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IN THE CIRCUIT COURT OF JEFFERSON COUNTY,
ALABAMA
BESSEMER DIVISION
TIM BRYSON, et al., ) CV 02-1511
Plaintiffs, )
v. )
ATKINS NUTRITIONALS, INC., )
Defendant. )
__________________________________________________________
NOTICE OF CLASS ACTION, APPROVAL OF
SETTLEMENT, AND DISTRIBUTION OF
SETTLEMENT AMOUNTS
__________________________________________________________
TO: ALL MEMBERS OF THE SETTLEMENT CLASS IN
THE ABOVE-CAPTIONED LITIGATION
PLEASE READ THIS NOTICE CAREFULLY. YOUR
RIGHTS MAY BE AFFECTED BY A LAWSUIT NOW PENDING
IN THIS COURT.
This Notice is given to inform you of a final approved settlement
(the “Settlement”) of certain class action litigation (“Class Action”
or “Litigation”) now pending in the Circuit Court of the State of
Alabama, County of Jefferson (Bessemer Division), and to permit
you, if eligible, to participate in the allocation of certain refunds and
other benefits provided for under the terms of the Settlement. The
Settlement is between the Settlement Class (as defined below) and
defendant Atkins Nutritionals, Inc., not with the Other Defendants
(as defined below) in the Litigation.
I. The Litigation
In the Circuit Court of the State of Alabama, County of Jefferson
(Bessemer Division), a lawsuit was brought on behalf of, among
other things, all retail consumer purchasers of any Atkins
Nutritionals, Inc. (“Atkins”) food products that were distributed by
or for Atkins and did not include glycerin, polydextrose, xylitol,
maltitol or dietary fiber within the “Total Carbohydrate” count in
the Nutrition Facts Panel (“NFP”) of the labels (“Atkins’ Old
Labels”) of such products (“Atkins’ Old Products”).
On or about August 28, 2001, the Named Plaintiffs (Tim Bryson,
Gina Savagio and Linda Paul) commenced this Class Action by filing
a Summons and Complaint with the Jefferson County Clerk’s
Office. The complaint, and the amendments thereto, allege, in general,
that Atkins and other defendants (Rexall Sundown, Inc., Rexall
Richardson Labs, MET-Rx, WorldWide Sport Nutrition, Natural
Supplement Association, Incorporated, Labrada Bodybuilding
Nutrition, Inc., TwinLab Corporation, Universal Nutrition Systems,
NBTY, Inc., Optimum Nutrition, Inc., Premier Nutrition, Next
Proteins, Inc., Fictitious Defendants A through Z, and Fictitious
Defendants AA through ZZ [collectively, the “Other Defendants”])
engaged in “unlawful misbranding” of their food products because
Named Plaintiffs contend that such products “actually contain[]
substantially higher carbohydrate amounts than disclosed” by
Atkins and the other defendants (the “Initial Claims”). Thus, Named
Plaintiffs contended that the labeling of Atkins’ food products on
the Atkins’ Old Labels was “intentionally misleading with regard to
the characterization of the actual number of carbohydrates” contained
in such products and, based thereon, Named Plaintiffs sought
damages and equitable relief from Atkins for alleged causes of
action for unjust enrichment, theft by deception, fraudulent suppression,
outrage, breach of implied and express warranty, negligence,
wantonness and negligence per se (the “Claims”).
Atkins has denied vigorously all allegations of wrongdoing set
forth in the complaint and amended complaints and contended,
among other things, that it did not mislead Named Plaintiffs or the
Class (as defined in Section II, below) because Atkins’ Old Labels
were truthful and not misleading, and Atkins contended that neither
the Named Plaintiffs nor the Class has been damaged in any manner
whatsoever. In addition, Atkins raised numerous affirmative defenses
to the Claims.
As of February 1, 2002, Atkins was distributing all food products
that previously had the Atkins’ Old Labels with new labels that
include glycerin, polydextrose, xylitol, maltitol and dietary fiber
within the “Total Carbohydrate” count in the Nutrition Facts Panel
(“NFP”) of the labels of such products (the “Atkins’ New Labels”).
