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Alpert et al. v. Optavia, LLC

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

 

Alpert et al. v. Optavia, LLC; United States District Court for the Southern District of California Case No. 3:22-cv-00434-DMS-MSB

 

YOUR LEGAL RIGHTS MAY BE AFFECTED WHETHER YOU ACT OR DO NOT ACT.   PLEASE READ THIS NOTICE CAREFULLY.

 

Case Name: Jamie Zeller and Angelica Alpert, et al. v. Optavia LLC
Case No.: 3:22-cv-00434-DMS-MSB

Dear [Class Member],

You are receiving this notice because you may be eligible to participate in a class action settlement involving Optavia LLC. The settlement relates to claims alleging that Optavia’s Premier Program violated California law, including the Automatic Renewal Law.

1. What is this Notice?

This is a court-authorized Long-Form Notice of a proposed Settlement (the “Settlement”) of a class action lawsuit (the “Litigation”), Jamie Zeller and Angelica Alpert, et al. v. Optavia LLC, 3:22-cv-00434-DMS-MSB, pending in the U.S. District for the Southern District of California (the “Court”). The Court has granted Preliminary Approval of the Settlement Agreement and has conditionally certified the Settlement Class for purposes of Settlement only. This Long-Form Notice explains the nature of the Litigation, the terms of the Settlement Agreement, and the legal rights and obligations of members of the Settlement Class. Please read the instructions and explanations below carefully so that you can better understand your legal rights. The Settlement Administrator in this case is Apex.

2. What is this lawsuit about? 

Plaintiffs allege that Optavia violated California’s False Advertising Law, Unfair Competition Law, and other laws by failing to provide the necessary disclosures and failing to obtain sufficient consent to enroll consumers in Optavia’s Premier Program, which Plaintiffs claim is an automatic renewal program. Optavia vehemently denies these allegations but has agreed to settle to avoid further litigation.

3. Why did I get this Notice?

You were identified as a California customer who was enrolled in Optavia’s Premier Program between October 1, 2017, and March 17, 2022, received one automatic shipment, and then canceled.

4. Why is this a class action?

A class action is a lawsuit in which an individual called a “Class Representative” brings a single lawsuit on behalf of other people who have similar claims. In a class action settlement, all of these people together are a “Settlement Class” or “Settlement Class Members.” When a class action is settled, the Settlement, which must be approved by the Court, resolves the claims for all Settlement Class Members, except for those who exclude themselves from the Settlement.

5. Why is there a settlement?

To resolve this matter without the expense, delay, and uncertainties of protracted litigation, the Parties reached a Settlement. The Settlement is not an admission of wrongdoing by Optavia and does not imply that there has been, or would be, any finding that Optavia violated the law. The Court overseeing the Litigation has not determined that Optavia did anything wrong.

The Court already has preliminarily approved the Settlement Agreement. Nevertheless, because the settlement of a class action determines the rights of all members of the Settlement Class, the Court overseeing this Litigation must give final approval to the Settlement Agreement before it can be effective. The Court has conditionally certified the Settlement Class for settlement purposes only, so that members of the Settlement Class may be given notice and the opportunity to exclude themselves from the Settlement Class or to voice their support or opposition to final approval of the Settlement Agreement. If the Court does not grant final approval to the Settlement Agreement, or if it is terminated by the Parties, then the Settlement Agreement will be void, and the Litigation will proceed as if there had been no settlement and no certification of the Settlement Class.

6. How do I know if I am a part of the Settlement?

If you are a California customer who was enrolled in Optavia’s Premier Program between October 1, 2017, and March 17,

2022, received one automatic shipment, and then canceled, you are a member of the settlement class. Excluded from the Class

are Defendant and its parents, subsidiaries, and affiliates; all persons who properly elect to be excluded from the Classes; governmental entities; counsel involved in the Litigation; and the Judge to whom this case is assigned and his/her immediate family.

