Clay et al. v. CytoSport, Inc.

Frequently Asked Questions

1. BASIC INFORMATION

1. Why is notice being provided?

   If you purchased one or more of the Products in the United States from January 23, 2009 through May 5, 2020, as described on page 1 of the Notice, you have a right to know about a proposed settlement of a class action lawsuit and your options. If the Court approves the Proposed Settlement, and after objections and appeals are resolved, an administrator approved by the Court (the “Class Administrator”) will oversee the distribution of the cash awards that the Proposed Settlement allows. You will be informed of the progress of the Proposed Settlement.

   The Notice explains the lawsuit, the Proposed Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Southern District of California, and the case is known as Clay et al. v. CytoSport, Inc., Case No. 3:15-cv-00165-L-DHB. The people who sued are called the Plaintiffs, and the company they sued, CytoSport, Inc., is called the Defendant.

2. What is this lawsuit about?

   This lawsuit is about whether Defendant made false and misleading representations about the protein and fat contents of the Defendant’s protein shakes and powders. You can read Plaintiffs’ First Amended Complaint by clicking here.

   Defendant denies any wrongdoing and denies the Plaintiffs’ allegations. You can read Defendant’s answer by clicking here. The Court has not made any ruling on Defendant’s liability, if any.

3. What is a class action and who is involved?

   In a class action lawsuit, one or more people called “Class Representatives” (in this case, Plaintiffs Chayla Clay, Erica Ehrlichman, Logan Reichert, and Chris Roman) sue on behalf of other people who have similar claims. The people together are a “Class” or “Class Members.” The named plaintiffs who sued – and all the Class Members like them – are called the Plaintiffs. The company they sued (in this case, CytoSport, Inc.) is called the Defendant. One court resolves the issues for everyone in the Class – except for those people who choose to exclude themselves from the Class.

4. Why is there a Proposed 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 contends that its conduct was lawful. Defendant is settling to avoid the expense, inconvenience, and inherent risk of litigation, as well as the related disruption of its business operations. Plaintiffs and their attorneys assert that the Proposed Settlement is in the best interests of the Class, because it provides an appropriate recovery now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals.

5. How do I know if I am part of the Proposed Settlement?

   You are a Class Member if you purchased any of the following products during the indicated time period:

   The Shake Class definition includes all persons in the United States (including its states, districts or territories) who purchased Defendant’s CytoSport Whey Isolate Protein Drink; Monster Milk: Protein Power Shake; Genuine Muscle Milk: Protein Nutrition Shake; and Muscle Milk Pro Series 40: Mega Protein Shake from January 23, 2011 to May 5, 2020 (“Shake Class”). For individuals who purchased the above products in Michigan, the starting date of the class period will be January 23, 2009.

   The Powder Class definition includes all persons in the United States (including its states, districts or territories) who purchased any of the following powder products that had the phrase “lean lipids,” “lean protein,” “lean muscle protein,” or “new leaner formula” on the label: Muscle Milk: Lean Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein Powder; Muscle Milk Naturals: Nature’s Ultimate Lean Muscle Protein; Muscle Milk Gainer; High Protein Gainer Powder Drink Mix; Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder; and Monster Milk: Lean Muscle Protein Supplement from January 23, 2011 to December 31, 2018 (“Powder Class”).

   The following are excluded from the Settlement Class even if they made such a purchase: (1) any Judge or Magistrate presiding over this class action and members of their families; (2) the Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and their current or former officers, directors, agents, attorneys, and employees; (3) persons who properly execute and file a timely request for exclusion from the class (as described in FAQ 8, FAQ 9, and FAQ 10); and (4) the legal representatives, successors, or assigns of any such excluded persons.

   More information about why the Court is allowing this lawsuit to be a class action is in the Court’s Order Certifying the Settlement Class, which can be viewed by clicking here.