On February 14, 2003, after a Fairness Hearing and publication
Notice of the Settlement and Settlement Hearing to the Settlement
Class, the Circuit Court of Jefferson County, Alabama, approved a
final Settlement between the Named Plaintiffs, the Settlement Class
and Atkins.
II. Class Action Determination
For purposes of this Settlement only, the Court has ordered that
the Claims against Atkins shall be maintained as a class action
brought by the Named Plaintiffs as class representatives, pursuant
to Rule 23(b)(3) of the Alabama Rules of Civil Procedure, on behalf
of a nationwide class consisting of all retail consumer purchasers of
any Atkins’ food products with an Atkins’ Old Label at any time
from January 1, 1995 through March 28, 2003 (the “Settlement
Class” or the “Class”).
The Court has designated the Named Plaintiffs to act as representatives
for the Settlement Class and has designated Named
Plaintiffs’ counsel — S.C. Middlebrooks and Sam Hill of Gardner,
Middlebrooks, Gibbons & Kitrell, P.C., and James McFerrin of
McFerrin, Stirling & Hood, L.L.C. — as Class Counsel.
Communications with the class representatives and Class Counsel
may be directed to the attention of either James H. McFerrin of
McFerrin, Stirling & Hood, 1920 Huntington Road, Birmingham,
Alabama 35209, or Sam Hill of Gardner, Middlebrooks, Gibbons &
Kitrell, P.C., 2013 First Avenue, North, Suite 400, Birmingham,
Alabama 35203.
III. Approved Settlement, Dismissal and Release
Awritten agreement of settlement between the Class and Atkins,
dated September 26, 2002 (the “Agreement”) has been approved by
the Court. The terms of the Agreement are summarized below and
reference is made to the Agreement on file with the Clerk of the
Court for a more detailed explanation. Consistent with the
Agreement, the Court has issued an Injunction that enjoins Atkins
from the further distribution of the Atkins’ Old Label on Atkins’
food products, unless and until the law or FDA regulations are modified
to change how glycerin, polydextrose, xylitol, maltitol and/or
dietary fiber are to be reflected in the Total Carbohydrate count
inside the NFP box, in which case the Injunction will automatically
be deemed to be similarly modified.
In addition to the Injunction, subject to the terms of the
Agreement and as outlined more specifically below, Atkins has
agreed to provide a refund to Members of the Settlement Class who
submit the required documentation to the Claims Administrator
before the deadline to submit such claims. In general, any Member
of the Settlement Class is entitled to a refund not to exceed the full
purchase price of any of the Atkins’ products bearing the Atkins’
Old Labels, provided such Member of the Settlement Class submits
to the Claims Administrator, within 60 days of this Notice (i.e., on
or before June 9, 2003), the attached proof of claim form with supporting
documentation in the form of either: (i) a retail receipt bearing
a purchase date prior to February 1, 2002 that identifies one of
the Atkins’ Old Products; or (ii) for Members of the Settlement
Class who purchased between February 1, 2002 and June 24, 2002,
both a retail receipt identifying an Atkins’ Old Product which bears
such a purchase date and an Atkins’ Old Label for the Atkins’ Old
Product(s) purchased. All Members of the Settlement Class who
comply with this procedure will receive a full refund of the purchase
price shown on the receipt, except that if the total claims for
refund exceed $100,000.00 (One Hundred Thousand Dollars) (“the
Maximum Refund Amount”), each qualifying claim will share pro
rata in the Maximum Refund Amount of $100,000.00. Atkins will
not be required to pay in refunds more than the Maximum Refund
Amount of $100,000.00. No refunds will be paid to any qualifying
Member of the Settlement Class until all claims have been submitted
from all qualifying Members of the Settlement Class, the 60-day
period for making claims has expired, and the total amount of
claims is known. No Member of the Settlement Class will receive a
recovery for the purchase of more than 10 units of the Atkins’ Old
Products. No Member of the Settlement Class purchasing the
Atkins’ products containing Atkins’ Old Labels after June 24, 2002
is eligible for a refund. Submissions of claims must be postmarked
on or before June 9, 2003 in order to be eligible to participate in the
refund benefit. Proof of claim forms shall be mailed to: Claims
Administrator, P.O. Box 12151, Birmingham, Alabama 35202.
