Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC 1 2 3 4 5 ...

Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC

JOINT EX PARTE MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] SKYE RESENDES (278511) [email protected] ALEXIS M. WOOD (270200) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiff and the Proposed Class [Additional counsel listed on signature page]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ROBERT A. MASON, individually and on behalf of all others similarly situated and the general public, Plaintiff, v. HEEL, INC., a New Mexico Corporation,

Defendant.

Case No. 3:12-cv-03056-GPC-KSC Class Action NOTICE OF JOINT MOTION AND JOINT MOTION FOR AN ORDER (1) GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, (2) CERTIFYING SETTLEMENT CLASS, (3) APPOINTING CLASS REPRESENTATIVE AND CLASS COUNSEL, (4) APPROVING NOTICE PLAN, AND (5) SETTING FINAL APPROVAL HEARING, INCLUDING [FILED CONCURRENTLY WITH MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATIONS OF RONALD A. MARRON, MATTHEW G. BALL, AND CHRISTIAN GRIMM, AND PROPOSED ORDER] Judge: Hon. Gonzalo P. Curiel Courtroom: 2D Date: November 1, 2013 Time: 1:30 p.m.

Case 3:12-cv-03056-GPC-KSC Document 26 Filed 08/14/13 of 3

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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, pursuant to CivLR 7.2 and Federal Rule of Civil

Procedure 23(e), on November 1, 2013 at 1:30 p.m. in Courtroom 2D of this Court before the Honorable Gonzalo P. Curiel, or as soon thereafter as may be heard, Plaintiff Robert A. Mason and Defendant Heel, Inc. jointly will and hereby do move for an order: (1) Granting Preliminary Approval of Class Action Settlement; (2) Certifying a Settlement Class; (3) Appointing Plaintiff Class Representative and Plaintiff’s Attorney as Class Counsel; (4) Approving the Notice Plan; and (5) Setting the Final Approval Hearing and Schedule.

This joint motion is based on this Notice of Motion and Motion; the Memorandum of Points and Authorities, and Declarations of Ronald A. Marron, Matthew G. Ball and Christian Grimm filed concurrently herewith; the record on file and all proceedings had in this matter to date; and all further evidence and argument submitted in support of or against the motion.

Dated: August 14, 2013 Respectfully Submitted,*

/s/ Ronald A. Marron RONALD A. MARRON [email protected]

LAW OFFICES OF RONALD A. MARRON, APLC SKYE RESENDES ALEXIS M. WOOD 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Counsel for Plaintiff and the Proposed Class /s Matthew G. Ball Matthew G. Ball [email protected] K&L GATES LLP 4 Embarcadero Center, Suite 1200


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San Francisco, CA 94111 Phone: +1.415.249.1014 Fax: +1.415.882.8220 Attorneys for Defendant

* Counsel for Plaintiff, Ronald A. Marron, certifies that, pursuant to Section 2.f.4. of the Court’s CM/ECF Administrative Policies, Defendant’s counsel, Matthew G. Ball, has reviewed the contents of this Joint Motion for Preliminary Approval of Settlement and authorized placement of his electronic signature on this document.


Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC

JOINT EX PARTE MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] SKYE RESENDES (278511) [email protected] ALEXIS M. WOOD (270200) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiff and the Proposed Class [Additional counsel listed on signature page]




Defendant.

Case No. 3:12-cv-03056-GPC-KSC Class Action MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION FOR AN ORDER (1) GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, (2) CERTIFYING SETTLEMENT CLASS, (3) APPOINTING CLASS REPRESENTATIVE AND CLASS COUNSEL, (4) APPROVING NOTICE PLAN, AND (5) SETTING FINAL APPROVAL HEARING, INCLUDING [FILED CONCURRENTLY WITH DECLARATIONS OF RONALD A. MARRON, MATTHEW G. BALL, CHRISTIAN GRIMM AND PROPOSED ORDER] Judge: Hon. Gonzalo P. Curiel Courtroom: 2D Date: November 1, 2013 Time: 1:30 p.m.

Case 3:12-cv-03056-GPC-KSC Document 26-1 Filed 08/14/13 Page 1 of 33

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TABLE OF CONTENTS I. FACTUAL AND PROCEDURAL BACKGROUND ........................................... 1 II. SUMMARY OF THE SETTLEMENT .................................................................. 5

A. Injunctive Relief ........................................................................................... 5 B. Monetary Relief ............................................................................................ 7 C. Costs of Notice and Administration, Attorneys’ Fees,

and Incentive Awards ................................................................................... 8 III. THE SETTLEMENT SATISFIES THE CRITERIA FOR

PRELIMINARY APPROVAL ............................................................................... 8 A. Standard of Review ......................................................................................8 B. The Court Should Certify the Class for Settlement Purposes .................... 10

1. Numerosity ............................................................................................ 10 2. Commonality ......................................................................................... 11 3. Typicality .............................................................................................. 12 4. Adequacy of Representation ................................................................. 12 5. The Proposed Class Meets the Requirements of Rule 23(b)(2)............ 14 6. The Proposed Class Meets the Requirements of Rule 23(b)(3)............ 15

C. The Court Should Grant Preliminary Approval of the Proposed Settlement ......................................................................... 17

1. The Settlement was Reached at Arm’s Length ..................................... 17 2. The Settlement has no Obvious Deficiencies and Does Not Improperly Grant Preferential Treatment to the Class Representative or Segments of the Class .......................... 18 3. The Proposed Settlement Falls is Fair, Reasonable and Adequate ....... 18

a. The Strength of Plaintiff’s Case ....................................................... 19 b. Complexity, Expense, and Probable Length of Litigation .............. 20 c. The Risk of Maintaining Class Action Status Throughout Trial ..... 20 d. Amount of Recovery ........................................................................ 20 e. The Extent of Discovery Completed and the Stage of the

Proceedings ...................................................................................... 21


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f. The Experience and Views of Counsel ............................................ 22 g. The Reaction of the Class Members to the Proposed Settlement .... 22

D. The Proposed Form of Class Notice and Notice Plan Satisfy the Requirements of Rule 23 .......................................................... 23

E. The Proposed Timeline for Events Should Be Adopted ............................ 25 IV. CONCLUSION ..................................................................................................... 25


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TABLE OF AUTHORITY CASES Adams v. Inter-Con Sec. Sys., Inc., No. C-06-5428 MHP, 2007 WL 3225466 (N.D. Cal. Oct. 30, 2007) ........................ 17 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ...................................................................................... 14 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) ........................................................................... 9 Boyd v. Bechtel Corp., 485 F. Supp. 610 (N.D. Cal. 1979) ............................................................................. 23 City P’ship Co. v. Jones Intercable, Inc. , 213 F.R.D. 576 (D. Colo. 2002) ................................................................................... 9 Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013) ................................................................................................. 11 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) .................................................................................... 23 Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) .......................................................................... 11, 13 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .................................................................................................... 16 Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87 (S.D.N.Y. 1981) .................................................................................... 15 Gallucci v. Boiron, Inc.,

No. 11-cv-2039 JAH (NLS), 2012 U.S. Dist. LEXIS 157039 (Oct. 31, 2012) ...................................... 4, 5, 8, 13, 14

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) .............................................................................................. 11, 12 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................................... 8, 15, 16, 19 Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964) ...................................................................................... 10 In re Abbott Labs. Norvir Anti-Trust Litig., Nos. C04-1511CW, C04-4203CW, 2007 WL 1689899 (N.D. Cal. June 11, 2007) .. 10 In re Baldwin-United Corp., 105 F.R.D. 475 (S.D.N.Y. 1984) ................................................................................ 24


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In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992) .............................................................................. 19 In re Ferrero Litig., No. 11-CV-205 H(CAB), 2011 WL 5557407 (S.D. Cal. Nov. 14, 2011) .................. 11 In re GM Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) .......................................................................................... 17 In re Heritage Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403 (C.D. Cal. June 10, 2005) ........................ 17 In re Live Concert Antitrust Litig., 247 F.R.D. 98 (C.D. Cal. 2007) .................................................................................. 13 In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ...................................................................................... 21 In re Nvidia Derivs. Litig., No. C-06-06110-SBA (JCS), 2008 WL 5382544 (N.D. Cal. Dec. 22, 2008) ............ 20 In re Omnivision Techs., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ...................................................................... 21 In re Prudential Sec. Inc. Ltd. P’ships Litig., 163 F.R.D. 200 (S.D.N.Y. 1995) ................................................................................ 24 In re Static Random Access Antitrust Litig., No. C 07-01819 CW, 2008 WL 4447592 (N.D. Cal. Sept. 29, 2008) ....................... 10 In re Syncor ERISA Litig., 516 F.3d 1095 (9th Cir. 2008) ...................................................................................... 8 In re Tobacco II Cases,

46 Cal. 4th 298 (2009) ………………………………………………………………15 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ........................................................................ 9 Jaffe v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 346417 (N.D. Cal. Feb. 7, 2008) ............................. 21 Knight v. Red Door Salons, Inc., No. 08-1520 SC, 2009 WL 248367 (N.D. Cal. Feb. 2, 2009) ...................................... 8 Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ...................................................................................... 21 Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir. 1982) .................................................................................. 8, 19 Probe v. State Teachers' Ret. Sys., 780 F.2d 776 (9th Cir. 1986) ...................................................................................... 14


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Quintero v. Mulberry Thai Silks, Inc., No. C 08-02294 MHP, 2008 WL 4666395 (N.D. Cal. Oct. 21, 2008) ....................... 10 Riker v. Gibbons, No. 3:08-cv-00115-LRH-VPC, 2010 WL 4366012 (D. Nev. Oct. 27, 2010) ............ 22 Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) ...................................................................................... 21 Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000) .................................................................................... 14 Stuart v. Radioshack Corp., No. C-07-4499-EMC, 2010 WL 3155645 (N.D. Cal. Aug. 9, 2010) ................... 18, 22 Taifa v. Bayh, 846 F. Supp. 723, (N.D. Ind. 1994) ............................................................................ 22 True v. Am. Honda Motor Co., 749 F. Supp. 2d 1052 (C.D. Cal. 2010) ................................................................ 15, 16 Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114 (E.D. Cal. 2009) ........................................................................ 9 Vasquez v. Super. Ct., 4 Cal. 3d 800 (1971) ................................................................................................... 16 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) ........................................................................................... 11, 14 West v. Circle K Stores,

2006 WL 1652598 (E.D. Cal. June 13, 2006) ........................................................... 21 Wiener v. Dannon Co., Inc., 255 F.R.D. 658 (C.D. Cal. 2009) ................................................................................ 16 Zinser v. Accufix Research Inst., 253 F.3d 1180 (9th Cir. 2001) .................................................................................... 14 STATUTES 21 U.S.C. § 301 ................................................................................................................. 2 Cal. Bus. & Prof. Code § 17200 ....................................................................................... 2 Cal. Bus. & Prof. Code § 17500 ....................................................................................... 2 Cal. Civ. Code § 1750 ....................................................................................................... 2


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RULES Fed. R. Civ. P. 11 .............................................................................................................. 4 Fed. R. Civ. P. 23(a).......................................................................................................... 9 Fed. R. Civ. P. 23(a)(1) ................................................................................................... 10 Fed. R. Civ. P. 23(a)(2) ................................................................................................... 10 Fed. R. Civ. P. 23(a)(3) ................................................................................................... 12 Fed. R. Civ. P. 23(a)(4) ................................................................................................... 12 Fed. R. Civ. P. 23(b)(2) ............................................................................................. 14, 15 Fed. R. Civ. P. 23(b)(3) ............................................................................................. 14, 15 Fed. R. Civ. P. 23(c)(2)(B) ............................................................................................. 24 Fed. R. Civ. P. 23(g)(1) ................................................................................................... 13 Fed. R. Civ. P. 23(g)(1)(A) ............................................................................................. 13 Fed. R. Civ. P. 23(e)........................................................................................................ 19 REGULATIONS 21 C.F.R. § 101.93(c)(1) ................................................................................................... 6 OTHER AUTHORITY FDA Compliance Policy Guide § 400.400 ....................................................................... 5 Federal Judicial Center,

Judges’ Class Action Notice and Claims Process Checklist (2010) .......................... 23 Manual for Complex Lit., § 21.632 ................................................................................ 24 Moore’s Fed. Prac. § 23.165[3] (3d ed. 2005) .................................................................. 8 C.A. Wright, A.R. Miller, & M. Kane,

Federal Practice & Procedure §1777 (2d ed. 1986) .................................................... 15


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I. FACTUAL AND PROCEDURAL BACKGROUND On December 21, 2012, Plaintiff filed this putative class action against Defendant

Heel, Inc. (“Heel” or “Defendant”),1 who manufactures, distributes, and markets its homeopathic products throughout the United States. Dkt. No. 1. This case concerns Defendant’s flagship line of pain relief products known as Traumeel and Zeel, and all of its other products labeled as “homeopathic” (the “Products”). Mr. Mason purchased Traumeel during the Class Period and alleges, inter alia, that he was deceived about the nature of the Products with respect to the dilution of the active ingredients in the Products, the Products’ corresponding lack of effectiveness, and Defendant’s claims the Products were “natural,” “clinically proven,” and “doctor recommended.” Id. at ¶¶ 32-34, 38, 40-42, 47, 49-52, 77-78, 99-100, 119-120. Accordingly, Plaintiff alleges that Defendant’s representations regarding the characteristics, benefits, and abilities of the Products are false and misleading, violating the Unfair Competition Law (“UCL”, Cal. Bus. & Prof. Code §§ 17200, et seq.), False Advertising Law (“FAL”, id. §§ 17500, et seq.), Consumer Legal Remedies Act (“CLRA”, Cal. Civ. Code §§ 1750, et seq.), and constituting a breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act (“MMWA,” 15 U.S.C. §§ 2301, et seq.) and unjust enrichment. Id. at ¶¶ 95-142. Plaintiff brought this class action on behalf of a nationwide class of purchasers since December 21, 2008. Id. at ¶ 87.

On February 13, 2013, Defendant filed a motion to dismiss the complaint in its entirety. Dkt. No. 6. The parties fully briefed that motion. Id.; Dkt. Nos. 10-16. Shortly after Defendant’s motion was filed, on February 19, 2013, the parties entered into a Stipulated Protective Order so that information could be shared for purposes of potential settlement discussions, Dkt. No. 8, which the Court granted on March 20, 2013, Dkt. No. 9. No trial date has been set and the parties have not appeared for a Case Management Conference.

1 As used herein, Heel refers only to the United States-based company located in New Mexico, and not its parent company located in Baden-Baden, Germany.


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The Settlement Agreement is the product of vigorous, adversarial, and competent representation of the Parties and substantive negotiations throughout the pendency of this litigation. Marron Decl. ¶ 4. The parties began negotiations in earnest shortly before February 6, 2013, when Mason sent Heel a demand letter at Heel’s request, outlining labeling changes he believed needed to be made to the Products, and why Heel’s labeling claims were false, deceptive or unlawful and should be changed. Id. The parties subsequently agreed to attend private mediation, and the settlement terms were reached with the assistance of an independent, impartial mediator, the Honorable Leo S. Papas (Ret.) of Judicate West. Id. at ¶ 5. The Parties attended an all-day formal mediation session before Judge Papas on April 23, 2013, and had follow-up individual mediation sessions with Judge Papas, to hammer out the details of the relief ultimately achieved. Id. For over five months, the parties worked diligently to negotiate the final terms of a binding settlement agreement, both amongst counsel for the Parties and returning to Judge Papas for guidance in negotiating issues on which the Parties could not agree. Id. ¶¶ 4-6.

For the purposes of settlement, Defendant produced and Plaintiff reviewed substantial documentary evidence, and Plaintiff’s counsel’s exercised due diligence to confirm the adequacy, reasonableness, and fairness of the settlement, both before and after mediation. Id. ¶¶ 7-8.2 Plaintiff’s counsel also conducted a detailed and comprehensive review of Food and Drug Agency (“FDA”) guidance documents regarding homeopathic and over-the-counter (“OTC”) drugs; the Food, Drug and Cosmetic Act (located at 21 U.S.C. §§ 301, et seq.) and its implementing regulations (located at 21 C.F.R. §§ 1.1, et

2 Among other investigative research, Plaintiff’s counsel reviewed Defendant’s sales data from Spins (an independent, third party data-gathering firm) for years 2010-2012; data from Defendant’s internal accounting system tallying sales in pharmacies, internet, supermarkets and sporting goods stores from 2009-2012; mechanicals of the Products’ labeling at issue, including various proposals for modified labeling; Defendant’s advertising; a list of Defendant’s distributors; orders for the Products made by each of Defendant’s relevant distributors for years 2009-2012; the Products’ suggested retail sales prices, wholesale sales price, and unit sales throughout the United States; over a dozen clinical studies that Defendant claimed supported its clinical proof claims; lists of allopathic and homeopathic practitioners that purportedly recommend the Products to their patients; and Heel’s profit and loss statements for its United States’ based sales during the proposed Class Period. Id.


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seq.) (collectively, “FDCA”), its numerous changes over the years, and how those amendments pertained to OTC homeopathic drugs; Federal Trade Commission (“FTC”) advertising standards and their applicability to the Products’ labeling claims at issue here, such as the “clinical proof” and “doctor recommended” claims. See Dkt. Nos. 10, 10.1, 10.2, 10.3. Mason’s counsel also conducted a detailed analysis of the Homeopathic Pharmacopeia of the United States (“HPUS”), and guidance documents put forth by the HPUS Committee, in its role in approving homeopathic drug ingredients and setting forth minimal labeling standards for homeopathic drugs. See, e.g., id.; Dkt. No. 16.

The parties also fully briefed Defendant’s Motion to Dismiss, engaging in lengthy and detailed analysis of, inter alia, whether federal preemption under the FDCA applies to deceptive advertising cases regarding homeopathic drugs; whether the complaint made lack of substantiation claims; whether Defendant’s advertising was required to be analyzed as a whole, or whether Defendant could parse out language and seek dismissal of some claims separately; and whether Plaintiff sufficiently alleged how Defendant was not following FTC advertising standards, among other claims and defenses; all of which contentions both parties vigorously analyzed, advocated, and opposed. See Dkt. Nos. 6, 6.1, 6.2, 7, 10, 10.1, 10.2, 10.3. The parties even sought additional briefing time on the Motion to Dismiss, given the general willingness of both sides to discuss settlement, but with each side desiring to achieve the best result for their respective clients. See Dkt. No. 11. When settlement talks continued to snag on certain key provisions, the parties continued to litigate and brief their claims and defenses in this action. See Dkt. Nos. 13, 14, 15, 16.

Plaintiff’s counsel believe they could make a strong showing of why the Products were misleading, taking into account the nature of the Products, consumer deception regarding the dilution level of the Products’ active ingredients, and the absence of FDA review of the Products.3 Based on diligent effort of counsel, Plaintiff’s counsel was aware 3 Plaintiff’s counsel has previously successfully litigated and settled two other homeopathic drug labeling action, including Gallucci v. Boiron, Inc., Case No. 11-cv-2039 JAH (NLS), 2012 U.S. Dist. LEXIS 157039 (Oct. 31, 2012), which represents, to


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of the attendant strengths, risks, and uncertainties of Plaintiff’s claims, and Defendant’s defenses, during the course of negotiations. See Dkt. No. 1, 6, 7, 10, 13-16.

Defendant, on the other hand, vigorously denies any wrongdoing or liability, and contends that it would be wholly successful in defeating Plaintiff’s claims at or before trial. At trial or before, Defendant would argue that the Products are properly labeled under the FDCA, and that their labeling and marketing is not false or misleading. Defendant also would argue, among other things, that Plaintiff cannot prove that the challenged drugs are ineffective solely by claiming that homeopathy is ineffective and that Plaintiff’s claims are preempted by the FDCA with regard to the imposition of requirements which are different from or in addition to federal requirements applicable to OTC homeopathic drugs. Defendant also maintains that it does have a list of doctors, both allopathic and homeopathic, that recommend the Products; that their “natural” claims only refer to active ingredients and is not misleading. Moreover, Defendant maintains that it possesses proof of the efficacy for its Products, whether in the form of traditional homeopathic scientific support (e.g., bibliography, provings) for the active ingredients, or in the form of clinical research conducted under robust conditions, including several clinical studies.

Despite the vigorous opposition on both sides, the parties appreciate the costs and uncertainty attendant to any litigation, and have agreed to a proposed settlement agreement. Marron Decl., Ex. 1 (“Settlement Agreement”).4 Plaintiff’s counsel agreed to settle the action pursuant to the provisions of the Settlement, after considering, among other things: (i) the substantial benefits to Plaintiff and the Class under the terms of the Settlement; (ii) the uncertainty of being able to prevail at trial; (iii) the uncertainty relating

counsel’s knowledge, the first homeopathic drug deceptive advertising settlement in the nation, and Nigh v. Humphreys Pharmacal Incorporated, Case No. 12-cv-02714 MMA (DHB), another homeopathic drug deceptive advertising settlement, in which a Final Approval Hearing is set for October 21, 2013. Marron Decl. ¶¶ 14-16. This action, while similar to Gallucci and Nigh, presented additional difficult issues, however, such as the “natural,” “doctor recommended” and “clinical proof” claims. 4 All initial-capped words refer to the terms and definitions in the Settlement Agreement.


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to Defendant's defenses and the expense of additional motion practice in connection therewith; (iv) the attendant risks, difficulties and delays inherent in litigation, especially in complex actions such as this; and (v) the desirability of consummating this Settlement promptly in order to provide substantive relief to Plaintiff and the Class without unnecessary delay and expense. Marron Decl. ¶¶ 6-9; Decl. of Matthew G. Ball ¶¶ 6-9, filed concurrently herewith. Defendant has agreed that Plaintiff’s Complaint, in compliance with Rule 11 of the Federal Rules of Civil Procedure, was brought in good faith, was not frivolous, and was being settled on a voluntary basis. Id. § 12.3.

II. SUMMARY OF THE SETTLEMENT

A. Injunctive Relief Defendant has agreed to provide injunctive relief by modifying their Products’

labels and Defendant’s websites in five significant aspects. First, Defendant will place a new “FDA Disclaimer” on each Product’s external

packaging stating the following: “These statements have not been reviewed by the Food and Drug Administration. They are supported by traditional homeopathic principles.” Settlement Agreement § 4.1.1. In addition, the FDA Disclaimer will be included in all Heel advertising to consumers that depicts a readable version of the Product’s label, and all other Heel advertising to consumers that makes an Indication for Use-related claim.5 Id. & Ex. E (exemplars of proposed new packaging for the Products).

Second, Defendant will implement a “Dilution Disclaimer” as a result of Plaintiff’s claims about deceptive labeling regarding the level of dilution of the active ingredients in the Products. The back panel of each Products’ outer label or package shall be modified to include the following language, in close proximity to the Drug Facts: “‛X’ is a homeopathic dilution. For more information, see [URL]” which will refer customers to a designated Heel webpage for details (the “Dilution Webpage”). Id. § 4.1.2. In connection with the Dilution Disclaimer, Defendant has agreed to modify all websites that they own

5 Indications of Use are the statements that Plaintiff identified as false and misleading on the Products’ packaging (e.g., “Natural Pain Relief” on Traumeel). Compl., Ex. 1 at p. 4.


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or operate to include a Dilution Webpage, containing the more detailed information contemplated by the Dilution Disclaimer. Id. § 4.1.9. The new Dilution Webpage shall explain X dilution in a manner that substantially conforms to the explanation provided by the HPUS, in a language understandable to the average consumer with no knowledge of homeopathy, such as a question and answer format, explaining the level of homeopathic dilution or method. Id. & Ex. F (screenshots of proposed new Homeopathic Dilution Page). Defendant shall make the Homeopathic Dilution Page readily accessible from its home pages, each Product’s individual webpage, if any, and directly from search engines, so that consumers do not have to search for additional information. Id. Defendant shall also place a link to the FDA Compliance Policy Guide § 400.400 (“CPG”) on their websites. Id.

Third, Defendant has agreed not to label the Products with the words “natural,” unless the Heel Products contain all natural ingredients. Id. § 4.1.3. Heel shall use the term “natural” in a manner that is appropriately qualified (e.g., by using an asterisk that links to the phrase: “Contains [X] natural active ingredients out of [X] actives, see Drug Facts”). Id.

Fourth, Defendant has agreed to cease using the words “Clinically Proven,” “Proven…Effective” or any similar representations that expressly or impliedly assert medical, scientific or clinical proof on any Products for which it does not have at least two clinical studies performed by independent researchers that utilize generally accepted protocols such as randomized, double-blind placebo-controlled trials, with publication and peer review (“RCTs”). Id. § 4.1.4.

Fifth, Heel shall cease using the words “Doctor Recommended” and “[Used] by doctors worldwide” unless it also discloses to consumers the percentage of those doctors who are homeopathic practitioners and the percentage who are allopathic or any other type of medical practitioners. Id. § 4.1.5.

Plaintiff has assisted Defendant’s efforts in relabeling their Products, to ensure that the modified labels comply with the UCL, FAL, CLRA, and FDCA. The Dilution


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Disclaimer was conceived by Plaintiff’s Counsel, with the average consumer in mind. Plaintiff’s counsel also developed the FDA Disclaimer, which tracks language required for FDA-approved OTC non-homeopathic products. 21 C.F.R. § 101.93(c)(1) (“This statement has not been evaluated by the Food and Drug Administration.”). Similar FDA and Dilution Disclaimers were finally approved in Gallucci on October 31, 2012, demonstrating their suitability for this Settlement. See Gallucci, 2012 U.S. Dist. LEXIS 157039, at *16-17 (finding that the disclaimers “afford[] meaningful injunctive relief”); Marron Decl. ¶ 15.

B. Monetary Relief On top of the injunctive relief set forth above, Defendant will also contribute

$1,000,000 to a non-recapture Settlement Fund. Settlement Agreement § 4.2.1. Defendant will have no ability to recover any of the contributed funds. Id. Through the Fund, Defendant will provide a refund to all members of the Class who provide proof of purchase of any of the Products, or affirm that they purchased any of the Products, and return a Claim Form within the Claim-In Period. Id. § 4.3.1. Specifically, the refund shall be: (i) for any Claimant who provides proof of purchase (such as a receipt of product packaging), the actual purchase price as sworn to by the Class Member, up to $25 per Product, subject to a cap of $150 per Claimant for all claims (Id. § 4.3.2.1); or (ii) for any Claimant who does not provide proof of purchase, the purchase price as sworn to on the claim form, up to $25 per Product, subject to a cap of $100 per Claimant for all claims. Id. § 4.3.2.2. Payments to Class Members may be subject to pro rata reduction if the aggregate number of claims exceeds the Net Settlement Fund. Id. § 4.3.4.

In addition, if any funds remain in the Net Settlement Fund after all eligible claims, attorneys’ fees, expenses, and the incentive award have been paid, the Settlement Agreement provides for distribution of any remaining funds as follows: (i) 50% as a supplemental distribution to Class claimants; and (ii) 50% to a Court-approved non-profit organization dedicated to informing consumers or advocating on consumers’ behalf about false and deceptive drug labeling concerns, such as Consumers Union, or in the


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alternative, to a non-profit organization that provides legal services on behalf of the indigent as set forth in California Code of Civil Procedure § 384. Id. §§ 1.20, 4.3.5.

C. Costs of Notice and Administration, Attorneys’ Fees, and Incentive Awards All Notice costs shall be distributed from the Settlement Fund. Id. § 5.1. Notice

costs and claims administration have been negotiated by Plaintiff’s counsel not to exceed $194,000, unless a few limited exceptions apply. See Ex. G to Settlement Agreement. Nevertheless, the Notice Plan provides a broad range of notice through newspaper, magazine, and online media, as discussed infra. See id.

Plaintiff’s Counsel will apply for a court order awarding reasonable attorneys’ fees and costs and an incentive award for the named Plaintiff as class representative. Id. § 9.1. Defendant will have the option of responding to or contesting such application to the extent it exceeds thirty percent of the value of the Settlement for attorney’s fees or $3,500 for class representative incentive award. Id. Upon Court approval, the attorneys’ fees, expenses, and incentive award will be paid from the Settlement Fund. Id. §§ 9.2, 9.4. Defendant shall bear their own attorney’s fees, costs and expenses. Id. § 9.3.

III. THE SETTLEMENT SATISFIES THE CRITERIA FOR PRELIMINARY

APPROVAL

A. Standard of Review Pre-trial settlement of complex class actions is a judicially favored remedy.

Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982). Public policy also strongly “favors settlements, particularly where complex class action litigation is concerned.” In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008); accord Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004). Preliminary approval of a class action settlement “is committed to the sound discretion of the trial judge.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The Court must evaluate the fairness of the settlement in its entirety. Id. (“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.”). But courts must give


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“proper deference to the private consensual decision of the parties” because “the court’s intrusion upon what is otherwise a private consensual agreement negotiated between the parties . . . must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties,” and whether the settlement is fair, reasonable and adequate. Id. at 1027; see also Knight v. Red Door Salons, Inc., No. 08-1520 SC, 2009 WL 248367, at *4 (N.D. Cal. Feb. 2, 2009) (“[t]he recommendations of Plaintiff’s counsel should be given a presumption of reasonableness.”) (citation and quotations omitted).

At the preliminary approval stage, a final analysis of the settlement’s merits is not required. Instead, a more detailed assessment is reserved for the final approval after class notice has been sent and class members have had the opportunity to object to or opt-out of the settlement. See Moore’s Fed. Prac. § 23.165[3] (3d ed. 2005). Accordingly, “[p]reliminary approval of a settlement and notice to the proposed class is appropriate [i]f [1] the proposed settlement appears to be the product of serious, informed, noncollusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential treatment to class representatives or segments of the class, and [4] falls with[in] the range of possible approval[.]” Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114, 1125 (E.D. Cal. 2009) (citation and internal quotations omitted); see also In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007) (“[t]he court may find that the settlement proposal contains some merit, is within the range of reasonableness required for a settlement offer, or is presumptively valid”).

Before granting preliminary approval, the court must also determine whether a class exists. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 2248 (1997); Hanlon, 150 F.3d at 1019. This Motion will first address the propriety of class certification and then explain why the Court should preliminarily approve the Settlement.


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B. The Court Should Certify the Class for Settlement Purposes6 A proposed class may be certified for settlement purposes if it satisfies Federal Rule

of Civil Procedure 23(a), “namely: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.” Hanlon, 150 F.3d at 1019 (citing to Amchem Prods., Inc., 117 S. Ct. at 2248). In consumer class actions, doubts on certifying a class should be resolved in favor of certification. See City P’ship Co. v. Jones Intercable, Inc., 213 F.R.D. 576, 581 (D. Colo. 2002); accord In re Static Random Access Antitrust Litig., No. C 07-01819 CW, 2008 WL 4447592, at *2 (N.D. Cal. Sept. 29, 2008) (“Class actions play an important role in the private enforcement of antitrust actions. For this reason courts resolve doubts in these actions in favor of certifying the class.”). For settlement purposes only, Defendant does not object to a finding that the class elements are met. Settlement Agreement § 7.1.

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

impracticable.” “Where the exact size of the class is unknown, but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.” In re Abbott Labs. Norvir Anti-Trust Litig., Nos. C 04-1511 CW, C 04-4203 CW, 2007 WL 1689899, at *6 (N.D. Cal. June 11, 2007) (internal citations and quotations omitted). Generally, classes of forty or more are sufficiently numerous. Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964). Here, Plaintiff seeks to certify a class of nationwide purchasers of Defendant’s homeopathic Products. See Settlement Agreement, Ex. D, for list of Products; Marron Decl. ¶ 8. The proposed Settlement Class potentially

6 The Settlement Agreement defines the Class as: “All U.S. consumers who purchased the Products (listed in Exhibit D to the Agreement) for household or personal use during the Class Period (as defined by Paragraph 1.7 of the Agreement) are included. Excluded from the Class are: Heel; persons who during or after the Class Period were, officers or directors of Heel, or any corporation, trust or other entity in which Heel has a controlling interest; Heel employees; the members of the immediate families of Heel employees or their successors, heirs, assigns and legal representatives; and any judicial officer hearing this Litigation, as well as their immediate family members and employees.” Settlement Agreement § 7.1.


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consists of tens of thousands of claimants, which can reasonably be inferred from Defendant’s sales volume. See id.; Unredacted Decl. of Christian Grimm (Dkt. No. 22) ¶¶ 4-5. Therefore, the Class is sufficiently numerous such that joinder of all individual claimants would be impracticable. See Fed. R. Civ. P. 23(a)(1).

