Sabol v. Hydroxatone LLC
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Frequently Asked Questions

Please find below answers to frequently asked questions
  1. Why was I notified about this settlement?
  2. What is this lawsuit about?
  3. Why is this Action a class action?
  4. Why is there a settlement?
  5. How do I know if I am a Class Member?
  6. What are the exceptions to being included in the Class?
  7. I am still not sure if I am included.
  8. What does the Settlement provide?
  9. Who can send in a claim?
  10. How do I make a valid claim?
  11. When do I get my Cash Benefit or Product Benefit or learn whether I will receive a Cash or Product Benefit?
  12. What am I giving up by staying in the Class?
  13. How do I exclude myself from the Settlement?
  14. If I do not exclude myself, can I sue Hydroxatone for the same thing later?
  15. If I exclude myself, can I receive a payment from this Settlement?
  16. Do I have a lawyer in this case?
  17. How will the lawyers be paid?
  18. How do I tell the Court that I like or dislike the Settlement?
  19. What is the difference between objecting to the Settlement and excluding myself from the Class?
  20. When and where will the Court decide whether to approve the Settlement?
  21. Do I have to come to the hearing?
  22. May I speak at the hearing?
  23. What happens if I do nothing at all?
  24. Are there more details about the Settlement?

  1. Why was I notified about this settlement?

    According to Defendants’ records, you paid some amount to Defendants in connection with a Risk Free Trial or Auto-Shipment Program involving Hydroxatone-branded products during the time period between January 1, 2005 through March 28, 2013 (this is the “Class Period”).

    If this description applies to you, you have a right to know about your options with respect to a proposed Amended Settlement (the “Amended Settlement”) of the claims relating to Defendants’ products in this class action lawsuit before the Court decides whether to approve the Amended Settlement. If the Court approves the Amended Settlement, and after any objections or appeals are resolved, the Settlement Administrator will distribute Cash Benefit payments and Product Benefits that the Amended Settlement allows for valid, approved claims.

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  2. What is this lawsuit about?

    On August 8, 2011, Tammy Gray filed a class action lawsuit against Defendants in the United States District Court for the District of New Jersey, and was assigned Case Number 2:11-cv-04586-SRC-MAS (“Gray Case”), alleging, among other things, that Defendants’ failure to adequately disclose terms of Risk Free Trials and Auto-Shipment Programs, refusal to refund customers who timely returned Hydroxatone products, failure to allow consumers to timely cancel Hydroxatone Preferred-Customer BeautyAuto-Shipment Program memberships, and failure to cease billing consumers for Hydroxatone products after they have cancelled their memberships constitute a breach of contract, a violation of the New Jersey Consumer Fraud Act, and unjust enrichment. Defendants deny all of the claims.

    On March 23, 2012, Plaintiffs Susan Sabol and Valerie Done on behalf of a national Class, filed their First Amended Complaint in the Gray Case, replacing the original class action plaintiffs and alleging additional causes of action (Sabol, et al. v. Hydroxatone LLC and Atlantic Coast Media Group LLC, No. 2:11-cv-04586-KM-MAH (D.N.J.)) (the “Action”).

    On February 7, 2013, Plaintiffs Susan Sabol, Valerie Done and Kathleen Klodner filed a proposed Second Amended Class Complaint. The Second Amended Complaint, among other things, added Plaintiff Klodner’s claims arising from her participation in Hydroxatone’s Auto-Shipment Program.

    Defendants deny the allegations made in Plaintiffs’ Complaints, deny any and all liability with respect to the facts alleged therein and deny that anyone has suffered damage or is entitled to any relief whatsoever with respect to the sale or offer for Hydroxatone products, their Risk Free Trials and/or Auto-Shipment Programs.

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  3. Why is this Action a class action?

    In a class action, one or more people called class representatives sue on behalf of people who have similar claims. All of these people who have similar claims are referred to collectively as a “Class” or individually as “Class Members” or “Settlement Class Members.” One court resolves the issues for all Class Members, except for those who exclude themselves from the Settlement. United States District Court Judge Kevin McNulty of the District of New Jersey is in charge of this class action. The case is known as Sabol, et al. v. Hydroxatone LLC, et al., civil action number 2:11-cv-04586-KM-MAH.

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  4. Why is there a settlement?

    The Court did not decide in favor of Plaintiffs or Defendants. Instead, both sides agreed to a Settlement. That way, both Plaintiffs and Defendants avoid the cost and risks of further litigation and trial. As explained above, Plaintiffs and their attorneys think the Amended Settlement is best for all Class Members.