Additionally, subject to the terms of the Agreement, Atkins has
agreed to provide discount coupons to retail consumers. In general,
Atkins is making available to consumers one coupon entitling consumers
to $.50 off the future purchase of any Atkins’ products, up
to a maximum of 50% of the purchase price, whichever is lower.
The coupons will be circulated in the form of (a) a free-standing
insert distributed with or included in certain prominent news publications;
and (b) an e-coupon to be available on Atkins’ web site
(one coupon per user or web address) for a 180-day period, effective
immediately. The e-coupon can be obtained by visiting Atkins’
website at
www.Atkinscenter.com. The e-coupon is available and
valid until October 31, 2003. The free-standing insert coupon is
valid until March 31, 2004. The coupons will be redeemable at the
point of sale. No proof of prior purchase will be required to utilize
the coupons.
IV. Additional Information
Any question which you may have concerning the matters contained
in this Notice should be directed in writing to Class Counsel
at either of the addresses listed in Section II above.
DATED: Birmingham, Alabama BY ORDER OF THE COURT:
February 14, 2003
CLERK OF THE COURT
CIRCUIT COURT OF
STATE OF ALABAMA
COUNTY OF JEFFERSON
PROOF OF CLAIM FORM TO SHARE IN REFUND
BENEFITS REGARDING PURCHASE OF ATKINS FOOD
PRODUCTS DISTRIBUTED WITH ATKINS’ OLD LABEL
PURSUANT TO CLASS ACTION SETTLEMENT
NOTICE: PLEASE READ THE ATTACHED NOTICE
BEFORE SUBMITTING THIS FORM. THE CIRCUIT
COURT OF JEFFERSON COUNTY,
ALABAMA, HAS DIRECTED THAT THIS
CLAIM FORM BE DELIVERED TO YOU PURSUANT
TO A CLASS ACTION SETTLEMENT
DESCRIBED IN THE ATTACHED NOTICE. THE
INFORMATION REQUESTED IN THIS FORM
WILL HELP THE CLAIMS ADMINISTRATOR
TO DETERMINE IF YOU ARE ENTITLED TO
CERTAIN BENEFITS UNDER THE APPROVED
CLASS SETTLEMENT.
ONLY PERSONS WHO SUBMIT THIS FORM
AND WHO ALSO QUALIFY UNDER THE
TERMS OF THE SETTLEMENT WILL BE ELIGIBLE
TO RECEIVE REFUND BENEFITS
UNDER THE SETTLEMENT. THE BENEFITS
AND ELIGIBILITY REQUIREMENTS ARE
EXPLAINED IN THE ATTACHED NOTICE AND
EXPLAINED MORE SPECIFICALLY IN THE
SETTLEMENT AGREEMENT ON FILE WITH
THE COURT.
DEFINITIONS
The following words or phrases, whenever they appear in this Proof
of Claim Form, shall have the following meaning ascribed to them,
and the singular includes the plural, and the plural the singular:
The “Atkins’ Old Label” or the “Atkins’ Old Labels” shall mean
any Atkins food labels which appeared on any Atkins’ food products
that were distributed by or for Atkins and which did not
include glycerin, polydextrose, xylitol, maltitol or dietary fiber
within the “Total Carbohydrate” count in the Nutrition Facts Panel
(“NFP”) of such labels.
The “Atkins’ New Label” or the “Atkins’ New Labels” shall mean
any Atkins food labels which appeared on any Atkins’ food products
that were distributed by or for Atkins and which did or do
include glycerin, polydextrose, xylitol, maltitol and dietary fiber (to
the extent that such ingredients are included in the formula) in the
“Total Carbohydrate” count in the Nutrition Facts Panel (“NFP”) of
such labels.
The “Atkins’ Old Products” shall mean any and all Atkins’ food
products with an Atkins’ Old Label and include all flavors of the
following types of products: Advantage Bars, Chocolate Shake Mix,
Endulge Bars, Bake Mix and Breakfast Bars.