2. Commonality Rule 23(a)(2) requires “questions of law or fact common to the class.” “All

questions of fact and law need not be common. . . . 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.” Hanlon, 150 F.3d at 1019. “In the Ninth Circuit, the requirements of Rule 23(a)(2) are construed ‘permissively.’” Quintero v. Mulberry Thai Silks, Inc., No. C 08-02294 MHP, 2008 WL 4666395, at *3 (N.D. Cal. Oct. 21, 2008) (quoting Hanlon, 150 F.3d at 1019). In addition, all class members must “have suffered the same injury.” Wal-Mart Store, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (“Dukes”) (quoting Gen. Tel. Co. of Sw. v. Falcon (“Falcon”), 457 U.S. 147, 157 (1982)). In the context of claims for false or deceptive advertising, there is essentially a single misrepresentation (the product is effective for a health problem) and a single injury (loss of money for a product that did not work as represented). See Delarosa v. Boiron, Inc., 275 F.R.D. 582, 589 (C.D. Cal. 2011).

Here, Defendant made uniform representations on the Products’ labeling and marketing, throughout the United States, including the “X” dilution designation, and did not differentiate for any specific market or region. Grimm Decl. ¶ 6; Marron Decl. ¶ 10. Class Members therefore share a common injury because they were all exposed to the same representations on each Product. See id. The Class is also limited to purchasers of the Products. Settlement Agreement § 7.1. Thus, all potential Class Members were necessarily exposed to Defendant’s uniform advertisements at the time of purchase and had the same reason for purchasing the Products: to relieve a health symptom. See Delarosa, 275 F.R.D. at 589. There is no other reason to purchase an OTC drug. This action, therefore, presents common questions of law or fact regarding whether Defendant


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made false or deceptive representations about their Products, and determination of whether the representations were true or deceptive would resolve all claims “in one stroke.” Dukes, 131 S. Ct. at 2551. 7

3. Typicality Rule 23(a)(3) sets a “permissive standard,” and the named plaintiff’s claims are

typical if they are “reasonably co-extensive with those of absent class members.” Hanlon, 150 F.3d at 1020. Also, the representative plaintiff must be a member of the class they seek to represent. Falcon, 457 U.S. at 156. Here, the proposed Class Representative has claims typical to the Class and is a member of the Class he seeks to represent. Mr. Mason sought out Defendant’s Products based on the representations they were effective because they contained “active ingredients,” and suffered the same injury in fact—loss of money in the amount of the purchase price—when the Products were not effective and contained minute levels of active ingredients. Compl. ¶ 40-41, 57, 60. All purchasers were exposed to Defendant’s representations about effectiveness because the labels are the same throughout the United States, and the dilution level of active ingredients is represented by an “X,” no matter which Products were purchased. See Marron Decl. ¶ 10. Since absent Class Members’ claims need not be “substantially identical,” the inclusion of other Products not necessarily purchased by Plaintiff still present factual claims that are “reasonably co-extensive” to the Class Representative’s claims because the fundamental basis for all the claims is the alleged ultra-high dilution of the Products’ active ingredients. See Hanlon, 150 F.3d at 1020; Gallucci, 2012 U.S. Dist. LEXIS 157039, at *8-9.

4. Adequacy of Representation Rule 23(a)(4) requires that the Class Representative “fairly and adequately

represent the interests of the class.” There are two issues to be resolved for adequacy: (1)

7 This case does not pose commonality problems that might arise in an employment class action, where a defendant supervisor may have subjected different plaintiffs to disparate, discriminatory treatment. See Dukes, 131 S. Ct. at 2554 (noting commonality could be proven where there was “a uniform employment practice”); In re Ferrero Litig., No. 11-CV-205 H(CAB), 2011 WL 5557407, at *3-4 (S.D. Cal. Nov. 14, 2011).


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whether the Class Representative has interests that conflict with the proposed Class; and (2) the qualifications and competency of proposed Class counsel. In re Live Concert Antitrust Litig., 247 F.R.D. 98, 118 (C.D. Cal. 2007). Regarding qualifications of proposed Class Counsel, the Court should analyze “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).

Plaintiff does not have interests that conflict with the proposed Settlement Class. Plaintiff and the Class purchased the Products, believing the representations that they were effective and contained active ingredients. Moreover, the packaging of each Product is the same throughout the United States. Grimm Decl.. ¶ 6; Marron Decl. ¶ 10. Plaintiff’s counsel is also adequate, drafting a Complaint with seven potential causes of action. Marron Decl. ¶ 11. Further, Plaintiff’s counsel performed extensive work to date in successfully mediating and negotiating the proposed Settlement. Id. ¶¶ 4-11. Plaintiff’s counsel has numerous years’ experience, and demonstrated success, in bringing the same types of false labeling claims at issue in this action. Id. ¶¶ 13-21. In particular, Plaintiff’s counsel has specialized experience and expertise with respect to homeopathic drug labeling claims. Id. ¶¶ 14-16. This action involves a complex statute (FDCA), its implementing regulations, common law theories, and California’s statutory requirements for bringing CLRA, UCL and FAL actions. See Delarosa, 275 F.R.D. at 590, n.4 (regarding CLRA, UCL and FAL claims about an OTC homeopathic drug, and observing that “this action concerns novel legal theories in a specialized area of law”); Gallucci, 2012 U.S. Dist. LEXIS 157039, at *17 (noting “the novelty and number of the complex legal issues involved,” in approving proposed settlement). Proposed Class Counsel are competent, qualified, will more than adequately protect the Class’ interests, and request the Court order that Plaintiff’s counsel shall be Class Counsel pursuant to Rule 23(g)(1)


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(requiring a certified class to also have appointed class counsel). See Marron Decl. ¶¶ 12-28.

5. The Proposed Class Meets the Requirements of Rule 23(b)(2)8 Certification under Rule 23(b)(2) is appropriate where defendants have acted on

“grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” “A class seeking monetary damages may be certified pursuant to Rule 23(b)(2) where [monetary] relief is ‘merely incidental to [the] primary claim for injunctive relief.’” Zinser v. Accufix Research Inst., 253 F.3d 1180, 1195 (9th Cir. 2001) (citing Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986)).

Plaintiff’s request for restitution/monetary relief is “incidental” to the Complaint’s primary claims for five forms of injunctive relief. Dukes, 131 S. Ct. at 2557. Plaintiff and the Class’ claims for restitution are secondary in that the compensation flows directly out of Defendant’s misrepresentations or omissions. See id. at 2559 (stating that damages are incidental when they “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief” (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)). Plaintiff’s basis for seeking disclaimers on the Products and corrective marketing campaign also flow directly from why Defendant is liable to the Class as a whole: the Products’ allegedly false and deceptive marketing.

Further, if Defendant’s labeling conduct was unlawful as to one Plaintiff, it was unlawful as to the entire Class. Id. at 2557 (stating Rule 23(b)(2) injunctive relief is appropriate when defendant’s conduct is unlawful “as to all of the class members” and applies “when a single injunction or declaratory judgment would provide relief to each member of the class,” thereby benefitting each Class member equally). Here, the five forms of injunctive relief agreed to, in the form of consumer disclaimers and corrective advertising, would afford relief to each member of the Class and benefit the Class equally. 8 The Settlement contemplates that the Class will be certified under Rule 23(b)(3) or Rule 23(b)(2), or both. In the Ninth Circuit, a class may be certified under both Rules 23(b)(2) and 23(b)(3). Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1196 (9th Cir. 2000).


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The Court should, therefore, certify the Class under Rule 23(b)(2) for settlement purposes. For settlement purposes only, Defendant does not object to a finding that the class should be certified under Rule 23(b)(2). Settlement Agreement § 7.1.

6. The Proposed Class Meets the Requirements of Rule 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 (quoting 7A C.A. Wright, A.R. Miller, & M. Kane, Federal Practice & Procedure §1777 (2d ed. 1986)). Certification under Rule 23(b)(3) requires: (A) questions of law or fact common to the class predominate over questions affecting only individual members; and (B) a class action is superior to resolution by other available means. Fed. R. Civ. P. 23(b)(3); True v. Am. Honda Motor Co., 749 F. Supp. 2d 1052, 1062 (C.D. Cal. 2010). For settlement purposes only, Defendant does not object to a finding that the class should be certified under Rule 23(b)(3). Settlement Agreement § 7.1.

The predominance test is satisfied when common questions “present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication.” Hanlon, 150 F.3d at 1022. The predominance requirement “does not require that all questions of law or fact be common; it only requires that the common questions predominate over individual questions.” Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 93 (S.D.N.Y. 1981).

Plaintiff alleges that the Class Members are entitled to the same legal remedies, premised on the same alleged wrongdoing. These Products are sold OTC in retail drug stores through uniform packaging and the central evidence in the case is the packaging itself. See Grimm Decl. ¶ 6. The central issue for every Class Member is whether the alleged misrepresentations made on the Products’ packaging were likely to deceive a reasonable consumer. In re Tobacco II Cases, 46 Cal. 4th 298, 312 (2009). Under these circumstances, there is sufficient basis to find that the common question – whether Defendant’s advertising was likely to deceive a reasonable consumer – predominates. See Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 669 (C.D. Cal. 2009) (predominance


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satisfied when alleged misrepresentation of product’s health benefits were displayed on every package); In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 159-160 (Ct. App. 2010) (citing Tobacco II and holding that “relief under the UCL is available without individualized proof of deception, reliance and injury,” and reliance for the CLRA may be presumed classwide where a misrepresentation was material). Further, although Defendant does not dispute certification of the Class for settlement purchases, damages can be measured with a common methodology that is directly connected to the alleged wrong. See Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433-1435 (2013).9 Damages are directly proportionate to Defendant’s nationwide sales, and claims will be paid on a uniform basis, including a pro rata distribution. Settlement Agreement § 4.3.5.

Class treatment is also the superior means to adjudicate Plaintiff’s Claims. When analyzing superiority, the court should consider: “(1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; and (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum.” True, 749 F. Supp. 2d at 1062; see also id. at 1066 (finding superiority met where nationwide advertising was uniform and classwide reliance on the advertising was presumed). A fourth factor—the difficulties of managing the class action—is not considered when certification is used only for purposes of settlement. Id. at n.12.

There are no other, duplicative class action cases against Defendant as of the date of this filing. Nevertheless, should a case arise, resolving these claims in one proceeding will preserve efficiency for the parties and judicial economy. The purchase price of the Products averages $25 per package; therefore, resolution of Plaintiff’s labeling claims on a representative basis is not only desirable but also the only likely means for redress. It is neither economically feasible, nor judicially efficient, for the tens of thousands of Class 9 The Settlement will reimburse Class members in the amount of their sworn purchases, with a cap of $25 per Product, and caps of $100 or $150 per claimant, depending on whether the claimant has proofs of purchase.


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Members to pursue their claims against Defendant on an individual basis. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 338-339 (1980). Continued litigation without class certification could potentially “dwarf potential recovery.” Hanlon, 150 F.3d at 1023.

C. The Court Should Grant Preliminary Approval of the Proposed Settlement

1. The Settlement was Reached at Arm’s Length “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., No. 02-ML-1475 DT, 2005 WL 1594403, at *9 (C.D. Cal. June 10, 2005). Moreover, if the terms of the settlement are fair, courts generally assume the negotiations were proper. See In re GM Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785-86 (3d Cir. 1995).

Here, the settlement negotiations took place between counsel for the parties and involved the services of a competent, experienced, and independent mediator, the Honorable Leo S. Papas (Ret.). Marron Decl. ¶ 7. Plaintiff had an independent law firm—The Law Offices of Ronald A. Marron—representing his interests and the interests of the putative Class; Defendant is represented by K&L Gates LLP. The fact that the Settlement was prompted by an experienced mediator is one factor that demonstrates the Settlement was anything but collusive. See, e.g., Adams v. Inter-Con Sec. Sys., Inc., No. C-06-5428 MHP, 2007 WL 3225466, at *3 (N.D. Cal. Oct. 30, 2007) (“The assistance of an experienced mediator in the settlement process confirms that the settlement is non-collusive.”). The initial mediation session with Judge Papas was followed by approximately three months of detailed and adversarial negotiations between the Parties, both with and without Judge Papas’ assistance, and overall negotiations lasted over five months before the Settlement Agreement was finalized. Marron Decl. ¶¶ 7-8.

Additionally, the Settlement Agreement’s prohibition on Defendant recovering any amounts that remain in the Settlement Fund provides substantial assurance that the Settlement Agreement reflects good faith on the part of the Parties. See Stuart v. Radioshack Corp., No. C-07-4499-EMC, 2010 WL 3155645, at *4 (N.D. Cal. Aug. 9,


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2010) (that there is “no reversion” of settlement monies to defendant “provides substantial assurance that the settlement reflect[s] good faith on the part of the negotiating parties”).

2. The Settlement has no Obvious Deficiencies and does not Improperly Grant

Preferential Treatment to the Class Representative or Segments of the Class The Settlement Agreement provides the same relief to all Class Members, including

the Class Representative, with the exception that Class Members who possess proof of purchase (i.e., packaging or receipt) can receive up to $150 per Claimant for all claims, whereas Class Members who attest to their purchases under penalty of perjury can receive a maximum of $100 per Claimant. Settlement Agreement § 4.3.2. Payments to Class Members may be subject to pro rata reduction if the aggregate number of claims exceeds the Net Settlement Fund, id. § 4.3.4, however, there is the possibility of a supplemental distribution to Class Members on a pro rata basis if monies are left over in the Settlement Fund after payment of all valid claims, expenses, and fees, id. § 4.3.5.

The Settlement Agreement grants the Representative Plaintiff the right to apply to the court for an incentive award. Id. § 9.1. The amount of any award is within the Court’s discretion and, thus, will not be unreasonable in light of the Representative Plaintiff’s role in this case. Indeed, “[i]t is appropriate for courts to award enhancements to representative plaintiffs who undertake the risk of personal or financial harm as a result of litigation. Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit . . . .” Misra, 2009 WL 4581276, at *8; see also In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992). Accordingly, the Settlement Agreement does not give preferential treatment to the Class Representative.

3. The Proposed Settlement Falls is Fair, Reasonable and Adequate Under Federal Rule of Civil Procedure 23(e), the district court must determine

whether the proposed settlement is “fundamentally fair, adequate, and reasonable.” Class Plaintiffs, 955 F.2d at 1276. The Ninth Circuit has established several factors that should be weighed when assessing whether a proposed settlement is fair, adequate and


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reasonable: (1) the strength of Plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; and (7) the reaction of the class members to the proposed settlement.10 Hanlon, 150 F.3d at 1026. “Given that some of these factors cannot be fully assessed until the court conducts its fairness hearing, a full fairness analysis is unnecessary at [the preliminary approval] stage[.]” West v. Circle K Stores, 2006 WL 1652598, at *9 (E.D. Cal. June 13, 2006). Even though the Court need not, at this stage, assess the final approval factors, a review of those factors shows that the Settlement Agreement merits preliminary approval.

a. The Strength of Plaintiff’s Case “It can be difficult to ascertain with precision the likelihood of success at trial. The

Court cannot and need not determine the merits of the contested facts and legal issues at this stage, and to the extent courts assess this factor, it is to determine whether the decision to settle is a good value for a relatively weak case or a sell-out of an extraordinary strong case.” Misra, 2009 WL 4581276, at *7 (internal citation and quotations omitted). In this case, Plaintiff is confident in the strength of his claims. Based on extensive investigation and discovery, Plaintiff believes that he could obtain class certification, defeat all dispositive motions filed by Defendant, and proceed to a trial on the merits. Plaintiff further believes that, at trial, he could meet his burdens, including, without limitation, demonstrating that the Products do not work, or that their labels were deceptive. Nevertheless, Plaintiff recognizes that Defendant has several factual and legal defenses that, if successful, would defeat or substantially impair the value of Plaintiff’s claims. For example, Plaintiff might not be able to: (1) satisfy his burden of demonstrating that the Products are ineffective; (2) overcome the fact that certain claims may be preempted; or (3) retain class certification through trial. “The Settlement

10 Another factor identified by the court was the presence of a governmental participant. As there are no governmental parties to this action, this factor is neutral in this case.


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eliminates these and other risks of continued litigation, including the very real risk of no recovery after several years of litigation.” In re Nvidia Derivs. Litig., No. C-06-06110-SBA (JCS), 2008 WL 5382544, at *3 (N.D. Cal. Dec. 22, 2008).

b. Complexity, Expense, and Probable Length of Litigation Plaintiff’s claims involve complex issues under the FDCA, OTC drug marketing

standards and the Products’ claimed efficacy. The costs and risks associated with continuing to litigate this action would require extensive resources and Court time, such as expert testimony and Daubert motions. “Avoiding such a trial and the subsequent appeals in this complex case strongly militates in favor of settlement rather than further protracted and uncertain litigation” Nat’l Rural Telecomms. Coop v. DirecTV, 221 F.R.D. 523, 527 (C.D. Cal. 2004). Thus, “unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results.” Id. at 526.

c. The Risk of Maintaining Class Action Status Throughout Trial While Plaintiff strongly believes that class treatment is appropriate for all reasons

discussed herein, there is a genuine risk that Plaintiff will not be able to maintain class action status through trial. Other than consenting to class certification for the purposes of settlement only, Defendant would vigorously oppose class certification. See Settlement Agreement §12.4. And, even if the class were certified, Defendant might seek decertification or modification of the class. See, e.g., In re Omnivision Techs., Inc., 559 F. Supp. 2d, 1036, 1041 (N.D. Cal. 2007); Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009). In contrast, by settling the action, Defendant effectively accedes to certification and “there is much less risk of anyone who may have actually been injured going away empty-handed.” In re Omnivision Techs., 559 F. Supp. 2d at 1041-42. Accordingly, this factor weighs in favor of final approval.

d. Amount of Recovery The Settlement provides strong monetary relief for the Class and achieves

everything the Plaintiff sought in his putative class action Complaint. The Settlement is


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also fair, reasonable and adequate, allowing the Class to be compensated up to $150 per Claimants who have proof of purchase(s) and up to $100 per Claimants who do not have proof of purchase(s). In addition, these payments will be achieved without the delay associated with further litigation. The Settlement also provides that unclaimed funds will not revert to Defendant. Stuart v. Radioshack Corp., No. C-07-4499-EMC, 2010 WL 3155645, at *4 (N.D. Cal. Aug. 9, 2010) (“no reversion” of settlement monies to defendant “provides substantial assurance that the settlement reflect[s] good faith on the part of the negotiating parties”).11

Further, the injunctive relief provided for in the Settlement cannot be overlooked. It will address the harm allegedly caused to consumers and provides Plaintiff with the relief he most desires – a change in product labeling. The value of this substantive and widespread change to Defendant’s practices cannot be overstated. See Riker v. Gibbons, No. 3:08-cv-00115-LRH-VPC, 2010 WL 4366012, at *4 (D. Nev. Oct. 27, 2010) (approving a settlement for injunctive and declaratory relief, finding that it “achieve[d] the goals of the lawsuit”).

e. The Extent of Discovery Completed and the Stage of the Proceedings “[I]n the context of class action settlements, ‘formal discovery is not a necessary

ticket to the bargaining table’ where the parties have sufficient information to make an informed decision about settlement.” Linney, 151 F.3d at 1239 (citation and internal quotations omitted). This is especially true “where there has been sufficient information sharing and cooperation in providing access to necessary data[.]” Misra, 2009 WL

11 See also In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000); Jaffe v. Morgan Stanley & Co., No. C 06-3903 TEH, 2008 WL 346417, at *9 (N.D. Cal. Feb. 7, 2008) (“The settlement amount could undoubtedly be greater, but it is not obviously deficient, and a sizeable discount is to be expected in exchange for avoiding the uncertainties, risks, and costs that come with litigating a case to trial.”). “Courts must tread cautiously when comparing the amount of a settlement to speculative figures regarding what damages might have been won had [plaintiffs] prevailed at trial. Indeed, the very essence of a settlement is compromise, a yielding of absolutes and an abandoning of highest hopes.” White, 803 F. Supp. 2d at 1098 (internal citations and quotations omitted).


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4581276, at *8; see also Taifa v. Bayh, 846 F. Supp. 723, 728 (N.D. Ind. 1994) (same). Plaintiff engaged in substantial informal discovery, reviewing Defendant’s financial information and confirmatory third party sources, such as SPINS. Marron Decl. ¶¶ 6-8. Plaintiff’s counsel also reviewed FDA guidance documents, the FDCA, FTC standards, and background evidence relating to the Products’ claims – counsel for the Parties fully briefed a motion to dismiss and were armed with the knowledge of the strengths and weaknesses of their claims and defenses. See Dkt. Nos. 6, 7, 10-16. Thus, the Parties had sufficient information to make an informed decision about the terms of the Settlement Agreement. See id.; Marron Decl. ¶¶ 6-8.

f. The Experience and Views of Counsel In contemplating the preliminary approval of a proposed settlement, “[t]he

recommendations of Plaintiff’s counsel should be given a presumption of reasonableness.” Knight, 2009 WL 248367, at *4 (citing Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979)); see also Nat’l Rural Telecomms. Coop., 221 F.R.D. at 528 (citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). Indeed, “Parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in litigation.” In re Pacific Enters. Secs. Litig., 47 F.3d at 378. Thus, “the Court should not without good cause substitute its judgment for [counsel’s].” Boyd, 485 F. Supp. at 622. Here, “[i]n addition to being familiar with the present dispute, Plaintiff[s’] counsel has considerable expertise in . . . consumer and class action litigation.” Knight, 2009 WL 248367, at *4; Marron Decl. ¶¶ 12-29; Ball Decl. ¶¶ 6-9. There is also nothing to counter the presumption that counsel’s recommendation is reasonable.

g. The Reaction of the Class Members to the Proposed Settlement At the preliminary approval stage, the reaction of the class to the proposed

settlement is not known because notice has not yet been distributed. As such, this factor is not as meaningful a consideration as it may be at the fairness hearing, where Class Members will have had a chance to object to the proposed settlement. Nevertheless, one


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court has recognized that granting preliminary approval and directing notice to the class when the class has not been certified prior to settlement may actually enhance the class member’s opt-out rights. See In re Prudential Sec. Inc. Ltd. P’ships Litig., 163 F.R.D. 200, 205 (S.D.N.Y. 1995) (“[A] settlement class in complex litigation . . . actually enhances absent class members’ opt out rights because the right to exclusion is provided simultaneously with the opportunity to accept or reject the terms of a proposed settlement.”); In re Baldwin-United Corp., 105 F.R.D. 475, 481 (S.D.N.Y. 1984). The Class Members in this case will benefit from the simultaneous class certification and notice of proposed settlement. See id. Accordingly, this factor weighs in favor of preliminary approval.

D. The Proposed Form of Class Notice and Notice Plan Satisfy the Requirements of

Rule 23 If the court’s prima facie review of the relief offered and notice provided by the

settlement are fair and adequate, it should order that notice be sent to the class. Manual for Complex Litig., § 21.632 at 321. Notice of a class action settlement must be “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Here, Defendant does not sell its Products directly to consumers, but only to third party retailers and distributors, who sell the Products on store shelves. Thus, individual notice is not possible; and notice by publication is the “best notice practicable under the circumstances.” See id.

The proposed Notice and Notice Plan are adequate, constituting the best possible notice under the circumstances. See Settlement Agreement, Exs. A-C, G. The Notices are neutral, and written in an easy-to-understand clear language, giving consumers (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 settlement benefits; (4) an explanation of how Class Members can exercise their right to opt-out or object to the settlement; (5) an explanation that any claims against Defendant that could have been


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litigated in this action will be released if the Class Member does not opt out; (6) the names of counsel for the Class and information regarding attorney’s fees and incentive award; (7) the fairness hearing date, along with an explanation of eligibility for appearing; and (8) the settlement web site where additional information, including Spanish translations of all forms, can be obtained. Id.; see also id. § 5.4.1. The Notices are also eye-catching, and mirror the exemplar notices set forth in the Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist (2010).

The Notice Plan involves (1) creation of a dedicated Settlement Website, with online claims form submission in 128-bit encryption, posted documents regarding the case, and a downloadable claim form in English and Spanish; (2) a toll-free number that potential Class Members may use to obtain further information, with live customer service representatives and voice mail recording available 24-hours a day, all live for up to 12 months; (3) a dedicated postal mail box for paper claim forms; (4) online banner advertising on Google Display Network, which includes national outlets such as USAToday.com, Time.com, USNews.com, and regional outlets such as LATimes.com, CBS2.com, FresnoBee.com, Fox5SanDiego.com, and targeted websites such as WebMD.com and MensHealth.com; (5) a Facebook page dedicated to the Settlement; (6) online banner advertising on Yahoo Display Network and MSN Display Network; (7) posting the notice on TopClassActions.com and ClassActionRebates.com, two consumer class action websites dedicated to spreading the word about class action settlements; (8) a press release submitted to PR Newswire for distribution across the United States and social media news outlets; (9) publication, 1/4 page size, once a week for four consecutive weeks in the San Diego Union Tribune (including North County), sufficient to meet CLRA requirements; (10) a full page ad in Prevention magazine (circulation of 2.9 million persons); and (11) a 1/6 page ad in the New York Times (circulation 2.3 million persons). Settlement Agreement, Ex. G. The online advertising efforts are estimated to generate 100 million impressions, meaning the number of times a person will be exposed to the banner notice. The Summary Notice will be targeted to publications and websites that


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consumers of homeopathic remedies are likely to read, and will direct consumers to the Settlement Website for more information. Id.

The Parties have selected a qualified third-party Class Action Administrator with particular expertise in targeted online notice, SEOmap, to disseminate the notice and process claims. See id. (noting that SEOmap’s “clients collectively comprise more than 15% of U.S. internet traffic”). In light of the foregoing, the Court should approve the form of Notice, the manner of notice in the Notice Plan, and the chosen Claims Administrator.

E. The Proposed Timeline for Events Should Be Adopted Event Date Preliminary Approval Granted Day 1 Class Settlement Website Activated On or before Day 15 Notice First Published in Print Sources Day 30 or as soon as reasonably possible

after Order Granting Preliminary Approval Class Counsel to File Motion for Attorney’s Fees and Costs and Incentive Award

45 days before Final Approval Hearing

Last Day to Postmark Written Opt Out or Objection

30 days before Final Approval Hearing

Parties to File Motion for Final Approval 21 days before Final Approval Hearing Final Approval Hearing As set by the Court (preferably 120 days

after Order Granting Preliminary Approval is entered)

Last Day to Submit a Claim Form 90 days after Final Judgment and Order Accordingly, the parties request the Court schedule the Final Approval Hearing

120 days after the order granting preliminary approval, or as soon thereafter as practical.

IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests the Court grant the relief

requested.

Dated: August 14, 2013 Respectfully Submitted,*

/s/ Ronald A. Marron RONALD A. MARRON [email protected]

LAW OFFICES OF RONALD A. MARRON, APLC


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SKYE RESENDES ALEXIS M. WOOD 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Counsel for Plaintiff and the Proposed Class /s Matthew G. Ball Matthew G. Ball [email protected] K&L GATES LLP 4 Embarcadero Center, Suite 1200 San Francisco, CA 94111 Phone: +1.415.249.1014 Fax: +1.415.882.8220 Attorneys for Defendant

* Counsel for Plaintiff, Ronald A. Marron, certifies that, pursuant to Section 2.f.4. of the Court’s CM/ECF Administrative Policies, Defendant’s counsel, Matthew G. Ball, has reviewed the contents of this Joint Motion for Preliminary Approval of Settlement and authorized placement of his electronic signature on this document.


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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) [email protected] SKYE RESENDES (278511) [email protected] ALEXIS M. WOOD (270200) [email protected] 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 Attorneys for Plaintiff and the Proposed Class




Defendant.

Case No. 3:12-cv-03056-GPC-KSC Class Action DECLARATION OF RONALD A. MARRON IN SUPPORT OF JOINT MOTION FOR ORDER (1) GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, (2) CERTIFYING SETTLEMENT CLASS, (3) APPOINTING CLASS REPRESENTATIVE AND CLASS COUNSEL, (4) APPROVING NOTICE PLAN, AND (5) SETTING FINAL APPROVAL HEARING Judge: Hon. Gonzalo P. Curiel Courtroom: 2D

Mason v. Heel, Inc., Case No. 3:12-cv-03056-GPC-KSC

DECLARATION OF RONALD A. MARRON IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT


Skye

Typewritten Text

FILED UNDER SEAL

Skye

Typewritten Text

REDACTED

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I, Ronald A. Marron, declare:

1. I am counsel of record for Plaintiff Robert Mason and the putative class in

this action. I am a member in good standing of the State Bar of California and the

United States District Courts for the Northern, Central, Eastern and Southern Districts

of California; and of the United States Court of Appeals for the Ninth Circuit.

2. I submit this declaration in support of an Order (1) Granting Preliminary

Approval of the Class Action Settlement, (2) Certifying the Settlement Class, (3)

Appointing Robert Mason as Class Representative and the Law Offices of Ronald A.

Marron, APLC as Class Counsel, (4) Approving the Notice Plan, and (5) Setting the

Final Approval Hearing. I make this Declaration based on personal knowledge and if

called to testify, I could and would competently testify to the matters contained herein.

3. Attached hereto as Exhibit 1 is a true and correct copy of the final

Settlement Agreement between the Parties, including exhibits thereto.

4. On February 6, 2013, on behalf of Mr. Mason and the putative class, I sent

Defendant a confidential, detailed demand letter, analyzing and justifying the

injunctive relief sought in this action. Thereafter, the parties engaged in five months of

negotiations to achieve the Settlement Agreement which is, in my opinion, the product

of vigorous, adversarial, and competent representation of the Parties; early contact

between counsel for the Parties to commence a dialog about the merits and risks of the

claims and defenses; and substantive negotiations throughout the pendency of this

litigation.

5. The settlement was reached with the assistance of an independent,

impartial mediator, the Honorable Leo S. Papas (Ret.) of Judicate West. Prior to

mediation, I discussed Plaintiff’s case with Judge Papas, and attended the formal, all

day mediation session before Judge Papas on April 23, 2013. Thereafter, the parties

continued to negotiate the material terms of the Settlement, both amongst counsel for

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Mason v. Heel, Inc., Case No. 3:12-cv-03056-GPC-KSC DECLARATION OF RONALD A. MARRON IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS

ACTION SETTLEMENT


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the Parties and returning to Judge Papas for guidance in negotiating issues on which

the Parties could not agree.

6. On July 30, 2013, after over five months of intense negotiations, the

Parties executed the Settlement Agreement.

7. In order to enter into a meaningful mediation, on March 25, 2013 and

continuing thereafter, Plaintiff requested Defendant produce copies of the Products’

packaging and advertising; detailed financial statements and other relevant

information, such as distributors, amounts of sales to distributors, and units sales per

product/per year, the suggested retail price for the Products, wholesale price for the

Products, cost of goods sold, list of distributor, original sales invoices, and profit and

loss statements.

8. In response to Plaintiff’s request, by April 15, 2013, Defendant produced

Defendant’s sales data from Spins (a third party data-gathering firm) for years 2010-

2012; internal sales spreadsheets for sales in drug stores, internet, supermarkets and

sporting goods stores from 2009-2012 (which revealed that Defendant’s earned

approximately $7.5 million in revenue from the sale of the Products throughout the

United States during the Class Period); mechanicals of the Products’ labeling at issue;

advertising information; Products’ suggested retail sales prices; numerous research

studies pertaining to Traumeel; and a list of Heel’s distributors. In addition, Defendant

also produced original gross and net sales by product and customer for the first quarter

of 2009. After performing a detailed review of the 630-page spreadsheet for first

quarter sales of 2009, and comparing that data to financial data provided pre-

mediation, Plaintiff’s counsel concluded that Defendant’s pre-mediation figures were

accurate. Defendant also shared other confidential information through mediation, and

document production is on-going.

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9. Plaintiff and Plaintiff’s counsel are confident that the Settlement Fund and

broad injunctive relief agreed upon demonstrates a more than fair, reasonable, and

adequate result, and that the proposed Settlement merits preliminary approval.

10. In regard to injunctive relief, Defendant’s packaging of each Product is

the same throughout the United States and Defendant made uniform representations on

the Products’ labeling and advertising throughout the United States, including the “X”

dilution designation, and did not differentiate for any specific market or region.