YOUR BENEFITS UNDER THE SETTLEMENT 

7. What can I get from the Settlement?
  1. Voucher Option: If you do not opt-out or choose a cash payment, you will automatically receive a voucher for $75 toward Optavia products.

  2. Cash Payment Option: You may elect to receive a cash payment of no less than $70 instead of the voucher by submitting a claim form.

8. I want to be a part of the Settlement. What do I do?
  • Do Nothing: You will automatically receive the voucher if you take no action. Each Voucher will contain a unique Voucher Security Number that will need to be entered at checkout on Optavia’s Website in order for a Settlement Class Member to use the Voucher. The $75 will be applied at checkout and is good for one time use. All Vouchers shall expire 18 months from original date of issuance. Vouchers may be transferred to other settlement class members or to an existing Optavia customer (“Transferred Voucher”). To transfer a Voucher, the Settlement Class Member must contact Optavia to initiate the transfer and provide the Voucher Security Number to Optavia. Transferred Vouchers must only be used to purchase Optavia Product, may not be redeemed for cash, and expire 18 months from the original date the Voucher was issued. Vouchers may be used by Settlement Class members, or valid transfer recipients, in conjunction with other offers.
  • Request a Cash Payment: Submit a Cash Payment Election Form online at [Settlement Website] by [deadline]. Any Settlement Class Member who elects the Cash Payment will be ineligible to receive a Voucher and will not be sent a Voucher. On the Cash Payment Election Form, you will be able to elect to receive the Cash Payment via electronic payment or via check.

 

9. When will I receive the benefits?

If you do nothing the Voucher will be automatically emailed to you once the Settlement is final. If you elect to receive the Cash Payment and elect to receive the Cash Payment electronically, you will receive the Cash Payment within 30 days of the settlement becoming final. If you elect to receive Cash Payment and elect to receive the Cash Payment via check, you will receive your check within eight (8) to ten (10) weeks of the settlement becoming final. 

10. What am I giving up if I remain in the Settlement?

By staying in the Settlement Class, you will give Optavia a “release,” and all the Court’s orders will apply to you and bind you. A release means you cannot sue or be part of any other lawsuit or other legal action against Optavia about or arising from the claims or issues in this Litigation.

The precise terms of the release are in the Settlement Agreement, which is available on the Settlement Website. Unless you formally exclude yourself from this Settlement, you will release your claims.

Excluding Yourself from the Settlement

If you do not want to remain in the Settlement, and instead want to keep any legal claims you may have against Optavia, then you must take steps to exclude yourself from this Settlement.  

11. How do I get out of the Settlement? 

To exclude yourself from the Settlement, you must send the Settlement Administrator a letter stating: (1) your name, current address, and telephone number, (2) the name, address, and email associated with your Optavia account, and (3) and (3) clear statement communicating that you elect to be excluded from the Settlement, you do not wish to be a Settlement Class Member and you elect to be excluded from any judgment entered pursuant to the settlement. You must mail your exclusion request so that it is postmarked no later than February 14, 2024, to:

Insert Settlement Admin Name and address

Apex Class Action, LLC

P.O. Box 54668,

Irvine, CA 92619

12. If I exclude myself, do I still receive benefits from this Settlement? 

No, if you submit an exclusion request, you will not receive anything from the Settlement, but you retain your right to sue Optavia over the claims raised in the Litigation.

The Lawyers Representing The Settlement Class

13. Do I have a lawyer in this case?

The Court has appointed the following attorneys to represent the Settlement Class as Class Counsel:

Richard M. Golomb

Kevin W. Fay

Golomb Legal, PC

One Logan Square

130 N. 18th Street, #1600

Philadelphia, PA 19103

215.985.9177

Jonas Jacobson

Dovel & Luner LLP

201 Santa Monica Blvd, Suite 600

Santa Monica CA, 90401

310.656.7066

 

You may contact Class Counsel at the numbers above (at no out of pocket cost). If you want to be represented by your own lawyer, you may hire one at your own expense.

