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Rivera v. Bio-Engineered Supplements & Nutrition

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 11, 2009

MICHAEL RIVERA AND DAN ABELL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BIO-ENGINEERED SUPPLEMENTS & NUTRITION, INC., D/B/A BSN, INC., A FLORIDA CORPORATION, CHRISTOPHER FERGUSON, AN INDIVIDUAL, AND DOES 1 THROUGH 250, INCLUSIVE; DEFENDANTS.

The opinion of the court was delivered by: The Honorable James V. Selna United States District Court Judge

JUDGMENT AND ORDER OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND DISMISSING CLAIMS

On November 6, 2009, the Court issued an order regarding the motions by Plaintiffs Michael Rivera and Dan Abell and the Class ("Plaintiffs" and/or the "Class") for an order granting final approval of their class action settlement ("Settlement") with Defendants Bio-Engineered Supplements & Nutrition, Inc. ("BSN") and Christopher Ferguson and for Class Counsel's attorneys' fees, expenses and incentive awards for the Class representatives. See Document 384 (Nov. 6, 2009 Order). As noted in the Court's November 6, 2009 order, the motions were opposed by objector Clayton Starnes ("Starnes"). In addition, the Attorneys General of Alabama, Alaska, Arkansas, Arizona, Colorado, Connecticut, Illinois, Iowa, Kansas, Mississippi, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Vermont, and the Hawaii Office of Consumer Protection (collectively the "Attorneys General") jointly filed an amici curiae brief opposing the settlement. The Court has found and further orders as follows:

1. For purposes of this judgment and order, the Court adopts and incorporates by reference the Court's November 6, 2009 order in its entirety, a copy of which is attached as Exhibit 1.

2. For purposes of this order, the Court adopts and incorporates all defined terms as set forth in the Court's November 6, 2009 order, the Settlement, attached as Exhibit 2, and joint supplement to the original motion for final approval, attached as Exhibit 3, previously filed with this Court.

3. This Court has jurisdiction over the subject matter of this litigation and over all parties and Class Members in this litigation.

4. As stated in the Court's November 6, 2009 order, certification of the proposed nationwide Class is appropriate.

5. Having considered the merits of the Settlement and all of the relevant factors, along with the objections of Starnes and the Attorneys General, as stated in the Court's November 6, 2009 order, the Court has granted final approval of the Settlement, as amended by the parties, as fair and reasonable.

6. As stated in the Court's November 6, 2009 order, the Court has found that Class notice was fair and reasonable and has approved the original notice plan as carried out, and the supplemental notice plan the parties submitted in Exhibit 3.

7. As stated in the Court's November 6, 2009 order, the law firms of Call, Jensen & Ferrell and Robinson, Calcagnie & Robinson ("Class Counsel") are awarded $3,853,107 in attorneys' fees and $319,585.15 in expenses to reimburse Class Counsel for their respective expenses which are to be paid in accordance with the Settlement and the supplemental joint filing.

8. Regarding the incentive awards to the Class Representatives, as stated in the Court's November 6, 2009 order, the Court has granted $12,500 to Class representative Michael Rivera and $6,250 to Class representative Dan Abell.

9. Except as stated in this order and the November 6, 2009 order, all other terms of the Settlement, as amended by the parties, will remain as stated in the Settlement and all accompanying documents and orders of this Court.

10. For the above reasons and for the reasons set forth in the Court's November 6, 2009 order, the Court dismisses this action with prejudice. All Class members shall be bound by this Order.

11. The Court reserves and retains jurisdiction for purposes of enforcing this Settlement, addressing settlement administration matters, and addressing such post-judgment matters as may be appropriate under court rules or applicable law.

IT IS SO ORDERED.

20091111

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