11. Plaintiff’s Complaint contains seven potential causes of action.

Ronald A. Marron Firm’s Qualifications and Experience Prosecuting Consumer

Class Action Lawsuits

12. My work experience and education began in 1984 when I enlisted in the

United States Marine Corps (Active Duty 1984-1988, Reserves 1988-1990) and

thereafter received my Bachelor of Science in Finance from the University of Southern

California (1991). While attending Southwestern University School of Law (1992-

1994), I also studied Biology and Chemistry at the University of Southern California

and interned at the California Department of Corporations with emphasis in consumer

complaints and fraud investigations. I was admitted to the State Bar of California in

January of 1995 and have been a member in good standing since that time. In 1998, I

started my own law firm with an emphasis in consumer fraud. My firm currently

employs five full-time attorneys, two law clerks, three paralegals, and support staff.

13. Over the years I have acquired extensive experience in class actions and

other complex litigation and have obtained large settlements as lead counsel. In the

recent years, I devoted almost all of my practice to the area of false and misleading

labeling of food, nutrition or over-the-counter products.

14. My firm has an in-depth knowledge of litigating homeopathic remedy

cases, its history, principles and regulation. For example, in Gallucci v. Boiron, Inc.,

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Case No. 3:11-CV-2039 JAH NLS, United States District Court for the Southern

District of California, we drafted a Complaint with five potential causes of action, and

three of the claims, CLRA, UCL and FAL, with respect to OTC homeopathic drugs

“concern[ed] novel legal theories in a specialized area of law.” See Delarosa v. Boiron,

Inc., 275 F.R.D. 582, 590 n. 4 (C.D. Cal. 2011). This action involved extensive motion

practice and my firm’s opposition brief was so persuasive that defendants decided to

withdraw their motion. My firm’s well-drafted briefing, knowledge and experience

resulted in the February 27, 2012 settlement of Gallucci against French homeopathic

giant Boiron, Inc. On April 25, 2012, the Honorable John A. Houston granted

preliminary approval, noting that:

During the pendency of the Litigation, Class Counsel conducted an

extensive examination and evaluation of the relevant facts and law to assess

the merits of the named plaintiffs’ and class claims to determine how best to

serve the interests of Plaintiffs and the Class. . . . Class Counsel conducted

thorough review of the Food, Drug and Cosmetic Act, its numerous changes

over the years, and the Act’s implementing regulations. Class Counsel have

carefully considered the merits of Plaintiffs’ claims, and the defenses raised

by defendants.

Gallucci Dkt. No. 89 at i. Accordingly, Judge Houston appointed my firm as Class

Counsel, finding that Class Counsel “will fairly and adequately protect the interests of

the Class . . . [and] are experienced and competent to prosecute this matter on behalf of

the Class.” Id. at iii-iv. The Fairness Hearing was held on October 1, 2012 and on

October 31, 2012, the court granted final approval.

15. In addition to Gallucci, and the present action, my firm is litigating

numerous other homeopathic or allegedly homeopathic drug labeling cases:

Allen v. Hyland’s, Inc., Case No. 2:12-cv-1150-DMG (USC C.D. Cal.);

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Allen v. Similasan Corp., Case No. 3:12-cv-376-BTM-WMC (USC S.D.

Cal.);

Allen v. Nelsons Bach USA Ltd., Case No. 3:12-cv-495-L-NLS (USC S.D.

Cal.);

Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-00100-TJH-OP

(USC C.D. Cal.);

Mason v. Nature’s Innovation, Inc., Case No. 3:12-cv-3019-BTM-DHB

(USC S.D. Cal.);

Roemmich v Hylands, Inc., Case No. 2:12-cv-6256-GHK-MRW (USC

C.D. Cal.);

Nigh v. Humphreys Pharmacal, Inc. and Dickinson Brands, Inc., Case No.

3:12-cv-02714-MMA-DHB (USC S.D. Cal.) (Final Approval Hearing set

for October 21, 2013).

16. On March 13, 2012, my firm settled a case against manufacturers of OTC

probiotic supplement products, pending in the Southern District of California, styled

Burton v. Ganeden Biotech, Inc. et al., Case No. 3:11-cv-01471 W NLS. Burton

alleged that defendants falsely advertised their products as containing “clinically

proven” proprietary bacteria that improved and benefitted the digestive and immune

health of individuals when, in fact, no clinical proof existed. Before this settlement was

finalized, my firm rejected defendants’ coupon settlement offer, because we did not

believe it constituted the best relief for the class members. Instead, we continued

extensive and lengthy rounds of negotiations with the defendants to obtain the best

result for the class. These months-long negotiations included back and forth exchange

of approximately twenty editions of the Settlement Agreement, multiple conference

calls (including on the weekends) and e-mails. On March 14, 2012, the parties filed a

Joint Motion for Preliminary Approval of Settlement, (Dkt. No. 38) which the court

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granted on April 16, 2012 (Id. at 42). After the Fairness Hearing in this case on August

21, 2012, Judge Whelan granted final approval on October 5, 2012. Dkt. Nos. 48, 52.

17. On March 1, 2012, the Honorable Janis L. Sammartino appointed my firm

Interim Class Counsel in an action styled Margolis et al. v. The Dial Corporation, et al.,

currently pending in the United States District Court Southern District of California,

Case No. 3:12-cv-288-JLS-WVG (Dkt. No. 14). This case involves an OTC pheromone

soap product that its manufacturer alleges enhances a man’s sexual attraction to women.

18. When my firm was appointed Interim Lead Class Counsel for a class of

consumers in a deceptive labeling case back in March of 2011, the Honorable Marilyn

Huff recognized Class Counsel “appears to be well qualified to represent the interest of

the purported class and to manage this litigation.” Hohenberg v. Ferrero U.S.A., Inc.,

2011 U.S. Dist. LEXIS 38471, at *6 (S.D. Cal. Mar. 22, 2011). Subsequently, when my

firm obtained certification of the proposed class, this court reaffirmed its finding that

my firm is adequate Class Counsel. See In re Ferrero Litig., 278 F.R.D. 552, 559 (S.D.

Cal. 2011). Judge Huff gave Final Approval of a settlement on July 9, 2012. Ferrero

Dkt. No. 127).

19. On November 14, 2011 my firm obtained the certification of a nationwide

class of consumers who purchased Qunol CoQ10, a dietary supplement making

misleading efficacy claims. See Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist.

LEXIS 132323 (C.D. Cal. Nov. 14, 2011). My firm then successfully defeated the

defendants’ motion to decertify the class following the Ninth Circuit’s decision in

Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). See Bruno v. Eckhart

Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012). The case recently

settled, on the eve of trial (originally scheduled for October 2, 2012).

20. On June 14, 2011, the Honorable Richard Seeborg appointed my firm

Interim Class Counsel, over a competing application from a former partner at the New

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York law firm Milberg Weiss regarding a deceptive food labeling case. See Chacanaca

v. Quaker Oats Co., 2011 U.S. Dist. LEXIS 65023, at *8-9 (N.D. Cal. June 14, 2011)

(“There is no question here that both the Weston/Marron counsel…have ample

experience handling class actions and complex litigation. It is also clear that both have

particular familiarity with suits involving issues of mislabeling in the food industry.”)

21. I was appointed class counsel in Peterman v. North American Company for

Life and Health Ins., et al., No. BC357194, (L.A. Co. Sup. Ct.), which was litigated for

over 4 years and achieved a settlement of approximately $60 million for consumers. In

granting preliminary approval of the settlement, the Hon. Carolyn B. Kuhl noted that

“the excellent work that the plaintiffs’ side has done in this case has absolutely followed

through to the settlement…The thought and detail that went into the preparation of

every aspect was very impressive to me.” Excerpts from Transcript of Dec. 21, 2009

Hearing, at 2:12-17, a true and correct copy of which is attached hereto as Exhibit 2.

22. I also served as class counsel in Clark v. National Western Life Insurance

Company, No. BC321681 (L.A. Co. Sup. Ct.), a class action that, after litigating the

case for well over 6 years, resulted in a settlement of approximately $25 million for

consumers.

23. In Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.), I was

appointed class counsel on August 24, 2006, following class certification, which was

granted on July 25, 2006 by the Honorable Irma E. Gonzalez. Dkts. Nos. 113 and 121.

24. After nearly 6 years of intensive litigation, a settlement valued at $110

million was reached in Iorio, supra, and approved on March 3, 2011, by the Honorable

Janis Sammartino. Dkt. No. 480. Co-counsel and I successfully defended multiple

motions brought by defendant in the Southern District of California, including

“challenges to the pleadings, class certification, class decertification, summary

judgment,…motion to modify the class definition, motion to strike various remedies in

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the prayer for relief, and motion to decertify the Class’ punitive damages claim,” plus

three petitions to the Ninth Circuit, attempting to challenge the Rule 23(f) class

certification. Iorio, Final Order Approving (1) Class Action Settlement, (2) Awarding

Class Counsel Fees and Expenses, (3) Awarding Class Representatives Incentives, (4)

Permanently Enjoining Parallel Proceedings, and (5) Dismissing Action with Prejudice,

entered on Mar. 3, 2011, at 6:9-15, a true and correct copy of which is attached hereto

as Exhibit 3 (commenting that class counsel were “highly experienced trial lawyers

with specialized knowledge in insurance and annuity litigation, and complex class

action litigation generally” and “capable of properly assessing the risks, expenses, and

duration of continued litigation, including at trial and on appeal,” id. at 7:18-22). Judge

Sammartino also noted “the complexity and subject matter of this litigation, and the

skill and diligence with which it has been prosecuted and defended, and the quality of

the result obtained for the Class.” Id. at 17:25-27.

25. In Tabares v. Equitrust Life Ins. Co., No. BC390195 (L.A. Co. Sup. Ct.),

my firm obtained a class certification order and was appointed class counsel. The

action is still pending.

26. I am currently counsel in a number of additional putative class actions and

complex cases, including, but not limited to:

• Branca v. Iovate Health Sciences USA, Inc. et al., Case No. 3:12-cv-1686-

LAB-WMC (USC S.D. Cal.) (supplement labeling case);

• In re Gerber Probiotic Sales Practices Litig., Case No. 2:12-cv-00835-JLL-

MAH (D.N.J.) (food labeling case);

• Red v. Kraft, Case No. 2:10-cv-01028-GW-AGR (USC, C.D. Cal.) (food

labeling case);

• Perez v. The J.M. Smucker Co., Case No. 3:12-cv-853-W-BGS (USC S.D.

Cal.) (food labeling case);

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• Vinson v. The J.M. Smucker Co., Case No. 2:12-cv-04936-GHK-VBK (USC

C.D. Cal.) (food labeling case);

• Carr v. Tadin, Inc., Case No. 3:12-3010-JLS-JMA (USC S.D. Cal.) (labeling

case);

• Martinez v. Toll Brothers, et al., Case No. 09-cv-00937-CDJ (USC E.D.

Penn.) (recently settled);

• Vaccarino v. Midland National Life Insurance Co., Case No. CV 11-05858

CAS (MANx) (USC C.D. Cal.).

27. Besides these cases, I have also represented plaintiffs victimized in other

complex cases such as Ponzi schemes, shareholder derivative suits, and securities fraud

cases. I have litigated hundreds of lawsuits and arbitrations against major corporations;

of these, approximately 30 cases against the likes of, such corporate titans as Shell Oil,

Citigroup, Wells Fargo, Morgan Stanley and Merrill Lynch have gone through trial or

arbitration. Many more have settled on the eve of trial so that I was fully prepared to

proceed to trial.

28. My firm is fully committed to prosecuting this action against Defendant to

achieve a successful outcome for the proposed Class, and has the financial means to do

so.

I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct.

Executed on this 5th day of August 2013 in San Diego, California.

/s/ Ronald A. Marron Ronald A. Marron [email protected] Attorneys for Plaintiff and the Proposed Class

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ACTION SETTLEMENT


Table of Exhibits

EXHIBIT NUMBER

EXHIBIT DESCRIPTION PAGE NUMBERS

Exhibit 1 Final Settlement Agreement between the Parties, including

Exhibits Thereto

1 – 109

Exhibit 2 Peterman v. North American Company for Life and Health Ins., et al., No. BC357194, (L.A. Co.

Sup. Ct.) Excerpts from Transcript of Dec. 21, 2009 Hearing, at 2:12-

17

110

Exhibit 3 Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.)

March 3, 2011 Order, at 6:9-15, 7:18-22 and 17:25-27

111 – 133


EXHIBIT 1


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SOUTHERN DISTRICT OF CALIFORNIA ROBERT A. MASON, individually and on behalf all others similarly situated and the general public, Plaintiff, v. HEEL, INC., a New Mexico Corporation, Defendant.

Case No. 3:12-cv-03056-GPC-KSC CLASS ACTION Filed: December 21, 2012 CLASS ACTION SETTLEMENT AGREEMENT Judge: Hon. Gonzalo P. Curiel

This Class Action Settlement Agreement (the “Agreement”) is made and

entered into by and between Plaintiff Robert A. Mason, the Representative Plaintiff

(“Mason” or “Plaintiff”), on behalf of himself and the Class in this action, and

Defendant Heel, Inc. (“Heel” or “Defendant”) to settle and compromise this action,

and settle, resolve, and discharge the Released Claims, as defined below, according

to the terms and conditions herein.

1

Mason v. Heel, Inc., No. 3:12-cv-03056-GPC-KSC CLASS ACTION SETTLEMENT AGREEMENT

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RECITALS

1. PROCEDURAL BACKGROUND

1.1 WHEREAS, Plaintiff filed an action in the United States District

Court for the Southern District of California against Defendants, entitled Mason v.

Heel, Inc., Case No. 3:12-cv-03056-GPC-KSC, bringing claims under California’s

Consumer Legal Remedies Act, (Civ. Code § 1750, et seq. [“CLRA”]), Unfair

Competition Law (Bus. & Prof. Code § 17200, et seq. [“UCL”]), False Advertising

Law (id. § 17500, et seq. [“FAL”]), violation of the Magnuson-Moss Warranty Act

(15 U.S.C. § 2301, et seq. [“MMWA”]), and Breach of Express and Implied

Warranties.

1.2 WHEREAS, based upon the discovery taken to date, investigation,

and evaluation of the facts and law relating to the matters alleged in the pleadings,

plus the risks and uncertainties of continued litigation and all factors bearing on the

merits of settlement, Plaintiff and Defendant have agreed to settle the claims

asserted in the Litigation pursuant to the provisions of this Agreement.

NOW THEREFORE, subject to the final approval of the Court as required

herein and by applicable law and rules, the Settling Parties hereby agree, in

consideration of the mutual promises and covenants contained herein, and for other

good and valuable consideration, the sufficiency of which is hereby acknowledged,

that any Released Claims against any Released Parties shall be settled,

compromised and forever released upon the following terms and conditions.

TERMS AND CONDITIONS OF THE SETTLEMENT

1. DEFINITIONS

As used herein, the following terms have the meanings set forth below.

1.1. “CAFA Notice” means the notice of this settlement to the appropriate

federal and state officials in the United States, as provided by the Class Action

Fairness Act of 2005, 28 U.S.C. § 1715, and as further described in Paragraph 5.5.

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1.2. “Claim Form” means the document to be submitted by Claimants

seeking payment pursuant to this Agreement, attached as Exhibit A to this

Agreement. “Claim Form” shall encompass the English language version of the

form attached as Exhibit A, and all translations of the form into other languages, as

determined necessary by the Parties, with the assistance of the Class Action

Administrator.

1.3. “Claim-In Period” means the period of time from the date the Court

grants preliminary approval of the Settlement Agreement, up to and including

ninety (90) calendar days after the Court grants final approval of the Agreement.

1.4. “Claimant” means a Class Member over the age of majority, unless

lawfully emancipated, or their parent or guardian if under the age of majority who

submits a claim for payment.

1.5. “Class” means all United States consumers who purchased

Defendants’ Products for household or personal use during the Class Period, as

more specifically defined in Paragraph 7.1 of this Agreement.

1.6. “Class Action Administrator” means the company jointly selected by

the Parties, SEOmap, and approved by the Court to provide notice to the Class,

CAFA Notice, and to administer the claims process.

1.7. “Class Period” means December 21, 2008 through the Opt-Out Date,

as designated by the Court in its Preliminary Approval Order.

1.8. “Class Counsel” means Mason’s counsel of record in the Litigation,

the Law Offices of Ronald A. Marron, APLC.

1.9. “Class Member” means a Person who falls within the definition of the

Class set forth in Paragraph 7.1.

1.10. “Court” means the United States District Court for the Southern

District of California.

1.11. “Defendant” means Heel, Inc.

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1.12. “Defense Counsel” means Defendant’s counsel of record in the

Litigation, K&L Gates LLP.

1.13. “Dilution Disclaimer” means the injunctive relief provided for in

paragraph 4.1.2.

1.14. “Effective Date” means the first date by which any Judgment entered

pursuant to the Agreement becomes Final, except as specifically provided in

Section 9.2 of this Agreement.

1.15. “FDA” means the United States Food and Drug Administration.

1.16. “FDA Disclaimer” means the injunctive relief provided for in

paragraph 4.1.1.

1.17. “Final” means (a) if no appeal from the Judgment is filed, the date of

expiration of the time for the filing or noticing of any appeal from the Judgment; or

(b) if an appeal from the Judgment is filed, and the Judgment is affirmed or the

appeal dismissed, the date of such affirmance or dismissal; or (c) if a petition for

certiorari seeking review of any appellate judgment is filed and denied, the date the

petition is denied; or (d) if a petition for a writ of certiorari is filed and denied, the

date the petition is denied; or (e) if a petition for a writ of certiorari is filed and

granted, the date of final affirmance or final dismissal of the review proceeding

initiated by the petition for a writ of certiorari. Any proceeding or order, or any

appeal or petition for a writ of certiorari pertaining solely to any application for

attorneys’ fees or expenses will not in any way delay or preclude the Judgment

from becoming Final, and the Parties’ obligations as set forth in Section 9.2 are not

dependent on the Judgment becoming Final.

1.18. “Judgment” means the judgment to be entered by the Court pursuant

to the Settlement.

1.19. “Litigation” means Mason v. Heel, Inc., No. 3:12-cv-03056 GPC

(KSC), pending in the U.S. District Court for the Southern District of California.

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1.20. “Net Settlement Fund” shall mean the Settlement Fund, as defined

herein, less Class Action Administrator expenses, Notice expenses, any fee award,

reimbursement of Class Counsel’s expenses, and any incentive award.

1.21. “Notice” means a document, substantially in the form of Exhibit B

hereto (the “Long Form Notice”), and “Summary Notice” means a document

substantially in the form of Exhibit C hereto, to be disseminated in accordance

with the Preliminary Approval Order, informing Persons who fall within the Class

definition of, among other things, the pendency of the Litigation, the material

terms of the proposed Settlement and their options with respect thereto.

1.22. “Notice Plan” means the method of providing the Class with notice of

the Settlement, as approved by the Court.

1.23. “Opt-Out Date” means the date that is the end of the period to request

exclusion from the Class, as established by the Court in the Preliminary Approval

Order and set forth in the Notice and Section 8.7.1 of this Agreement.

1.24. “Parties” means the Representative Plaintiff and Defendant.

1.25. “Person” means an individual, corporation, partnership, limited

partnership, association, joint stock company, estate, legal representative, trust,

unincorporated association, government or any political subdivision or agency

thereof, any business or legal entity, and such individual’s or entity’s parents,

subsidiaries, spouse, heirs, predecessors, successors, representatives, and

assignees.

1.26. “Preliminary Approval Order” means an order, providing for, among

other things, preliminary approval of the Settlement and dissemination of the

Notice to the Class according to the Notice Plan.

1.27. “Products” means all existing products labeled “homeopathic,”

manufactured and/or distributed by Defendant and sold in the United States, per

the attached Exhibit D, in any variation, format, dosage, dilution, or packaging.

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1.28. “Released Claims” means, with the exception of claims for personal

injury, any and all claims, demands, rights, suits, liabilities, and causes of action of

every nature and description whatsoever, known or unknown, asserted or not

asserted, matured or unmatured, at law or in equity, existing under federal and/or

state law, including without limitation a waiver of all rights under Section 1542 of

the California Civil Code (or similar laws of other States), that the Representative

Plaintiff and/or any Class Member has or may have against the Released Persons

arising out of, in connection with, or related in any way, directly or indirectly, to

Defendant’s advertising, marketing, packaging, labeling, promotion, and/or sale of

the Products, that have been brought, could have been brought, or are currently

pending, by any Class Member against Released Persons, in any forum in the

United States (including territories and Puerto Rico).

1.29. “Released Persons” means Defendant, its respective parent

companies, any person or entity who purchases Heel’s assets in whole or in part,

subsidiary companies, affiliated companies, past, present, and future officers (as of

the Opt-Out Date), directors, shareholders, employees, predecessors, principals,

insurers, administrators, agents, accountants, consultants, advisers, independent

contractors, distributors, subcontractors, experts, servants, successors, trustees, co-

conspirators, buyers, attorneys, representatives, heirs, executors, and assigns of all

of the foregoing persons and entities.

1.30. “Representative Plaintiff” means Robert A. Mason.

1.31. “Settlement” means the settlement set forth in this Agreement.

1.32. “Settlement Fund” means the one million U.S. dollars ($1,000,000)

deposited by Defendant into the Settlement Fund described in Paragraph 4.2 of this

Agreement, and any interest earned thereon.

1.33. “Settling Parties” means, collectively, Defendant, the Representative

Plaintiff, and all Class Members.

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1.34. The plural of any defined term includes the singular, and the singular

of any defined term includes the plural, as the case may be.

2. DENIAL OF WRONGDOING AND LIABILITY

Defendant denies the material factual allegations and legal claims asserted by

the Representative Plaintiff in the Litigation, including any and all charges of

wrongdoing or liability arising out of any of the conduct, statements, acts or

omissions alleged, or that could have been alleged, in the Litigation. Similarly,

this Agreement provides for no admission of wrongdoing or liability by Heel, its

past, present and future officers, directors, employees, shareholders, subsidiaries,

parents, affiliates, accountants, advisers, agents, contractors, legal counsel,

successors, heirs, and assigns. This Settlement is entered solely to eliminate the

uncertainties, burdens, and expenses of protracted litigation.

3. THE BENEFITS OF SETTLEMENT

Class Counsel and the Representative Plaintiff recognize and acknowledge the

expense and length of continued proceedings that would be necessary to prosecute

the Litigation through trial and appeals. Class Counsel also has taken into account

the uncertain outcome and the risk of any litigation, especially in complex actions

such as this Litigation, as well as the difficulties and delays inherent in such

litigation. Class Counsel is mindful of the inherent problems of proof under the

claims and possible defenses to the claims asserted in the Litigation. Class

Counsel believes that the proposed Settlement confers substantial benefits upon the

Class. Based on their evaluation of all of these factors, the Representative Plaintiff

and Class Counsel have determined that the Settlement is in the best interests of

the Representative Plaintiff and the Class.

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4. SETTLEMENT CONSIDERATION

4.1. Injunctive Relief

Defendant will provide the Class with injunctive relief by way of

modification of the label and packaging for the Products as set forth in this

Agreement. Heel will implement the following modifications to its Products’

packaging:

4.1.1. FDA Disclaimer: On each Product’s external packaging, Heel

will add the following disclaimer: “These statements have not been reviewed by

the Food and Drug Administration. They are supported by traditional homeopathic

principles.” In addition, the FDA Disclaimer will be included in all Heel

advertising to consumers that depicts a readable version of a Product’s label, and

all other Heel advertising to consumers that makes an Indication for Use-related

claim. Heel will make reasonable efforts to place this disclaimer on the same panel

that contains the “Drug Facts” box, but reserves the right to place it in another

location if space limitations make it impractical to place it there, but shall not place

it on the bottom of any packaging. Exemplars of the revised Product packaging are

attached hereto as Exhibit E.

4.1.2. Homeopathic Dilution Disclaimer: Heel will add the following

disclaimer to the back panel of each of its Products: “’X’ is a homeopathic dilution.

For more information, see [URL]” which will refer customers to a designated Heel

webpage for details (the “Dilution Webpage”).

4.1.3. Unless the Heel Product contains all natural ingredients, Heel

shall use the term “natural” in a manner that is appropriately qualified (e.g., by

using an asterisk that links to the phrase: “Contains [X] natural active ingredients

out of [X] actives, see Drug Facts”). Heel will make reasonable efforts to place

this disclaimer on the same panel that contains the “Drug Facts” box, but reserves

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the right to place it in another location if space limitations make it impractical to

place it there, but shall not place it on the bottom of any packaging.

4.1.4. Heel will cease using the words “Clinically Proven,” “Proven

… Effective” or any similar representation that expressly or impliedly asserts

medical, scientific or clinical proof on any Products for which it does not have at

least two clinical studies performed by independent researchers that utilize

generally accepted protocols such as randomized, double-blind placebo-controlled

trials, with publication and peer review (“RCTs”). If any RCTs are sponsored by

Heel, Heel shall adequately disclose this fact to consumers.

4.1.5. Heel shall cease using the words “Doctor Recommended” and

“[U]sed by doctors worldwide” unless it also discloses to consumers the

percentage of those doctors who are homeopathic practitioners and the percentage

who are allopathic doctors or any other type of medical practitioners.

4.1.6. The FDA and Homeopathic Dilution Disclaimers will appear in

a legible font size and will be conspicuously displayed on the package, as

described above, in a readable font color, in comparison to any background

coloring on the package. In no event shall the FDA and Dilution Disclaimers be in

a font size smaller than any additional disclaimer Heel may include on its

packaging, nor shall the FDA and Dilution Disclaimers be featured any less

prominently than any other disclaimer Heel may include on its packaging, such as

through use of font color, placement on the packaging, or any other means of

emphasis.

4.1.7. Heel shall have eighteen (18) months after the date the

Settlement is finally approved to complete the labeling changes referred to in

Section 4.1 of this Agreement. The Parties understand that Heel may continue to

market and ship product stock with existing labeling for up to eighteen (18) months

following final approval, as contemplated by the eighteen month time period it will

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take to complete the labeling changes as set forth herein, and that third-party

retailers and distributors may have on hand product stock in existing labeling for

some time after the Settlement is finally approved.

4.1.8. To the extent that any state and/or federal statute, regulation,

policies, and/or code may, in the future, impose other, further, different and/or

conflicting obligations or duties on Defendant with respect to the Products, this

injunctive relief shall cease as to Defendant’s conduct covered by that statute,

regulation, policy and/or code as of the effective date of such statute, regulation,

policy and/or code. For the avoidance of doubt, the Parties expressly understand

and agree that (i) Heel labels, such as those stating that a product provides

temporary relief for [X], are consistent with the Settlement and the release to be

provided in this Agreement and the Settlement is intended to protect the Released

Persons as to such labels and as to any “do not work” claims asserted in the

Litigation by any Class Member; and (ii) the current version of the FDA

Compliance Policy Guide (“CPG”) for homeopathic drugs (currently, CPG §

400.400) does not prevent Defendant from implementing the injunctive relief set

forth in this Agreement or preclude Defendant’s obligation to implement the

injunctive relief set forth in this Agreement.

4.1.9. Dilution Webpage. Heel agrees to add a Dilution Webpage that

is readily accessible from its home pages, each Product’s individual webpage, if

any, and directly from search engines. The Dilution Webpage will explain X

dilution in a manner that substantially conforms to the explanation provided by the

Homeopathic Pharmacopeia of the United States (“HPUS”), in a language

understandable to the average consumer with no knowledge of homeopathy, such

as a question and answer format, explaining the level of homeopathic dilution and

method. The Dilution Webpage will also include a link to the FDA website for

CPG § 400.400, and shall appear substantially as set forth in Exhibit F.

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4.2. Settlement Fund

4.2.1. Within ten (10) calendar days after the Court issues the

Preliminary Approval Order, Defendant will contribute a sum total of $1,000,000

(one million U.S. dollars) to the Settlement Fund, which will be non-recapture, i.e.,

the Defendant shall have no ability to recover from the Settlement Fund any

amount it has paid into the Settlement Fund if the Settlement receives final Court

approval (including through any appeals).

4.2.2. The Settlement Fund shall be established and managed by the

Class Action Administrator, and deposited and maintained in an interest bearing

account with a federally insured, third party financial institution. All interest

accrued on the Settlement Fund shall inure to the benefit of the Class as set forth

herein.

4.2.3. Refunds provided under Section 4.3 will be paid from the Net

Settlement Fund.

4.3. Refunds to Class Members

4.3.1. The Settlement Fund shall provide, consistent with the

provisions below, for a refund regarding any of the Products purchased during the

Class Period by any member of the Class who makes a claim within the Claim-In

Period. Adequate and customary procedures and standards will be used by the

Class Action Administrator to prevent the payment of fraudulent claims and to pay

only legitimate claims.

4.3.2. The amount of the refund for any valid and timely-submitted

claim shall be determined as follows:

4.3.2.1. For any Claimant who provides proof of purchase (e.g.,

dated receipt or original external packaging) (“Proof of

Purchase”), and swears or affirms under penalty of perjury

the accuracy of information contained in the Claim Form,

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Claimant shall be entitled to a refund of the purchase price

claimed, up to $25.00 per Product purchased, subject to a

cap of $150.00 per Claimant for all claims;

4.3.2.2. For any Claimant who does not provide Proof of Purchase,

but who swears or affirms under penalty of perjury the

accuracy of the information contained in the Claim Form,

such Class Member will be entitled to a refund of the

purchase price claimed, up to $25.00 per Product, with a cap

of $100.00 per Claimant for all claims.

4.3.3. Payment will be made directly to the Class Member by first

class mail after entitlement to payment has been verified, and in no event more

than six months after the close of the Claim-In Period, unless Class Counsel

permits an extension of time.

4.3.4. The actual amount paid to individual Claimants will depend

upon the number of valid claims made, and payments to Class Members may be

subject to pro rata reduction if the aggregate number of claims exceeds the Net

Settlement Fund.

4.3.5. If all eligible Claims have been paid and funds remain in the

Net Settlement Fund following the close of the Effective Date, Class Counsel shall

direct the Class Action Administrator to distribute fifty (50) percent of any

remaining funds to a Court-approved non-profit organization or organizations

dedicated to informing consumers or advocating on consumers’ behalf about false

and deceptive drug labeling concerns, such as Consumers Union; and fifty (50)

percent to Claimants who submitted valid and timely claims as a supplemental pro

rata distribution. If the Court does not approve such a non-profit organization or

organizations dedicated to informing consumers or advocating on consumers’

behalf about false and deceptive drug labeling concerns as a cy pres recipient, the

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Parties agree that the fifty percent share designated for cy pres purposes shall go to

a non-profit organization that provides legal services on behalf of the indigent, as

set forth in California Code of Civil Procedure § 384. The remaining funds, if any,

shall not revert to Defendant.

5. ADMINISTRATION AND NOTICE

5.1. All costs and expenses of administering the Settlement and providing

Notice in accordance with the Preliminary Approval Order (“Administrative

Costs”) shall be distributed from the Settlement Fund, as approved by the Court

through its approval of the Notice Plan.

5.2. Notice fees, costs and expenses incurred by the Class Action

Administrator shall not be chargeable to the Class and shall be borne solely by

Defendant if the Settlement does not receive preliminary or final approval.

5.3. Appointment and Retention of Class Action Administrator

5.3.1. The Parties shall jointly retain the Class Action

Administrator(s) (including subcontractors) to help implement the terms of the

Settlement Agreement.

5.3.2. The Class Action Administrator will facilitate the notice

process by assisting the Parties in the implementation of the Notice Plan, as well as

CAFA Notice, although Defendant shall retain ultimate responsibility for effecting

CAFA Notice within the required time.

5.3.3. The Class Action Administrator shall be responsible for

providing the Parties with assistance, as necessary, such as by preparing affidavits

of work it has performed with respect to implementing the Class Notice, and

providing regular updates to the Parties’ counsel about the status of the claims

process.

5.3.4. All fees, costs, and expenses of the Class Action Administrator

related to this Settlement will be paid from the Settlement Fund.

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5.4. Class Settlement Website

5.4.1. The Class Action Administrator will create and maintain a class

settlement website (the “Class Settlement Website”), to be activated within fifteen

(15) calendar days of its receipt of the Preliminary Approval Order. The Class

Action Administrator’s responsibilities will also include securing an appropriate

URL, such as www.HeelClassActionSettlement.com or

www.TraumeelSettlement.com. The Class Settlement Website will contain

Settlement information and case-related documents such as the Agreement, the

Long-Form Notice, the Claim Form (in English and Spanish versions), the

Preliminary Approval Order, and notices from the Court. In addition, the Class

Settlement Website will include procedural information regarding the status of the

Court-approval process, such as an announcement of the Final Approval Hearing

date, as described in Section 8.1, when the Final Approval Order and Judgment

have been entered, and when the Effective Date has been reached, including any

appeal(s), if any.

