Atkins lawsuit
I got this off the Atkins site. It looks like they settled a class action suit about the Net Carb listings on their food labels. Anyone know anything about this?
http://atkinscenter.com/img/assets/...tice_041003.pdf |
Here's the text:
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 |
Heard about this a couple of months ago and the Atkins website did have an article for a while (might still be there, but I haven't looked in a while) about how you could get a refund for any of the old bars that may have been purchased. You did, however, need to produce a cash register receipt with the price of the bar circled in order to get the refund.
Atkins wasn't the only one in that lawsuit. Looks like they pretty much went after anyone who didn't include, glycerin, fiber and sugar alcohols in their total carb counts. |
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