    To see if you are entitled to receive a Cash Benefit or Product Benefit from this Amended Settlement, you first have to determine if you are a Class Member.

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  5. How do I know if I am a Class Member?

    The Class includes all persons residing in the United States who between January 1, 2005 and March 28, 2013 paid for, and/or were charged for Hydroxatone-branded products, and/or were charged shipping and processing fees for such products, in connection with a Risk-Free Trial and/or Auto-Shipment Program, including but not limited to: Hydroxatone, Celtrixa, Hydrolyze, Declatone, Lashatone, Instant Effect, Luminique, Instant Wrinkle Filler, and Orexis.

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  6. What are the exceptions to being included in the Class?

    Even if you fit the definition under Question 5 above, you are not a Class Member if you are: (i) Defendants; (ii) a present or former officer or director of Defendants; (iii) Defendants’ counsel (iv) Class Counsel; (v) any Judge assigned to this Action and his or her immediate family; and (vi) any putative Class Members who exclude themselves by filing a Request for Exclusion in accordance with the requirements set forth in the Notice.

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  7. I am still not sure if I am included.

    If you are still not sure whether you are included, you can ask for free help. For more information, you can contact the Settlement Administrator via email info@hydroxatonesettlement.com or toll-free at (888) 267-3071 or you can fill out and return the Claim Form described in the answer to question 10, to see if you qualify. Please do not contact Defendants.

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  8. What does the Settlement provide?

    The Amended Settlement Agreement provides for Cash Benefits or Product Benefits, as well as Prospective Relief.

    Cash Benefit: Defendants will pay Three Million Dollars ($3,000,000) to establish a Common Fund for the benefit of the Settlement Class (the “Cash Fund”). Benefits will be paid to Settlement Class Members from the net amount remaining (the “Net Settlement Fund”) after the following amounts are deducted from the Cash Fund: (1) attorneys’ fees and costs; (2) administrative costs of notice and the settlement, but excluding internal costs to Defendant to administer the settlement; (3) Participation Awards, and (4) shipping and processing costs in connection with all Settlement Class Member Claimants who select to receive a Product Benefit (described below) not to exceed $7.95 per shipment.

    Product Benefit: Defendants will also provide to the Settlement Class in Hydroxatone-branded products (the “Product Benefit”) up to a total value of Four Million Dollars $4,000,000).

    Plan of Allocation: The Settlement Benefits will be distributed to two groups of Settlement Class Members—Group One and Group Two.

    Group One

    You are a Member of this Group if you are a Settlement Class Member who (i) tried to, attempted to, made efforts to, or took any actions designed to return Risk-Free Trial product(s) and/or Auto-Shipment Program product(s) and paid more than shipping and processing and/or return postage in connection with such product and/or received additional shipments of product for which you paid, OR (ii) cancelled and/or attempted to cancel your Auto-Shipment Program memberships but received additional shipments of product for which you paid more than shipping and processing and/or return postage.

    If you are a member of Group One, you will be eligible to receive your choice of either a pro rata share of the Net Settlement Fund (the “Cash Benefit”) or a “Product Benefit.”

    A “Cash Benefit” for Group One Settlement Class Members will be made to Approved Claimants in the following amounts:

    • A Claimant who spent more than $200 with Defendants after all prior refunds will be eligible to receive (subject to a pro rata reduction) $100.
    • A Claimant who spent between $100 and $200 with Defendants after all prior refunds will be eligible to receive (subject to a pro rata reduction) $75.
    • A Claimant who spent less than $100 with Defendants after all prior refunds will be eligible to receive (subject to a pro rata reduction) $40.

    The Cash Benefit will be subject to a pro rata reduction if the total Approved Claims exceed the Net Settlement Fund. In the event that all Claims are paid for by the Net Settlement Fund, without any pro rata reduction, no funds will revert to Defendants.

    OR

    A “Product Benefit” for Group One Settlement Class Members will be made to Approved Claimants in the following manner:

    • A Claimant who spent more than $150 with Defendants after all prior refunds will receive their choice of one of the following products:
      1. Luminique Facial Brightener 3 oz. (Retail Price $49.95)
      2. Sunsoak Age-Defying Self Tanner 1 oz. (Retail Price $59.95)
      3. Pore Minimizer Serum 1 oz. (Retail Price $59.95)
      4. Instant Wrinkle Filler 30 Day Boxes (Retail Price $59.95)
      5. Instant Effect 30 Day Boxes (Retail Price $59.95)
      6. Celtrixa Stretchmark Lotion- Original Formula (Retail Price $59.95)