5.4.2. The Class Settlement Website will terminate (be removed from

the internet) and no longer be maintained by the Class Action Administrator thirty

(30) days after either (a) the Effective Date or (b) the date on which the Agreement

is terminated or otherwise not approved by a court, whichever is later. The Class

Action Administrator will then transfer ownership of the URL to Defendant.

5.4.3. All fees, costs and expenses related to the Class Settlement

Website shall be distributed from the Settlement Fund.

5.5. CAFA Notice

5.5.1. The Parties agree that the Class Action Administrator shall

serve notice of the Settlement Agreement that meets the requirements of CAFA, 28

U.S.C. § 1715, on the appropriate federal and state officials no later than ten (10)

days after the filing of this Settlement Agreement with the Court.

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5.5.2. Notwithstanding, Defendant shall have ultimate responsibility

to ensure that CAFA Notice is in fact effected consistent with the statutory

requirements.

5.5.3. All costs and expenses related to the CAFA Notice shall be

distributed from the Settlement Fund.

5.5.4. Defendant will file a certification with the Court stating the date

or dates on which the CAFA Notice was sent. Defendant will provide Class

Counsel with any substantive responses received in response to any CAFA Notice.

5.5.5. The Class Action Administrator shall also publish the Summary

Notice in a newspaper in a manner sufficient to meet California Government Code

§ 6064 and Civil Code § 1781.

5.6. Notice Plan

5.6.1. The Class Notice shall conform to all applicable requirements

of the Federal Rules of Civil Procedure, the United States Constitution (including

the Due Process Clauses), and any other applicable law, and shall otherwise be in

the manner and form agreed upon by the Parties and approved by the Court.

5.6.2. No later than thirty (30) days after preliminary approval by the

Court of this Settlement, the Class Action Administrator shall commence providing

Notice to the Class according to the Notice Plan as attached in Exhibit G, except

that the Class Settlement Website shall require earlier publication, as discussed in

Section 5.4.

5.6.3. The Parties agree to the content of the Notices, substantially in

the forms attached to this Agreement as Exhibits B and C, and as approved by the

Court.

5.6.4. Within fourteen (14) calendar days after entry of the

Preliminary Approval Order, Defendant shall provide to the Class Action

Administrator complete e-mail or mail addresses of any direct consumer

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purchasers of the Products that it possesses, for purposes of effecting direct notice

to potential Class Members.

5.6 Taxes

5.6.1 Class Members, Plaintiff and Class Counsel shall be

responsible for paying any and all federal, state, and local taxes due on any

payments made to them pursuant to the Settlement.

5.6.2 Taxes due in connection with the Settlement Fund and Net

Settlement Fund prior to distribution to the Class shall be paid by the Settlement

Administrator from the Net Settlement Fund.

6. RELEASES

6.1. Upon the Effective Date, the Representative Plaintiff and each of the

Class Members will be deemed to have, and by operation of the Judgment will

have, fully, finally, and forever released, relinquished, and discharged the Released

Persons from all Released Claims, meaning, with the exception of claims for

personal injury, any and all claims, demands, rights, suits, liabilities, and causes of

action of every nature and description whatsoever, known or unknown, asserted or

nonasserted, matured or unmatured, at law or in equity, existing under federal

and/or state law, including without limitation a waiver of all rights under Section

1542 of the California Civil Code (or any similar state law), that the Representative

Plaintiff and/or Class Member has or may have against the Released Persons

arising out of, in connection with, or related in any way, directly or indirectly, to

Defendant’s advertising, marketing, packaging, labeling, promotion, manufacture,

sale and distribution of the Products, that have been brought, could have been

brought, or are currently pending, up to the date of the Effective Date, by any Class

Member against Released Persons, in any forum in the United States (including

their territories and Puerto Rico).

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6.2. After entering into this Settlement Agreement, Plaintiff or the Class

Members may discover facts other than, different from, or in addition to, those that

they know or believe to be true with respect to the Released Claims. Plaintiff and

the Class Members expressly waive and fully, finally, and forever settle and

release any known or unknown, suspected or unsuspected, contingent or

noncontingent claim, whether or not concealed or hidden, without regard to the

subsequent discovery or existence of such other, different, or additional facts.

6.3. All Parties to this Settlement Agreement, including the Class

Members, specifically acknowledge that they have been informed by their legal

counsel, via the Notice, of Section 1542 of the California Civil Code (and any

similar State laws) and they expressly waive and relinquish any rights or benefits

available to them under this statute (and any similar State laws). 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.

6.4. Notwithstanding Section 1542 of the California Civil Code, or any

other federal or state statute or rule of law of similar effect, this Agreement shall be

given full force and effect according to each and all of its expressed terms and

provisions, including those related to any unknown or unsuspected claims,

liabilities, demands, or causes of action which are based on, arise from or are in

any way connected with the Litigation.

7. CLASS CERTIFICATION

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7.1. The Parties agree that, for settlement purposes only, this Litigation

shall be certified as a class action pursuant to Federal Rules of Civil Procedure

23(b)(3) or 23(b)(2), or both, with Representative Plaintiff as Class Representative

and Class Counsel as counsel for the Class, defined as follows:

All U.S. consumers who purchased the Products (listed in Exhibit D to the Agreement) for household or personal use during the Class Period (as defined by Paragraph 1.7 of the Agreement) are included. Excluded from the Class are: Heel; persons who during or after the Class Period were officers or directors of Heel, or any corporation, trust or other entity in which Heel has a controlling interest; Heel employees; the members of the immediate families of Heel employees or their successors, heirs, assigns and legal representatives; and any judicial officer hearing this Litigation, as well as their immediate family members and employees.

7.1.1. In the event the Settlement is terminated or for any reason the

Settlement is not effectuated, the certification of the Class shall be vacated and the

Litigation shall proceed as if the Class had not been certified.

8. SETTLEMENT HEARING

8.1. Promptly after execution of this Agreement, the Parties will submit

the Agreement together with its exhibits to the Court and will request that the

Court grant preliminary approval of the Settlement, as of the date of which the

Settlement shall be deemed “filed” within the meaning of 28 U.S.C. § 1715; issue

the Preliminary Approval Order; and schedule a hearing on whether the Settlement

should be granted final approval and whether Class Counsel’s application for fee

award and expenses, and for an incentive award to the Representative Plaintiff

(“Fee Application”) should be granted (“Final Approval Hearing”). The Parties

shall request the Court schedule the Fee Application to be filed no later than

fourteen (14) calendar days prior to the Opt-Out Date, or sooner, if the Court

deems it necessary.

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8.2. Defendant shall cooperate in good faith in Plaintiff’s preparation of

the joint motion for preliminary approval of the Settlement, which joint motion

may be filed on an ex parte basis, including by providing Class Counsel with then-

available details of the payment of the out-of-pocket costs of the injunctive relief

and other measures and relief such as the costs of changing the Products’

packaging, implementing web site changes, and any and all other costs associated

with implementing the injunctive provisions of the Settlement Agreement. Heel

will further provide sworn affidavits of its appropriate corporate officers and

financial information at Mason’s reasonable request, provided that the Parties

agree such affidavits and information are reasonably necessary to obtain

preliminary and final approval of the Settlement.

8.3. Defendant shall not oppose Plaintiff’s assertion, in papers filed in

furtherance of this Settlement, that the Class satisfies each of the elements required

under Federal Rules of Civil Procedure 23(a), (b)(2), and (b)(3): The Class is so

numerous that joinder of all members is impracticable; there are questions of law

or fact common to the Class; the claims of Plaintiff Mason are typical of the Class;

Plaintiff and Class Counsel will fairly and adequately protect the interests of the

Class; the questions of law of fact common to Class members predominate over

any questions affecting only individual members; and class treatment is the

superior means to adjudicate Plaintiff’s claims.

8.4. The Parties agree to the form and substance of the proposed

Preliminary Approval Order, attached hereto as Exhibit H, to be lodged with the

Court with the joint motion for preliminary approval of the Settlement Agreement.

8.5. Procedures for Objecting to the Settlement

8.5.1. Class Members shall have the right to appear and show cause, if

they have any reason why the terms of this Agreement should not be given final

approval, subject to each of the sub-provisions contained in Paragraph 8.5. Any

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objection to this Agreement, including any of its terms or provisions, must be in

writing, filed with the Court, with a copy served on Class Counsel, Defense

Counsel, and the Claims Administrator at the addresses set forth in the Notice, and

postmarked no later than thirty (30) calendar days prior to the Final Approval

Hearing date. Class Members may object either on their own or through an

attorney hired at their own expense.

8.5.2. If a Class Member hires an attorney to represent him or her at

the Final Approval Hearing, he or she must do so at his or her own expense. No

Class Member represented by an attorney shall be deemed to have objected to the

Agreement unless an objection signed by the Class Member is also filed with the

Court and served upon Class Counsel, Defense Counsel, and the Class Action

Administrator at the addresses set forth in the Notice thirty (30) days before the

Final Approval Hearing.

8.5.3. Any objection regarding or related to the Agreement shall

contain a caption or title that identifies it as “Objection to Class Settlement in

Mason v. Heel Inc., No. 3:12-cv-03056 GPC (KSC)” and also shall contain

information sufficient to identify and contact the objecting Class Member (or his or

her attorney, if any), as well as a clear and concise statement of the Class

Member’s objection, documents sufficient to establish the basis for their standing

as a Class Member, i.e., verification under oath as to the approximate date(s) and

location(s) of their purchase(s) of the Products, the facts supporting the objection,

and the legal grounds on which the objection is based. Any objections not

submitted to the Court at least thirty (30) days prior to the Final Approval Hearing

are deemed waived. If an objecting party chooses to appear at the hearing, that

party must file with the Court, at least thirty (30) days before the Final Approval

Hearing, a notice of intent to appear and that notice must list the name, address and

telephone number of the attorney, if any, who will appear on behalf of that party.

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8.5.4. Any Class Member who does not object to the Agreement, or

who does not opt out in compliance with the opt out provision in paragraph 8.7

below, is deemed to be a Class Member and bound by the Agreement upon final

approval of the Settlement.

8.6. Right to Respond to Objections

Class Counsel and Defendant shall have the right, but not the obligation, to

respond to any objection, by filing opposition papers no later than seven (7)

calendar days prior to the Final Approval Hearing, or on such other date as set

forth in the Preliminary Approval Order, or any subsequent Court order(s)

modifying the briefing schedule for the Final Approval Hearing. The Party

responding shall file a copy of the response with the Court, and shall serve a copy,

by regular mail, hand or overnight delivery, in the Party’s discretion, to the

objector (or counsel for the objector), Class Counsel and Defense Counsel, to the

extent the objector or their counsel do not receive notice of electronic filing via the

Court’s ECF filing system.

8.7. Opt Outs

8.7.1. Any Class Member who does not wish to participate in the

Settlement must write to the Class Action Administrator, stating an intent to be

“excluded” from this Settlement (“Request for Exclusion”). The written Request

for Exclusion must be sent via first class United States mail to the Class Action

Administrator at the address set forth in the Class Notice and postmarked no later

than thirty (30) calendar days before the date set for the Final Approval Hearing

(“Opt-Out Date”). The Request for Exclusion must be personally signed by the

Class Member and may only be on behalf of such signing Class Member. So-

called “mass” or “class” opt-outs shall not be allowed.

8.7.2. Any Class Member who does not request exclusion from the

Settlement has the right to object to the Settlement. Any Class Member who

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wishes to object must timely submit an objection, as set forth in Section 8.5 above.

If a Class Member submits an objection and a written Request for Exclusion, he or

she shall be deemed to have complied with the terms of this Opt-Out procedure

and shall not be bound by the Agreement if approved by the Court. However, any

objector who has not timely requested exclusion from the Settlement will be bound

by the terms of the Agreement upon final approval of the Settlement.

9. ATTORNEYS’ FEES AND EXPENSES AND INCENTIVE AWARD

9.1. In accord with F.R.C.P. 23(h) and relevant case law, Plaintiff will

petition the Court for attorneys’ fees, expenses, and a Class Representative

incentive award. Defendant shall not object or oppose any such petition, including

by contesting any fees, expenses, or incentive award requested, to the extent the

petition does not request more than $3,500 as an incentive award for the Class

Representative or thirty percent (30%) of the value of the Settlement to the Class

as Class Counsel’s attorneys’ fees.

9.2. Upon appropriate Court Order so providing, any attorneys’ fees and

costs awarded to Class Counsel by the Court shall be paid to Class Counsel from

the Settlement Fund within five (5) calendar days of the date of the order (“Fee

Award”), notwithstanding the existence of any timely filed objections thereto, or

appeal (actual or potential) therefrom, or collateral attack on the Settlement or any

part thereof, subject to Class Counsel’s obligation to make appropriate refunds or

repayments to the Settlement Fund plus interest at the same rate earned on the

Settlement Fund, if and when, as a result of any appeal and/or further proceedings

on remand, or successful collateral attack, the fee or cost award is reduced or

eliminated.

9.3. Heel shall bear its own attorney’s fees and costs. Heel bears all risk

of an objector’s success except with respect to the amount of the Fee Award as set

forth above.

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9.4. Any incentive payment awarded by the Court to the Class

Representative will be paid from the Settlement Fund.

9.5. If so ordered by the Court upon preliminary or final approval, Class

Counsel shall be entitled to provisional reimbursement from the Settlement Fund

of 100% of its expenses incurred, including retention of experts and other

expenses, subject to the Class Counsel’s obligation to make appropriate refunds or

repayments to the Settlement Fund, plus interest at the same rate as earned on the

Settlement Fund, if, and when, as a result of any order, the final expense award is

lower than that amount.

10. MOTION FOR FINAL JUDGMENT AND ORDER

10.1. In accord with the Court’s schedule for the Final Approval Hearing, as

set in the Preliminary Approval Order, the Class Representative shall file a motion

for final approval of the Settlement Agreement, in consultation with Defendant,

and Defendant agrees not to oppose such motion.

10.2. Defendant shall cooperate in good faith with Plaintiff’s preparation of

the motion for final approval of the Settlement Agreement, including by providing

Class Counsel with then-available details of the payment of the out-of-pocket costs

of the injunctive relief and other measures and relief such as the costs of changing

the Products’ packaging, implementing web site changes, and any and all other

costs associated with implementing the injunctive provisions of the Agreement;

and providing signed declaration(s) of appropriate corporate officers of Heel if the

Parties, in good faith, deem such declaration(s) reasonably necessary.

10.3. Defendant shall not oppose Plaintiff’s assertion, in papers filed in

furtherance of the Settlement Agreement, that the Court should affirm its rulings

granting Preliminary Approval of the Settlement and grant final approval of the

Settlement.

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10.4. The Parties agree to the form and substance of the proposed Final

Judgment and Order, attached hereto as Exhibit I, to be lodged with the Court with

the motion for final approval of the Settlement Agreement.

11. CONDITIONS FOR EFFECTIVE DATE; EFFECT OF

TERMINATION

11.1. The Effective Date of this Agreement shall be the date the Judgment

has become Final, as defined in Paragraph 1.167.

11.2. If this Agreement is not approved by the Court or the Settlement is

terminated or fails to become effective in accordance with the terms of this

Agreement, the Settling Parties will be restored to their respective positions in the

Litigation as of the date the Motion for Preliminary Approval was filed. In such

event, except with respect to the Class Action Administrator’s fees, costs and

expenses as provided in Section 5 herein, the terms and provisions of this

Agreement will have no further force and effect with respect to the Settling Parties

and will not be used in this Litigation or in any other proceeding for any purpose,

and any Judgment or order entered by the Court in accordance with the terms of

this Agreement will be treated as vacated.

11.3. No order of the Court or modification or reversal on appeal of any

order of the Court concerning any award of attorneys’ fees, expenses, or costs to

Class Counsel; incentive award to the Class Representative; or cy pres use of

leftover settlement funds will constitute grounds for cancellation or termination of

this Agreement.

12. MISCELLANEOUS PROVISIONS

12.1. The Parties acknowledge that it is their intent to consummate this

Agreement, and they agree to cooperate to the extent reasonably necessary to

effectuate and implement all terms and conditions of this Agreement and to

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exercise their best efforts to accomplish the foregoing terms and conditions of this

Agreement.

12.2. The Parties intend the Settlement to be a final and complete resolution

of all disputes between them with respect to the Litigation. The Settlement

compromises claims that are contested and will not be deemed an admission by

any Settling Party as to the merits of any claim or defense.

12.3. The Parties agree that the consideration provided to the Class and the

other terms of the Settlement were negotiated at arms’ length, in good faith by the

Parties, and reflect a settlement that was reached voluntarily, after consultation

with competent legal counsel, and with the extensive assistance of an independent,

neutral mediator, Hon. Leo S. Papas (Ret.). The Litigation was filed in good faith,

was not frivolous and was in compliance with Rule 11 of the Federal Rules of Civil

Procedure. This Agreement is entered solely to eliminate the uncertainties,

burdens and expenses of protracted litigation.

12.4. Neither this Agreement nor the Settlement, nor any act performed or

document executed pursuant to or in furtherance of this Agreement or the

Settlement is or may be deemed to be or may be used as an admission of, or

evidence of, the validity of any Released Claims, or of any wrongdoing or liability

of Defendant or any other Released Person; or is or may be deemed to be or may

be used as an admission of, or evidence of, any fault or omission of Defendant or

any other Released Person in any civil, criminal, or administrative proceeding in

any court, administrative agency or other tribunal. Any party to this Litigation or

any other Released Person may file this Agreement and/or the Judgment in any

action that may be brought against it in order to support any defense or

counterclaim, including without limitation those based on principles of res

judicata, collateral estoppel, release, good faith settlement, judgment bar or

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reduction, or any other theory of claim preclusion or issue preclusion or similar

defense or counterclaim.

12.5. All agreements made and orders entered during the course of the

Litigation relating to the confidentiality of information will survive this

Agreement.

12.6. Any and all Exhibits to this Agreement are material and integral parts

hereof and are fully incorporated herein by this reference.

12.7. This Agreement may be amended or modified only by a written

instrument signed by or on behalf of all Parties or their respective successors-in-

interest.

12.8. This Agreement and any exhibits attached hereto constitute the entire

agreement among the Parties, and no representations, warranties, or inducements

have been made to any Party concerning this Agreement or its exhibits other than

the representations, warranties, and covenants covered and memorialized in such

documents. Except as otherwise provided herein, the Parties will bear their own

respective costs.

12.9. Class Counsel, on behalf of the Class, is expressly authorized by the

Representative Plaintiff to take all appropriate action required or permitted to be

taken by the Class pursuant to this Agreement to effectuate its terms, and is

expressly authorized to enter into any modifications or amendments to this

Agreement on behalf of the Class that Class Counsel deems appropriate.

12.10. The Plaintiff will not object to motions filed by Defendant seeking to

continue the obligation to respond to the Complaint, or any amendments thereto,

during the pendency of Settlement-related proceedings.

12.11. Each counsel or other Person executing this Agreement or any of its

Exhibits on behalf of any Party hereby warrants that such Person has the full

authority to do so.

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12.12. This Agreement may be executed in one or more counterparts. All

executed counterparts and each of them will be deemed to be one and the same

instrument. A complete set of original counterparts will be filed with the Court.

12.13. This Agreement will be binding upon, and inure to the benefit of, the

successors and assigns of the Settling Parties.

12.14. Except as provided in Paragraph 4.1.8, the Court will retain

jurisdiction with respect to implementation and enforcement of the terms of this

Agreement, and all parties hereto submit to the jurisdiction of the Court for

purposes of implementing and enforcing the Settlement.

12.15. None of the Settling Parties, or their respective counsel, will be

deemed the drafter of this Agreement or its exhibits for purposes of construing the

provisions thereof. The language in all parts of this Agreement and its exhibits will

be interpreted according to its fair meaning, and will not be interpreted for or

against any of the Settling Parties as the drafter thereof.

12.16. This Agreement shall be deemed the “proposed agreement” filed with

the Court within the meaning of 28 U.S.C. § 1715 as of the date on which

preliminary approval is granted by the Court.

12.17. The Settlement is not conditioned on Court approval of Mason’s

allocation of recovery amounts among various claimants or Court approval of

Mason’s request for attorneys’ fees and expenses or incentive award.

12.18. This Agreement and any exhibits hereto will be construed and

enforced in accordance with, and governed by, the internal, substantive laws of the

State of California without giving effect to that State’s choice-of-law principles.

Any provision of California Evidence Code § 1115-1128 notwithstanding, this

Agreement may be enforced by any Party hereto by a motion under Code of Civil

Procedure § 664.6 or by any other procedure permitted by California law. The

provisions of the confidentiality agreement entered into with respect to the

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APPROVED ASlO FORM AND CONT~~: .

Dated: J /M !.? ,/~ 1/ ~···

Dated:

// / Ronald A. Marron

LAW OFFICES OF RONALD MARRON,

-------

APLC Attorneys for Plaintiff Robert Mason and the Class

Matthew G. Ball K&L Gates LLP Attorneys for Defendant Heel, Inc.

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Mason v. Heel, Inc., No. 3:12-cv-03056-GPC-KSC

EXHIBIT 1 PAGE 29


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EXHIBIT LIST

Exhibit A Claim Form Exhibit B Long Form Notice to Class Members Exhibit C Summary Notice to Class Members Exhibit D Product List Exhibit E Exemplars of Revised Product Packaging Exhibit F Exemplars of Revised Website Exhibit G Notice Plan Exhibit H Proposed Preliminary Approval Order Exhibit I Proposed Final Judgment and Order

30


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EXHIBIT A EXHIBIT 1 PAGE 32


MUST BE POSTMARKED

NO LATER THAN [Date XX, 2013]

[DRAFT] CLASS ACTION SETTLEMENT CLAIM FORM

You must complete this Claim Form in its entirety using blue or black ink. Please print all information clearly. This Claim Form only relates to qualifying purchases of homeopathic products manufactured or distributed by Heel and labeled “homeopathic” (a “Heel Homeopathic Product”). A qualifying purchase means you purchased the Heel Homeopathic Product between December 21, 2008 and [DATE]. Do not complete this Claim Form if you did not make a qualifying purchase of a Heel Homeopathic Product. All information requested on this Claim Form is required. Proof(s) of purchase is required only if you have proof (such as receipt or external packaging), for each purchase that you claim.

You may submit only one Claim Form, and two people cannot submit Claim Forms for the same

qualifying purchase of a Heel Homeopathic Product. All Claim Forms must be postmarked by [month, day, year]. Mail your fully completed and signed Claim Form and, where available, the required proof(s) of purchase of a Heel Homeopathic Product to: Heel Claim Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063.

CLAIMANT INFORMATION

All of the information below is required. If you do not provide all of the information below, your claim may be denied.

NAME:___________________________________________________________________________________________________________________________ TELEPHONE NUMBER:____________________________________________________________________________________________________________ EMAIL ADDRESS:_________________________________________________________________________________________________________________ ADDRESS:________________________________________________________________________________________________________________________ CITY:________________________________________________________________ STATE: ________________ ZIP CODE: _________________________

CLAIM INFORMATION

All of the information below is required. You must provide the information in the table below for each purchase of a Heel Homeopathic Product(s). (If additional space is needed, please submit on a separate sheet, and attach that sheet to your completed claim form.) If available, you must provide proof of each purchase you list below. If you cannot provide proof of a particular purchase, you may still submit your claim as detailed below. For each purchase that is the subject of a claim, there is a limit of up to $25.00 per Heel Homeopathic Product. For that reason, you must state the known or estimated purchase price. If you do not provide all of the information below, your claim may be denied.

EXHIBIT 1 PAGE 33


QUALIFYING PURCHASES OF HEEL HOMEOPATHIC PRODUCTS

PRODUCT NAME DATE OF PURCHASE (BETWEEN DECEMBER 21, 2008 AND M/D/YYYY)

PURCHASE PRICE STORE NAME AND LOCATION (CITY/STATE)

PROOF OF

PURCHASE

ATTACHED?

PROOF OF PURCHASE

If available, proof of purchase is required for each qualifying purchase of a Heel Homeopathic Product listed above. Include your proof(s) of purchase, sign the Certification Under Penalty of Perjury below, and mail the fully completed and signed Claim Form to: Heel Claim Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063. There is a limit of $150.00 per claimant for claims containing proof(s) of purchase.

NO PROOF OF PURCHASE

If you do not have a proof of purchase, you may submit a claim for Heel Homeopathic Product(s) you purchased by completing the Claim Information table above to the best of your knowledge and signing the below Certification Under Penalty of Perjury. Non-proof-of-purchase claims will be processed after claims that are submitted with a proof of purchase. Non-proof of purchase claims are subject to a $100.00 per claimant limit, and may be reduced based on the number of claims received.

CERTIFICATION UNDER PENALTY OF PERJURY

I hereby certify under penalty of perjury, as follows:

a) All of the information on this Claim Form is true and correct;

b) If I have proof of a qualifying purchase of any Heel Homeopathic Product(s) that I have listed on this Claim Form, I am providing such proof with the submission of this Claim Form. If I do not have a proof of purchase for a qualifying purchase listed on this Claim Form, I certify that I purchased the product for which I submit the claim and I have estimated the purchase price in good faith.

EXHIBIT 1 PAGE 34


c) I understand that the Claim Administrator may contact me to verify any of the information that I have provided on this Claim Form or to verify any of the proofs of purchase that I have submitted with this Claim Form; and

d) I understand that the decision of the Claim Administrator is final and binding on me.

Signature: ___________________________________________________________________________________

Printed Name: ____________________________________________________________________________________ Date: ____________________________________

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EXHIBIT B EXHIBIT 1 PAGE 36


DETAILED NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Mason v. Heel, Inc.

Case No. 12-cv-3056-GPC-KSC If you purchased a product manufactured or distributed by Heel labeled “homeopathic,” such as Traumeel or Zeel,

you may be entitled to a cash refund from a class action settlement. A federal court authorized notice of this settlement. This is not a solicitation from a lawyer.

IMPORTANT: PLEASE READ THIS NOTICE CAREFULLY

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT SUBMIT THE CLAIM FORM The only way to get a cash refund.

EXCLUDE YOURSELF Get out of the lawsuit and the settlement. Get no cash refund. OBJECT OR COMMENT Write the Court about why you do, or do not, like the Settlement.

DO NOTHING You will get no cash refund and you give up your rights.

Your rights and options – and the deadlines to exercise them – are explained in this notice. Para una notificación en Español, llamar (___) ____ o visitar

1. What is this notice and why should I read it?

This Detailed Notice advises you of a proposed class action settlement in a lawsuit entitled Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC (the “Action”), brought on behalf of the Class, and pending in the United States District Court for the Southern District of California. You need not live in California to get a benefit under the Settlement. The Settlement resolves a lawsuit over whether Heel, Inc. (“Heel” or “Defendant” falsely or deceptively labeled and marketed Heel homeopathic products which are sold in the United States (the “Products”). Defendant stands by its labeling and marketing and deny it did anything wrong. You should read this entire Detailed Notice carefully because your legal rights are affected whether you act or not. A listing of the Products involved in this lawsuit is available at www.XXXX.com.

The Court has granted preliminary approval of the Settlement and has set a final hearing to take place on ___________________ , 2013 at _____ _.m. in the Courtroom of the Honorable Gonzalo P. Curiel, United States District Court for the Southern District of California, to determine if the Settlement is fair, reasonable and adequate, and to consider the request by Class Counsel for attorneys’ fees and expenses, and an incentive award for the class representative.

2. What is a class action lawsuit and what is this lawsuit about?

A class action is a lawsuit in which one or more plaintiffs sue on behalf of themselves and other people who may have similar claims. In this case, Plaintiff is Robert A. Mason. The Defendant is Heel, Inc. Together, Plaintiff and Defendant are referred to in this notice as the “Parties.” Defendant is the manufacturer and/or distributor of multiple homeopathic drugs, such as Traumeel and Zeel, which are advertised to provide relief for symptoms of common ailments including but not limited to pain relief remedies. This Settlement involves all existing homeopathic products manufactured and/or distributed by Defendant and sold in the United States, in any variation, format, dosage, dilution or package, from December 21, 2008 to [DATE]. Again, a listing of the Products involved in this lawsuit is available at www.XXXX.com. Plaintiff has decided to settle the claims against the Defendant on behalf of all members of the Class by entering into a written settlement agreement called the “Settlement Agreement.” The individuals on whose behalf the Settlement has been made are called “Class Members.” The individuals who make up the Class (i.e. the Class Members) are described in Question No. 4 below. The Settlement has already been preliminarily approved by the Court. Nevertheless, because the settlement of a class action determines the rights of all members of the proposed class, the Court in which this lawsuit is pending must give final approval to the Settlement before it can take effect. The Court has conditionally certified the Class for settlement purposes only, so that members of the Class can be given notice and the opportunity to (i) exclude themselves from the Class, (ii) voice their support or opposition to final approval of the Settlement, and (iii) learn how to submit a Claim Form to get the relief offered by the Settlement. If the Settlement is not given final approval by the Court, or the Parties terminate it, the Settlement will be void, and the Action will continue as if there had been no Settlement and no certification of the Class.

3. Why is there a settlement?

The Court has not decided in favor of either side in the case. Defendant denies all allegations of wrongdoing or liability against it and asserts that its conduct was lawful. Defendant is settling to avoid the expense, inconvenience, and inherent risk and disruption of litigation. Plaintiff and his attorneys believe that the Settlement is in the best interests of the Class because it provides an appropriate recovery for Class Members now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals.

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4. Who is included in the settlement?

The Class covered by the Settlement is defined as follows: All persons in the United States who purchased the Products (as defined in Exhibit D of the Agreement) for personal or household use from December 21, 2008 to the Opt Out/Objection Deadline (as set by the Court and defined in paragraphs 8.5 and 8.7 of the Agreement) (“the Class Period”). Excluded from the Class are Defendant; and persons who during or after the Settlement Period were officers or directors of Defendant, or any corporation, trust or other entity in which any Defendant has a controlling interest; and the members of the immediate families of Defendant’s employees or their successors, heirs, assigns and legal representatives; any judicial officer hearing this Action, and their family members and employees.

5. What does the settlement provide?

A. Payments to Class Members. Defendant will pay a sum total of $1,000,000 for (i) valid claims submitted by Class Members, (ii) Class Counsel’s attorneys’ fees and expenses, (iii) an incentive award to Plaintiff for his efforts in bringing the Action, (iv) costs of notice and claims administration, and (v) any applicable taxes. Any of the $1,000,000 remaining after payment of all claims, attorneys’ fees and expenses, incentive award, and taxes will be distributed fifty (50) percent to a Court-approved non-profit organization dedicated to informing and advocating on behalf of consumers regarding drug labeling concerns, such as Consumers Union, or a non-profit organization that provides legal services on behalf of the indigent, as set forth in California Code of Civil Procedure section 384; and fifty (50) percent to Class Member Claimants as a supplemental distribution. If you are a member of the Class (defined in the answer to Question No. 4 above), and you do not exclude yourself from the Class, you can submit a claim to receive a cash payment. Claims Submitted With Proof of Purchase: If you are able to provide proof of purchase from any retailer in the United States (e.g., receipt or packaging) (“Proof of Purchase”), you may submit a claim which will entitle you to a refund of the purchase price up to a maximum of $25.00 per Product, subject to a cap of $150.00 per Class Member. Claims Submitted Without Proof of Purchase: If you are unable to provide Proof of Purchase but swear or affirm under penalty of perjury that you purchased a Product during the Class Period, you may submit a claim for the purchase price of the Product as sworn to on the claim form, up to a maximum of $25.00 per Product, with a cap of $100.00 per household. Process: To be eligible for a payment pursuant to the Settlement, a Class Member must submit a claim that (i) is postmarked (or dated, if submitted online) by the Claim Filing Deadline, which will be ninety (90) days after the date the Court enters a judgment granting final approval, and (ii) contains all of the required information and documentation set forth in the claim form. You can file a claim form online or download a claim form by going to www.XXXX.com and following the instructions provided. You can also get a claim form by writing to the Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063. If the aggregate number of claims exceeds the Net Settlement Fund, payments to Class Members may be subject to pro rata reduction.