6. THE PROPOSED SETTLEMENT BENEFITS

6. What does the Proposed Settlement provide if I submit a claim?

   Subject to Court approval, the parties have agreed to a Settlement under which Defendant will pay $12 million in cash (the “Settlement Fund”). In addition to paying Class Member claims, the $12 million Settlement Fund will be used to pay (i) attorneys’ fees, (ii) litigation costs and expenses, and (iii) incentive awards to the Class Representatives.

   Each class member may submit a claim, either electronically through this website by clicking here, or by mail, for each of the Products purchased during the class period. The Claim Form can be downloaded by clicking here.

   Cash Award Amount for Shake Class Members. Each Shake Class Member may file a claim for a cash payment based on the Shake Class Products purchased during the Shake Settlement Class Period. Shake Class Members will be entitled to submit a claim for $1 per purchased Shake Class Product. Shake Class Members without proof of purchase will be subject to a maximum claim of $25, but Shake Class Members with proof of purchase will have no cap.

   Cash Award Amount for Powder Class Members. Each Powder Class Member may file a claim for a cash payment based on the Powder Class Products purchased during the Powder Settlement Class Period. Powder Class Members will be entitled to submit a claim for $3 for each purchase of a product weighing 2 ¾ lbs. or less and $5 for each purchase of a product weighing more than 2 ¾ lbs. Powder Class Members without proof of purchase will be subject to a maximum claim of $25, but Powder Class Members with proof of purchase will have no cap.

   The Pro Rata Adjustment. Your recovery, and the recovery of every other claimant, will be proportionally adjusted to account for the available portion of the Settlement Fund. Depending on the total dollar amount of all valid claims, this adjustment may increase or decrease your recovery. For instance, if the total dollar amount of all valid claims is less than the available portion of the Settlement Fund (after payment of Plaintiffs’ attorneys’ fees, costs and expenses and any incentive awards), then claimant recoveries will be proportionally increased. Similarly, if the total dollar amount of all valid claims is more than the available portion of the Settlement Fund, then claimant recoveries will be proportionally decreased.

   Timing of Payments. All payments to Settlement Class Members who submit valid Claims will be made after the later of (1) the Claims Deadline or (2) the Settlement Approval Order and Final Judgment becoming final (“Final Settlement Approval Date”). If there is an appeal of the Settlement, then this may take some time. All Settlement Class Members who do not opt out of the Proposed Settlement and who submit a valid claim will receive a cash award as set forth above.

7. HOW YOU GET A CASH PAYMENT — SUBMITTING A CLAIM FORM

7. How can I get a cash payment from the Proposed Settlement?

   Class Members who wish to receive a cash payment must submit claims.

   You can quickly and easily submit a Claim online by clicking here. Read the instructions carefully and submit it online on or before September 16, 2020.

   Alternatively, you may also submit a hard copy Claim Form by mailing it to the following address:

   Lean Protein Settlement
   c/o Class Administrator
   1650 Arch Street, Suite 2210
   Philadelphia, PA 19103

   Your Claim must be postmarked no later than September 16, 2020. You may access a printable Claim Form by clicking here.

   TO BE VALID, ALL CLAIMS MUST BE POSTMARKED OR SUBMITTED ONLINE NO LATER THAN SEPTEMBER 16, 2020.

8. How do I get out or exclude myself from the Proposed Settlement?

   To exclude yourself from the Proposed Settlement, which is sometimes called “opting-out” of the Class, you must send a letter saying that you want to be excluded from this lawsuit.

   To exclude yourself from the Class, you must mail or email a written Request for Exclusion to:

   Class Action Opt-Outs
   ATTN: Lean Protein Settlement
   PO BOX 58220
   Philadelphia, PA 19102
   info@LeanProteinSettlement.com

   Alternatively, you may submit a Request for Exclusion online by clicking here.

   The written Request for Exclusion must be postmarked or submitted online no later than September 16, 2020. Your written Request for Exclusion must contain: (1) the name of this lawsuit, Clay et al. v. CytoSport, Inc., Case No. 3:15-cv-00165-L-DHB; (2) your full name and current address; (3) a statement that the class member belongs to the Powder Class, the Shake Class, or both; (4) a clear request to be excluded from the class such as “I wish to be excluded from the Class”; and (5) your signature. A sample exclusion form can be viewed by clicking here.