    • A Claimant who spent $150 or less with Defendants after all prior refunds will receive their choice of one of the following products:
      1. Hydroxatone Anti-aging Body Lotion by Celtrixa (Retail Price $19.95)
      2. Declatone Deluxe Sample for Retail 0.5 oz (Retail Price $29.95)
      3. Hydroxatone Gentle Milky Cleanser 3 oz. (Retail Price $39.95)
      4. Hydroxatone Age Defying Toner 3 oz. (Retail Price $39.95)
      5. Keracalm (Retail Price $39.95)

    If you choose the Product Benefit, shipping and processing charges will be paid for you from the Cash Fund and you will pay nothing for the products which you request (so long as there is a sufficient amount in the Cash Fund; otherwise this will be subject to pro rata reduction). Defendants reserve the right to substitute products based upon supply.

    Group Two

    You are a Member of this Group if you are a Settlement Class Member, but are not a member of Group One.

    If you are a member of Group Two, you will be eligible to receive a Product Benefit, which will be your choice of one of the following products:

    1. Hydroxatone Anti-aging Body Lotion by Celtrixa (Retail Price $19.95)
    2. Declatone Deluxe Sample for Retail 0.5 oz. (Retail Price $29.95)
    3. Hydroxatone Gentle Milky Cleanser 3 oz. (Retail Price $39.95)
    4. Hydroxatone Age Defying Toner 3 oz. (Retail Price $39.95)
    5. Keracalm (Retail Price $39.95)

    If you choose the Product Benefit, shipping and processing charges will be paid for you from the Cash Fund and you will pay nothing for the products which you request (so long as there is sufficient amounts in the Cash Fund; otherwise this will be subject to a pro rata reduction). Defendants reserve the right to substitute products based upon supply.

    Prospective Relief:

    As part of the Amended Settlement, Defendants also agree not to directly or indirectly engage in the specific acts or practices that were alleged to be deceptive or unlawful. Specifically, Defendants agreed that they will adhere to the following for all Hydroxatone-branded products: (1) Defendants will not use the word “free” by itself for offers where the customer is required to return the product that is being offered to avoid being billed for the price of such product; (2) Defendants will disclose the terms of their Risk Free Trial and Auto-Shipment Program(s) in a Clear and Conspicuous manner before getting the customer’s final acceptance to the offer; (3) Defendants will provide a simple mechanism on Hydroxatone-branded websites controlled by Hydroxatone that allows a customer to easily effectuate a cancellation of an Auto-Shipment Program; and (4) Defendants will provide customers who provide an email address and who cancel with email confirmation to that email address of such cancellation within 10 days of the cancellation becoming effective.

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  9. Who can send in a claim?

    All Persons residing in the United States who between January 1, 2005 and March 28, 2013 paid for, and/or were charged for Hydroxatone-branded products, and/or were charged shipping and processing fees for such products, in connection with a Risk-Free Trial and/or Auto-Shipment Program.

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  10. How do I make a valid claim?

    To submit a Claim, do the following:

    • • Complete, sign and date a Claim Form, either in writing or online through the case website, www.hydroxatonesettlement.com by August 15, 2013. The Claim Form includes a sworn statement that the information you provide regarding your purchase or receipt of Hydroxatone-branded products and your attempts (if any) to return product or cancel an Auto-Shipment Program membership are true and correct.

    The Settlement Administrator may verify the Claim Forms submitted to determine, among other things, that the Claimant actually was sent and/or paid for a Hydroxatone product, whether or not the Claimant received a refund and whether or not the Claimant attempted to return or cancel product shipments.

    Cash Benefits and Product Benefits will only be distributed after the Court approves the Settlement and all appeals, if any, are resolved.

    If you fail to submit the Claim Form by the required deadline, you will not receive any Cash Benefit or Product Benefit. Sending in a Claim Form late will be the same as doing nothing.

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  11. When do I get my Cash Benefit or Product Benefit or learn whether I will receive a Cash or Product Benefit?

    If the Settlement Administrator determines that your Claim is to be paid, your Cash or Product Benefit will be mailed to you after the Settlement Effective Date. The Court will hold a hearing on July 16, 2013 to decide whether to approve the Settlement. If the Court approves the Settlement, there may be appeals. It is always uncertain whether appeals, if any are filed, can be resolved, and resolving them can take time, perhaps several years. The Settlement Effective Date will not occur until all appeals are resolved. In addition, the Settlement Administrator must process all of the Claim Forms. Please be patient.