B. Injunctive Relief. If the Settlement is approved at the Final Approval Hearing, Heel will modify the labels and packaging for the Products and Heel’ web pages as described below on a rolling basis to be completed within eighteen (18) months of the date the Settlement becomes Final (the “Effective Date”). Packaging Modifications: (i) FDA Disclaimer: Defendant will include the following language on the same outer label or package panel that bears the Drug Facts box: “These statements have not been reviewed by the Food and Drug Administration. They are supported by traditional homeopathic principles.” (ii) Dilution Disclaimer: The back panel of each Product’s outer label or package shall be modified to include the following language: “X is a homeopathic dilution. For more information, www.[URL created per Settlement Agreement].” (iii) “Natural” claims: Unless the Product contains all natural ingredients, Heel shall use the term “natural” in a manner that is appropriately qualified (e.g., by using an asterisk that links to the phrase: “Contains [X] natural active ingredients out of [X] actives, see Drug Facts”). (iv) “Clinically Proven” claims: Heel will cease using the words “Clinically Proven,” “Proven … Effective” or any similar representation that expressly or impliedly asserts medical, scientific or clinical proof on any Products for which it does not have at least two clinical studies performed by independent researchers that utilize generally accepted protocols such as randomized, double-blind placebo-controlled trials, with publication and peer review; further, if any clinical trial are sponsored by Heel, Heel shall adequately disclose this fact to consumers. (v) “Doctor Recommended” claims: Heel shall cease using the words “Doctor Recommended” and “[U]sed by doctors worldwide” unless it also discloses to consumers the percentage of those doctors who are homeopathic practitioners and the percentage who are allopathic or any other type of medical practitioners. Web Page Modifications: Heel will modify its main web site and all web pages it owns for each of the Products (the “Individual Product Web Sites”), as follows: (i) A new Homeopathic Dilution Page will be placed on Heel’s web site, that will be readily accessible from the web site’s home page and the home pages of each of the Individual Product Web Sites, and on every other one of Heel’ Individual Product Web Sites now existing or in development; (ii) The Homeopathic Dilution Page shall provide an explanation of the X dilution in a language understandable to the average consumer, in a question and answer format, explaining the level of dilution and method used to dilute the Products, as provided in Exhibit F of the Settlement Agreement; (iii) A link to the FDA web site for its Compliance Policy Guide § 400.400 document shall be provided on all of Heel’s web sites.

6. Who represents the Class?

A. Class Representative. For purposes of the Settlement, the Court has appointed Plaintiff Robert A. Mason to serve as the Class Representative. The Class Representative is entitled to seek incentive awards, subject to Court approval. Defendant shall have the option of responding to any such incentive award application, including by contesting the amount of the incentive award requested to the extent it exceeds $3,500.

B. Class Counsel. The Court has approved the appointment of The Law Offices of Ronald A. Marron as Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

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From the beginning of the dispute to the present, Class Counsel have not received any payment for their services in prosecuting the case or obtaining the Settlement, nor have they been reimbursed for any out-of-pocket expenses they have incurred. Class Counsel will apply to the Court for an award of attorneys’ fees of up to thirty percent (30%) of the total value of the settlement to the class, plus actual expenses (including their court costs), subject to Court approval. To view the motion for attorney’s fees, costs and incentive award for Plaintiff Robert A. Mason, visit the Settlement Website on or after [DATE]. Defendant shall have the option of responding to any such application, including by contesting any fees and expenses requested to the extent it exceeds thirty percent of the value of the settlement to the Class. If the Court approves the attorneys’ fee and expense application, it will be paid from the Settlement Fund. The Class Members will not have to pay anything toward the fees or expenses of Class Counsel. Class Counsel will seek final approval of the Settlement on behalf of all Class Members. You may hire your own lawyer to represent you in this case if you wish, but it will be at your own expense.

7. How can I exclude myself from the Class?

You can get out of the Settlement and the Class by “excluding” yourself (also called “opting-out”). If you exclude yourself, you will not be able to submit a claim form, and you will not be entitled to claim any of the relief offered by the Settlement. If you choose to exclude yourself from the Class, you may pursue whatever legal rights you may have in any separate proceeding if you choose to do so, but you will have to do so at your own expense. To exclude yourself from the Class, you must send a letter saying that you want to be excluded from the class in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC. “Mass,” or “class” opt-outs shall not be accepted. Your exclusion request must include your name, address, telephone number, signature, and a signed statement to the effect that: “I hereby request to be excluded from the proposed Class in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC.” Your exclusion request must be postmarked no later than [DATE], and sent via first class mail to the Claims Administrator at the following address: Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063. A request for exclusion that does not include all the above information, that is sent to an address other than the one listed above, or that is not received on time, will not be valid and the person(s) asking to be excluded will be considered a member(s) of the Class, and will be bound as a Class Member(s) by the Settlement. If you elect to opt-out, you will (i) not have any rights as a Class Member pursuant to the Settlement, (ii) not be able to receive any payments as provided in the Settlement, (iii) not be bound by any further orders or judgments in this case, and (iv) remain able to pursue the claims alleged in the case against Defendant by filing your own lawsuit at your own expense. If you proceed on an individual basis, you might receive more, or less, of a benefit than you would otherwise receive under this Settlement or no benefit at all.

8. How can I tell the Court what I think about the Settlement?

If you do not exclude yourself from the Class, you or your attorney can comment in support of or opposition to the Settlement and have the right to appear before the Court to do so. Your objection to or comment on the Settlement must be submitted in writing to the Claims Administrator at the following address: Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063, by ________________, 2013. You must also file your comment or objection with the Court and send a copy of your comment or objection to the attorneys for the Parties at the following addresses, no later than ___________, 2013: Clerk of the Court United States District Court Southern District of California 333 West Broadway, Suite 420 San Diego, CA 92101-8900

Class Counsel Ronald A. Marron Law Offices of Ronald A. Marron, APLC 651 Arroyo Drive San Diego, CA 92103

Defendants’ Counsel Matthew G. Ball K&L Gates LLP 4 Embarcadero Center, Suite 1200 San Francisco, CA 94111

The objection or comment must be in writing and contain a caption or title that identifies it as “Objection to Class Settlement in Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC,” and also contain: (a) the Class Member’s full name and current address; (b) a signed declaration that he or she is a Class Member; (c) the factual basis and legal grounds for the objection, including any documents sufficient to establish the basis for their standing as a Class Member such as verification under oath as to the approximate date(s) and location(s) of their purchase(s) of the Products; (d) identification of the case name, case number, and court for any prior class action lawsuit in which the objector has objected to a proposed class action settlement, the general nature of such prior objection(s), and the outcome of said prior objection(s); (e) identification of the case name, case number, and court for any prior class action lawsuit in which the objector and the objector’s attorney (if applicable) has objected to a proposed class action settlement, the general nature of such prior objection(s), and the outcome of said prior objection(s); (f) the payment terms of any fee agreement between the objector and the objector’s attorney with respect to the objection; and (g) any attorneys’ fee sharing agreement or referral fee agreement between or among the objector, the objector’s attorney, and/or any third party, including any other attorney or law firm, with respect to the objection. If you wish to appear at the hearing, you will need to file a notice of intention to appear, either in person or through an attorney, with the Court and list the name, address and telephone number of the attorney, if any, who will appear. This notice of intention to appear will need to be filed no later than __________________________, 2013. If you do not submit a written comment on the proposed Settlement or the applications of the Class Representative and Class Counsel for an incentive award and attorneys’ fees and expenses, respectively, in accordance with the deadline and procedure set forth above, and you are not granted relief by the Court, you will waive your right to be heard at the fairness hearing. If you do not object as described above, and you do not exclude yourself from the Class, you will be deemed to have consented to the Court’s certification of, and jurisdiction over, the Class, and to have released the Released Claims (defined in the Settlement Agreement).

3 EXHIBIT 1 PAGE 39


9. What is the effect of final settlement approval?

If the Court grants final approval of the Settlement, the Court will enter a final order and judgment, and dismiss the case. The release by Class Members will then take effect. All Class Members will release, with the exception of claims for personal injury, any and all claims, demands, rights, suits, liabilities, and causes of action of every nature and description whatsoever, known or unknown, matured or unmatured, at law or in equity, existing under federal and/or state law, contingent or non-contingent, suspected or unsuspected, against Defendant and the Released Persons (as defined in Section 1.29 of the Settlement Agreement) and which arise out of, in connection with, or related in any way, directly or indirectly to Defendant’s advertising, marketing, packaging, labeling, promotion, manufacture, sale or distribution of the Products, that have been brought, could have been brought, or are currently pending, by any Class Member against the Released Persons in any forum in the United States (including their territories and Puerto Rico), up to the Effective Date. Class Members and Plaintiff will also release any claims that are alleged or could have been alleged in the Action. Please refer to Section 6 of the Settlement Agreement for a full description of the claims and persons that will be released upon final approval of the Settlement. Further, by the Settlement, Class Members expressly waive and relinquish any rights or benefits available to them under Section 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

There is a certain amount of time to appeal the final order and judgment. Once that time has expired with no appeal having been filed, or when any appeal that has been filed is conclusively resolved, claim forms and payments under the Settlement will then be processed, and claims payments will then be distributed. Whether you consider the Settlement favorable or unfavorable, any and all Class Members who do not exclude themselves from the Class will not be permitted to continue to assert Released Claims in any other litigation or proceeding against Defendant or other persons and entities covered by the release. You can obtain a copy of the Settlement Agreement from the Clerk of the Court, online at [URL], or by writing to the Claims Administrator at Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063. If you do not wish to be a Class Member, you must exclude yourself from the Class (see Question No. 7 above). If the Settlement is not approved, the case will proceed as if no settlement had been attempted or reached. There can be no assurance that if the Settlement is not approved and the case resumes, the Class will recover more than is provided for under the Settlement, or will recover anything at all.

10. When and where will the Court hold a hearing on the fairness of the Settlement?

A fairness hearing has been set for __________________ 2013 at _____ _.m., before Judge Gonzalo P. Curiel in Courtroom 2D, Second Floor, at the United States District Court for the Southern District of California, 221 West Broadway, San Diego, California, 92101. At the hearing, the Court will hear any properly submitted comments, objections, and arguments concerning the fairness of the proposed settlement, including the amount requested by Class Counsel for attorneys’ fees and expenses and incentive awards for the Class Representatives. If you have filed an objection to the Settlement, you or your own lawyer need to attend this hearing to have the objection considered by the Court. Note: The date and time of the fairness hearing are subject to change by Court Order. Check the Settlement Website as the date nears, to verify the final approval hearing date has not changed.

11. Do I have to come to the fairness hearing? May I speak at the hearing?

You do not need to attend the fairness hearing to remain a Class Member or submit a claim for a cash payment. You or your own lawyer may attend the hearing if you wish, at your own expense. If you do not exclude yourself from the Class, you may ask the Court for permission to speak at the hearing concerning the proposed Settlement or the application of Class Counsel for attorneys’ fees and expenses and incentive awards for the Class Representatives by following the instructions in Question No. 8 above.

12. How do I receive my share of the Settlement?

If you do not exclude yourself from the Class, and would like to receive money, you must submit a timely and valid claim form as set forth in the answer to Question No. 5 above. Claim forms must be submitted online or postmarked by the Claim Filing Deadline, which will be ninety (90) days after the date the Court enters the judgment. You can file a claim online or download a copy of the claim form at [URL] or obtain a copy of the claim form by writing to the Claims Administrator at Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063or calling toll-free (___) __________.

13. What happens if I do nothing at all?

If you do nothing, you will receive no payment from the Settlement. You will still be part of the Class, however, and subject to the release described in Section 6 of the Settlement Agreement and Question No. 9 above. This means you will not be permitted to continue to assert released claims in any other case against Defendants or other persons or entities covered by the release. Please refer to Section 6 of the Settlement Agreement for a full description of the claims and persons who will be released upon final approval of the Settlement.

14. Where do I get additional information?

This notice provides only a summary of the matters relating to the Settlement. For more detailed information, you may wish to review the Settlement Agreement. You can view the Settlement Agreement and get more information at[URL]. You can also get more information by calling toll-free (___) _____________. The Settlement Agreement and all other pleadings and papers filed in the case are available for

4 EXHIBIT 1 PAGE 40


http://www.gilardi.com/boironsettlement

inspection and copying during regular business hours at the office of the Clerk of the United States District Court for the Southern District of California, 333 West Broadway, Suite 420, San Diego, CA 92101-8900. If you would like additional information, you can also write to Class Counsel at the address listed in Question No. 8 above.

PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT WITH QUESTIONS ABOUT THE SETTLEMENT

5 EXHIBIT 1 PAGE 41


EXHIBIT C EXHIBIT 1 PAGE 42


LEGAL NOTICE A federal court authorized this notice. This is not a solicitation from a lawyer.

If you purchased a product manufactured by Heel, Inc. labeled as “homeopathic,” such as Traumeel or Zeel, your

rights may be affected by a proposed class action settlement Para una notificación en Español, llamar o visitar [www.______]

WHAT IS THIS CASE ABOUT?

A proposed settlement has been reached in a class action lawsuit. The lawsuit claims that labeling and marketing on homeopathic products manufactured or distributed by defendants Heel, Inc. was false or deceptive. Heel stands by its advertising and denies it did anything wrong. The Court has not decided which side was right. Instead, the parties have decided to settle the case.

ARE YOU A CLASS MEMBER?

You are a class member and may be eligible to receive a settlement benefit if you purchased any homeopathic product manufactured or distributed by Heel labeled as “homeopathic” between December 21, 2008 and [DATE] (the “Products”). You should read the entire Notice carefully because your legal rights are affected whether you act or not.

WHAT DOES THIS SETTLEMENT PROVIDE?

A settlement fund of $1 million is being set up to pay claims to eligible class members, attorneys’ fees and costs, incentive award to the named plaintiff, and the notice and claims administration costs. Heel is also agreeing to make certain changes to the manner in which it labels and advertises the Products. The complete Settlement Agreement is found at www.XXXXXX.com.

WHAT HAPPENS NOW?

The Court will hold a hearing in this case on [DATE] at [TIME] at the federal courthouse located at 221 West Broadway, Courtroom 2D, San Diego, CA 92101, to consider final approval of the settlement, payment of attorneys’ fees of up to thirty percent of the Settlement value and costs, incentive award of up to $3,500 for the Class Representative in the lawsuit, and related issues. The motion(s) by Class Counsel for attorneys’ fees and costs and incentive award for the Class Representative will be available for viewing on the settlement website after they are filed and before the Class Members must decide whether to opt out or object. You may appear at the hearing in person or through your attorney at your own cost, but you are not required to do so.

WHAT ARE YOUR OPTIONS?

SUBMIT THE CLAIM FORM

The only way to get a cash refund. To get a refund, class members must file a claim form online or send a completed claim form to the Claims Administrator at the address below postmarked no later than [DATE].

EXCLUDE YOURSELF

Get out of the lawsuit and the settlement. Get no cash refund. If you do not want to be bound by the settlement, you must send a letter to the Claims Administrator at the address below requesting to be excluded. The letter must be postmarked by [DATE]. If you exclude yourself, you cannot receive a benefit from this settlement, but you can sue the manufacturer of the Products for the claims alleged in this lawsuit.

OBJECT OR COMMENT

Write the Court about why you do, or do not, like the settlement. If you want to object to the settlement you must file a written statement with the Court by [DATE].

DO NOTHING You will get no cash refund and you give up your rights. If you do not exclude yourself from the settlement, you will be bound by the Court’s decisions.

Your rights and options – and the deadlines to exercise them – are only summarized in this notice. The Detailed Notice describes, in full, how to file a claim, object, or exclude yourself and provides other important information. For more information and to obtain a Detailed Notice, claim form or other documents, visit www.XXXX.com, call toll-free [1-800-XXX-XXXX], or write to: Heel Claims Administrator, c/o SEOmap, 7440 Primrose Drive, Irving, TX, 75063.

1-800-XXX-XXXX www.XXXXXX.COM DO NOT CALL HEEL, INC. OR THE COURT

EXHIBIT 1 PAGE 43


EXHIBIT D EXHIBIT 1 PAGE 44


1901000 - TRAUMEEL OINTMENT 100 G1904055 - TRAUMEEL OINTMENT 50G RETAIL1304585 - TRAUMEEL TABLETS 100CT RETAIL1904060 - TRAUMEEL GEL 50G RETAIL W/5TH2201010 - SINUSIN NASAL SPRAY 20ML2801000 - DETOX KIT OD 3 x 50 ML1601350 - TRAUMEEL OD 50ML1304770 - ZEEL TABLET 100CT RETAIL1904095 - ZEEL OINTMENT 50G RETAIL W/5TH1001010 - ALLERGY TABLET 100 CT1001600 - SINUS TABLET 100 CT1302340 - VERTIGOHEEL RX TABLET 100 CT1001100 - CALMING TABLET 100 CT1304395 - NEUREXAN TABLET 60CT RETAIL2201400 - LUFFEEL NS 20 ML1001545 - TRAUMEEL EAR DROPS MONODOSE 101901800 - TRAUMEEL GEL 250G2100010 - TRAUMEEL COMBO PACK1001680 - VIBURCOL MONODOSE 10CT1701000 - NECTADYN COUGH SYRUP1302330 - TRAUMEEL TABLET 100 CT1304065 - CERECOMP TABLET 100CT RETAIL1302090 - COCCULUS COMP. TABLET 100 CT1001080 - BRONCHITIS TABLET 100 CT1001020 - ARTHRITIS TABLET 100 CT1001271 - FLU-PLUS TABLET 100 CT1001030 - DISCONTINUED-ASTHMA TABLET 1001001040 - BACK TABLET 100 CT1601201 - LYMPHOMYOSOT 50 ML OD1001320 - HEADACHE II TABLET 100 CT1001257 - OCULOHEEL MONODOSE 10CT1903025 - BHI HEMORRHOID RELIEF OINTMENT1302130 - ENGYSTOL TABLET 100 CT1001372 - INFLAMMATION TABLET 100CT1001350 - HEMORRHOID TABLET 100 CT41015400 - TRAUMEEL RX INJECTABLE 2.2 ML1304120 - ENGYSTOL TABLET 60 CT RETAIL1004001 - ADRISIN TABLET 60CT RETAIL1901500 - TRAUMEEL OINTMENT 50 G1302211 - NERVOHEEL TABLET 100CT1001170 - COUGH TABLET 100 CT1302186 - LYMPHOMYOSOT TABLET 100 CT1001666 - DISCONTINUED-URI-CONTROL TABLE1001500 - NAUSEA TABLET 100 CT1001180 - DIARRHEA TABLET 100 CT1601122 - GALIUM HEEL OD 50 ML1601295 - SINUSIN ORAL DROPS

EXHIBIT 1 PAGE 45


1001640 - STOMACH TABLET 100 CT2202500 - VINCEEL THROAT SPRAY 20 ML1001310 - HEADACHE TABLET 100 CT1001150 - COLD TABLET 100 CT1302170 - KLIMAKTHEEL TABLET 100 CT1302280 - SPASCUPREEL TABLET 100 CT1001630 - SPASM-PAIN TABLET 100 CT1001160 - CONSTIPATION TABLET 100 CT1001610 - SKIN TABLET 100 CT1302216 - NEUREXAN TABLET 100 CT1302360 - ZEEL TABLET 100 CT1901555 - TRAUMEEL GEL 50 G1001195 - ECZEMA TABLET 100 CT1001240 - EXHAUSTION TABLET 100 CT1001660 - THROAT TABLET 100 CT1001665 - DISCONTINUED-URI-CLEANSE TABLE1903000 - ARNICA OINTMENT 50GR1001300 - HAIR AND SKIN TABLET 100 CT1302205 - MUCOSA COMPOSITUM TABLET 100 C1302095 - COENZYME COMPOSITUM TABLET 1001302140 - GASTRICUMEEL TABLET 100 CT1602230 - NUX VOMICA HA OD 50ML1302025 - ARNICA PC TABLET 100 CT1302230 - OSTEOHEEL TABLET 100 CT1302150 - GRIPP-HEEL TABLET 100 CT1601360 - VALERIANAHEEL OD 50ML1001065 - BODY PURE TABLET 100 CT1903020 - BHI VARICOSE RELIEF OINTMENT 51302338 - UBICHINON COMPOSITUM TABLET 101001410 - LIGHTHEADED TABLET 100 CT1001360 - INFECTION TABLET 100 CT5007901 - TRAUMEEL OV 2.2 ML 10 CT2601100 - DISPLAY TRAUMEEL 50 G 12 PK1001670 - VARICOSE TABLET 100 CT1903010 - CALENDULA OINTMENT 50GR1001510 - NEURALGIA TABLET 100 CT1001285 - GASTRO-CLEANSE TABLET 100 CT1001070 - BONE TABLET 100 CT5002105 - CEREBRUM COMPOSITUM OV 2.2 ML1302155 - HEPAR COMPOSITUM TABLET 100 CT1601020 - ARNICA-HEEL OD 50ML1001223 - ENZYME TABLET 100CT1302217 - NEURO-HEEL TABLET 100 CT1902000 - ZEEL OINTMENT 50G5002701 - COENZYME COMP OV 2.2 ML 10 CT1001491 - PMS MULIMEN 100CT TABS5005401 - LYMPHOMYOSOT OV 1.1 ML 10 CT

EXHIBIT 1 PAGE 46


1601150 - HORMEEL OD 50ML1302160 - HEPEEL TABLET 100 CT1302084 - CERECOMP TABLET 100CT1001000 - ALERTNESS TABLET 100 CT1302165 - HISTAMIN TABLET 100 CT1602190 - IGNATIA HA OD 50ML5008001 - UBICHINON COMP OV 2.2 ML 10 CT2502000 - VIBURCOL SUPP. 12 CT1602180 - HAMAMELIS HA OD 50ML1001380 - INJURY TABLET 100 CT1302277 - SOLIDAGO COMPOSITUM TABLET 101601000 - AESCULUS COMP OD 50ML5004702 - HEPAR COMPOSITUM OV 2.2 ML 101302328 - THUJA FORTE TABLET 100 CT1302326 - TONICO HEEL TABLET 100 CT5006601 - PLACENTA COMP OV 2.2 ML 10 CT1602040 - BERBERIS HA OD 50ML1602150 - GELSEMIUM HA OD 50ML1302107 - DISCUS COMPOSITUM RX TABLET 101001390 - INTESTINE TABLET 100 CT1001110 - CHAMOMILLA COMPLEX TABLET 1001302220 - OCULOHEEL TABLET 100 CT1302255 - PLACENTA COMPOSITUM TABLET 1001001120 - CHELIDONIUM TABLET 100 CT1601080 - COCCULUS COMP OD 50ML1601320 - SYZYGIUM COMP RX OD 50ML1302327 - TONSILLA COMPOSITUM TABLET 1001302323 - TESTIS COMPOSITUM TABLET 100 C2601104 - DISPLAY ADRISIN BLISTER POCKET5008502 - ZEEL OV 2.0 ML 10 CT1602110 - COLOCYNTHIS HA OD 50ML5007002 - SOLIDAGO COMP OV 2.2 ML 10 CT1001260 - FEMININE TABLET 100 CT1302345 - VISCUM COMPOSITUM FORTE TABLET1601380 - VOMITUSHEEL OD 50ML1302125 - ECHINACEA COMPOSITUM FORTE RX1602170 - GRAPHITES HA OD 50ML2601101 - TRAUMEEL GEL 50 G 12 PK1602030 - BELLADONNA HA OD 50ML1001560 - RENDIMAX TABLET 100 CT1302320 - SULPHUR HEEL TABLET 100 CT1001210 - ECHINACEA PC TABLET 100 CT1001060 - BLEEDING TABLET 100 CT1302260 - RENEEL RX TABLET 100 CT1601100 - CRALONIN RX OD 50ML1302235 - OVARIUM COMPOSITUM TABLET 1002601108 - DISPLAY TRAUMEEL OINTMENT 100

EXHIBIT 1 PAGE 47


5005901 - MUCOSA COMP OV 2.2 ML 10 CT1302102 - CUTIS COMPOSITUM TABLET 100 CT1601340 - TARTEPHEDREEL OD 50ML1602140 - FERRUM HA OD 50ML1601070 - CAUSTICUM COMP OD 50ML5003701 - ENGYSTOL OV 1.1 ML 10 CT5004101 - GALIUM HEEL OV 1.1 ML 10 CT1001250 - DISCONTINUED-EYE TABLET 100 CT1602269 - SABAL HOMACCORD OD 50ML1302215 - NEURALGO RHEUM TABLET 100 CT1302322 - TARTEPHEDREEL TABLET 100 CT1302190 - MERCURIUS HEEL TABLET 100 CT1901810 - LYMPHOMYOSOT GEL 250 G1601330 - TANACET-HEEL OD 50ML1601221 - NASO-HEEL OD 50ML1302257 - PULSATILLA COMPOSITUM TABLET 11602061 - CHELIDONIUM HA OD 50ML1302350 - YPSILOHEEL TABLET 100 CT1302325 - THYREOIDEA COMPOSITUM RX TABLE1601290 - SCHWEF-HEEL OD 50ML1602290 - VERATRUM HA OD 50ML41013851 - ZEEL RX INJ 2.0 ML 10 CT AMP5006401 - OVARIUM COMP OV 2.2 ML 10 CT1602020 - APIS HA OD 50ML1602280 - SELENIUM HA OD 50ML1602120 - DROSERA HA OD 50ML1302060 - BRONCHALIS-HEEL TABLET 100 CT1601370 - VERTIGOHEEL RX OD 50ML1601260 - PSORINOHEEL RX OD 50ML1302145 - GLYOXAL COMPOSITUM TABLET 1001302120 - DUODENOHEEL TABLET 100 CT1301000 - DIARRHEEL TABLET 100 CT1001530 - DISCONTINUED-PERSPIRATION TABL1601130 - GINSENG COMP OD 50ML5008201 - VISCUM COMP FORTE OV 2.2 ML 101601141 - GYNACOHEEL 50ML OD5003205 - DISCUS COMP OV RX 2.2 ML 10 CT1302180 - LITHIUMEEL TABLET 100 CT1601160 - HUSTEEL OD 50ML1602260 - RANUNCULUS HA OD 50ML1602240 - PHOSPHOR HA OD 50ML1302300 - SPIGELON TABLET 100 CT1601190 - LEPTANDRA COMP OD 50ML41012701 - SPASCUPREEL RX INJ 1.1ML 10CT1601010 - AESCULUS-HEEL OD 50ML1602080 - CIMICIFUGA HA OD 50ML1601030 - AURUMHEEL RX OD 50ML

EXHIBIT 1 PAGE 48


1302040 - BARIJODEEL TABLET 100 CT1001667 - BHI URI CONTROL RX TABLET 100C1001031 - BHI ASTHMA RX TABLET 100CT5004301 - GLYOXAL COMP OV 2.2 ML 10 CT5003605 - ECHINACEA COMPOSITUM FORTE RX5006201 - NEURO HEEL OV 1.1 ML 10 CT5003102 - CUTIS COMPOSITUM OV 2.2 ML 101601180 - LAMIOFLUR OD 50ML41012852 - LYMPHOMYOSOT RX INJ. 1.1 ML 105006801 - PULSATILLA COMP OV 2.2 ML 101602201 - MELILOTUS HA RX OD 50ML1601051 - CANTHARIS COMPOSITUM OD 50ML1602070 - CHINA HA OD 50ML1302259 - RAUWOLFIA COMPOSITUM RX TABLET1302200 - MOLYBDAN COMPOSITUM TABLET 1001601270 - RHODODENDRONEEL OD 50ML1001290 - DISCONTINUED-GINKGO COMPLEX TA5007301 - TESTIS COMP OV 2.2 ML 10 CT1602210 - MEZEREUM HA OD 50ML1601300 - SPIGELON OD 50ML1302270 - RHEUMA-HEEL TABLET 100 CT5006301 - NUX VOMICA HA OV 1.1 ML 10 CT5003510 - ECHINACEA COMPOSITUM RX OV 2.21302000 - ABROPERNOL TABLET 100 CT1601170 - KALMIA COMP OD 50ML1001585 - DISCONTINUED-SAW PALMETTO COMP5007701 - TONICO HEEL OV 1.1 ML 10 CT1001130 - DISCONTINUED-CHEST TABLET 1005007802 - DISCONTINUED-TONSILLA COMP P O1001664 - BHI URI CLEANSE RX TABLET 100C1302110 - DROPERTEEL TABLET 100 CT1602000 - ACONITUM HA OD 50ML5007801 - TONSILLA COMPOSITUM OV 2.2 ML5007101 - SPASCUPREEL OV 1.1 ML 10 CT1302080 - CALCOHEEL TABLET 100 CT1302311 - STRUMEEL RX TABLET 100 CT1601230 - PODOPHYLLUM COMP OD 50ML5005501 - MELILOTUS HA RX OV 1.1 ML 10 C1302321 - THALAMUS COMP RX TABLET 100CT41012070 - MUCOSA COMPOSITUM RX INJ 2.2 M5004501 - GRIPP HEEL OV 1.1 ML 10 CT1302070 - BRYACONEEL TABLET 100 CT1001450 - DISCONTINUED-MASCULINE TABLET5006851 - RAUWOLFIA COMP RX OV 2.2 ML 101601311 - STRUMEEL FORTE RX OD 50ML5008301 - VISCUM COMP MEDIUM OV 2.2 ML 11601209 - MOMORDICA COMPOSITUM RX OD 50

EXHIBIT 1 PAGE 49


1001470 - DISCONTINUED-MENSTRUAL TABLET1302275 - DISCONTINUED-RHUS TOX PC TABLE1302089 - CIRCULO HEEL TABLET 100 CT1302240 - PAEONIA-HEEL TABLET 100 CT5002203 - CHELIDONIUM-HOMACCORD OV 1.1ML5004801 - HEPEEL OV 1.1 ML 10 CT5006901 - SELENIUM HA OV 1.1 ML 10 CT1302050 - BELLADONNA COMP. TABLET 100 CT1001555 - DISCONTINUED-RECUPERATION TABL5008050 - VERATRUM HA OV 1.1 ML 10 CT1601280 - SECALE COMP OD 50ML5001700 - CANTHARIS COMPOSITUM OV 2.2 ML5005101 - IGNATIA HA OV 1.1 ML 10 CT5002902 - COR COMP RX OV 2.2 ML 10 CT1302010 - ALETRIS-HEEL TABLET 100 CT1302020 - APIS COMPOSITUM TABLET 100 CT5001401 - BELLADONNA HA OV 1.1 ML 10 CT5005802 - MOMORDICA RX OV 2.2 ML 10 CT5003902 - EUPHORBIUM COMP OV 2.2 ML 10 C1302030 - ARSURANEEL TABLET 100 CT1302100 - CRUROHEEL TABLET 100 CT1602010 - ANACARDIUM HA OD 50ML1302037 - ATROPINUM COMPOSITUM RX TABLET5004601 - HAMAMELIS HA OV 1.1 ML 10 CT5007601 - THYREOIDEA COMPOSITUM RX OV 2.5001201 - APIS HA OV 1.1 ML 10 CT1601040 - CACTUS COMP RX OD 50ML5007391 - THALAMUS COMP RX OV 2.2 ML 10C1602220 - NATRIUM HA OD 50ML1601090 - COLNADUL OD 50ML5004901 - HISTAMIN OV 1.1 ML 10 CT5006754 - PSORINOHEEL RX OV 1.1 ML 10CT5006101 - DISCONTINUED-NEURALGO RHEUM O5004401 - GRAPHITES HA OV 1.1 ML 10 CT5001602 - CACTUS COMP RX OV 2.2 ML 10 CT5001501 - BERBERIS HA OV 1.1 ML 10 CT1602160 - GLONOIN HA RX OD 50ML1902010 - ZEEL OINTMENT RX ONLY5001901 - CAUSTICUM COMP OV 2.2 ML 10 CT5006890 - SABAL HOMACCORD RX OV 1.1ML 105002501 - DISCONTINUED-CIRCULO INJEEL OV1302135 - ERIGOTHEEL TABLET 100 CT41011997 - DISCUS COMPOSITUM RX INJ 2.2 M41012110 - PLACENTA COMPOSITUM RX INJ 2.25002301 - CHINA HA OV 1.1 ML 10 CT41012003 - ENGYSTOL RX INJ 1.1 ML 10 CT A5005002 - HORMEEL RX OV 1.1 ML 10 CT

