Kerrigan et al v. VISALUS, INC. et al

Filing 238

ORDER Granting Final Approval of Class Action Settlement and Final Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY KERRIGAN, LORI MIKOVICH
and RYAN M. VALLI, individually, and on
behalf of all others similarly situated,
Case No. 14-cv-12693
Hon. Matthew F. Leitman

Plaintiffs,
v.
VISALUS, INC., a corporation, et al.,
Defendants.

ORDER GRANTING FINAL APPROVAL OF
CLASS ACTION SETTLEMENT AND FINAL JUDGMENT
Plaintiffs and Class Representatives Timothy Kerrigan, Lori Mikovich and
Ryan Valli (“Named Plaintiffs”) acting individually and on behalf of the Settlement
Class, filed an Unopposed Motion for Final Approval of Proposed Settlement and
Final Judgment (the “Motion”). The Motion seeks final approval of the Class
Representatives’ agreement (“Agreement”), as specified in their written settlement
agreement (“Settlement Agreement”) with ViSalus, Inc. (“ViSalus”), Nick
Sarnicola, Robert Goergen, Sr., Todd Goergen, Ryan Blair, Blake Mallen, Frank
Varon, Kyle Pacetti, Jr., Michael Craig, Timothy Kirkland, Holley Kirkland, Aaron
Fortner, Rachel Jackson, Tara Wilson, Anthony Lucero, Rhonda Lucero, Jake
Trzcinski, Gary J. Reynolds, Kevin Merriweather, Ropart Asset Management Fund

I, LLC, Ropart Asset Management Fund II, LLC, Living Trust Dated 9/30/1991
f/b/o Robert B. Goergen, OCD Marketing, Inc., Power Couple, Inc., Arrive By 25,
Inc., BAM Ventures, Inc., Gooder, LLC, Red Letters, LLC, M-Power Path, Inc., A
Berry Good Life, Inc., Network Dynamics America Corp., Freedom Legacy, LLC,
Residual Marketing, Inc., Got Heart Global, Inc., Jaketrz, Inc., Mojos Legacy, LLC,
Beachlifestyle Enterprises, LLC, Wealth Builder International, Prospex Automated
Wealth Systems, Inc., 9248-2587 Quebec, Inc., Jason O’Toole, and Lori Petrilli
(collectively “Defendants”) to settle all individual and class claims that have, or
could have, been made in Plaintiffs’ Fourth Amended Complaint as specified in
their written settlement agreement (“Settlement Agreement”). This Court, having
reviewed the Motion and the exhibits, including the Settlement Agreement, finds
itself to be apprised of the issues and grants the Motion.
NOW, THEREFORE, this Court, having heard the oral presentations made
at the Final Approval Hearing, having reviewed the submissions presented
regarding the proposed Settlement, having determined that the Settlement is fair,
adequate, and reasonable, and having received arguments concerning the award of
attorneys’ fees, and having reviewed the materials in connection therewith, and
now deeming itself to be fully informed;

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED
THAT:
1.

The capitalized terms used in this Order and Judgment shall have the

same meaning as defined in the Settlement Agreement except as may otherwise be
ordered.
2.

This Court has jurisdiction over the subject matter of this case, all

claims raised therein, and all Parties thereto, including the members of the
Settlement Class.
3.

This Court finds, solely to consider this Agreement, that the

requirements of

Federal Rule of Civil Procedure 23 are satisfied, including

requirements for numerosity, commonality, typicality, adequacy of representation,
manageability of the Settlement Class for settlement, that common issues of law
and fact predominate over individual issues, that common issues of law and fact
predominate over individual issues, and that settlement and certification of the
Settlement Class is superior to alternative means of resolving the claims and
disputes.
4.

The Settlement Class, which will be bound by this Final Approval

Order and Judgment, shall include all members of the Settlement Class who did not
submit timely and valid requests for exclusion. The following twenty-two (22)
individuals, members of the Settlement Class, timely submitted notices to opt out
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of this class settlement, and therefore their rights are not affected by this final
judgment: (1) Johnny Volpe, ViSalus IP #3396754; (2) Victoria Hughes, ViSalus
IP #1822936; (3) Cynthia Cialdella, ViSalus IP #2757479; (4) Alison Belgrave,
ViSalus IP #1330764; (5) Carlos Ubinas ,ViSalus IP #2502998; (6) Jean-Michel
Moulin, ViSalus IP #1621357; (7) Kimberley Earl, ViSalus IP #3462962; (8)
Maxime Lacoursiere, ViSalus IP #2329006; (9) Benoit Giguere, ViSalus IP
#1269371; (10) Caroline Dombroskie, ViSalus IP #3953459; (11) Christopher
Scarfo, ViSalus IP #514227; (12) Youri Durocher, ViSalus IP #1631810; (13)
Claudette Grondin, ViSalus IP #1269648; (14) Shakeel Khan, ViSalus IP #1422532;
(15) Victoria Loughlin, ViSalus IP #667640; (16) Willington Tique, ViSalus IP
#1247502; (17) Blake Moore, ViSalus IP #407918; (18) Jodi Woodside, ViSalus IP
#650736; (19) Julie Grenier, ViSalus IP #2284611; (20) Callie Chicoine, ViSalus
IP #748296; (21) Cindy Long, ViSalus IP #817462; and (22) Susan Escritor,
ViSalus IP #1921072.
5.

The Plaintiffs Timothy Kerrigan, Lori Mikovich and Ryan Valli have

served fairly and adequately as Class Representatives of the Settlement Class.
6.