   You cannot exclude yourself on the phone. If you ask to be excluded, you will not get any benefit from the settlement, and you cannot object to the Proposed Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Defendant in the future.

9. If I don’t exclude myself, can I sue Defendant for the same things later?

   No. If you do not properly and timely submit a written Request for Exclusion, you waive your right to opt out and will be deemed to be a member of the Class. Unless you exclude yourself, you give up the right to sue Defendant for the claims that this Proposed Settlement resolves, and you will be bound by the terms of this Proposed Settlement. If you have a pending lawsuit against Defendant, other than this class action, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, any exclusion request must be signed and submitted online here or postmarked by September 16, 2020.

10. If I exclude myself, can I get a Cash Award from this Proposed Settlement?

    No. If you exclude yourself, do not send in a claim form to ask for any money. But, you may sue, continue to sue, or be part of a different lawsuit against Defendant.

11. YOUR RIGHTS AND CHOICES – OBJECTING TO THE PROPOSED SETTLEMENT

    You can tell the Court that you do not agree with the Proposed Settlement or some part of it.

11. How do I tell the Court that I don’t like the Proposed Settlement?

    If you are a Class Member, you can object to the Proposed Settlement if you do not like any part of it, including the proposed plan to reimburse Class Members, Class Counsel’s fee award, or the Class Representative incentive award. You can give reasons why you think the Court should not approve it. The Court will consider your views.

    To object, you must send a letter that contains the following:

    • Your name, current address, or your lawyer’s name, address and if you are objecting through counsel;
    • The name of the lawsuit, Clay et al. v. CytoSport, Inc., Case No. 3:15-cv-00165-L-DHB;
    • The class product(s) that you purchased and the date(s) of purchase;
    • A statement of your objections and the reasons for each objection you make, including the facts supporting your objection and the legal grounds on which your objection is based;
    • If you (or your lawyer) want to appear and speak at the Fairness Hearing, a statement that you wish to appear and speak;
    • Documents sufficient to establish your membership in the Settlement Class, such as verification under oath as to the date(s) and location(s) of your purchase of Settlement Class Product(s), or a Proof of Purchase; and
    • Your signature (and your lawyer’s signature, if any).

    To object, you must file a written objection with the Clerk of the Court for the Southern District of California no later than September 16, 2020. You must also send, with a postmark date no later than September 16, 2020, copies of your objection along with any supporting documents to counsel for the Class and Defendant. Addresses for the Clerk of the Court, Class and Defendant’s counsel are located below.

    Clerk of Court:	Designated Counsel for the Class:	Counsel for Defendant:
    U.S. District Court Southern District of California 333 West Broadway, Ste 420 San Diego, CA 92101	Trenton R. Kashima Sommers Schwartz P.C. 502 West Broadway., Suite 1760 San Diego, CA 92101 Telephone: (619) 762-2125 Facsimile: (619) 762-2123 E-Mail: Protein@sommerspc.com	Aaron D. Van Oort Faegre Drinker Biddle & Reath LLP 2200 Wells Fargo Center Minnesota, MN 55402-3901 Telephone: (612) 796-8138 E-Mail: Aaron.Vanoort@Faegredrinker.com

    If you object through a lawyer, you will have to pay for the lawyer yourself. Class Members may also voice their objections at the Fairness hearing.

    Remember, even if you object, you can still file a Claim under the Proposed Settlement. Class Members who wish to receive a cash payment must submit a Claim. Please read the instructions in FAQ 7 carefully and submit your Claim on or before September 16, 2020.

12. What is the difference between objecting and asking to be excluded?

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

13. YOUR RIGHTS AND CHOICES – APPEARING IN THE LAWSUIT

13. Can I appear or speak in this lawsuit and Proposed Settlement?

    As long as you do not exclude yourself, you can (but do not have to) participate and speak for yourself in this lawsuit and Proposed Settlement. This is called making an appearance. You can also have your own lawyer appear in court and speak for you, but you will have to pay for the lawyer yourself.