EXHIBIT 1 PAGE 50


5007201 - SPIGELON OV 1.1 ML 10 CT41012050 - HEPAR COMPOSITUM RX INJ 2.2 ML41012020 - GALIUM-HEEL RX INJ 1.1 ML 10CT41012080 - NEURALGO RHEUM RX INJ 1.1 ML 141011993 - COENZYME COMPOSITUM RX INJ 2.241011990 - CERECOMP RX INJ 2.2 ML 10 CT A5002502 - CIRCULOHEEL OV 1.1 ML 10CT41012210 - UBICHINON COMPOSITUM RX INJ 2.5004001 - FERRUM HA OV 1.1 ML 10 CT5003001 - CRALONIN RX OV 1.1 ML 10 CT5002440 - CIMICIFUGA HA OV 1.1 ML 10 CT5002801 - COLOCYNTHIS HA OV 1.1 ML 10 CT1001547 - DISCONTINUED-TRAUMEEL EAR DROP5003301 - DROSERA HA OV 1.1 ML 10 CT5004201 - GELSEMIUM HA OV 1.1 ML 10 CT3101130 - DISCONTINUED-BOOK PRINCIPLES O5009000 - DISCONTINUED-ALLERGY OV 2.2 ML3101145 - BOOK PRACTITIONERS HANDBOOK OF41012030 - GLYOXAL COMPOSITUM RX INJ 2.241011995 - CUTIS COMPOSITUM RX INJ 2.2 ML1602130 - DULCAMARA HA OD 50ML5006102 - NEURALGO RHEUM RX OV 1.1 ML 105008101 - VERTIGOHEEL RX OV 1.1 ML 10 CT3101095 - DISCONTINUED-BOOK MATERIA MEDI1001654 - TRAUMED ORAL DROPS5007501 - DISCONTINUED-THUJA FORTE OV 1.3101120 - DISCONTINUED-BOOK MEDICINA ANT3101042 - DISCONTINUED-BOOK FUNDAMENTALS6004020 - PIPETTE ORAL VIAL3107509 - DISCONTINUED-JOURNAL BT SPANIS3160015 - ORDER FORM-HFS3106365 - LITERATURE CONSUMER/PATIENT TR5705013 - SAMPLE SACHET TRAUMEEL OINT HF5006701 - PODOPHYLLUM COMP OV 2.2 ML 103108231 - DISCONTINUED-TRAUMEEL FLOOR DI3110050 - CATALOG RETAILER HEEL PRODUCTS3110005 - DISCONTINUED-BROCHURE CPG RETA5701026 - NEUREXAN SAMPLE TABLET 15CT3140104 - BUSINESS CARD DANIELA3106018 - LITERATURE CARD CONSUMER/PATIE3140117 - BUSINESS CARDS-CHANEL DESJARDI5701005 - TRAUMEEL BLISTER SAMPLE TAB 153106042 - LITERATURE TRAUMEEL COMBO PACK3160012 - ORDER FORM RETAIL PHARMACY5701004 - ADRISIN BLISTER SAMPLE TAB 155701025 - CERECOMP TABLET 15 CT SAMPLE3106019 - SELL SHEET ADRISIN RETAIL

EXHIBIT 1 PAGE 51


3108501 - TRAUMEEL COMBO PACK BUTTONS RE5701060 - SPASCUPREEL SAMPLE TABLET 15 C5701030 - MUCOSA COMP SAMPLE TABLET 15 C5702350 - SINUS SAMPLE TABLET 15 CT5701021 - LYMPHOMYOSOT SAMPLE TABS 15CT3140101 - BUSINESS CARD MORGAN ROUNTREE3106317 - LITERATURE CONSUMER/PATIENT EN5702361 - ZEEL SAMPLE TABLET 100CT5705004 - SAMPLE SACHET TRAUMEEL OINT P3108056 - SELLSHEET SINUSIN RETAIL5701022 - GRIPP HEEL SAMPLE TABLET 15CT3108050 - SELLSHEET ENGYSTOL RETAIL5701024 - ENGYSTOL RETAIL SAMPLE TABLET3110033 - LITERATURE CONSUMER/PATIENT VI6004011 - AMPULE CRACKERS 10CT3108054 - SELLSHEET NEUREXAN RETAIL3108049 - SELLSHEET ZEEL RETAIL3106080 - BROCHURE-SPASCUPREEL DOCTOR5701040 - COENZYME COMP SAMPLE TABLET 153106055 - BROCHURE PATIENT DETOX BOOKLET3106036 - DISCONTINUED-BROCHURE QUARTERL3108015 - FORM-HEEL/BHI CREDIT APP3106072 - SELL SHEET LUFFEEL3106058 - DISCONTINUED-BROCHURE DETOX KI3108057 - SELLSHEET TRAUMEEL RETAIL3106345 - BROCHURE CONSUMER/PATIENT NEUR3108004 - SHELF FLAG HOLDER 3/4" W CLEAR5701050 - ENGYSTOL SAMPLE TABLET 15 CT3160010 - ORDER FORM-PRACTITIONER5702370 - ALLERGY SAMPLE TABLET 15 CT5702310 - FLU PLUS SAMPLE TABLET 15 CT3106307 - BROCHURE CERECOMP PATIENT RETA3106083 - LITERATURE CONSUMER/PATIENT SI5702330 - DISCONTINUED-TRAUMEEL SAMPLE T5701003 - NEUREXAN BLISTER SAMPLE TAB 303107508 - DISCONTINUED-JOURNAL-MEDICINA3108053 - LITERATURE CONSUMER/PATIENT LU3103218 - DISCONTINUED-BROCHURE WINTER W5701002 - DISPLAY NEUREXAN BLISTER SAMPL3110020 - LYMPHOMYOSOT DOCTOR BROCHURE3106093 - BROCHURE PATIENT TRAUMEEL SING3108008 - SHELF DIVIDER 1"H X 10" L STMI3106132 - BROCHURE PATIENT ZEEL SINGLE3108009 - RETAIL SHELF TALKERS TRAUMEEL5702305 - DISCUS COMPOSITUM RX TABLET SA3108029 - POSTER TRAUMEEL P&P5702320 - BRONCHITIS SAMPLE TABLET 15 CT

EXHIBIT 1 PAGE 52


3106029 - LITERATURE CONSUMER/PATIENT OC3108134 - DISCONTINUED-PROTOCOL-PAIN MAN3140111 - BUSINESS CARD CINDY VAN LIEROP3110040 - BROCHURE-ZEEL DOCTOR3201112 - DISCONTINUED-STUDY ZEEL RHEUMA3108059 - SELLSHEET VINCEEL RETAIL3201134 - STUDY TRAUMEEL OINT DOUBLE BLI3106127 - DISCONTINUED-BROCHURE- WOMEN'S3201138 - DISCONTINUED-STUDY ENS DOUBLE3140103 - BUSINESS CARDS CLIFF VAN BLARI3201152 - DISCONTINUED-STUDY ENGYSTOL CO57012900 - SPASCUPREEL RX INJ SAMPLE 1.13201163 - DISCONTINUED-STUDY AMA OTOLARY3108108 - PRODUCT PROFILE DETOX AND DRAI3201175 - DISCONTINUED-REPRINT PODIATRY3108140 - DISCONTINUED-SUMMER CARE INDIC3106508 - DISCONTINUED-CURRENT KERSSCHOT3110030 - DISCONTINUED-BROCHURE-TRAUMEEL3106700 - CATALOG RX CLUB PROTOCOLS 23130023 - BAGS RETAIL TRAUMEEL3106701 - CATALOG RX CLUB PROTOCOLS 13140105 - BUSINESS CARDS-LAURI PARENT3106702 - CATALOG HEEL FEATURED PROF PRO3106364 - DISCONTINUED-BROCHURE DPM TRAU3106703 - CATALOG RX CLUB PROTOCOLS 33201047 - DISCONTINUED-STUDY MULT PRODUC3107278 - DISCONTINUED-BT JOURNAL 2007 I3108067 - SELL SHEET TRAUMEEL COMBO PACK3107279 - DISCONTINUED-BT JOURNAL 2008 D3108129 - DISCONTINUED-SLEEP & STRESS RE3107280 - DISCONTINUED-BT JOURNAL 2008 V3108136 - DISCONTINUED-PROTOCOL COLD COU3107281 - DISCONTINUED-BT JOURNAL 2008 V3108500 - DISCONTINUED-DETOX WATER BOTTL3107282 - DISCONTINUED-BT JOURNAL 2008 V3110014 - BROCHURE DOCTOR SINUSIN3107285 - DISCONTINUED-BT JOURNAL VOL. 43110037 - DISCONTINUED-BROCHURE-HEEL VER3107286 - DISCONTINUED-BT JOURNAL 2010 E3130020 - BAGS-HEEL TRAUMEEL3107287 - DISCONTINUED-BT JOURNAL VOL 53106063 - DISCONTINUED-BROCHURE HEEL ESS3107500 - DISCONTINUED-JOURNAL MEDICINA3201031 - STUDY DPM POST SURGERY3107506 - DISCONTINUED-JOURNAL MEDICINA3140109 - BUSINESS CARD ANNA BLOCK3107507 - DISCONTINUED-JOURNAL MEDICINA

EXHIBIT 1 PAGE 53


3140114 - BUSINESS CARD SANDRA BERNSTEIN3140140 - DISCONTINUED-BUSINESS CARD TRA57012080 - NEURALGO RHEUM RX INJ SAMPLE 33106075 - BROCHURE CONSUMER COLD/FLU57015402 - TRAUMEEL RX SAMPLE INJECTABLE3108001 - DISPLAY STAND PRACTITIONERS3108058 - SELLSHEET VIBRUCOL RETAIL3108002 - CARTON GABLE KIT3108060 - DISCONTINUE HEEL DIARY 20113106077 - DISCONTINUED-BROCHURE RETAILER3108100 - DISCONTINUED-PDR PAGE-HEEL TRA3108005 - RETAIL SHELF TALKERS ADRISIN3108119 - DISCONTINUED-PROTOCOL ALLERGY3108006 - RETAIL SHELF TALKERS ENGYSTOL3108133 - DISCONTINUED-PROTOCOL WOMENS C3108007 - RETAIL SHELF TALKERS NEUREXAN3108135 - DISCONTINUED-PRODUCT PROFILE N3106059 - BROCHURE- GRIPP HEEL/ENGYSTOL3108137 - DISCONTINUED-PROTOCOL DPM TRAU3106388 - LITERATURE CONSUMER/PATIENT ZE3201010 - DISCONTINUED-STUDY VIBURCOL AG3108013 - SHELF TALKER ALLERGY $9.953106095 - DISCONTINUED BROCHURE - VIRAL3106079 - BROCHURE NEUREXAN PATIENT P&P3110010 - DISCONTINUED-ALLERGIES BROCHUR3108017 - Poster-Zeel P&P3201011 - DISCONTINUED-STUDY SPASCUPREEL3108019 - DISCONTINUED-Poster-Zeel HFS3201030 - DISCONTINUED-STUDY-VIBURCOL TR3108023 - COUPON HEALTH FOOD STORE SINUS3110039 - DISCONTINUED-BROCHURE DETOXIFI3108026 - DISCONTINUED-SHELF TALKER ZEEL3140128 - BUSINESS CARD-JAMIN BUSICK3108027 - POSTER DETOX P&P3130022 - BAGS-HEEL PAPER3201006 - DISCONTINUED-STUDY TRAUMEEL TH3140005 - BINDER RX CLUB EMPTY3108030 - POSTER DET3140102 - BUSINESS CARDS EMILY HORN3108031 - POSTER ALLERGY PRACTITIONER3106068 - BROCHURE CONSUMER/PATIENT PAI3108032 - POSTER COLD FLU PRACTITIONER3140147 - DISCONTINUED-PENS-HEEL TRAUMEE3108036 - DISCONTINUED-INFOPAKS PODIATRI3140108 - BUSINESS CARDS KEVIN MONTOYA3106060 - BROCHURE DISCUS RX DOCTOR3140110 - BUSINESS CARDS JESUS PAEZ

EXHIBIT 1 PAGE 54


3106081 - DISCONTINUED-BROCHURE DC TRAUM3140113 - BUSINESS CARD MARTIN KATZ3108051 - SELLSHEET CERECOMP RETAIL3140116 - DISCONTINUED-BUSINESS CARD NAN3108052 - SELLSHEET DETOX KIT RETAIL57012004 - ENGYSTOL RX INJ SAMPLE 1.1 ML3140129 - DISCONTINUED-BUSINESS CARD TAN57012853 - LYMPHOMYOSOT RX INJ SAMPLE 1.13160006 - DISCONTINUED-ORDER FORM DPM57013851 - ZEEL RX SAMPLE INJ 2.0 ML 1 CT3140118 - BUSINESS CARDS ANGELO VALDEZ5701550 - SAMPLE SACHET TRAUMEEL OINT EV6002081 - CARTON DISPENSER TRAUMEEL OINT3201053 - DISCONTINUED-STUDY VERTIGOHEEL3106092 - DISCONTINUED-BROCHURE VINCEEL3140119 - BUSINESS CARDS MAGGIE DEVLYN5702340 - VERTIGOHEEL RX SAMPLE TABLET 13140130 - BUSINESS CARD FREDDY ROBLETO3106056 - BROCHURE DOCTOR DETOX KIT3140124 - BUSINESS CARDS THOMAS PELLEGRI3140123 - DISCONTINUED-BUSINESS CARD MAR3140125 - BUSINESS CARD COREY STONE6002080 - DISCONTINUED-RETAIL POP DISPLA3140126 - BUSINESS CARD CELESTE LINTON3140131 - BUSINESS CARDS JOAN SULLIVAN3140127 - BUSINESS CARD AIMEE OLIVAS3108055 - SELLSHEET OCULOHEEL RETAIL3106091 - BROCHURE VINCEEL DOCTOR3106022 - DISCONTINUED-BROCHURE TRAUMEEL1001544 - TRAUMEEL EAR DROPS MONODOSE RX3103219 - BROCHURE ENGYSTOL DOCTOR3106000 - DISCONTINUED-BROCHURE CURRENT3106016 - TRAUMEEL INJECTION BROCHURE3106002 - DISCONTINUED-BROCHURE TRAUMEEL3106020 - BROCHURE NEUREXAN DOCTOR3106003 - DISCONTINUED-BROCHURE DET MANU3106024 - DISCONTINUED-BROCHURE TRAUMEEL3106004 - DISCONTINUED-BROCHURE PATIENT3106031 - BROCHURE DOCTOR INJECTIONS3106005 - BROCHURE NUX VOMICA DOCTOR3101127 - DISCONTINUED-BOOK PDR FOOTCARE3106006 - DISCONTINUED-BROCHURE GI PATIE3106017 - DISCONTINUED-BROCHURE TRAUMEEL3106007 - DISCONTINUED-BROCHURE TECHNICA2601109 - DISPENSER OINTMENT SACHETS 50C3106008 - DISCONTINUED-BROCHURE RX FLYER3106021 - BROCHURE AID TRAUMEEL DOSAGE F

EXHIBIT 1 PAGE 55


3106009 - DISCONTINUED-BROCHURE CHILDREN3106023 - DISCONTINUED-BROCHURE AID TRAU3106010 - DISCONTINUED-BROCHURE AID TRAU3106028 - DISCONTINUED-BROCHURE TRAUMEEL3106011 - DISCONTINUED-BROCHURE IMMUNE G3106030 - DISCONTINUED-TRAUMEEL POP SELL3106035 - DISCONTINUED-BROCHURE PATIENT3106033 - BROCHURE TRAUMEEL AND ZEEL INJ1601200 - DISCONTINUED - LYMPHOMYOSOT OD3106038 - BROCHURE DETOX QUESTINONAIRE S3106037 - DISCONTINUED-BROCHURE INJ. PRA3106041 - BROCHURE ZEEL MOA3106039 - BROCHURE DETOX QUESTIONNAIRE3106045 - BROCHURE PRACTITIONER TRAUMEEL3101010 - DISCONTINUED-BIOPUNCTURE SPRTS3106013 - BROCHURE AID TRAUMEEL MOA3106052 - BROCHURE CERECOMP PATIENT3106014 - DISCONTINUED-BROCHURE TRAUMEEL3106015 - DISCONTINUED-BROCHURE TRAUMEEL3106012 - DISCONTINUED-BROCHURE TRAUMEEL3140148 - PENS-HEEL3160005 - DISCONTINUED-ORDER FORM PHARMA5701020 - ADRISIN SAMPLE TABLET 15CT3108061 - DISCONTINUED-SELL SHEET TRAUME3108090 - NOTEPAD-HEEL3106027 - DISCONTINUED-BROCHURE NEUREXAN1903021 - DISCONTINUED-BHI VARICOSE RELI3140115 - BUSINESS CARD-JENNY SCHLICHTE3140107 - BUSINESS CARDS KATHLEEN NOBILE3108048 - SELLSHEET NECTADYN RETAIL1004005 - ADRISIN BONUS PACK 100CT1304390 - NEUREXAN BONUS PACK 100CT1601353 - TRAUMEEL ORAL DROPS 50ML RED1901510 - TRAUMEEL X OINTMENT4 PANEL PRA2601105 - DISPENSER OINTMENT SACHETS 50C41012130 - PULSATILLA COMPOSITUM RX INJ 2

EXHIBIT 1 PAGE 56


EXHIBIT E EXHIBIT 1 PAGE 57


FRONTPANEL

CustJobSize

BlankStyle

HEEL.61Bprinted

03/13/2013 BD

HEELORAL DROP 50ml2+1/8 x 1+3/4 x 4

REVERSE TUCK END9.519 x 11+53/64

• Safe to use for more than 10 days

HeelBelievesthat:Relief doesn’t need to come with frequent side effects which can be both-ersome or even serious.

The healthy way to feel better is to strengthen your body’s own natural defenses.

Heel uses ingredients found in the natural world, so you can feel better about feel-ing better.

www.HeelUSA.com

Health From Nature

Lot#:

Exp:

Made and Distributed by:Heel Inc.Albuquerque, NM 87123 USA

Drug Facts

Each 10 drops contain:Active ingredients Purpose*Aconitum napellus 3X..................................................................Reduces joint and back pain *Arnica montana, radix 3X............................................................Reduces joint and back pain *Belladonna 4X................Reduces back pain *Bellis perennis 2X............................................................Relieves joint and muscle soreness *Calendula officinalis 2X.............Relieves pain *Chamomilla 3X.................Soothing pain relief *Echinacea 2X...........................Relieves pain *Echinacea purpurea 2X............Relieves pain *Hamamelis virginiana 2X.................................................Relieves joint and muscle soreness Hepar sulphuris calcareum 8X......Relieves pain *Hypericum perforatum 3X..........Relieves pain Mercurius solubilis 8X...................................................................Reduces joint and back pain*Millefolium 3X...........................Relieves pain*Symphytum officinale 8X.....Relieves joint pain

UsesFor the temporary relief of minor: Joint Pain • Back Pain • Muscular Pain

*Natural ingredients

Drug Facts (Continued)

Warnings If pregnant or breast-feeding, ask a healthcare provider before use. Keep out of reach of children. If symptoms persist or worsen, a healthcare provider should be consulted. Do not use if known sensitivity to Traumeel® or any of its ingredients exists.

Directions Standard Dosage: Adults and children 12 years and older: 30 drops per day, taking 10 drops every 4 to 6 hours. Children under 12 years: Consult your healthcare provider.Initial Dosage: Adults and children 12 years and older: 10 drops every ½ to 1 hour until symptoms lessen, then continue with standard dosage. Do not exceed 120 drops in 24 hours. Children under 12 years: Consult your healthcare provider. If used in children below 18 years for more than 14 days, contact a healthcare provider as these drops contain alcohol.

Other InformationTamper Evident: Do not use this product if the safety ring is broken away from the base of the bottle cap. Store at room temperature. Protect from light. Please retain outer carton for full product instructions.

Inactive Ingredients Ethanol, Purified water

Questions? Call 1.800.920.9203 or email [email protected]

These statements have not been reviewed by the Food and Drug Administration. They are supported by traditional homeopathic principles.

6004064/5000 US

1.69 fl oz. (50 ml)

Contains ethyl alcohol 25% by volume

www.traumeel.us

with Natural Ingredients*

HOMEOPATHIC NDC 50114-1160-4

Pain Relief Oral Drops

Relieves

•Joint Pain•Back Pain•Muscular

Pain*Contains 12 natural active ingredients (of 14 actives,

see Drug Facts*)

PAIN RELIEFwith Natural Ingredients*

*Contains 12 natural active ingredients (of 14 actives, see Drug Facts*)

Pain Relief Oral Drops

X is a homeopathic dilution. For more information, see www.HeelUSA.com

BI_Traumeel_OD_Carton_6004064_5000.indd 1 6/20/2013 1:49:57 PMEXHIBIT 1 PAGE 58


CustJobSize

BlankStyle

HEEL.55Bprinted

12/10/2012 BD

HEELRETAIL TABLET CARTON

2+1/8 x 1+7/8 x 3+1/4RTE/VERTICAL HEADER10+41/64 x 8+19/32

UNCOATED AREA

HeelBelievesthat:Relief doesn’t need to come with frequent side effects which can be bothersome or even serious.


Heel uses ingredients found in the natural world, so you can feel better about feeling better.

www.HeelUSA.com

Drug Facts

Each tablet contains:Active ingredients Purpose*Aconitum napellus 3X..Reduces joint and back pain *Arnica montana, radix 3X.......................................................................Reduces joint and back pain *Belladonna 4X .........................Reduces back pain *Bellis perennis 2X.......................................................................Relieves joint and muscle soreness *Calendula officinalis 2X ....................Relieves pain *Chamomilla 3X.......................Soothing pain relief *Echinacea 2X.................................. Relieves pain *Echinacea purpurea 2X.................... Relieves pain *Hamamelis virginiana 2X..............................................................Relieves joint and muscle soreness Hepar sulphuris calcareum 8X...........Relieves pain *Hypericum perforatum 3X................ Relieves pain Mercurius solubilis 8X...Reduces joint and back pain*Millefolium 3X..................................Relieves pain*Symphytum officinale 8X...........Relieves joint pain


Warnings If symptoms persist or worsen, a healthcare provider should be consulted. Do not use if known sensitivity to Traumeel® or any of its ingredients exists. Keep out of reach of children. If pregnant or breast-feeding, ask a healthcare provider before use.

Drug Facts (Continued)

Directions Standard Dosage: Adults and children 12 years and older: 3 tablets per day, taking 1 tablet every 4 to 6 hours. Children 4 to 11 years: 2 tablets per day, taking 1 tablet every 6 to 8 hours. Children under 4 years, consult your healthcare provider. Initial Dosage: Adults and children 12 years and older: 1 tablet every ½ to 1 hour, until symptoms lessen, then continue with standard dosage. Do not exceed 12 tablets in 24 hours. Children 4 to 11 years: 1 tablet every ½ to 1 hour, until symptoms lessen, then continue with standard dosage. Do not exceed 8 tablets in 24 hours. Children under 4 years, consult your healthcare provider. Allow tablets to dissolve completely in the mouth, do not swallow.

Other Information:Tamper Evident: Use this product only if imprinted shrink seal around the neck and cap is intact.Store tightly closed at room temperature. Protect from light and moisture. Please retain outer carton for full product instructions.

Inactive Ingredients: Lactose, Magnesium stearate


Health From Nature

Lot#:

Exp:


Pain Relief Tablets



100 Tablets www.traumeel.us

Pain Relief Tablets

Made and Distributed by:Heel Inc.Albuquerque, NM 87123 USA These statements have not been reviewed by

the Food and Drug Administration. They are supported by traditional homeopathic principles.

Relieves


Pain*Contains 12 natural active ingredients (of 14 actives,

see Drug Facts*)


• Safe - works without going through the digestive system

• Safe to use for more than 10 days


6002490/5001


Traumeel_Tablet Carton_6002490_5001.indd 1 6/20/2013 1:52:01 PMEXHIBIT 1 PAGE 59


FRO

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Drug Facts - Ointment

Each 50g contains: Active Ingredients Purpose*Aconitum napellus 1X (Final concentration 4X )................................ .............................................................Reduces joint and back pain *Arnica montana, radix 3X....................Reduces joint and back pain *Belladonna 1X.....................................................Reduces back pain *Bellis perennis MT.....................Relieves joint and muscle soreness *Calendula officinalis MT............................................Relieves pain *Chamomilla MT..................................................Soothing pain relief *Echinacea MT...........................................................Relieves pain *Echinacea purpurea MT.............................................Relieves pain *Hamamelis virginiana MT............Relieves joint and muscle soreness Hepar sulphuris calcareum 6X....................................Relieves pain *Hypericum perforatum 6X...........................................Relieves pain Mercurius solubilis 6X...........................Reduces joint and back pain *Millefolium MT.............................................................Relieves pain *Symphytum officinale 4X.....................................Relieves joint pain


Warnings For external use only. Do not apply over open wounds or broken skin. If symptoms persist or worsen, or if a rash develops, a healthcare provider should be consulted. In rare cases, allergic skin reactions may develop. Do not use if known sensitivity to Traumeel® or any of its ingredients exists. Keep out of reach of children. If swallowed, get medical help or contact a Poison Control Center right away. If pregnant or breast-feeding, ask a healthcare provider before use.

Drug Facts - Tablets

Each tablet contains:Active Ingredients Purpose*Aconitum napellus 3X ............................ Reduces joint and back pain*Arnica montana, radix 3X ....................... Reduces joint and back pain*Belladonna 4X .....................................................Reduces back pain*Bellis perennis 2X .......................Relieves joint and muscle soreness*Calendula officinalis 2X ................................................ Relieves pain*Chamomilla 3X ....................................................Soothing pain relief*Echinacea 2X .............................................................. Relieves pain*Echinacea purpurea 2X ................................................ Relieves pain*Hamamelis virginiana 2X .............Relieves joint and muscle soreness Hepar sulphuris calcareum 8X...................................... Relieves pain*Hypericum perforatum 3X .............................................Relieves pain Mercurius solubilis 8X ............................ Reduces joint and back pain*Millefolium 3X ..............................................................Relieves pain*Symphytum officinale 8X ...................................... Relieves joint pain


Warnings If symptoms persist or worsen, a healthcare provider should be consulted. Do not use if known sensitivity to Traumeel® or any of its ingredients exists. Keep out of reach of children. If pregnant or breast-feeding, ask a healthcare provider before use.

Drug Facts - Ointment (Continued)

Directions Adults and children 4 years and older: Apply generously to affected areas 2 to 3 times daily, or more often if necessary. Massage thoroughly into the skin. If appropriate, mild compression or occlusive bandaging may be applied. For children under 4, consult your healthcare provider.

Other Information Tamper Evident: Do not use if inner protective seal under cap is broken. Store at room temperature. Protect from light. Please retain outer carton for full product instructions.

Inactive Ingredients: Cetylstearyl alcohol, Ethanol, Paraffin, Purified water and White petrolatum




ND

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Directions Standard Dosage: Adults and children 12 years and older: 3 tablets per day, taking 1 tablet every 4 to 6 hours. Children 4 to 11 years: 2 tablets per day, taking 1 tablet every 6 to 8 hours. Children under 4 years: Consult your healthcare provider. Initial Dosage: Adults and children 12 years and older: 1 tablet every ½ to 1 hour, until symptoms lessen, then continue with standard dosage. Do not exceed 12 tablets in 24 hours. Children 4 to 11 years: 1 tablet every ½ to 1 hour, until symptoms lessen, then continue with standard dosage. Do not exceed 8 tablets in 24 hours. Children under 4 years, consult your healthcare provider. Allow tablets to dissolve completely in the mouth, do not swallow.

Other Information:Tamper Evident: Use this product only if imprinted shrink seal around the neck and cap is intact.Store tightly closed at room temperature. Protect from light and moisture. Please retain outer carton for full product instructions.

Inactive Ingredients: Lactose, Magnesium stearate

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Traumeel x OTC_ValuePk_6044191.indd 1 6/20/2013 1:58:22 PMEXHIBIT 1 PAGE 60


058763pain relief usa NDC 50114-8015-4heel traumeel gel 250gSIZE: 120,0 x 80,0 mm100%

Ed. 10/04/2012 14:20

4014342033077-SEP-12

Health From Nature

Active Ingredients: Each 250 g contains: *Aconitum napellus 1X (Final concentration 4X), *Arnica montana, radix 3X, *Belladonna 1X, *Bellis perennis MT, *Calendula officinalis MT, *Chamomilla MT, *Echinacea MT, *Echinacea purpurea MT, *Hamamelis virgin-iana MT, Hepar sulphuris calcareum 6X, *Hypericum perforatum 6X, Mercurius solubilis 6X,*Millefolium MT, *Symphytum officinale 4X. Uses: For the temporary relief of minor: Joint Pain • Back Pain • Muscular Pain Warnings: For external use only. Do not apply over open wounds or broken skin. If symptoms persist or worsen, or if a rash develops, a healthcare provider should be consulted. In rare cases, allergic skin reactions may develop. Do not use if known sensitivity to Traumeel® or any of its ingredients exists. Keep out of reach of children. If swallowed, get medical help or contact a Poison Control Center right away. If pregnant or breast-feeding, ask a healthcare provider before use. Directions: Adults and children 4 years and older: Apply generously to affected areas 2-3 times daily, or more often if necessary. Massage thoroughly into the skin. If appropriate, mild compression or occlusive bandaging may be applied. For children under 4, consult your healthcare provider. Tamper Evident: Do not use if seal around entire bottle is broken or missing.

Store at room temperature. Protect from light.

Inactive Ingredients: Carbopol 980, Ethanol, Purified water and Sodium hydroxide


Made in BelgiumManufactured for and Distributed by:Heel Inc.Albuquerque, NM 87123 USAwww.traumeel.us




Relieves


Pain

Net Wt. 8.75 oz. (250g)

Pain Relief Gel

*Contains 12 natural active ingredients

(of 14 actives)

Gel

Gel



Traumeel x_250g_5x6US.indd 1 6/20/2013 1:50:39 PMEXHIBIT 1 PAGE 61


X = RitzlinieX

X

X X

X X

X

54.00 x 32.50 x 134.25 mm

Design Size/Stanzausdehnung: 235.50 x 247.26

250

Heel

6280107

TOP/OBEN

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R

R

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32.5 54 32.5 53.51531.516

235.5

134.25

22.25

190.75

247.25

Mat.no.: 078111

Version: 5001

Code: 21

Size: 54 x 32,5 x 134,25 mm

Flm: –

Type size: ≥ 5 Punkt

Colours: CMYK

1. Proof ___19.06.2013______

2. Proof ___20.06.2013______

❒

❒Correction necessary

❒Approved for printing

❒Valid until ___________

❒Valid until further note

Date/Signature

________________________

Made in GermanyManufactured for and Distributed by:Heel Inc. Albuquerque, NM 87123USA

Health From Nature

Relieves• Joint Pain• Back Pain• Muscular Pain



Heel uses ingredi-ents found in the natural world, so you can feel better about feeling better.

www.HeelUSA.com Relieves

• Joint Pain• Back Pain• Muscular Pain

Net Wt. 1.76 oz. (50g) www.traumeel.us

PAIN RELIEFTHAT DOESN’T HURTwith Natural Ingredients*


• Safe - works without going through the digestive system• Safe to use for more than 10 days• Odorless ointment

Pain Relief Ointment Pain Relief Ointment

HOMEOPATHIC NDC 51885-7125-3 Drug Facts

Each 50 g contains:Active Ingredients Purpose*Aconitum napellus 1X

(Final concentration 4X) .................. Reduces joint and back pain *Arnica montana, radix 3X ................ Reduces joint and back pain *Belladonna 1X ................................................. Reduces back pain *Bellis perennis MT ................. Relieves joint and muscle soreness *Calendula officinalis MT ........................................ Relieves pain *Chamomilla MT ............................................. Soothing pain relief *Echinacea MT ........................................................ Relieves pain *Echinacea purpurea MT ......................................... Relieves pain *Hamamelis virginiana MT ....... Relieves joint and muscle soreness *Hepar sulphuris calcareum 6X ................................ Relieves pain *Hypericum perforatum 6X ...................................... Relieves pain *Mercurius solubilis 6X ....................... Reduces joint and back pain *Millefolium MT ....................................................... Relieves pain *Symphytum officinale 4X ................................ Relieves joint pain

UsesFor the temporary relief of minor: Joint Pain · Back Pain · Muscular Pain

WarningsFor external use only. Do not apply over open wounds or broken skin. If symptoms persist or worsen, or if a rash develops, a healthcare provider should be consulted. In rare cases, allergic skin reactions may develop. Do not use if known sensitivity to Traumeel® or any of its ingredients exists. Keep out of reach of children. If swallowed, get medical help or contact a Poison Control Center right away. If pregnant or breast-feeding, ask a healthcare provider before use.



Inactive Ingredients: Cetylstearyl alcohol, Ethanol, Paraffin, Purified water and White petrolatum.