    If the Settlement Administrator determines that your claim should not be paid or should be paid only in part, you will be sent an email or a letter telling you the amount or benefit you are to receive, if any, and explaining how you can appeal the amount or benefit, if you wish to do so.

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  12. What am I giving up by staying in the Class?

    Unless you exclude yourself, you are staying in the Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit against Defendants about the claims being released in this Amended Settlement. It also means that all of the Court’s orders will apply to you and legally bind you.

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  13. How do I exclude myself from the Settlement?

    If you do not want a Cash Benefit or Product Benefit from this Amended Settlement, and you want to keep the right to sue or continue to sue Defendants on your own about the claims being released in this Amended Settlement, then you must take steps to exclude yourself from the Amended Settlement. This is referred to as “opting out of” or “excluding yourself from” the Class.

    Settlement Class Members who wish to exclude themselves (opt out) from the Settlement Class must submit a written “Request for Exclusion.” To be effective, such a request must include the Settlement Class Members’ name, mailing address, e-mail address, the signature of the Settlement Class Member (or, in the case of a Person who is deceased or incapacitated only, the signature of the legally authorized representative of that Settlement Class member), substantially the following statement, “I want to opt out of the class certified in the Sabol v. Hydroxatone litigation.” The Settlement Class Members may also state the reason why they wish to exclude (opt out) themselves from the Settlement Class.

    Requests for Exclusion may be submitted via First Class U.S. Mail or overnight private carrier paid by the Settlement Class Member and sent to the Settlement Administrator at the address provided below.* Requests for Exclusion must be postmarked no later than June 25, 2013.

    Hydroxatone Settlement Administrator
    c/o Gilardi & Co. LLC
    P.O. Box 8090
    San Rafael, CA 94912-8090
    Telephone: (888) 267-3071
    Fax: (415) 256-9756

    *Please keep a copy of everything you send by mail, in case it is lost or destroyed during shipping.

    You cannot exclude yourself over the phone or by e-mail. If you ask to be excluded, you are not eligible to receive any Amended Settlement payment, and you cannot object to the Amended Settlement. You will not be legally bound by anything that happens in this lawsuit and you will be able to pursue the claims that are being released in this Settlement at your own expense.

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  14. If I do not exclude myself, can I sue Hydroxatone for the same thing later?

    No. Unless you exclude yourself, you give up any right to sue Defendants for the claims being released by this Amended Settlement. If you have a pending lawsuit relating to the claims being released in this case against Defendants, speak to your lawyer in that case immediately and provide him/her with the case information. Remember, the exclusion deadline is 21 days before the Final Approval (Final Fairness) Hearing, or June 25, 2013.

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  15. If I exclude myself, can I receive a payment from this Settlement?

    No. If you exclude yourself, you will not receive any money or benefits from the Amended Settlement. But, you may sue, continue to sue, or be part of a different lawsuit asserting the claims being released in this Amended Settlement against Defendants.

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  16. Do I have a lawyer in this case?

    The Court has decided that the law firms of Cohen Milstein Sellers & Toll PLLC, McLaughlin & Stern, L.L.P., and the Law Office of Angela Edwards are qualified to represent you and all Class Members. These law firms are called “Class Counsel.” You will not be individually charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense and enter an appearance through your attorney.

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  17. How will the lawyers be paid?

    Class Counsel has prosecuted this case on a contingency basis. They have not received any fees or reimbursement for any of the expenses associated with this case. Class Counsel will apply to the Court by motion for an award to Class Counsel for attorneys’ fees of not more than 33 1/3 percent of the Cash Fund. Class Counsel will also seek reimbursement of reasonable expenses, to be paid from the Common Fund for the settlement, including Participation Awards totaling $3,500 for the Class Representatives and Former Class Representative in this Action for their contributions to the Action.

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  18. How do I tell the Court that I like or dislike the Settlement?

    If you are a Class Member, you can tell the Court that you like the settlement and it should be approved, or that you object to the Amended Settlement if you do not like a part of it. The Court will consider all comments from Class Members.

