You have a right to know about a proposed Settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the proposed Settlement.

The Court in charge of this case is the United States District Court for the Southern District of New York (the “Court”). The case is known as Swetz v. GSK Consumer Health, Inc., No. 20-cv-04731 (S.D.N.Y.).

The Settlement will also resolve a similar lawsuit currently pending in another court: White v. GSK Consumer Health, Inc., No. 20-cv-04048 (N.D. Cal). These lawsuits together are referred to as “the Litigation.”

This Notice explains:

• What the Litigation is about
• Who is included in the proposed Settlement
• How the proposed Settlement may benefit you
• Your legal rights

The lawsuit alleges that GSK deceptively marketed, advertised, labeled, and sold (1) its Benefiber Original and Benefiber Healthy Shape Products as “100% Natural” or “natural;” and (2) its Benefiber Healthy Shape Products as “clinically proven to cure cravings” and as a weight management product at a price premium, even though it is the same product as Benefiber Original.

GSK denies the claims and allegations made in the Litigation. GSK is settling to avoid the expense, inconvenience, risk, and disruption of litigation. It is not an admission of any wrongdoing.

The Court has not decided that GSK has violated any laws. The Notice is not an expression of any opinion by the Court on the claims in the Litigation.

In a class action, one or more people called class representatives (in the Litigation, Susan Swetz and Phillip White) sue not only for themselves but also on behalf of people who have similar claims. If the Court finds that the legal requirements for establishing a class are met, then all of these people with similar claims and interests form a class.

When a court decides a class action case or approves a class action settlement, it is applicable to all members of the class (except class members who exclude themselves). In this case, the Court has given its final  approval to the Settlement and to the Settlement Class defined below in Question 5. A copy of the Court’s order granting final approval may be found here.

GSK denies that it did anything wrong. Instead, both sides have agreed to the proposed Settlement to avoid the risk, cost, and time of further litigation. The Court has not decided in favor of the class representatives or GSK. The class representatives and Class Counsel appointed by the Court to represent the Settlement Class believe the Settlement is in the best interests of the Settlement Class and is fair, reasonable, and adequate.

The Settlement Class consists of all individuals who purchased Benefiber Healthy Shape Prebiotic Powder Fiber Supplement, Benefiber Original Prebiotic Powder Fiber Supplement, Benefiber Sugar-Free Powder Fiber Supplement, Benefiber Prebiotic Powder Fiber Supplement On-The-Go Stick Packs (Flavored or Unflavored), and/or Benefiber Prebiotic Fiber Supplement Chewables for personal or household use, and not for resale, in the United States between June 19, 2014 and June 8, 2021 (the “Class Period”).

Specifically excluded from the Settlement Class are (i) GSK, its officers, directors, affiliates, legal representatives, employees, successors, and assigns, and entities in which GSK has a controlling interest; (ii) judges presiding over the Litigation; and (iii) local, municipal, state, and federal governmental entities.

The Covered Products included in the Settlement are:

"Benefiber Healthy Shape": 

• Benefiber Healthy Shape Prebiotic Powder Fiber Supplement

"Benefiber Original": 

• Benefiber Original Prebiotic Powder Fiber Supplement
• Benefiber Sugar-Free Powder Fiber Supplement
• Benefiber Prebiotic Powder Fiber Supplement On-The-Go Stick Packs (Flavored or Unflavored)
• Benefiber Prebiotic Fiber Supplement Chewables

If you are not sure whether you are a Settlement Class Member, or have any other questions about the Settlement, you can call the Settlement Administrator toll-free at 1-833-636-2116 or email the Settlement Administrator using the form on the Contact Us page.

The Settlement provides both injunctive and monetary relief.

Monetary Relief: GSK has agreed to pay $6.5 million to a Settlement Fund, which will be used to pay: (1) monetary benefits to eligible Settlement Class Members as described below in response to Question 9, (2) reasonable settlement administration expenses, not to exceed $675,000; (3) attorneys’ fees and expenses in the amount approved by the Court, but not to exceed one-third (1/3) of the Gross Settlement Fund ($2,166,666); and (4) a class representative service award of $3,000 per representative.

Injunctive Relief: GSK has also agreed to (1) cease manufacturing the Covered Products with labels bearing the “100% Natural” statement and will exclude that statement from any future marketing or advertisements created by GSK or at GSK’s direction that describes the Covered Products, and (2) cease manufacturing Benefiber Healthy Shape with labels bearing the statement “clinically proven to cure cravings” and will exclude that statement from any future marketing or advertisements created by GSK or at GSK’s direction that describes Benefiber Healthy Shape.

GSK may describe the Covered Products as “natural” or include any derivative of a “natural” claim on the label or in marketing or advertisements, including, but not limited to, in response to (a) further guidance from the U.S. Food and Drug Administration concerning the definition of the term “natural” and/or the degree of permissible processing for any product bearing the “natural” label and/or (b) a modification to the method for creating the wheat dextrin used in the Covered Products.