Exp. date: Lot:




*Natural ingredients X is a homeopathic dilution. For more information, seewww.HeelUSA.com 078111/5001 GP

EXHIBIT 1 PAGE 62


X = RitzlinieX

X

X X

X X

X

54.00 x 32.50 x 134.25 mm


250

Heel

6280107

TOP/OBEN

nera

pssu

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euR/

ESRE

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HSI

NRA

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32.5 54 32.5 53.51531.516

235.5

134.25

22.25

190.75

247.25

Mat.no.: 078676

Version: 5001

Code: 109

Size: 54 x 32,5 x 134,25 mm

Flm: –


Colours: CMYK

1. Proof __19.06.2013_______

2. Proof __20.06.2013_______

❒





Date/Signature

________________________


Health From Nature




Heel uses ingredi-ents found in the natural world, so you can feel better about feeling better.

www.HeelUSA.com Relieves

• Joint Pain• Back Pain• Muscular Pain

Net Wt. 1.76 oz. (50g) www.traumeel.us



• Safe - works without going through the digestive system• Safe to use for more than 10 days

Pain Relief Pain Relief

HOMEOPATHIC NDC 51885-8130-3 Drug FactsEach 50 g contains:Active Ingredients Purpose*Aconitum napellus 1X

(Final concentration 4x) .................. Reduces joint and back pain *Arnica montana, radix 3X ............... Reduces joint and back pain *Belladonna 1X ............................................... Reduces back pain *Bellis perennis MT .................. Relieves joint and muscle soreness *Calendula officinalis MT ........................................ Relieves pain *Chamomilla MT ........................................... Soothing pain relief *Echinacea MT ....................................................... Relieves pain *Echinacea purpurea MT ........................................ Relieves pain *Hamamelis virginiana MT ....... Relieves joint and muscle soreness *Hepar sulphuris calcareum 6X ............................... Relieves pain *Hypericum perforatum 6X ..................................... Relieves pain *Mercurius solubilis 6X ....................... Reduces joint and back pain *Millefolium MT ....................................................... Relieves pain *Symphytum officinale 4X .............................. Relieves joint pain





Inactive Ingredients: Carbopol 980, Ethanol, Purified water and Sodium hydroxide.


Gel

gel upc code 75%.indd 1 11/26/2012 10:21:42 AM

Exp. date: Lot:


*Contains 12 natural active ingredients (of 14 actives,

see Drug Facts*)

*Contains 12 natural active ingredients (of 14 actives,

see Drug Facts*)

Gel

Gel Gel

*Natural ingredients X is a homeopathic dilution. For more information, seewww.HeelUSA.com 078676/5001 GP

EXHIBIT 1 PAGE 63


nerapssua etieskceuR/ES

REVER

HSIN

RAV O

N

53.97 x 38.10 x 168.28 mm


250

Heel

6280110

TOP/OBEN

Faserrichtung

37.35 53.97 38.1 53.97

168.28

26.55

26.55

16

199.39

275.48

Mat.no.: 078654

Version: 5001

Code: 24

Size: ? mm

Flm: –


Colours: CMYK

1. Proof ___19.06.2013______

2. Proof ___20.06.2013______

3. Proof ___24.06.2013______

❒





Date/Signature

________________________


Health From Nature



Heel uses ingredients found in the natural world, so you can feel better about feeling better.

www.HeelUSA.com

• Safe - works without going through the digestive system• Safe to use for more than 10 days• Odorless ointment


Pain Relief Ointment Pain Relief Ointment



Net Wt. 3.53 oz. (100g)


www.traumeel.us



Drug FactsEach 100 g contains:Active Ingredients Purpose*Aconitum napellus 1X

(Final concentration 4X) ................... Reduces joint and back pain *Arnica montana, radix 3X ................. Reduces joint and back pain *Belladonna 1X ................................................ Reduces back pain *Bellis perennis MT ................. Relieves joint and muscle soreness *Calendula officinalis MT ....................................... Relieves pain *Chamomilla MT ........................................... Soothing pain relief *Echinacea MT ...................................................... Relieves pain *Echinacea purpurea MT ........................................ Relieves pain *Hamamelis virginiana MT ....... Relieves joint and muscle soreness *Hepar sulphuris calcareum 6X ................................ Relieves pain *Hypericum perforatum 6X ...................................... Relieves pain *Mercurius solubilis 6X ...................... Reduces joint and back pain *Millefolium MT ...................................................... Relieves pain *Symphytum officinale 4X .............................. Relieves joint pain





Inactive Ingredients: Cetylstearyl alcohol, Ethanol, Paraffin, Purified water and White petrolatum.


Exp. date: Lot:



*Natural ingredientsX is a homeopathic dilution. For more information, see www.HeelUSA.com 078654/5001 GP

EXHIBIT 1 PAGE 64


EXHIBIT F EXHIBIT 1 PAGE 65


Homeopathic DilutionsWhat does the “X” after a homeopathic ingredient mean? • The “X” refers to the level of concentration or dilution of the basic medicinal substance which was used to make the finished product. A basic medicinal substance may be a “Mother tincture” of a plant or animal or the mineral itself.

• 1X means the dilution contains 1 part basic medicinal substance combined with 9 parts of diluent

• 2X means the dilution contains 1 part of a 1X tincture with 9 parts diluent. So a 2X dilution is 1 part basic medicinal substance and 99 parts diluent or 1 % a extract, as shown below:

Other abbreviations: • “MT” means “Mother Tincture” (described above). Most Mother Tinctures are a 10% extract of the pure plant or animal and generally are designated as a 1X potency.

• “MT(N)” means that the Mother Tincture for this ingredient in the product contained a 33% extract of the pure plant.

• “MT(M)” means that the Mother Tincture for this ingredient in the product contained a 50% extract of the pure plant.

For more information on homeopathic drugs, please see the following link: http://www.fda.gov/iceci/compliancemanuals/compliancepolicyguidancemanual/ucm074360.htm

Mother Tincture Concentration Levels:• 1X: 1 part in 10 or 10%• 2X: 1 part in 100 or 1%• 3X: 1 part in 1000 or 0.1%• 4X: 1 part in 10,000 or 0.01%• … and so on.

EXHIBIT 1 PAGE 66


EXHIBIT G EXHIBIT 1 PAGE 67


Mason v. Heel Class Action Administration & Notification Plan

Website & Claims Administration $20,000

Online Notice $91,000

CLRA Notice $15,000

Print Notice $68,000

Total $194,000* * subject to limits on number of interactions, and supplementary services as detailed herein.

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Claims Administration Website

• Custom website setup

• Online claim filing functionality with 128 bit encryption

• Website updates and maintenance

• Downloadable claim form (English & Spanish) $2,000

Phone / Email

• Vanity toll-free number e.g. 800-heel-case (subject to availability) (up to 12 months, maximum of 1,000 interactions – additional @$0.50)

• Setup digit IVR system with 24 hours recorded message & updates

• Live customer service representative (up to 12 months, max. 500 interactions – add’l interactions @ $4.50)

• Class member communications (up to 12 months, max. of 500 interactions – add’l interactions @ $4.50) $3,000

Postal Mail

• Setup dedicated Post Office Box

• Retrieve, sort, and image incoming correspondence (maximum 500 pieces – additional @ $0.50)

• Respond to correspondence (maximum 200 pieces – additional @ $5.00)

• Mail paper claim forms $2,000

Claim Processing

• Setup dedicated secure claim database

• Claim form data entry & processing (maximum of 5,000 – additional units @ $0.60) $2,500

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Claim Validation • Check claims for validity

• Flag fraudulent claims (duplicate name, address, IP Address) (Maximum of 5,000 – additional units @$0.10) $1,000

Claim Distribution

• Print and mail checks (Maximum of 5,000 – additional units @$1.50)

• Check reissues (Maximum of 200 – additional units @$2.00)

• Re-send undeliverables (Maximum of 200 – additional units @$5.00) $7,500

Case Finalization

• Final disbursement reporting • Cy-près distribution • Notice plan declaration • Final approval declaration $2,000

Total $20,000

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Online Media Press Release

• PR Newswire (United States Level 1 + Social Media) $2,000

Online Banner Advertisements

• Google Display Network (60 days) (Network includes national outlets such as USAtoday.com, Time.com, and USnews.com. Also includes regional outlets such as LAtimes.com, CBS2.com, FresnoBee.com, and FOX5SanDiego.com. And relevant interest group websites such as WebMD.com, and MensHealth.com)

• Facebook (60 days)

• Yahoo Display Network (60 days)

• MSN Display Network (60 days)

• Minimum of 100,000,000 impressions $85,000

Consumer Class Action Websites

ClassActionRebates.com, TopClassActions.com $4,000

Total $91,000

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Print Media CLRA Notice

• San Diego Tribune (Metro & North) (1/4th Page) x 4 $15,000

National Magazines*

• Prevention (circ. 2,900,000) (full page) $50,000

National News Media*

• New York Times (M-F) (circ. 1,800,000) (1/6th page) $18,000

* Print media prices subject to change. Availability and approval may constrain selection. SEOmap assumes responsibility for pricing changes up to 5% above quoted rate. For price changes beyond 5%, client to bear additional cost, or mutually agreeable substitute publication. Supplementary

• File QSF Tax Return $1,500

• Prepare / print / mail claim deficiency letters $1.50 / letter

• Supplemental distributions $1.50 / check

• Court appearance Expenses + $325/hour

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EXHIBIT H EXHIBIT 1 PAGE 73


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SOUTHERN DISTRICT OF CALIFORNIA ROBERT A. MASON, on behalf of himself, all others similarly situated and the general public,

Plaintiff,

v.

HEEL, INC., a New Mexico Corporation,

Defendant.

CASE NO. 3:12-cv-03056-GPC-KSC CLASS ACTION Filed: December 21, 2012 ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, CERTIFYING THE CLASS, APPOINTING CLASS REPRESENTATIVE AND CLASS COUNSEL, APPROVING NOTICE PLAN, AND SETTING FINAL APPROVAL HEARING

Judge: Hon. Gonzalo P. Curiel Date: Time: Dept.: 2D

Mason v. Heel, Inc., Case No. 3:12-cv-03056-GPC-KSC PRELIMINARY APPROVAL ORDER

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Plaintiff Robert A. Mason and Defendant Heel, Inc. in this action (the

“Parties”), styled Mason v. Heel, Inc., Case No. 3:12-cv-03056-GPC (KSC) (S.D.

Cal.) (the “Litigation”), after arms-length settlement discussions have entered into

a Settlement Agreement (“Agreement”) dated ______________, 2013, which, if

approved, would resolve this putative class action.

The capitalized terms used in this Preliminary Approval Order shall have the

meanings and/or definitions given to them in the Agreement, or if not defined

therein, the meanings and/or definitions given to them in this Preliminary Approval

Order.

Before and during the pendency of the Litigation, Class Counsel conducted

an extensive examination and evaluation of the relevant facts and law to assess the

merits of the named Plaintiff’s and Class’ claims to determine how best to serve

the interests of Plaintiff and the Class. In the course of this extensive examination,

Class Counsel reviewed approximately _________ documents, which consisted of

marketing data, label and package mechanicals, sales figures, unit sales,

promotional materials, package materials, clinical studies regarding the Products,

list of doctors recommending the Products, distributors and their invoices for the

Products during the class period, and detailed financial information produced by

Defendant. Class Counsel has conducted thorough review of the federal Food,

Drug and Cosmetic Act (“FDCA”), its numerous changes over the years, and the

FDCA’s implementing regulations with respect to homeopathic drugs, which

California law adopts as its own. See Cal. Health & Safety Code §§ 110105,

110110, 110111, 110115. Class Counsel has carefully considered the merits of

Plaintiff’s claims, and the defenses raised by Defendant.

The Parties also fully briefed Defendant’s motion to dismiss Plaintiff’s

claims, brought on grounds, inter alia, that Plaintiff’s Complaint lacked

plausibility and particularity under Federal Rules of Civil Procedure 8 and 9(b);

made what Defendant termed “lack of substantiation” claims; and that the FDCA

1

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preempted Plaintiff’s claims. See Dkt. Nos. 6, 10, 11, 13-15, 23.

The proposed settlement was reached only after this extensive investigation

and discovery in the Litigation, and was the result of protracted negotiations

conducted by the Parties with the assistance of Judge Leo Papas (Ret.). The

Parties engaged in numerous joint and individual mediations sessions with Judge

Papas in order to reach the terms of the Agreement over the course of several

months. Based on the motion to dismiss briefing, which was extensive, the Parties

also fully understood the nature, strength, and weaknesses of each other’s claims

and defenses. See id.

Plaintiff and Class Counsel maintain that the Litigation and the claims

asserted therein are meritorious and that Plaintiff and the Class would have

prevailed at trial. Notwithstanding, Plaintiff and Class Counsel have agreed to

settle the Litigation pursuant to the provisions of the Agreement, after considering,

among other things: (i) the substantial benefits to Plaintiff and the Class under the

terms of this Agreement; (ii) the uncertainty of being able to prevail at trial; (iii)

the uncertainty relating to Defendants’ defenses and the expense of additional

motion practice in connection therewith; (iv) the issues relating to proving

damages on an individual Class Member basis; (v) the attendant risks of litigation,

especially in complex actions such as this, as well as the difficulties and delays

inherent in such litigation; and (vi) the desirability of consummating this

Settlement promptly in order to provide effective relief to Plaintiff and the Class.

Plaintiff and Class Counsel agree that this Agreement is fair, reasonable and

adequate because it provides substantial benefits to the Class, is in the best

interests of the Class, and fairly resolves the claims alleged in this Litigation.

Defendant expressly denies any wrongdoing alleged in the pleadings in the

Litigation, and does not admit or concede any actual or potential fault,

wrongdoing, or liability in connection with any facts or claims which have been

or could have been alleged against it in the Litigation. Defendant nonetheless

2

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considers it desirable for the Litigation to be settled and dismissed, because the

proposed settlement will: (i) avoid further expense and disruption of the

management and operation of Defendant’s business due to the pendency and

defense of the Litigation; (ii) finally put Plaintiff’s and the Class’ claims and the

underlying matters to rest; and (iii) avoid the substantial expense, burdens, and

uncertainties associated with a potential finding of liability and damages for

Plaintiff and the Class on the claims alleged in the Complaint in the Litigation.

The court has read and considered the Agreement and all exhibits thereto,

including the proposed notices and claim form, and finds there is sufficient basis

for: (1) granting preliminary approval of the Agreement; (2) certifying a class for

settlement purposes; (3) appointing Plaintiff Robert A. Mason as Class

Representative and his counsel as Class Counsel; (4) directing that Notice be

disseminated to the Class; and (5) setting a hearing at which the Court will

consider whether to grant final approval of the Agreement.

The Court now GRANTS the motion for preliminary approval and makes

the following findings and orders:

1. Pursuant to Federal Rule of Civil Procedure 23 the Court hereby

certifies this Litigation as a class action on behalf of the following certified Class: All U.S. consumers who purchased the Products listed in Exhibit D to the Agreement, for household or personal use, during the Class Period (as defined by Paragraph 1.7 of the Agreement) are included. Excluded from the Class are: Heel; persons who during or after the Class Period were officers or directors of Heel, or any corporation, trust or other entity in which Heel has a controlling interest; Heel employees; the members of the immediate families of Heel employees or their successors, heirs, assigns and legal representatives; and any judicial officer hearing this Litigation, as well as their immediate family members and employees.

2. The Court finds that the Class meets the requirements of Rule 23(a),

(b)(2), and (b)(3) of the federal Rules of Civil Procedure. Joinder of all Class

Members in a single proceeding would be impracticable, if not impossible, because

3

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of their numbers and dispersion. Common issues exist among Class Members and

predominate over questions affecting individual Class Members only. In

particular, each Class Member’s claim depends on whether the representations

made by Defendant on the packaging, labeling and marketing of the Products,

which were uniform throughout the United States, were misleading to a reasonable

consumer. The Plaintiff’s claims are typical of, indeed identical, to those of the

Class, as Plaintiff was exposed to Defendant’s claims and purchased the Products

in reliance on those claims. The Plaintiff and his counsel will fairly and adequately

protect the interests of the Class, as Plaintiff has no interests antagonistic to the

Class, and has retained counsel who are experienced and competent to prosecute

this matter on behalf of the Class. Finally, a class settlement is superior to other

methods available for a fair resolution of the controversy.

3. The Court approves Plaintiff Robert A. Mason as Class

Representative.

4. Having considered the factors set forth in Rule 23(g)(1) of the Federal

Rules of Civil Procedure, the Court appoints Plaintiff’s counsel, the Law Offices of

Ronald A. Marron, APLC to serve as Class Counsel.

5. The Court preliminarily approves the Agreement, finding that its

terms appear sufficient, fair, reasonable and adequate to warrant dissemination of

Notice of the proposed settlement to the Class. The Agreement contains no

obvious deficiencies and the parties have entered into the Agreement in good faith,

following arms-length negotiation between their respective counsel. The Court’s

approval of this Agreement is made subject to further consideration at the Final

Approval Hearing Date.

6. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the

Court will hold a final approval hearing (the “Final Approval Hearing Date”) on

________________, 2013 at _______ a.m./p.m., in the Courtroom of the

4

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Honorable Gonzalo P. Curiel, United States District Court for the Southern District

of California, for the following purposes:

a. finally determining whether the Class meets all applicable

requirements of Federal Rules of Civil Procedure 23(a) and (b), and,

thus, the Class’ claims should be certified for purposes of effectuating

the Settlement;

b. determining whether the proposed Settlement of the Litigation on the

terms and conditions provided for in the Agreement is fair,

reasonable, and adequate and should be approved by the Court;

c. considering the application of Class Counsel for an award of

attorneys’ fees and costs, as provided for in the Agreement;

d. considering the application of the named Plaintiff for a class

representative incentive award, as provided for in the Agreement;

e. considering whether the Court should enter the [Proposed] Judgment,

Final Order and Decree;

f. considering whether the release by the Class Members of the Released

Claims as set forth in the Agreement should be provided; and

g. ruling upon such matters as the Court may deem just and appropriate.

7. Class Members must file and serve any objections to the proposed

settlement no later than thirty (30) days prior to the Final Approval Hearing Date,

including any memoranda and/or submissions in support of the objections, which

deadline will be set forth in the Class Notice.

8. All papers in support of the Agreement must be filed with the Court

and served at least fourteen (14) calendar days prior to the Final Approval Hearing

date. Any response to an objection must be filed and served at least seven (7) days

prior to the Final Approval Hearing date.

9. Any application for an award of attorneys’ fees and costs and class

representative incentive award must be filed with the Court and served at least

5

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forty-five (45) days prior to the Final Approval Hearing date. After filing, the

application for fees and costs, and incentive award shall be posted on the

Settlement Website for review by Class Members.

10. The Court approves the form and procedure for disseminating Notice

of the proposed Settlement to the Class as set forth in the Agreement. This

Litigation concerns retail products for which the Parties do not have direct notice

information for class members. Accordingly, the Notice Plan provides for notice

to the Class by publication. The Court finds that the Notice Plan submitted by the

Parties constitutes the best notice practicable under the circumstances, and

constitutes valid and sufficient notice to the Class in full compliance with the

requirements of applicable law, including Rule 23 and the Due Process Clause of

the United States Constitution.

11. Within thirty (30) days after the date of entry of this Order, the

Defendants shall disseminate the Class Notice in the form attached to the

Agreement as Exhibit B, Summary Notice in the form attached thereto as Exhibit

C, and the Claim Form in the form attached hereto as Exhibit A. The manner and

form of such dissemination shall be as set forth in the Notice Plan attached as

Exhibit G to the Agreement.

12. The Court approves the designation of SEOmap to serve as the Court-

Appointed Class Action Administrator for the settlement. The Class Action

Administrator shall disseminate Class Notice and supervise and carry out the

Notice Plan, the processing of claims, and other administrative functions, and shall

respond to Class Member inquiries under the direction and supervision of the

Court.

13. The Court directs the Class Action Administrator to establish a Class

Settlement Website, making available copies of this Order, Class Notice, Claim

Forms that may be downloaded and submitted online or via mail, the Agreement

and all exhibits thereto, a toll-free hotline, and such other information as may be of

6

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assistance to Class Members or required under the Agreement. The Claim Form

shall be made available to Class Members through the Class Settlement Website,

no later than fifteen (15) calendar days after the date of this Order, and

continuously thereafter through the Claim-In Period (defined below).

14. As set forth in the Agreement, the costs and expenses associated with

the Class Notice, processing of claims, creating and maintaining the Class

Settlement Website, and all other Class Action Administrator and Class Notice

expenses shall be paid from the Settlement Fund. The Class Action Administrator

is authorized to receive reimbursement of its out-of-pocket notice publication

expenses from the Settlement Fund pursuant to this Order, with Class Counsel’s

approval.

15. No later than fourteen (14) days prior to the Final Approval Hearing

Date, Defendant, through the Class Action Administrator, shall file an affidavit and

serve a copy on Class Counsel, attesting that notice was disseminated as required

by the terms of the Notice Plan or as ordered by the Court. Defendant shall also

notify Class Counsel of the costs of attaining the labeling changes per the

injunctive relief set forth in the Agreement.

16. All Class Members shall be bound by all determinations and

judgments in the Litigation concerning the settlement, whether favorable or

unfavorable to the Class.

17. Any Class Member who wishes to participate in the settlement shall

complete a Claim Form and submit it to the Class Action Administrator no later

than ninety (90) days after the date the Court enters the final judgment approving

the settlement (“Claim-In Period”). Such deadline may be further extended

without notice to the Class by Court order.

18. Any person falling within the definition of the Class may, upon his or

her request, be excluded from the Class. Any such person must submit a

completed request for exclusion to the Clerk of the Court postmarked or delivered

7

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no later than thirty (30) calendar days before the Final Approval Hearing date

(“Opt-Out and Objection Deadline”), as set forth in the Class Notice. Requests

for exclusion purportedly filed on behalf of groups of persons are prohibited and

will be deemed void.

19. Any Class Member who does not send a completed, signed request for

exclusion to the Clerk of the Court postmarked or delivered on or before the Opt-

Out and Objection Deadline will be deemed to be a Class Member for all purposes

and will be bound by all further orders of the Court in this Litigation and by the

terms of the settlement, if finally approved by the Court. The written request for

exclusion must request exclusion from the Class, must be signed by the potential

Class Member and include a statement indicating that the person is a member of

the Class. All persons who submit valid and timely requests for exclusion shall

not be bound by the Agreement or the Final Judgment and Order.

20. Any person falling within the definition of the Class may object to the

Agreement. Objections purportedly filed on behalf of groups of persons are

prohibited and will be deemed void. To be considered, all objections must be

timely, in writing, signed and dated by the objector (or his or her attorney, if

applicable), must reference the abbreviated name and case number of the

Litigation, and must contain the following information: (i) the objector’s name,

address, and telephone number; (ii) the name, address, and telephone number of

any attorney for the objector with respect to the objection; (iii) the factual basis and

legal grounds for the objection; (iv) identification of the case name, case number,

and court for any prior class action lawsuit in which the objector has objected to a

proposed class action settlement, the general nature of such prior objection(s), and

the outcome of said prior objection(s); (v) identification of the case name, case

number, and court for any prior class action lawsuit in which the objector and the

objector’s attorney (if applicable) has objected to a proposed class action

settlement, the general nature of such prior objection(s), and the outcome of said

8

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prior objection(s); (vi) the payment terms of any fee agreement between the

objector and the objector’s attorney with respect to the objection; and (vii) any

attorneys’ fee sharing agreement or referral fee agreement between or among the

objector, the objector’s attorney, and/or any third party, including any other

attorney or law firm, with respect to the objection.

21. A request for exclusion or an objection that does not include all of the

foregoing information, that is sent to an address other than the one designated in

the Class Notice, or that is not received within the time specified, shall be invalid

and the person serving such a request shall be deemed a member of the Class, and

shall be bound as a Class Member by the Agreement. The Class Action

Administrator shall promptly forward copies of all requests for exclusion and

objections to Class Counsel and counsel for Defendant.

22. If a Class Member hires an attorney to represent him or her in support

of a timely and properly submitted objection, and the attorney wishes to appear at

the Final Approval Hearing, in addition to the foregoing requirements, that

attorney must (1) file both an entry of appearance and a notice of intention to

appear and participate at the Final Approval Hearing with the Clerk of the Court no

later than thirty (30) calendar days before the Final Approval Hearing, and (2) mail

copies of the entry of appearance and the notice of intention to appear and

participate at the Final Approval Hearing to Counsel for Defendant and Class

Counsel, postmarked no later than thirty (30) calendar days before the Final

Approval Hearing.

23. A Class Member who appears at the Final Approval Hearing, either

personally or through counsel, will be permitted to argue only those matters that

were set forth in the timely and validly submitted written objection filed by such

Class Member. No Class Member shall be permitted to raise matters at the Final

Approval Hearing that the Class Member could have raised in his/her written

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objection, but failed to do so, and all objections to the Agreement that are not set

forth in a timely and validly submitted written objection are deemed waived.

24. If a Class Member wishes to present witnesses or evidence at the Final

Approval Hearing in support of a timely and validly submitted objection, all

witnesses must be identified in the objection, and true and correct copies of all

supporting evidence must be appended to, or filed and served with, the objection.

Failure to identify witnesses or provide copies of supporting evidence in this

manner waives any right to introduce such testimony or evidence at the Final

Approval Hearing. While the declaration described above is prima facie evidence

that the objector is a member of the Class, Plaintiff or Defendant or both may take

discovery regarding the matter, subject to Court approval.

25. Any Class Member who fails to comply with the applicable provisions

of the preceding paragraphs concerning their objection shall waive and forfeit any

and all rights he or she may have to object, appear, present witness testimony,

and/or submit evidence, shall be barred from appearing, speaking, or introducing

any testimony or evidence at the Final Approval Hearing, and shall be bound by all

the terms of the Agreement and by all proceedings, orders and judgments in the

Litigation.

26. All objections must be filed with the Clerk and served on the parties’

counsel no later than the Opt-Out and Objection Deadline. Objections received

after the Opt-Out and Objection Deadline will not be considered at the Final

Approval Hearing. A Class Member’s failure to submit a written objection within

the Opt-Out and Objection Deadline, in conformance with the procedures set forth

in the Class Notice, and above, waives any right the Class Member may have to

object to the settlement, the Agreement, attorneys’ fees and costs, the Class

Representative’s incentive award, or to appeal or seek other review of the Final

Judgment and Order.

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27. Class Members who do not oppose the settlement, the applications for

attorneys’ fees and costs, or Class Representative incentive award need not take

any action to indicate their approval.

28. Class Members are preliminarily enjoined from filing, commencing,

prosecuting, intervening in, participating in, maintaining as class members or

otherwise, directly or indirectly through a representative or otherwise, or receiving

any benefits from, any lawsuit, arbitration, government action, administrative or

regulatory proceeding or order in any jurisdiction, forum or tribunal asserting any

Released Claims. In addition, all persons are preliminarily enjoined from filing,

commencing or prosecuting a lawsuit as a class action (including by seeking to

amend a pending complaint to include class allegations or by seeking class

certification in a pending action in any jurisdiction) on behalf of Class Members,

or asserting any Released Claims. Nothing herein shall require any Class Member

to take any affirmative action with regard to other pending class action litigation in

which he or she may be an absent class member.

29. The Agreement and the proceedings and statements made pursuant to

the Agreement or papers filed relating to the approval of the Agreement, and this

Order, are not and shall not in any event be construed as, offered in evidence as,

received in evidence as, and/or deemed to be evidence of a presumption,

concession, or an admission of any kind by any of the Parties of (i) the truth of any

fact alleged or the validity of any claim or defense that has been, could have been,

or in the future might be asserted in the Litigation, any other litigation, court of law

or equity, proceeding, arbitration, tribunal, investigation, government action,

administrative proceeding, or other forum, or (ii) any liability, responsibility, fault,

wrongdoing, or otherwise of the Parties. Defendant has denied and continues to

deny the claims asserted by Plaintiff. Nothing contained herein shall be construed

to prevent a Party from offering the Agreement into evidence for the purposes of

enforcement of the Agreement.

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30. The certification of the Class shall be binding only with respect to the

settlement of this Litigation. In the event that the Agreement is terminated

pursuant to its terms or is not finally approved by the Court, or such approval is

reversed, vacated, or modified in any material respect by this or any other Court,

the certification of the Class shall be deemed vacated, the Litigation shall proceed

as if the Class had never been certified (including Defendant’s right to oppose any

subsequent motion for class certification), and no reference to the Class, the

Agreement, or any documents, communications, or negotiations related in any way

thereto shall be made for any purpose.

IT IS SO ORDERED.

DATED: ____________________ ___________________________ The Honorable Gonzalo P. Curiel UNITED STATES DISTRICT JUDGE

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SOUTHERN DISTRICT OF CALIFORNIA ROBERT A. MASON, on behalf of himself, all others similarly situated and the general public,

Plaintiff,

v.

HEEL, INC., a New Mexico Corporation,

Defendant.

CASE NO. 3:12-cv-03056-GPC-KSC CLASS ACTION Filed: December 21, 2012 FINAL JUDGMENT AND ORDER: (1) APPROVING CLASS ACTION SETTLEMENT, (2) AWARDING CLASS COUNSEL FEES AND EXPENSES, (3) AWARDING CLASS REPRESENTATIVE INCENTIVE AWARD, (4) PERMANENTLY ENJOINING PARALLEL PROCEEDINGS, AND (5) DISMISSING ACTION WITH PREJUDICE

Judge: Hon. Gonzalo P. Curiel Date: Time: Dept.: 2D

Mason v. Heel, Inc., Case No. 3:12-cv-03056-GPC-KSC FINAL JUDGMENT AND ORDER

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PROCEDURAL HISTORY

Plaintiff Robert A. Mason in this action, styled Mason v. Heel, Inc., Case

No. 3:12-cv-03056-GPC (KSC) (S.D. Cal.) (the “Litigation”), filed a Complaint

against Defendant Heel, Inc., alleging violations of California’s Unfair

Competition Law (“UCL,” Bus. & Prof. Code §§ 17200, et seq.), False Advertising

Law (“FAL,” id. §§ 17500, et seq.), the Consumer Legal Remedies Act (“CLRA,”

Cal. Civ. Code §§ 1750, et seq.), breach of express and implied warranties, and

violation of the Magnuson-Moss Warranty Act (“MMWA,” 15 U.S.C. §§ 2301, et

seq.). Dkt. No. 1. Defendant manufactures, markets and sells in the United States

the homeopathic Products at issue in this Settlement. Plaintiff alleges that

Defendant’s labeling and marketing of their homeopathic Products is false and

misleading.

After arms-length settlement discussions, the parties entered into a

Settlement Agreement dated ______________, 2013 (“Agreement” or “Settlement

Agreement”). Currently pending before the Court is Plaintiff’s Motion for Final

Approval of the Settlement Agreement and Plaintiff’s Motion for Attorneys’ Fees

and Incentive Award for the Class Representative. After consideration of the

Parties’ briefs and the briefs submitted by the objectors to the Settlement, the Court

hereby GRANTS Final Approval of the Settlement. On __________________, 2013, the Court entered its Order (1)

Preliminarily Approving Class Action Settlement, (2) Certifying Class, (3) Appointing Class Representative and Lead Class Counsel, (4) Approving Notice Plan, and (5) Setting Final Approval Hearing (“Preliminary Approval Order”), in which it preliminarily approved the Settlement. The Court also scheduled a hearing to determine whether the Settlement is fair, reasonable, adequate, in the best interests of the Class, and free from collusion, such that the Court should grant Final Approval of the Settlement, and to consider

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Plaintiff’s motion for an award of attorneys’ fees, costs and litigation expenses, and incentive for the Class Representative (“Fairness Hearing”).