    To object, you must send a letter to the Court stating your objections. To be effective, the letter must also:

    1. Contain a caption that includes the name of the Case and the case number as follows: Sabol v. Hydroxatone, Case No. 2:11-cv-04586-KM-MAH (D.N.J.);
    2. Provide the name, address, telephone number and signature of the Settlement Class member filing the intent to object;
    3. Provide the approximate date of his/her transaction with Hydroxatone and the total amount paid by him or her for Hydroxatone products;
    4. Verify by sworn statement that he or she has not received a full refund of his/her Hydroxatone product charges;
    5. Be filed with the District of New Jersey Clerk of the Court not later than June 17, 2013, which is thirty (30) calendar days before the Final Approval (Final Fairness) Hearing;
    6. Be served on Class Counsel and counsel for Defendants so as to be received no later than June 17, 2013, which is thirty (30) calendar days before the Final Approval (Final Fairness) Hearing;
    7. Contain the name, address, bar number and telephone number of the objecting Settlement Class member’s counsel, if represented by an attorney;
    8. Contain the number of class action settlements objected to by the Settlement Class Member in the last three years; and
    9. State whether the objecting Settlement Class member intends to appear at the Final Approval (Final Fairness) Hearing, either in person or through counsel.

    In addition to the foregoing, if the Settlement Class member is represented by counsel and such counsel intends to speak at the Final Approval (Final Fairness) Hearing, a notice of intent to object must contain the following information: A detailed statement of the specific legal and factual basis for each and every objection; and a detailed description of any and all evidence the objecting Settlement Class member may offer at the Final Approval (Final Fairness) Hearing, including copies of any and all exhibits that the objecting Settlement Class member may introduce at the Final Approval (Final Fairness) Hearing.

    Court:
    Clerk of the Court
    UNITED STATES DISTRICT COURT
    District of New Jersey
    Martin Luther King Jr. Federal Building & U.S. Courthouse
    50 Walnut Street
    Newark, NJ 07101

    Class Counsel:
    COHEN MILSTEIN SELLERS & TOLL PLLC
    Andrew N. Friedman
    1100 New York Avenue, N.W., Suite 500 West
    Washington, DC 20005-3964

    Counsel for Defendants:
    KELLEY DRYE & WARREN LLP
    Joseph A. Boyle
    Michael Lynch
    Lauri A. Mazzuchetti
    Michael A. Innes
    200 Kimball Drive
    Parsippany, NJ 07054

    The filing of an objection allows Class Counsel or Counsel for Defendants to depose the objector consistent with the Federal Rules of Civil Procedure at an agreed-upon location before the Final Approval Hearing, and to seek any documentary evidence or other tangible things that are relevant to the objection. Failure by an objector to comply with discovery requests may result in the Court striking said objector’s objection and otherwise denying that person the opportunity to make an objection or be further heard. The Court reserves the right to tax the costs of any such discovery to the objector or the objector’s counsel should the Court determine that the objection is frivolous or is made for an improper purpose.

    If you do not submit a written comment on the proposed settlement or the application of Class Counsel for Case Contribution Awards, attorney fees and expenses in accordance with the deadline and procedure set forth above, you will waive your right to be heard at the Final Approval Hearing and to appeal from any order or judgment of the Court concerning the matter.

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  19. What is the difference between objecting to the Settlement and excluding myself from the Class?

    Objecting is simply telling the Court that you do not like something about the Amended Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object because the case no longer affects you.

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  20. When and where will the Court decide whether to approve the Settlement?

    The Court will hold a hearing at 10:00 a.m. on July 16, 2013, at the United States Post Office and Courthouse Building, Courtroom 3, Federal Square, Newark, New Jersey. At this hearing the Court will consider whether the Amended Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Kevin McNulty may listen to people who have requested in writing to speak at the hearing. The Court may also decide how much to pay Class Counsel or whether to approve incentive awards. After the hearing, the Court will decide whether to approve the Amended Settlement. We do not know how long it will take for the Court to make its decision.

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  21. Do I have to come to the hearing?

    No. Class Counsel will answer any questions Judge McNulty may have. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as your written objection letter is received on time, the Court will consider it. You may also pay your own lawyer to attend, but this is not necessary.

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  22. May I speak at the hearing?

    If you file an objection, you may ask the Court for permission to speak at the hearing concerning the proposed Amended Settlement or the application of Plaintiffs’ counsel for attorney fees and expenses. To do so, you must state your intent to appear at the hearing as described under Question 18 above. You cannot speak at the hearing if you exclude yourself from the Amended Settlement.

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  23. What happens if I do nothing at all?

    If you do nothing, you will receive no reimbursement from this Amended Settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants about the claims being released in this Amended Settlement.

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  24. Are there more details about the Settlement?

    The long-form Notice summarizes the proposed Amended Settlement. More details are in the Amended Settlement Agreement. You can obtain a copy of the Amended Settlement Agreement or more information about the Amended Settlement at the case website, www.hydroxatonesettlement.com, or contacting the Settlement Administrator by phone at (888) 267-3071.

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