The “Atkins’ New Products” shall mean any and all Atkins’ food
products with an Atkins’ New Label.
The “Settlement Class” or the “Class” shall mean a nationwide
class of all retail consumer purchasers of any Atkins’ food products
with an Atkins’ Old Label at any time from January 1, 1995 through
March 28, 2003.
“Class Members” shall mean a member of the Settlement Class or
the Class.
“Class Counsel” shall mean, collectively, the law firm of Gardner,
Middlebrooks, Gibbons & Kitrell, P.C., and McFerrin, Stirling &
Hood, LLC, who appear in the Litigation for or on behalf of the
Class or any Named Plaintiffs prior to the Effective Date.
The term “Labels” or “labels” shall mean and encompass any wrapper,
labeling, packaging, seals, or any other marking or advertising
accompanying an Atkins’ food product.
INSTRUCTIONS: Class Members are entitled to submit this
claim form only if:
(i) you produce with this claim form a retail receipt bearing a
purchase date prior to February 1, 2002 that identifies a purchase of
one of the Atkins’ Old Products; or
(ii) for Class Members who purchased Atkins’ Old Products
between February 1, 2002 and June 24, 2002, you produce with this
claim form both a retail receipt identifying an Atkins’ Old Product
which bears such a purchase date and an Atkins’ Old Label for the
Atkins’ Old Product(s) purchased.
IF YOU SATISFY (i) AND (ii) ABOVE, YOU MUST SUBMIT
THIS CLAIM FORM ON OR BEFORE JUNE 9, 2003. IF YOU
DO NOT SUBMIT THIS CLAIM FORM BY THAT DATE, YOU
WILL NOT BE ELIGIBLE FOR ANY PORTION OF THE
REFUND BENEFITS OF THE SETTLEMENT DESCRIBED IN
THE NOTICE AND PARAGRAPH II-7 OF THE SETTLEMENT
AGREEMENT. YOU WILL REMAIN ELIGIBLE FOR THE
OTHER BENEFITS OF THE SETTLEMENT WHETHER OR
NOT YOU SUBMIT THIS FORM.
IF YOU SUBMIT THIS FORM, YOU MUST ATTACH COPIES
OF YOUR RECEIPT REFLECTING THE DATE OF PURCHASE
AND, TO THE EXTENT YOU SEEK A REFUND FOR PURCHASES
OF ATKINS’ OLD PRODUCTS BETWEEN FEBRUARY
1 AND JUNE 24, 2002, THE RECEIPT AND A PRODUCT
LABEL FOR THE ATKINS’ OLD PRODUCT PURCHASED.
If you submit this form, you will be notified at a later date of the
initial determination as to whether you are entitled to share in the
refund benefits under the Settlement, and the size of the refund to
which you are entitled.
Your entitlement to benefits will be determined in accordance with
the terms of a Class Action Settlement (the “Settlement”), a copy of
which may be reviewed during regular business hours at the Office
of the Clerk of the Circuit Court of Jefferson County, Alabama,
located in Bessemer, Alabama. IF YOU DO NOT SUBMIT THIS
FORM BEFORE JUNE 9, 2003, YOU WILL NOT BE ELIGIBLE
FOR REFUND BENEFITS UNDER THE SETTLEMENT. PERSONS
WHO SUBMIT THIS FORM BUT ARE NOT MEMBERS
OF THE CLASS, OR WHO ARE NOT “ENTITLED TO SUBMIT
THIS FORM,” AS DESCRIBED IN INSTRUCTIONS (i) AND (ii)
ABOVE, WILL NOT BE ELIGIBLE FOR REFUND BENEFITS
UNDER THE SETTLEMENT.
PLEASE PROVIDE THE FOLLOWING INFORMATION:
(1) State whether you ever purchased an Atkins food product bearing
an Atkins’ Old Label. Yes _______ No _______
If your answer to (1) was “yes,” state the name(s) of the product(s)
you purchased. _________________
If your answer to (1) was “yes,” state the number of units of such
product(s) you purchased. _________________
If your answer to (1) was “yes,” state the date(s) you purchased
such product(s). _________________
If your answer to (1) was “yes,” state the amount you paid for such
product(s). _________________
NOTE: If you answered “no” to question (1), then you are not eligible
for refund benefits under the Settlement and therefore
you should not complete the rest of this Proof of Claim
Form and you should not submit this Proof of Claim Form.
