Attorneys’ Fees Reduced in ‘All Day Greens’ Class Settlement

Purchasers of “All Day Energy Greens,” a dietary supplement that allegedly made them sick, won a federal court’s final approval of a class settlement agreement they reached with NaturMed Inc., its contractor Bactolac Pharmaceutical Inc., and a successor company.

The agreement gave every class member a choice between receiving a $10 coupon to be used toward future purchases of any NaturMed product within the next three years, or a cash payout based on the number who chose the cash option, with a total maximum cash award of $100,000. Although coupon settlements are inherently suspect, the agreement was both procedurally and substantively fair because it was negotiated at arms-length and gave class members a cash option, the US District Court for the Eastern District of New York said.

The court, however, refused to approve a payout of nearly $1.2 million in attorneys’ fees and costs. The hours spent litigating the case and class counsel’s hourly rates were reasonable, but “the value of the benefits to be awarded to the class members compared with the handsome fee award reveals an imbalance that cannot be justified as proposed,” Judge Frederic Block said in Monday’s opinion. Class counsel’s request can be renewed if they agree to a proposal reallocating the settlement fund to obtain a “more palatable split,” he said.

• The settlement was negotiated based on an estimated class size of nearly 200,000, which would mean each person would get about 53 cents if all of them opted for cash
• But just over 10,000 class members made a claim and approximately 6,000 took the cash option, meaning they’ll get about $16 each
• Reducing class counsel’s fee by about $145,000 and increasing the cash available to the class by the same amount would provide “something approaching complete relief” to the class members who chose the cash opinion, as it would increase their payout to about $40—the cost of one package of the product, Block said

Peter Samberg of Ardsley on Hudson, N.Y., and Weitz & Luxenberg PC represent the class. Segal McCambridge Singer & Mahoney and Stackpole & French represent Bactolac. Lewis Brisbois Bisgaard & Smith LLP, Snell & Wilmer LLP, and Tyson & Mendes LLP represent NaturMed. Fennemore Craig PC and Nixon Peabody LLP represent the successor company, Independent Vital Life LLC.

The case is Copley v. Bactolac Pharm., Inc., E.D.N.Y., No. 18-cv-575, 3/13/23.