The Court has considered: the points and authorities submitted by Plaintiff in support of the motion

for final approval of the Settlement (“Final Approval Motion”); the points and authorities submitted by Plaintiff in support of the motion

for an award of attorneys’ fees and litigation expenses, and approval of incentive award for the Class Representative (“Fee Motion”);

Defendant’s memorandum in support of final approval of the Settlement; the declarations and exhibits submitted in support of said motions; the Settlement Agreement; the entire record in this proceeding, including but not limited to the

points and authorities, declarations, and exhibits submitted in support of preliminary approval of the Settlement, filed ________________, 2013;

the Notice Plan, providing full and fair notice to the Class; the existence of only ___ objections to and ___ exclusions from the

Settlement, and the substance of those objections, if any; the absence of any objection or response by any official after the

provision of all notices required by the Class Action Fairness Act of 2005, 28 U.S.C. §1715;

the oral presentations of Class Counsel, Counsel for Defendant, and objector(s) at the Fairness Hearing;

this Court’s experiences and observations while presiding over this matter, and the Court’s file herein; and

the relevant law. Based upon these considerations and the Court’s findings of fact and

conclusions of law as set forth in the Preliminary Approval Order and in this Final Judgment and Order (1) Approving Class Action Settlement, (2)

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Awarding Class Counsel Fees and Expenses, (3) Awarding Class Representative Incentive, (4) Permanently Enjoining Parallel Proceedings, and (5) Dismissing Action with Prejudice (“Final Approval Order”), and good cause appearing, IT IS HEREBY ORDERED AND DECREED: 1. Definitions. The capitalized terms used in this Final Approval Order shall have the meanings and/or definitions given to them in the Settlement Agreement or, if not defined therein, the meanings and/or definitions given to them in this Final Approval Order. 2. Incorporation of Documents. This Final Approval Order incorporates the Settlement Agreement, filed as Exhibit A to the Declaration of Ronald A. Marron in support of preliminary settlement approval on ________________, 2013, including all exhibits thereto, and the Court’s findings and conclusions contained in its Preliminary Approval Order. 3. Jurisdiction. The Court has personal jurisdiction over the Parties, the Class Members, including objectors, and Defendant. The Court has subject matter jurisdiction over this action, including, without limitation, jurisdiction to approve the Settlement, to settle and release all claims alleged in the action and all claims released by the Settlement, including the Released Claims, to adjudicate any objections submitted to the proposed Settlement, and to dismiss this action with prejudice. All Class Members who did not exclude themselves according to the Court’s prior orders and the terms of the Class Notices have consented to the jurisdiction of this Court for purposes of this action and the Settlement of this action.

Findings and Conclusions 4. Definition of the Class and Class Members. The Court’s Preliminary Approval Order defines the “Class,” which is comprised of the “Class Members,” as follows:

All U.S. consumers who purchased the Products listed in Exhibit D

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to the Agreement, for household or personal use, during the Class Period (as defined by Paragraph 1.7 of the Agreement) are included. Excluded from the Class are: Heel; persons who during or after the Class Period were officers or directors of Heel, or any corporation, trust or other entity in which Heel has a controlling interest; Heel employees; the members of the immediate families of Heel employees or their successors, heirs, assigns and legal representatives; and any judicial officer hearing this Litigation, as well as their immediate family members and employees.

The Court affirms its certification of the Class, as set forth in the Preliminary Approval Order. All Class Members are subject to this Final Approval Order and the Final Judgment to be entered by the Clerk of Court in accordance herewith. 5. Class Certifications (Rule 23) A. Numerosity Defendant’s sales in the United States number in the hundreds of thousands annually. See Decl. of _________________ in Supp. of Final Approval ¶ __. For the purposes of this Settlement, no party or objector contests numerosity. The Court finds that the Class is sufficiently numerous that joinder of all class claims is impracticable. Fed. R. Civ. P. 23(a)(1). B. Commonality The Court finds that there are questions of law and fact common to the Class, as to whether Defendants made false or deceptive marketing claims about its Products. All Class Members allege the same injury: loss of money spent purchasing the allegedly deceptive-labeled Products. All Class Members were exposed to the same contested labeling claims regarding the level of dilution in the Products, as represented by an “X” in the ingredients list. Resolution of the common questions about whether Defendant’s labeling

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claims were deceptive would resolve all of the claims in one stroke. Accordingly, the Court affirms its prior ruling under Rule 23(a)(2). C. Typicality The Court finds that Plaintiff’s claims are reasonably co-extensive with those of the other Class Members so as to meet Rule 23(a)(3)’s requirements; indeed, they are identical. Typicality is a “permissive” standard under which “representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). For the purposes of this Settlement, the parties and objectors do not contend the Class lacks typicality. The Court therefore affirms its prior order, finding that the Plaintiff’s claims are reasonably coextensive with those of the Class. D. Adequacy of Class Representative Having considered the factors set forth in Rule 23(g)(1), the Court finds that Plaintiff and Class Counsel are adequate class representatives. For the purposes of this Settlement, the parties and objectors do not contend the Class lacks adequate representation. Class Counsel has fully and competently prosecuted all causes of action, claims, theories of liability, and remedies reasonably available to the Class Members. The Court hereby affirms its appointment of the Law Offices of Ronald A. Marron as Class Counsel. The Court also affirms its appointment of Robert A. Mason as Class Representative, finding that he possesses no interests adverse to the Class and is adequate to represent the Class. E. Rule 23(b) Has Been Satisfied For the purposes of this Settlement, the Parties contend that the elements of Rule 23(b)(3) have been met. The Court finds that questions of law and fact as to whether a reasonable consumer would find the Products’ packaging deceptive predominate over individual questions. Plaintiff alleges a common

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injury on behalf of the Class, specifically the loss of the purchase price of the Products, and the Products’ respective packaging was standard across the United States and consistent throughout the Class Period. The Court also finds that resolution on a class-wide basis is superior for purposes of judicial efficiency and to provide a forum for absent Class members, who are unlikely to bring individual suits to recover the sum of $25.00 per Product. The Court therefore affirms its prior ruling that the Class satisfies Rule 23(b)(3). The Court also affirms its prior ruling that the Class satisfies Rule 23(b)(2). The primary relief in this claim was injunctive relief in the form of labeling changes to the Products’ labels, and restitution to the Class was incidental to the equitable relief agreed to by the Parties. 6. The Settlement. The Court finds that the Settlement is fair, reasonable, and adequate to the Class, in light of the complexity, expense, and likely duration of the litigation (including appellate proceedings), and the risks involved in establishing liability, damages, and in maintaining the action as a class action, through trial and appeal. See Rodriguez v. West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009). The Settlement is the result of arms-length negotiation and there is no evidence of collusion or other conflicts of interest between Plaintiff, Class Counsel and the Class. In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011). A. The Parties reached the proposed Settlement only after proceeding with voluntary investigation and discovery in this action, and following protracted negotiations before a capable and well-respected mediator, the Honorable Judge Leo S. Papas (Ret.) of Judicate West. For a period of over five months, between February 2013 and July 2013, the Parties engaged in extensive negotiations, including joint and individual mediation sessions with Judge Papas, and the Parties’ own follow-up negotiations, in order to reach agreement over the specific terms of the proposed Settlement.

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Plaintiff and Class Counsel maintain that this action and the claims asserted herein are meritorious and that Plaintiff and the Class would have prevailed at trial. Notwithstanding, Plaintiff and Class Counsel have agreed to settle the action pursuant to the provisions of the Settlement, after considering, among other things: (i) the substantial benefits to Plaintiff and the Class under the terms of the Settlement; (ii) the uncertainty of being able to prevail at trial; (iii) the uncertainty relating to Defendant’s defenses and the expense of additional motion practice in connection therewith; (iv) the issues relating to proving damages on an individual Class Member basis; (v) the attendant risks, difficulties and delays inherent in litigation, especially in complex actions such as this; and (vi) the desirability of consummating this Settlement promptly in order to provide effective relief to Plaintiff and the Class. Plaintiff and Class Counsel agree that the Settlement is fair, reasonable and adequate because it provides substantial benefits to the Class, is in the best interests of the Class, and fairly resolves the claims alleged in this action. Defendant expressly denies any wrongdoing alleged in the pleadings in the action, and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims which have been or could have been alleged against it in the action. Defendant asserts that it sells, manufactures and markets the Products in accordance with well-recognized and widely-accepted homeopathic principles that have been adopted by the Food and Drug Administration (“FDA”). The FDA polices and enforces federal rules and regulations regarding homeopathic drug labels—rules and regulations with which Defendant avow they are in compliance. Defendant nonetheless considers it desirable for the action to be settled and dismissed because the proposed Settlement will: (i) avoid further expense and disruption of the management and operation of Defendant’s businesses due to the pendency and defense of the action; (ii) finally put Plaintiff’s and the Class’

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claims and the underlying matters to rest; and (iii) avoid the substantial expense, burdens, and uncertainties associated with a potential finding of liability and damages on the claims alleged in the Complaint. The Parties also fully briefed an extensive motion to dismiss in this action, which included, inter alia, claims and defenses on the issue of the federal Food, Drug and Cosmetic Act (21 U.S.C. § 301, et seq., “FDCA”), whether it preempted the consumer fraud claims contained in the Litigation, and whether Plaintiff could bring claims that Defendant lacked clinical proof for the Products. Accordingly, the Parties were well-versed in the merits, risks, and likelihood of success, should this action have been litigated through trial. Based upon the stage of litigation reached concerning relevant legal issues and the Parties’ exchange of information through their voluntary discovery process, Plaintiff and Defendant were fully informed of the legal bases for the claims and defenses herein, and capable of balancing the risks of continued litigation and the benefits of the Settlement. Class Counsel and Defendant’s counsel are highly experienced civil litigation lawyers with specialized knowledge in food and drug labeling issues, and complex class action litigation generally. Class Counsel and Defendant’s counsel are capable of properly assessing the risks, expenses, and duration of continued litigation.

B. The Settlement provides for fair, reasonable, and adequate cash payments and/or other monetary benefits to every Class Member, with a common fund of $1 million and payments of up to $150 per Class Member that submits proof(s) of purchase for the Products with a Claim Form, and up to $100 per Class Member that does not submit receipts or evidence of purchase (such as packaging), but who signs a Claim Form under penalty of perjury. No portion of the substantial Settlement relief will revert to Defendant. Any excess monies in the Settlement Fund, after payment of all Valid Claims, attorney’s fees and expenses, incentive award, claims administrator fees and

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expenses, and taxes shall be distributed as follows: (i) 50% as a pro rata supplemental cash payment to all Class Members that submitted a Valid Claim Form, and (ii) 50% as cy pres relief to Consumers Union, a non-profit organization dedicated to enhancing consumer understanding in the realm of drug labeling.

The Settlement also affords meaningful injunctive relief. First, in order to address concerns that consumers may not be aware that homeopathic products have not been subject to the same FDA scrutiny as allopathic drugs, Defendant has agreed to provide the following FDA Disclaimer to inform consumers with regard to the Products’ claims of efficacy: “These statements have not been evaluated by the Food and Drug Administration.” Settlement Agreement ¶ 4.1.2.

Second, to address Plaintiff’s concern that homeopathic labels do not sufficiently explain the concept of a homeopathic dilution, Defendant has agreed to provide a Dilution Disclaimer in close proximity to the Drug Facts panel on each of its labels, which shall state: “’X’ is a homeopathic dilution: see www.[link created pursuant to ¶ 4.1.4 of the Settlement] for details.” Id. ¶ 4.1.3. The identified webpage shall provide consumers a more detailed explanation of the dilutions. Id. ¶ 4.1.4. Defendant shall also include a link on all websites that it owns or operates to the FDA web site’s Compliance Policy Guide § 400.400 for homeopathic drugs, in a reasonably accessible location, for consumers wishing more information about homeopathy. Id. ¶ 4.1.4.4.

Third, Defendant has agreed that it shall not use the words “Natural,” “All Natural,” “100% Natural,” or similar language on all Products unless it qualifies that language by referring only to those ingredients that are natural. Id. ¶ 4.1.7.

Fourth, Defendant shall not use the words “Clinically Proven,” on all Products for which it does not possess two, independent, randomized, double-

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blind, placebo-controlled human clinical trials. Id. ¶ 4.1.8. Fifth, Defendant shall not use the words “Doctor Recommended,” or

similar on all Products unless it qualifies whether any doctors that recommend the Products are homeopathic practitioners or allopathic physicians.

The Court has considered the realistic range of outcomes in this matter, including the amount Plaintiff might receive if he prevailed at trial, the strength and weaknesses of the case, the novelty and number of the complex legal issues involved, and the risk that Plaintiff and the Class would receive less than the Settlement relief or take nothing at trial. The relief offered by the Settlement is fair, reasonable, and adequate in view of these factors.

C. The Court has found no evidence of collusion between Plaintiff and Defendant or their respective counsel. The Settlement resulted from extensive arms-length, adversarial negotiation. Up to and through Settlement, both parties have vigorously litigated and negotiated this action.1 Further, the Court has evaluated the factors set forth by the Ninth Circuit and determined that there was no collusion. See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) (the three factors are: “(1) when counsel receive a disproportionate distribution of the settlement, . . . (2) when the parties negotiate a ‘clear sailing’ arrangement providing for the payment of attorneys' fees separate and apart from class funds, . . . and (3) when the parties

1 Class Counsel conducted an extensive examination and evaluation of the relevant facts and law to assess the merits of the named Plaintiff’s and Class claims, to determine how best to serve the interests of Plaintiff and the Class. In the course of this examination, Class Counsel reviewed approximately ____________ pages of documents produced by Defendants, consisting of marketing data, label and package mechanicals, sales figures, unit sales in California and the rest of the United States, detailed advertising information, scientific studies, and detailed financial information. Class Counsel is also experienced in prosecuting claims alleging deceptive advertising by homeopathic drug manufacturers. Decl. of Ronald A. Marron submitted with Final Approval Motion, ¶ __.

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arrange for fees not awarded to revert to defendants . . .”). Class Counsel has requested ___% of the Settlement Fund, well within the range Courts have allowed in the Ninth Circuit. Id. Defendant also retained the right to oppose the Fee Motion to the extent Plaintiff’s Fee Application exceeded five percent over the benchmark common fund percentage in the Ninth Circuit, see Hanlon, 150 F. 3d at 1029. Id. No portion of the Settlement Fund reverts to Defendant. Id. The Parties also agreed to the terms of the Settlement before discussing attorneys’ fees, another factor which weighs against a finding of collusion. See, e.g. Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *83 (C.D. Cal. Nov. 23, 2011).

D. The response of the Class to this action, the certification of a class, and the Settlement, including Class Counsel’s application for an award of attorneys’ fees, litigation expenses, and the Class Representative’s incentive, after full, fair, and effective notice thereof, strongly favors final approval of the Settlement. Out of the estimated millions who received Notice, only __ class members submitted valid requests for exclusion. Moreover, only ___ objections were filed, which the Court has considered. 7. Notice to the Class. The Class has received the best practicable notice in light of the fact that Defendant does not collect or maintain information sufficient to identify Class Members. The Parties’ selection and retention of SEOmap as the Settlement Administrator was reasonable and appropriate. Based on the Declaration of Gajan Retnasaba of SEOmap, the Court hereby finds that the Settlement Notices were published to the Class Members in the form and manner approved by the Court in its Preliminary Approval Order. The Settlement Notices provided fair, effective and the best practicable notice to the Class of the Settlement and the terms thereof. The Notices also informed the Class of Plaintiff’s intent to seek attorneys’ fees, costs, and incentive payment, and set forth the date, time, and place of the

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Fairness Hearing and Class Members’ rights to object to the Settlement or Fee Motion and to appear at the Fairness Hearing. The Court further finds that the Settlement afforded Class members a reasonable period of time to exercise such rights. See Weeks v. Kellogg Co., 2011 U.S. Dist. LEXIS 155472, at *82 (C.D. Cal. Nov. 23, 2011) (class members’ deadline to object or opt out must arise after class counsel’s fee motion is filed); In re Mercury Interactive Corp. Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010) (same). The Settlement Notices fully satisfied all notice requirements under the law, including the Federal Rules of Civil Procedure, the requirements of the California Legal Remedies Act, Cal. Civ. Code § 1781, and all due process rights under the U.S. Constitution and California Constitutions. 8. Notices Pursuant to 28 U.S.C. § 1715. The Court finds that Defendant has satisfied all notice requirements of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715, as attested to by the Retnasaba Declaration. On _______________, 2013, at Defendant’s direction, SEOmap served the notices required by 28 U.S.C. § 1715(b), which included a copy of the Settlement Agreement and other required documents, as well as notice of the date, time, and place of the Fairness Hearing. The Court has received no objection or response to the Settlement agreement by any federal or state official, including any recipient of the foregoing notices. This fact further supports the fairness of the Settlement. 9. Implementation of Settlement. The Parties are directed to implement the Settlement according to its terms and conditions. 10. Appeal after Implementation. Any Class Member who failed timely and validly to object to the Settlement has waived any objection. Any Class Member seeking to appeal the Court’s rulings must: (a) move to intervene upon a representation of inadequacy of counsel (if they did not object to the proposed Settlement under the terms of the Settlement); (b) request a

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stay of implementation of the Settlement; and (c) post an appropriate bond. Absent satisfaction of all three requirements, Defendant is authorized, at its sole option and in its sole discretion, to proceed with the implementation of the Settlement, including before the Effective Date, even if such implementation would moot any appeal. 11. Release. The Release set forth in the Settlement Agreement is expressly incorporated herein in all respects, is effective as of the date of the entry of this Final Order, and forever discharges the Released Parties from any claims or liabilities released by the Settlement, including the Released Claims, and including without limitation a waiver of all rights under Section 1542 of the California Civil Code. This Release covers, without limitation, any and all claims for attorneys’ fees and expenses, costs or disbursements incurred by Class Counsel, the Settlement of this Action, the administration of such Settlement, and the Released Claims, except to the extent otherwise specified in this Order and the Settlement Agreement. 12. Binding Affect and Permanent Injunction. The Settlement and this Final Order and Judgment shall be forever binding on the Plaintiff and all other Class Members, as well as their heirs, executors and administrators, successors and assigns, and shall have res judicata and other preclusive effect in all pending and future claims, lawsuits or other proceedings maintained by or on behalf of any such persons, to the fullest extent allowed by law. The Court hereby permanently enjoins all Class Members from filing, commencing, prosecuting, intervening in, maintaining, participating (as class members or otherwise) in, or receiving any benefits from, any lawsuit (including putative class action lawsuits), arbitration, administrative or regulatory proceeding or order in any jurisdiction asserting any claims released by this Order; and from organizing Class Members into a separate class to pursue as a purported class action any lawsuit (including by seeking to amend a pending complaint to

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include class allegations, or seeking class certification in a pending action) asserting any claims released by this Order. Nothing in this paragraph, however, shall require any Class Member to take any affirmative action with regard to other pending class action litigation unrelated to this action in which they may be absent class members. Defendant has reserved the right to file motions or to take other actions to enforce the release provisions of the Settlement Agreement and of this injunction, as they may deem appropriate. The Court finds that issuance of this permanent injunction is necessary and appropriate in the aid of the Court’s jurisdiction over the action and its judgments. 13. Attorneys’ Fees and Litigation Expenses. The Court orders that Class Counsel is entitled to an award of reasonable attorneys’ fees and litigation expenses incurred in connection with the action and in reaching this Settlement, to be paid at the time and in the manner provided in the Settlement Agreement. The fee award sought in the present case is reasonable when judged by the standards of this circuit. The Ninth Circuit has determined that 25% of the recovery is a “benchmark” award for class action cases, and recognized that percentage fees in the range of 20-30% are generally appropriate. Hanlon, 150 F. 3d at 1029; see also Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990). A fee award slightly above the benchmark and at the higher end of the accepted range under Hanlon is justified here, based on the excellent results obtained, the experience and skill of Counsel, the complexity of issues, the risk of non-payment and preclusion of other work, the reaction of the Class, and a lodestar/multiplier crosscheck. The fee award requested is also reasonable in light of prior fee awards measured as a percentage of recovery in comparable class action litigation, as set forth in the Fee Motion. The Court finds that the evidence of public interest groups petitioning

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the Food and Drug Agency to require greater disclosure on over-the-counter homeopathic drug labels – a result that was achieved here without involvement of a government agency or the inherent cost that involves to the public and taxpayers – sufficiently proves the excellent results achieved for this Class of over-the-counter homeopathic drug purchasers. See Marron Decl., Ex. __. Accordingly, modification of the benchmark to a 30% award is reasonable. The Court also finds that an award of reasonable attorneys’ fees and litigation expenses is appropriate based on the private attorney general doctrine and Code of Civil Procedure §1021.5, and the Court’s equitable powers under California law. Applying the percentage of the common fund method is appropriate in this case. The common fund is of an amount certain, rendering application of the percentage method appropriate. The Court finds to be reasonable, and awards to Class Counsel, attorneys’ fees in the amount of $____________, which represents ____ percent (__%) of the common fund. The Court also finds to be reasonable, and awards to Class Counsel, litigation expenses, to be paid as provided in the Settlement, in the total amount of $________. The reasonableness of the fee awarded by this Final Approval Order is supported by a lodestar cross-check analysis. Considering the applicable factors, the Court finds that applying a fee multiplier of _____, which supports a percentage-of-fund award of attorneys’ fees in the amount of $_________, or ____ percent of the fund, would be appropriate. Courts have approved multipliers ranging from 2-4 (and higher) in comparably complex litigation and under such circumstances. See, e.g., Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001); Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988). As reflected in these cases, the requested fee multiplier falls on the low end of the reasonable range, based on typical multipliers approved in comparable litigation. The lodestar/multiplier cross-check supports the

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____% award requested, and ordered, in this action. See Ex. __ to Marron Decl., setting forth lodestar breakdown. No Named Plaintiff, or any other Class Member, shall have any obligation to pay Class Counsel any further amounts for attorneys’ fees, costs, or litigation expenses in the Action. As none of the objections was sustained, the Court further finds that no Class Member is entitled to seek or receive any further payment of attorneys’ fees or litigation expenses in connection with the action. The Court finds that the amount awarded to Class Counsel is reasonable pursuant to a lodestar/multiplier cross-check of Class Counsel’s hours spent successfully prosecuting this action, hourly billing rates in this action, and prevailing billing rates for comparable work in this district, as set forth below:

The Court finds the following hourly billing rates reasonable in light of the complexity of this litigation, the work performed, Class Counsels’ reputation, experience, competence, and the prevailing billing rates for comparably complex work by comparably-qualified counsel in the relevant market:

1. For Ronald A. Marron, $680 per hour; 2. For Beatrice Skye Resendes, $425 per hour; 3. For Alexis M. Wood, $400 per hour; 4. For Erin J. Minelli, $385 per hour; and 5. For future attorney time in connection with settlement

administration, a blended rate of $350 per hour. The $215 hourly billing rate for work performed by paralegals and law clerks, requested by the Marron Firm, is likewise reasonable. Paralegal time, which is normally billed to fee-paying clients, is properly included and reimbursable under a lodestar analysis. See, e.g., United Steelworkers v. Phelps Dodge Corp., 896 F. 2d 403, 407-408 (9th Cir. 1990).

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The time declared to have been expended by Class Counsel is reasonable in amount in view of the complexity and subject matter of this litigation, the skill and diligence with which it has been prosecuted and defended, and the quality of the result obtained for the Class. Based on the declaration of Class Counsel submitted in support of the Fee Motion, the Court finds that Class Counsel have incurred out-of-pocket litigation expenses (paid and un-reimbursed, or currently due) in the amount of $__________, that said expenses were of a nature typically billed to fee-paying clients, and that said expenses are recoverable or were reasonable and necessary to the prosecution of this action in light of the extent of proceedings both on and off the Court’s docket, the complexity of the legal and factual issues in the case, the amount at stake in this litigation, and the vigorous efforts of counsel for all Parties herein. The Court finds these expenses are reasonable in this case, and shall be paid from the Settlement Fund in the time and manner provided in the Settlement Agreement.

14. Class Representative’s Incentive. The named Plaintiff in this action, which the Court appointed Class Representative in its Preliminary Approval Order, has actively participated in and assisted Class Counsel with this litigation for the substantial benefit of the Class despite facing significant personal limitations. Mr. Mason waived his right to pursue potential individual claims or relief in the Action. Apart from the requested incentive, Mr. Mason will receive no settlement payments or benefits of any nature, other than his share of the Settlement relief available to the Class generally. The Court hereby approves an incentive award for Mr. Mason, to be paid at the time and in the manner provided in the Settlement Agreement. The amount of the incentive award shall be $3,500 for Mr. Mason, as Class Representative. Mr. Mason was actively involved throughout the Litigation and contributed significant time and expense in seeing this action to fruition. The Court

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approves this incentive payment to compensate the Class Representative for the burdens of his active involvement in the Litigation and his commitment and effort on behalf of the Class. 15. Class Member Objections. Having considered the ____ written objections, oral argument at the Fairness Hearing, the Parties’ written and oral response to these objections, and the documents and record on file in this Action, the Court overrules all objections. The Court finds no evidence of collusion. Likewise, the Objectors have raised no valid concerns regarding the adequacy of the relief the Settlement provides. The Court has found that the proposed Settlement Agreement provides fair and adequate monetary and injunctive relief. The $1,000,000 Settlement Fund is adequate, taking into account the weaknesses in Plaintiff’s case along with the strengths of Defendant’s defenses and the obstacles to class-wide recovery. Further, Defendant’s agreement to modify the Products’ label and packaging, website, and marketing in five significant ways, all of which adequately address the very claims raised in Plaintiff’s Complaint, provides value to the Class. The Court has found that the Notice was fair, reasonable, and adequate, and provided the best practicable notice to the class in compliance with all applicable laws. The fact that the chosen Administrator could effectuate notice in a manner widely approved for classes such as this one, where names of individual class members are unknown, for a cost less than other more expensive administrators, is a benefit to the Class, and not objectionable. The Notice in this case also included statutory newspaper publication within the State of California pursuant to California Civil Code § 1781. The Court also considered objections concerning the Fee Motion. The objections are refuted by the foregoing percentage of recovery analysis, and the exceptional results achieved on behalf of the Class. The Court therefore

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overrules the objections as to the Fee Motion. 16. Modification of Settlement Agreement. The Parties are hereby authorized, without needing further approval from the Court, to agree to and adopt such amendments to, and modifications and expansions of, the Settlement Agreement, if such changes are consistent with this Order and do not limit the rights of any person or Class Member entitled to relief under this Agreement.

17. Enforcement of Settlement. Nothing in this Final Order shall preclude any action to enforce or interpret the terms of the Settlement. Any action to enforce or interpret the terms of the Settlement shall be brought solely in this Court.

18. Retention of Jurisdiction. The Court expressly retains continuing jurisdiction as to all matters relating to the Settlement, and this Final Order, and for any other necessary and appropriate purpose. Without limiting the foregoing, the Court retains continuing jurisdiction over all aspects of this case including but not limited to any modification, interpretation, administration, implementation, effectuation, and enforcement of the Settlement, the administration of the Settlement and Settlement relief, including notices, payments, and benefits thereunder, the Settlement Notice and sufficiency thereof, any objection to the Settlement, any request for exclusion from the certified Class, the adequacy of representation by Class Counsel and/or the Class Representative, the amount of attorneys’ fees and litigation expenses to be awarded Class Counsel, the amount of any incentives to be paid to the Class Representative, any claim by any person or entity relating to the representation of the Class by Class Counsel, to enforce the release and injunction provisions of the Settlement and of this Order, any remand after appeal or denial of any appellate challenge, any collateral challenge made regarding any matter related to this litigation or this Settlement

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or the conduct of any party or counsel relating to this litigation or this Settlement, and all other issues related to this action and Settlement. Further, the Court retains continuing jurisdiction to enter any other necessary or appropriate orders to protect and effectuate the Court’s retention of continuing jurisdiction provided that nothing in this paragraph is intended to restrict the ability of the Parties to exercise their rights under the Settlement Agreement. 19. No Admissions. This Final Order and Judgment and the Settlement, all provisions herein or therein, all other documents referred to herein or therein, any actions taken to carry out this Final Order and Judgment and the Settlement, and any negotiations, statements, or proceedings relating to them in any shall not be construed as, offered as, received as, used as, or deemed to be evidence of any kind, including in this Action, any other action, or in any other judicial, administrative, regulatory, or other proceeding, except for purposes of obtaining approval of the Settlement and the entry of judgment in the Action, enforcement or implementation of the Settlement, or to support any defense by Defendant based on principles of res judicata, collateral estoppel, release, waiver, good-faith settlement, judgment bar or reduction, full faith and credit, setoff, or any other theory of claim preclusion, issue preclusion, release, injunction, or similar defense or counterclaim to the extent allowed by law. Neither the Settlement Agreement nor any related negotiations, statements, mediation positions, notes, drafts, outlines, memoranda of understanding, or Court filings or proceedings relating to the Settlement or Settlement approval, shall be construed as, offered as, received as, used as, or deemed to be evidence or an admission or concession by any person, including but not limited to, of any liability or wrongdoing whatsoever on the part of Defendant or as a waiver by Defendant of any applicable defense, including without limitation any applicable statute of limitation. 20. Dismissal of Action. This action, including all individual and

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Class claims resolved in it, shall be dismissed on the merits and with prejudice, without an award of attorneys’ fees or costs to any party except as provided in this Order. IT IS SO ORDERED.

DATED: _______________________ ___________________________ The Honorable Gonzalo P. Curiel United States District Judge

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Skye

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FILED UNDER SEAL

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FILED UNDER SEAL


1 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650)

2 ron(a),consumersadvocates. com SKYE RESENDES (SBN 278511)

3 [email protected] ALEXIS WOOD (SBN 270200)

4 [email protected] 651 Arroyo Drive

5 San Diego, California 92103 Telephone:(619) 696-9006

6 Facsimile: (619) 564-6665

7 Counsel for Plaintiff and the Proposed Class

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

1 o ROBERT A. MASON, on behalf of Case No. 3: 12-cv-03056-GPC-KSC himself, all others similarly situated and

11 the general public, CLASS ACTION

12 Plaintiff, v. PROOF OF SERVICE

13 HEEL, Inc., a New Mexico Corporation

14 Hon. Gonzalo P. Curiel

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Defendant.

1 Mason v. Heel, Inc.

PROOF OF SERVICE


1 I am employed in the County of San Diego, State of California. I am over

2 the age of eighteen years and not a party to the within action. My business address

3 is 651 Arroyo Drive, San Diego, CA 92103. On August 14, 2013, I served the

4 following document(s):

5 1. NOTICE OF JOINT MOTION AND JOINT MOTION FOR AN 6

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ORDER (1) GRANTING PRELIMINARY APPROVAL OF CLASS

ACTION SETTLEMENT, (2) CERTIFYING SETTLEMENT CLASS,

(3) APPOINTING CLASS REPRESENTATIVE AND LEAD CLASS

COUNSEL, (4) APPROVING NOTICE PLAN, AND (5) SETTING

FINAL APPROVAL HEARING

2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF JOINT MOTION FOR AN ORDER (1) GRANTING

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT,

(2) CERTIFYING SETTLEMENT CLASS, (3) APPOINTING CLASS

REPRESENTATIVE AND LEAD CLASS COUNSEL, (4)

APPROVING NOTICE PLAN, AND (5) SETTING FINAL

APPROVAL HEARING

3. DECLARATION OF RONALD A. MARRON (REDACTED)

4. DECLARATION OF MATTHEW G. BALL

5. DECLARATION OF CHRISTIAN GRIMM (REDACTED)

22 [XX] By Electronic Filing and Service Pursuant to General Order 550: I

23 caused the aforementioned document(s) to be electronically filed on the Court's

24 Electronic Filing System which constitutes service, pursuant to General Order 550

25 of the above-titled Court, upon lead counsel on service list. I also caused the

26 document(s) to be served by Notice of Electronic Filing, which is a notice

2 7 automatically generated by the CM/ECF system at the time these document( s)

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PROOF OF SERVICE


1 were filed with the Court, to lead counsel listed by CM/ECF as "ATTORNEY TO

2 BE NOTICED."

3 Furthermore, I served the following document(s):

4 (PROPOSED) ORDER GRANTING JOINT MOTION FOR

5 PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT,

6 CERTIFYING SETTLEMENT CLASS, APPOINTING CLASS

7 REPRESENTATIVE AND LEAD CLASS COUNSEL, APPROVING

8 NOTICE PLAN, AND SETTING FINAL APPROVAL HEARING

9 [ X ] By E-mail: I served the above-entitled document(s) by e-mail on the

10 following interested parties in this action.

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Matthew G. Ball, Esq. Megan Cesare K&L Gates LLP Four Embarcadero Center, Suite 1200 San Francisco, CA 94111 Phone: +1.415.249.1014 Fax:+ 1.415.882.8220 matthew. [email protected] megan. [email protected] Attorneys for Defendants

20 I declare under penalty of perjury under the laws of the United States of

21 America that I am employed in the office of a member of the bar of this Court, at

22 whose direction the service was made, and that the foregoing is true and correct.

23 Executed on this 14th day of August 2013, in San Diego County,

24 California.

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[email protected]


PROOF OF SERVICE


Mason v. Heel, Inc., Case No. 12-cv-3056-GPC-KSC 1 2 3 4 5 ...

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