NOTE: All Members of the Settlement Class who comply with this
procedure and are otherwise qualified to share in the refund
benefits will receive a full refund of the purchase price
shown on the receipt, except that if the total claims for
refund exceed $100,000.00 (“the Maximum Refund
Amount”), each qualifying claim will share pro rata in the
Maximum Refund Amount of $100,000.00.
NOTE: No refunds will be paid to any qualifying Class Member
until all claims have been submitted from all qualifying
Class Members, the 60-day period for making claims has
expired, and the total amount of claims is known.
NOTE: No Member of the Settlement Class will receive a recovery
for the purchase of more than 10 units of the Atkins’ Old
Products.
NOTE: No Member of the Settlement Class who purchased the
Atkins’ products containing Atkins’ Old Labels after June
24, 2002 will be eligible for a refund.
NOTE: IF YOU SUBMIT THIS FORM, YOU MUST ATTACH
COPIES OF YOUR RECEIPTS REFLECTING THAT
YOU PURCHASED AN ATKINS’ OLD PRODUCT
WITH AN ATKINS’ OLD LABEL AND, IF YOU PURCHASED
SUCH PRODUCT BETWEEN FEBRUARY 1
AND JUNE 24, 2002, THE ORIGINAL LABEL THAT
ACCOMPANIED SUCH PRODUCTS, AS WELL AS A
RECEIPT REFLECTING THE PURCHASE OF AN
ATKINS’ OLD PRODUCT. YOU WILL NOT RECEIVE A
REFUND IF YOU DO NOT SUBMIT THIS PROOF OF
CLAIM FORM BY JUNE 9, 2003 WITH THE APPROPRIATE
RECEIPT(S) AND/OR LABEL(S).
I HAVE READ THIS FORM AND I HEREBY SWEAR OR
AFFIRM UNDER PENALTY OF PERJURY THAT I HAVE COMPLETED
THIS FORM TRUTHFULLY TO THE BEST OF MY
KNOWLEDGE AND RECOLLECTION.
Sign Your Name Here
Print Your Full Name
Print Your Address:____________________________________
IMPORTANT: YOU MUST MAIL THIS FORM AND COPIES OF
YOUR RECEIPT(S) AND, IF APPLICABLE, YOUR LABEL(S) TO:
CLAIMS ADMINISTRATOR
P.O. BOX 12151
BIRMINGHAM, AL 35202
THE CLAIMS ADMINISTRATOR WILL THEN SUBMIT A
COPY OF THE FORM TO ATKINS AND CLASS COUNSEL
AND WILL FILE THE ORIGINAL OF THE CLAIM WITH THE
CLERK OF THE CIRCUIT COURT OF JEFFERSON COUNTY,
ALABAMA. AFTER THE DEADLINE TO SUBMIT CLAIMS
PASSES AND ALL CLAIMS HAVE BEEN SUBMITTED, A
DETERMINATION WILL BE MADE AS TO WHETHER YOU
ARE A QUALIFIED CLASS MEMBER AND THE EXTENT TO
WHICH QUALIFIED CLASS MEMBERS ARE ENTITLED TO
SHARE IN THE REFUND BENEFITS PURSUANT TO THE
SETTLEMENT OF THE CLASS ACTION DESCRIBED TO YOU
IN THIS NOTICE. A CHECK FOR THE FINAL AMOUNT
DETERMINED TO BE DUE TO YOU UNDER THE SETTLEMENT
WILL BE MAILED TO YOU AFTER SUCH DETERMINATION
HAS BEEN MADE. YOU MUST SUBMIT YOUR
CLAIM FORM NO LATER THAN JUNE 9, 2003 OR YOUR
CLAIM WILL BE WAIVED.
/s/
CIRCUIT CLERK
Atkins lawsuit
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