Frequently Asked Questions
- Why Was the Notice Issued?
- What is a Class Action Lawsuit?
- What is the Lawsuit About?
- Why is There a Settlement?
- How do I Know if I am Part of the Settlement Class?
- What Can I Get From the Settlement?
- How do I File a Claim and Receive Payment or Product Voucher(s)?
- When Will I Get My Payment?
- What Other Relief is Provided Under the Settlement?
- What am I Giving Up to Stay in the Class and Receive Benefits Under the Settlement?
- How do I Exclude Myself From the Settlement?
- If I Exclude Myself, Can I Get Money in the Settlement?
- How do I Tell the Court I do not Like the Settlement?
- What’s the Difference Between Excluding Myself and Objecting to the Settlement?
- When and Where is the Final Approval Hearing?
- May I Speak at the Hearing?
- Do I Have a Lawyer in This Case?
- How Will my Representatives be Paid?
- How do I Get More Information?
The Court authorized the notice because you have a right to know about a settlement in a class action lawsuit, and what your options are, before the Court decides whether to approve the settlement. The notice explains the lawsuit, the 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 New York, and the case is known as Stacey B. Fishbein et al. v. All Market Inc. d/b/a Vita Coco, Case No. 11-CIV-5580 (JPO). The consumers who brought the lawsuit are called the “Plaintiffs,” and the company they sued, Vita Coco, is the “Defendant.”
2. What is a Class Action Lawsuit?
A class action is a lawsuit in which one or more individuals sue an individual(s), company or other entity on behalf of all other people who are in a similar position. Collectively, these people are referred to as a class or class members. In a class action, the court resolves certain legal issues, legal claims and defenses for all class members in one lawsuit, except for those who ask to be excluded from the class.
This is a case about Vita Coco’s representations concerning the health benefits and nutritional content of its Vita Coco Products. Plaintiffs made claims against Vita Coco for violations of state consumer protection laws, breach of express warranty, negligent misrepresentation, and unjust enrichment.
Class Counsel (defined below) conducted an extensive investigation and evaluation of the facts and law relating to this case. Taking into account the burdens and expense of the lawsuit, including the risk and uncertainty of litigation and the difficulties and delays inherent in such litigation, and the substantial benefits available to the Settlement Class under the Stipulation, including providing effective relief to the Plaintiffs and the Settlement Class, Plaintiffs and Class Counsel agreed to settle the lawsuit.
Although Vita Coco denies all charges of wrongdoing or liability, it has concluded that further defense of the litigation would be protracted and expensive and has taken into account the uncertainty and risks inherent in this lawsuit. Vita Coco agreed to enter into the settlement to avoid the further costs and burdens of litigation and to resolve all claims that were or could have been brought against Vita Coco.
The Court has not decided in favor of Plaintiffs or Vita Coco. There has been no trial. Instead, the Parties agreed to a settlement. By agreeing to a settlement, the Parties avoid the costs and uncertainty of a trial and Settlement Class Members receive the benefits described in the notice. Plaintiffs and their attorneys believe that the settlement is in the best interest of the Settlement Class Members.
5. How do I Know if I am Part of the Settlement Class?
To participate in the settlement, you first have to determine if you are a Settlement Class Member. The Settlement Class includes all persons or entities in the United States who made retail purchases of Vita Coco Products between August 10, 2007 and the date in which the Court finally approves this settlement (the “Settlement Class Period”). Excluded from the Settlement Class are: (a) Vita Coco’s employees, officers, directors, agents, and representatives; (b) those who purchased Vita Coco Products for the purpose of re-sale; (c) all federal judges who have presided over this case; and (d) all persons who have been properly excluded from the Settlement Class.
6. What Can I Get From the Settlement?
You may be entitled to cash payments or product vouchers. The amount received will depend on whether or not you still have “Proof of Purchase” (defined in the Stipulation as “a valid receipt or other document reflecting a purchase on or after August 10, 2007 and on or before the date of final approval of this Stipulation”).
- Cash Payment With Proof of Purchase: If you have Proof of Purchase, you may receive a check in the amount of the purchase(s) up to a maximum of $25.00 per Settlement Class Member.
- Cash Payment Without Proof of Purchase: If you do not have Proof of Purchase, you may receive a check in the amount of $6.00 per Settlement Class Member.
- Product Voucher With Proof of Purchase: If you have Proof of Purchase, you may receive a product voucher with a retail value in the amount of the purchase(s) up to a maximum of $36.00 per Settlement Class Member.
- Product Voucher Without Proof of Purchase: If you do not have Proof of Purchase, you may receive a product voucher with a retail value of $8.00 per Settlement Class Member.