14. How will the lawyers for the Settlement Class be paid?

Class Counsel will be paid by Optavia. Class Counsel will seek Court approval to be paid attorneys’ fees not to exceed a total of $572,000. The motion for attorneys’ fees and expenses will be posted on the Settlement Website after it is filed.

 

OBJECTING TO THE SETTLEMENT

15. How do I tell the Court that I do not like the Settlement?

If you are a Settlement Class Member, you can object to the Settlement, or some part of it, and the Court will consider your views. In order to object to the Settlement, and if represented by counsel, you must file a notice with the Court  and : (a) set forth your name, current address, and telephone number; (b) state that you have reviewed the Settlement Class definition and understand that you are a Settlement Class Member, as well as provide written proof establishing that you are a Settlement Class Member; (c) provide a written statement of the objection(s), including a statement whether the objection applies only to the objector, to a specific subset of the Settlement Class, or to the entire Settlement Class; (d) state with specificity the grounds for the objection, including any evidence and legal authority the Settlement Class Member wishes to bring to the Court’s attention. If you are not represented by counsel, you must submit the information above, in a postmarked letter to the Settlement Administrator, Apex at: Apex Class Action, LLC P.O. Box 54668, Irvine, CA 92619.

In addition, any Settlement Class Member objecting to the Settlement (if represented by counsel) shall file a sworn declaration listing all other objections submitted by the objector or the objector’s counsel to any class action settlements submitted in any court, state or federal, in the United States in the previous five (5) years.

 If an objecting Settlement Class Member is not represented by counsel, they must state their intent to appear at the Final Approval Hearing in a timely-submitted written objection. Further information about submitting an objection can be found in the Settlement Agreement, which is on the Settlement Website. 

You must file or postmark any objection no later than February 14, 2024

 

THE FINAL APPROVAL HEARING

The Court will hold a hearing to decide whether to grant final approval of the Settlement. You may attend if you wish, but you are not required to do so.

16. Where and when is the Final Approval Hearing?

The Court has already given Preliminary Approval to the Settlement Agreement. A final hearing on the Settlement, called a Final Approval Hearing, will be held to determine the fairness of the Settlement Agreement. 

The Court will hold a hearing on May 30, 2024, at <<time>> PT in the courtroom of the Honorable Dana M. Sabraw, Courtroom 13A, which is located at the James M. Carter and Judith N. Keep United States Courthouse, 333 Broadway, San Diego, CA 92101. The purpose of the hearing will be for the Court to determine whether the proposed Settlement is fair, reasonable, and adequate and in the best interests of the Settlement Class and to determine the appropriate amount of compensation for Class Counsel and rule on the request for a Service Award for the Class Representative. At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the proposed Settlement. The Court will then decide whether to approve the Settlement.

YOU ARE NOT REQUIRED TO ATTEND THE FINAL APPROVAL HEARING TO RECIEVE BENEFITS FROM THIS SETTLEMENT. Please be aware that the hearing may be postponed to a later date without notice.

Getting More INFORMATION – Contact:

This notice only provides a summary of the proposed Settlement. Complete details about the Settlement can be found in the Settlement Agreement available on the Settlement Website.

https://optaviasettlement.com/

If you have any questions, you can contact the Settlement Administrator at:

 Apex Class Action, LLC

P.O. Box 54668,

Irvine, CA 92619

claims@apexclassaction.com

Telephone: (800) 355 – 0700

In addition to the documents available on the Settlement Website, all pleadings and documents filed in this Litigation may be reviewed or copied at the Clerk of Court’s office.

DO NOT CALL OR SEND ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT, THE JUDGE, OR OPTAVIA OR ITS COUNSEL. ALL QUESTIONS ABOUT THE SETTLEMENT SHOULD BE REFERRED TO THE SETTLEMENT ADMINISTRATOR OR CLASS COUNSEL.