These attorneys and their respective firms have served fairly and

adequately as Class Counsel:

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Andrew Kochanowski
Lance C. Young
Sommers Schwartz, P.C.
One Towne Square, Suite 1700
Southfield, MI 48076
Matthew Prebeg
Prebeg, Faucett & Abbott PLLC
8441 Gulf Freeway, Suite 307
Houston, TX 77017
Edward Wallace
Mark Miller
Wexler Wallace LLP
55 W. Monroe St. Suite 3300
Chicago, IL 60603
7.

For purposes of this Final Approval Order and Judgment, the

Settlement Class is defined as follows:
All current or former Independent Promoters (“IPs”) of ViSalus who
reside in the United States or Canada that lost money as a ViSalus IP
between July 9, 2008 and the Preliminary Approval Date of June 14,
2019. In determining whether an IP lost money as an IP for purposes
of this Settlement Class, the following calculation was used:
a. $49.00 of the cost of any ViSalus promoter system purchased
(regardless of additional amounts spent above $49.00); plus
b. the costs spent on Vi-Net; plus
c. all renewal fees paid by the IP, minus
d. all commissions received by the IP; minus
e. the value of all free product received by the IP (including, but not
limited to, free products received as part of the 3 for Free
promotion); and minus
f. the value of all Vi Points earned by the IP.

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8.

Excluded from the Settlement Class, even if they meet the criteria

above, are (i) IPs who profited from ViSalus (that is, earned more as a ViSalus IP
than they paid ViSalus); (ii) Defendants, and any IPs owned, controlled or
otherwise affiliated with any Defendant other than merely by the IP’s status as an
IP; (iii) the presiding judge(s) and his or her (or their) immediate family; (iv) any
individual that elects to be excluded from the Settlement Class; and (v) any person
who has previously released claims against Defendants or whose claims have been
fully and finally adjudicated by a court with jurisdiction over the claims.
9.

This Court finds that the Notice Plan in the Settlement Agreement and

effectuated under the Preliminary Approval Order constitutes the best notice
practicable under the circumstances and constitutes due and sufficient notice to
the Settlement Class of the pendency, certification of the Settlement Class for
settlement only, the terms of the Settlement Agreement, and the Final Approval
Hearing, and satisfies the requirements of the Federal Rules of Civil Procedure,
the United States Constitution, and any other applicable law. This Court further
finds that Defendants have fully and timely met the requirements for notice to
appropriate federal and state officials under 28 U.S.C. § 1715, and this Order is
issued ninety (90) or more days after the service of such notice.

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10.

The Agreement is fair, reasonable, adequate and in the best interests

of the Settlement Class, considering the risks that both sides faced regarding the
merits of the claim alleged and remedies requested, the risks of maintaining a class
action, and the expense and duration of further litigation. Therefore, this Court has
determined that the Agreement should be approved. The Parties shall effectuate the
Agreement according to its terms. The Settlement Agreement and every term and
provision thereof shall be deemed incorporated herein as if explicitly set forth and
shall have the full force of an Order of this Court.
11.

Upon the Effective Date, the Settlement Class, each of the Class

Members, and the Named Plaintiffs (collectively, “Releasers”) shall have, by
operation of this Approval Order and Final Judgment, fully, finally and forever
released, relinquished, and discharged the Released Persons from all Released
Claims under the Agreement.
12.

Releasers are permanently barred and enjoined from instituting,

commencing or prosecuting, either directly or in any other capacity, any Released
Claim against any of the Released Persons.
13.

This Final Approval Order and Judgment, the Settlement Agreement,

the Agreement which it reflects, and any and all acts, statements, documents or
proceedings relating to the Agreement are not, and shall not be construed as or used
as an admission by or against Defendants or any other Released Person of any fault,
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wrongdoing, or liability on their part, or of the validity of any Released Claim or of
the existence or amount of damages.
14.

The claims of the Named Plaintiffs and all members of the Settlement

Class are dismissed in their entirety with prejudice. Except as otherwise provided
in this Order, awarding attorneys’ fees and costs, the parties shall bear their own
costs and attorneys’ fees. The parties have agreed that ViSalus will pay an award
of attorneys’ fees and costs in the amount determined by the Court. The Court has
examined the Class counsel’s motion for attorneys’ fees detailing the attorneys’
time logged, usual and customary rates, expenses and awards in similar cases in
light of the six factors described by the Sixth Circuit in Ramey v. Cincinnati
Enquirer, Inc., (6th Cir. 1974) and determines that an award of attorneys’ fees and
costs in the amount of $4,265,000 is reasonable and should be, and is herewith,
awarded.
15.

The Named Plaintiffs have, in the opinion of the Court, worked hard

on behalf of the Settlement Class. The Court therefore approves incentive awards
to the Named Plaintiffs in the following amounts: (i) Timothy Kerrigan,
$15,000.00; (ii) Lori Mikovich, $10,000.00; and (iii) Ryan Valli, $10,000.00.
16.

This Court finds that no reason exists for delay in entering this

Approval Order and Final Judgment, so the Clerk is directed forthwith to enter this
Approval Order and Final Judgment. However, the Court reserves jurisdiction over
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implementation of the Agreement, including enforcement and administration of the
agreement and the award of attorneys’ fees and costs.
17.

The Parties, without further approval from this Court, are permitted to

adopt such amendments, modifications and expansions of the Agreement and its
implementing documents (including all exhibits to the Settlement Agreement) as
may be necessary or expedient to implement the Agreement, so long as they are
consistent in all material respects with the Final Order and Judgment and do not
limit the rights of the Settlement Class or any of the Class Members.
18.

Without affecting the finality of this Final Judgment for appeal, the

Court retains jurisdiction on all matters related to the administration, enforcement,
and interpretation of the Agreement and this Final Order and Judgment, and for any
other necessary purpose.
IT IS SO ORDERED.
/s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 1, 2019
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 1, 2019, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]
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