Under the terms of the Stipulation, if the total amount of eligible claims exceeds the “Cash Settlement Fund” (defined in the Stipulation as the $1 million fund provided by Vita Coco), then each claimant’s award will be proportionately reduced. If after all valid claims are paid, money remains in the Cash Settlement Fund, the remaining amount shall be paid to one or more charities that promote healthy living as mutually agreed by the Parties and approved by the Court.
Each product voucher shall have a face value of $2.00 and can, at the claimant’s discretion, be used toward the purchase of any larger sized container. Product vouchers shall be valid for a period of three (3) months from issuance. If the total amount of eligible product voucher claims exceeds the "Product Voucher Settlement Fund" (defined in the Stipulation as $1 million in current retail value of Vita Coco product vouchers), then each claimant’s award shall be proportionately reduced. If the total amount of product vouchers redeemed within three (3) months of issuance does not exceed $1 million in current retail value, then Vita Coco Products, in an amount equal to the current retail value of the outstanding balance of the Product Voucher Settlement Fund, shall be distributed by Vita Coco over the next nine (9) months in the form of Vita Coco Product giveaways near retail outlets which sell Vita Coco Products in the top 15 U.S. markets.
7. How do I File a Claim and Receive Payment or Product Voucher(s)?
To receive a cash payment or product voucher you must have either: (1) timely submitted a claim form on this website by July 23, 2012 and followed all instructions and submitted all the requested paperwork about your claim, so that your claim will be approved; or (2) obtained a claim form by calling 1 (855) 375-3055 or downloaded and printing out a claim form from this website, then filled it out fully and sent a copy by mail, private courier, or as an email attachment to the Class Action Settlement Administrator (as defined in the Stipulation) to VitaCocoSettlement@gcginc.com by July 23, 2012.
Failure to provide all information requested in the claim form will not result in nonpayment of a claim. Instead, the Class Action Settlement Administrator will take all adequate and customary steps to determine the claimant’s eligibility for payment and the amount of payment based on the information contained in the claim form or otherwise submitted, the amount of money available to pay all valid claims, and such other reasonably available information from which eligibility for payment can be determined.
8. When Will I Get My Payment?
The Court held a hearing on August 22, 2012 at 2:30 p.m. to decide whether to approve the settlement. The Court approved the settlement on August 22, 2012. Payments will be distributed after any appeals, which may be filed, are resolved. Payment in cash or product voucher(s) will be made directly to you by first class mail after entitlement to payment to all claimants is determined.
9. What Other Relief is Provided Under the Settlement?
Vita Coco has agreed to institute a program over the next five years at a cost of at least $4 million that includes: (1) changing the labels and advertising of its Vita Coco Products to more clearly describe the variable nature of coconut water by, among other things, creating geographically distinct labeling and destroying existing inventories of labels; and (2) increasing quality control of Vita Coco Products, as detailed in the Stipulation. Vita Coco has also agreed to distribute to charitable organizations that promote healthy living, a total of $3 million worth of Vita Coco Products, an amount which will be calculated based on the retail prices derived from current IRI data (at a level of $1 million in retail value of product each year). The charities shall be agreed upon by the Parties and approved by the Court.
10. What am I Giving Up to Stay in the Class and Receive Benefits Under the Settlement?
If you meet the definition of Settlement Class Member you are part of the Settlement Class unless you filed a request for exclusion. As part of the Settlement Class you will be bound by the settlement and Court orders. You are a Settlement Class Member and bound by the settlement whether or not you file a claim form or receive an award.
When and if the settlement is approved, Plaintiffs and Settlement Class Members who did not validly exclude themselves from the Settlement Class pursuant to the Stipulation, will be deemed to release Vita Coco and other “Released Persons” (as defined in the Stipulation).
In connection with the “Released Claims” (as defined in the Stipulation), each Settlement Class Member shall be deemed to have waived any and all provisions, rights, and benefits conferred by § 1542 of the California Civil Code (and similar state laws) which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
11. How do I Exclude Myself From the Settlement?
If you are a Settlement Class Member, you will automatically be bound by the terms of the settlement, unless you took affirmative steps to get out of the Settlement Class. This is called “excluding yourself” or “opting out.”
To have excluded yourself or “opted out” from the settlement, you must have mailed or delivered a written request for exclusion to the Class Action Settlement Administrator postmarked or delivered no later than July 23, 2012.
The written request for exclusion must have specifically and unambiguously requested exclusion from the Settlement Class and must have included: (1) your original signature; (2) your name, current address and current telephone number; (3) a statement that you are a member of the Settlement Class; and (4) a specific statement indicating that you wanted to be excluded from the Settlement Class. You will be bound to the terms of the settlement, if you failed to comply with these requirements.
If you “opted out” of the Settlement Class, you will not: (1) be legally bound by anything that happens in this lawsuit; (2) get any payment; (3) gain any rights under the settlement; or (4) be able to object to any aspect of the settlement.