GSK may reintroduce (a) the claim that Benefiber Healthy Shape is “clinically proven to cure cravings” on the label or in marketing or advertising if reliable and competent scientific evidence supports the satiety effects of Benefiber Healthy Shape in the United States consumer population and/or (b) the claim that the Covered Products are “100% Natural” on the label or in marketing or advertising in response to (i) further guidance from the U.S. Food and Drug Administration concerning the definition of the term “natural” and/or the degree of permissible processing for any food or dietary supplement product bearing the “natural” label and/or (ii) a modification to the method for creating the wheat dextrin used in the Covered Products.

Moreover, the Settlement does not (a) prevent GSK from making any other changes to the Covered Products’ labels, advertisements, or other marketing materials provided that those changes are not inconsistent with the provisions of the Settlement Agreement or (b) apply to any GSK product other than the Covered Products.

Settlement Class Members who timely submitted a valid and approved Claim received:

• $2.67 per qualifying purchase of Benefiber Original, up to a maximum of five (5) units without proof of purchase. Qualifying Proof of Purchase for each unit claimed is required for all Claims for more than five (5) units of Benefiber Original.
• $3.19 per qualifying purchase of Benefiber Healthy Shape, up to a maximum of five (5) units without proof of purchase. Qualifying Proof of Purchase for each unit claimed is required for all Claims for more than five (5) units of Benefiber Healthy Shape.

Only one Claim per household may be validated. There was no limitation for the number of units with Qualifying Proof of Purchase.

* Settlement Payments were subject to a pro rata adjustment downwards based on the number of timely and valid Claims submitted.*

• The total amount to be paid for eligible Claims exceeded the Net Settlement Fund (i.e., the amount remaining after the Court-approved Attorneys’ Fee, Cost, and Service Award, and Settlement Administration Costs were deducted), and each Eligible Claimant’s payment was proportionately reduced on a pro rata basis.

The Settlement Payments were subject to a pro rata adjustment downwards based on number of timely and valid Claims submitted.

To be eligible to receive a payment through the Settlement, you must have completed and submitted a valid and timely Claim Form. The Claim Form could be obtained online here or by writing the Settlement Administrator at the address listed below. The completed Claim Form must have been submitted to the Settlement Administrator online here by October 6, 2021, or by mail to the address below so that it is postmarked by October 6, 2021.

National Benefiber Settlement
c/o JND Legal Administration
P.O. Box 91412
Seattle, WA 98111 

If you did not submit a valid Claim Form online by October 6, 2021, or by mail so that it is postmarked by October 6, 2021, then you will not receive a payment, but you will be bound by the Settlement and the Court’s orders and judgment.

The Court approved the Settlement on November 22, 2021, but there may still be appeals. Settlement payments to Eligible Claimants will be made after the Court grants "final approval" of the Settlement, and after any and all appeals are resolved in favor of upholding the Settlement.

It is always uncertain when appeals can be resolved and resolving them can take time. Please be patient.

If you are a Settlement Class Member, unless you excluded yourself from the Settlement, you cannot sue, continue to sue, or be part of any other lawsuit against the Released Parties for the Released Claims. It also means that all the decisions by the Court will bind you.

The Released Claims mean that all Settlement Class Members, on behalf of themselves and their agents, heirs, executors and administrators, successors, assigns, insurers, and representatives (the “Releasing Parties”), will release and forever discharge GSK, and its administrators, insurers, reinsurers, agents, firms, parent companies/corporations, sister companies/corporations, subsidiaries and affiliates, and any sales agents and distributors, wholesalers, retailers, or any other party in the chain of distribution and retail sale of the Covered Products, and all of the foregoing Persons’ respective predecessors, successors, assigns and present and former officers, directors, shareholders, employees, agents, attorneys, insurers, and representatives (collectively, the ‘Released Parties”), from each and every claim of liability, on any legal or equitable ground whatsoever, including relief under federal law or the laws of any state, regarding or related to the Covered Products, including without limitation, their manufacture, purchase, use, marketing, promotion, or sale, and including without limitation, all past, present, or future claims, damages, or liability on any legal or equitable ground whatsoever, known or unknown, that were or could have been asserted in this Lawsuit based on any assertion or contention that the Covered Products, including their packaging, labels, sale, warranties, and/or any advertising or marketing whatsoever, was inaccurate, misleading, false, deceptive, fraudulent, or breached.

The Released Claims do not include any claim against the Released Parties for personal injuries. More information regarding the Released Claims and Released Parties can be found here.