14. How can I appear in this lawsuit?

    If you want yourself or your own lawyer (instead of Class Counsel) to participate or speak for you in this lawsuit, you should say in your written objection that you plan to attend and/or speak at the Fairness Hearing.

15. What happens if I do nothing at all?

    If you do nothing, you will get no cash award from this Proposed 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 Defendant about the subject matter of this lawsuit, ever again.

16. Do I have a lawyer in this case?

    The Court has appointed Nick Suciu III of Barbat Mansour Suciu & Tomina PLLC, and Jason J. Thompson and Trenton Kashima of Sommers Schwartz, P.C. as legal counsel for the Class. Counsel for the Class are frequently referred to as “Class Counsel.” You will not be charged for these lawyers.

17. How will the lawyers be paid?

    From the inception of the litigation in January 2015 to the date of the Proposed Settlement, Class Counsel has not received any payment for their services in prosecuting the case or obtaining settlement, nor have they been reimbursed for any out-of-pocket expenses they have incurred. When they ask the Court to approve the Proposed Settlement, Class Counsel will also make a motion to the Court for an award of attorneys’ fees and costs in a total amount not to exceed one-third of the Settlement Fund. No matter what the Court decides with regard to the requested attorneys’ fees, costs and expenses, Class Members will never have to pay anything toward the fees, costs or expenses of Class Counsel. Class Counsel will seek final approval of the Proposed 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.

18. THE COURT’S FINAL FAIRNESS HEARING

    The Court will hold a hearing to decide whether to approve the Proposed Settlement. You may attend and you may ask to speak, but you do not have to attend or speak.

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

    The United States District Court for the Southern District of California (the “Court”) will hold a hearing (the “Fairness hearing”) at the Edward J. Schwartz U.S. Courthouse located at 221 West Broadway, Courtroom 5B, San Diego, CA 92101 on October 19, 2020 at 10:30 a.m. to decide whether the settlement is fair, reasonable, and adequate and to determine the amount of attorneys’ fees, costs and expenses, and incentive fee awards. The Court may adjourn the date and time of this hearing at any time without further notice. Please check this website for updates or you may contact Class Counsel at Protein@sommerspc.com to confirm the date and time of the hearing. If there are objections, the Court will consider them. The Court may also discuss Class Counsel’s request for an award of attorneys’ fees and reimbursement of costs and expenses. After the hearing, the Court will decide whether to approve the settlement and whether to grant Class Counsel’s request for attorneys’ fees, costs and expenses. We do not know how long these decisions will take.

19. Do I have to come to the hearing?

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

20. FINAL SETTLEMENT APPROVAL

20. What is the effect of final settlement approval?

    If the Court grants final approval of the Proposed Settlement, all members of the Class will release and forever discharge any and all claims or causes of action that have been, might have been, are now, or could have been brought relating to the transactions, actions, conduct and events that are the subject of this action or settlement, arising from or related to the allegations in the complaint filed in the Action or Defendant’s marketing, advertising, promoting or distributing of the Products.

    If the Proposed Settlement is not approved, the case will proceed as if no settlement had been attempted. If the Proposed Settlement is not approved and litigation resumes, then there can be no assurance that the Class will recover anything.

21. GETTING MORE INFORMATION

21. Are there more details about the Proposed Settlement?

    You may view the complete text of the Settlement Agreement by clicking here, by contact the Class Administrator at the address below, or from the court file, which is available for your inspection during regular business hours at the Office of the Clerk of the United States District Court for the Southern District of California, located at 333 West Broadway, Suite 420, San Diego, CA 92101.

    You may also view Plaintiffs’ Complaint and other documents related to the settlement on the Important Documents page of this website by clicking here.

    You may also contact Class Administrator by email at info@LeanProteinSettlement.com, or calling toll-free 1-833-934-2606, or by writing to:

    Lean Protein Settlement
    c/o Class Administrator
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103

    Additionally, you can email Class Counsel at Protein@sommerspc.com.

    PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.