12. If I Excluded Myself, Can I Get Money in the Settlement?
No. If you excluded yourself, do not send in a claim form to ask for money or a product voucher. Also, you cannot object to the settlement.
13. How do I Tell the Court I do not Like the Settlement?
If you are a Settlement Class Member, you could have objected to the settlement if you didn’t like any part of it. You could have given reasons why you think the Court shouldn’t approve it. The Court will consider your views so long as you follow the directions below. As a Settlement Class Member, you will be bound to the settlement and Court orders regardless of your objection and regardless of whether you believe the terms of the settlement are favorable to the Settlement Class. You will be bound to the settlement even if you have another claim, lawsuit or proceeding pending against Defendant.
To object, you must have sent a letter to Class Counsel and Vita Coco’s Counsel saying that you object to the lawsuit and have filed that same letter with the Court. The letter must have: (1) been mailed and postmarked, and also filed with the Court, by July 23, 2012; (2) included your name, current postal address, and current telephone number; (3) provided Proof of Purchase of a Vita Coco Product or a statement sworn to under penalty of perjury, pursuant to 28 U.S.C. § 1746, attesting to the fact that you purchased one or more Vita Coco Products during the Settlement Class Period; (4) stated the reasons for objecting to the settlement; and (5) stated whether you intend to appear personally at the Final Approval Hearing, or whether you will have your attorney make an appearance. You must have also included your signature and the case name and number (Fishbein et al. v. All Market Inc. d/b/a Vita Coco, Case No. 11-CIV-5580 (JPO)). You must have mailed the objection to Class Counsel and Vita Coco’s Counsel at the addresses listed below postmarked no later than July 23, 2012. And filed the objection with the Court no later than July 23, 2012.
Any Settlement Class Member who did not make his or her objections according to these requirements waived their objections to the settlement, to payment of attorneys’ fees and expenses, and to payment of incentive awards to the class representatives.
14. What’s the Difference Between Excluding Myself and Objecting to the Settlement?
Objecting is simply telling the Court that you don’t like something about the settlement. You can have objected only if you stayed in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If you excluded yourself, you have no basis to object because the case no longer affects you.
15. When and Where is the Final Approval Hearing?
The Court held a Final Approval Hearing at 2:30 p.m. on August 22, 2012, in the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York, 10007-1312 in the Courtroom of the Honorable J. Paul Oetken. At this hearing, the Court approved the Settlement as fair, reasonable, and adequate. The Court also considered any objections filed and approved Class Counsel's attorneys' fees and expenses in the amount of $750,000 and approved the four class representative incentive awards in the amount of $2,000 each.
16. May I Speak at the Hearing?
You may have asked the Court for permission to speak at the Final Approval Hearing to object to: (i) the settlement; (ii) dismissal of the lawsuit in light of the settlement; (iii) the release of Settlement Class Members’ claims against Vita Coco and other Released Parties (as defined in the Stipulation); (iv) Class Counsel’s request for attorneys’ fees and expenses; or (v) the class representatives’ request for incentive awards.
To speak at the hearing, you must have stated whether you intended to appear personally at the Final Approval Hearing, or whether you would have had your attorney make an appearance, in your objection.
You could not have spoken at the hearing if you excluded yourself from the Settlement Class.
17. Do I Have a Lawyer in This Case?
The Court assigned the following attorneys to represent you and the other Settlement Class Members:
|
Bernard Persky Hollis L. Salzman William V. Reiss Labaton Sucharow LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 |
Joe R. Whatley, Jr. Patrick J. Sheehan Whatley Drake & Kallas, LLC 380 Madison Avenue, 23rd Floor New York, NY 10017 Telephone: (212) 447-7036 |
Together the lawyers are called “Class Counsel.” You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
You are also represented by the “Plaintiffs,” whom the Court assigned to serve as class representatives for you and the other Settlement Class Members.
18. How Will my Representatives be Paid?
Class Counsel applied for and the Court approved their fees and expenses not to exceed a total of $750,000 subject to the terms of the Stipulation. The Court also approved Vita Coco’s payment of an “incentive award” of $2,000 to each of the four class representatives. All fees and expenses awarded to Class Counsel and incentive awards awarded to class representatives will be paid by Vita Coco in addition to the $1 million Cash Settlement Fund, subject to the terms set forth in the Stipulation, and will therefore have no effect on the Cash Settlement Fund or the other relief provided by the Stipulation.
19. How do I Get More Information?
For more information, contact the Class Action Settlement Administrator directly by calling 1 (855) 375-3055.
PLEASE DO NOT CONTACT THE COURT, THE CLERK’S OFFICE, OR VITA COCO’S COUNSEL FOR INFORMATION. ALL INQUIRIES SHOULD BE DIRECTED TO THE CLASS ACTION SETTLEMENT ADMINISTRATOR AT THE NUMBER ABOVE.