To exclude yourself (or “Opt-Out”) from the Settlement, you must have completed and mailed to the Settlement Administrator and the Court a written request for exclusion. The request for exclusion must have included the following:

• Your printed full name, address, telephone number, email address, and date of birth
• A statement saying “I wish to exclude myself from the Settlement Class in the Benefiber Class Action Settlement” (or substantially similar clear and unambiguous language)
• Your actual written or electronic signature

You must have mailed your exclusion request so that it is postmarked by September 7, 2021 to the Settlement Administrator at the following address:

National Benefiber Settlement - Exclusions
c/o JND Legal Administration
P.O. Box 91412
Seattle, WA 98111

If you asked to be excluded, you will not get any monetary compensation from the Settlement, and you cannot object to the Settlement. You will not be legally bound by anything that happens in the Litigation, and you may be able to sue (or continue to sue) the Released Parties for the Released Claims.

If you didn’t include the required information or timely submit your request for exclusion, you will remain a Settlement Class Member and your claims will be released by the Settlement.

No. Unless you excluded yourself, you give up any right to sue GSK for the claims released by the Settlement whether or not you already have your own lawsuit pending. If you properly excluded yourself from the Settlement, then you will not be bound by any orders or judgments entered in the class action relating to the Settlement and can pursue your own claims.

No. You will not get any money from the Settlement if you excluded yourself. If you excluded yourself from the Settlement, should not send in a Claim Form asking for a Settlement Payment.

No. The Court has appointed Jason P. Sultzer of The Sultzer Law Group; Melissa S. Weiner of Pearson, Simon & Warshaw, LLP; Douglas J. McNamara of Cohen Milstein Sellers & Toll PLLC; Gary E. Mason of Mason Lietz & Klinger LLP; Charles E. Schaffer of Levin Sedran & Berman; Ryan J. Clarkson and Katherine A. Bruce of Clarkson Law Firm, P.C.; and Christopher D. Moon of Moon Law APC as Co-Lead 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.

Class Counsel filed a motion seeking a fee award not to exceed one-third (1/3) of the Settlement Amount (i.e., not to exceed $2,166,666) and reimbursement for litigation costs and reasonable costs incurred, as well as a Class Representative Service Award up to $3,000 each for Susan Swetz and Phillip White, in recognition of their time, costs, and efforts in the litigation. The Court approved the fees, costs, and service award, which will be paid from the Gross Settlement Fund, at the Final Approval Hearing.

Any Settlement Class Member who did not timely and properly opt out of the Settlement could object to the fairness, reasonableness, or adequacy of the proposed Settlement. Each Settlement Class Member who wished to object to any term of this Settlement must have done so, in writing, by delivering a written objection to the Clerk of the Court and serving a copy on the Settlement Administrator at the addresses listed below so that it is postmarked by September 7, 2021.

The written objection must have included:

• Your printed full name, address, telephone number and date of birth
• Evidence showing that you are a Settlement Class Member
• Any other supporting papers, materials, or briefs that you wish the Court to consider when reviewing the objection
• Your actual written or electronic signature (even if represented by an attorney)
• A list of all attorneys involved in the objection on your behalf (if represented)
• A statement on whether you or your counsel intend to appear at the Final Approval Hearing
• A list of all class action settlements in which you or your counsel has objected on a prior occasion, including the case caption, court and case number, and the disposition of objection for each case

Your objection, along with any supporting material you wished to submit, must have been delivered to the Court and the Settlement Administrator postmarked by September 7, 2021 at the following addresses:

Objecting is telling the Court that you don’t like something about the Settlement. You can object to the Settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you do not want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you.

The Court held a Final Approval Hearing on November 18, 2021, at 10:00 a.m. Eastern Time. The Final Approval Hearing was held before the Honorable Nelson S. Román, via teleconference. (To access the teleconference, please follow these directions: (1) Dial the Meeting Number: 1-877-336-1839; (2) Enter the Access Code: 1231334 #; Press Pound (#) to enter the teleconference as a guest.)

At the Final Approval Hearing, the Court considered whether the Settlement is fair, reasonable, and adequate. The Court also considered Class Counsels’ request for fees, costs, and service award to the class representatives. If there was any objections, the Court  considered them at this time. After the hearing, the Court decided to approve the Settlement on November 22, 2021.

No. Class Counsel answered any questions that the Court might have, but you could attend at your own expense. If you submitted an objection, you did not have to attend Court to talk about it. As long as you mailed your written objection on time to the proper addresses, the Court considers it. You might also pay your own lawyer to attend if you choose, but it’s not necessary.

If you were a Class Member who has not requested to be excluded from the Settlement Class, you could have asked the Court for permission to speak at the Final Approval Hearing. You could not have spoken at the Final Approval Hearing if you excluded yourself from the Settlement Class.

If you did nothing, you will not get a payment from the Settlement. Unless you excluded yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against GSK about the legal issues in this case, ever again.

The notice summarizes the Settlement. More details are in the Settlement Agreement, available here. If you have additional questions you can contact the Settlement Administrator:

National Benefiber Settlement
c/o JND Legal Administration
P.O. Box 91412
Seattle, WA 98111

info@nationalbenefibersettlement.com

1-833-636-2116