLAIMS ADMINISTRATOR WILL THEN SUBMIT ACOPY OF THE FORM TO ATKINS AND CLASS COUNSELAND WILL FILE THE ORIGINAL OF THE CLAIM WITH THECLERK OF THE CIRCUIT COURT OF JEFFERSON COUNTY,ALABAMA. AFTER THE DEADLINE TO SUBMIT CLAIMSPASSES AND ALL CLAIMS HAVE BEEN SUBMITTED, ADETERMINATION WILL BE MADE AS TO WHETHER YOUARE A QUALIFIED CLASS MEMBER AND THE EXTENT TOWHICH QUALIFIED CLASS MEMBERS ARE ENTITLED TOSHARE IN THE REFUND BENEFITS PURSUANT TO THESETTLEMENT OF THE CLASS ACTION DESCRIBED TO YOUIN THIS NOTICE. A CHECK FOR THE FINAL AMOUNTDETERMINED TO BE DUE TO YOU UNDER THE SETTLEMENTWILL BE MAILED TO YOU AFTER SUCH DETERMINATIONHAS BEEN MADE. YOU MUST SUBMIT YOURCLAIM FORM NO LATER THAN JUNE 9, 2003 OR YOURCLAIM WILL BE WAIVED./s/CIRCUIT CLERK