Melgar v. Zicam LLC and Matrixx Initiatives, Inc.

MELGAR V. ZICAM LLC AND MATRIXX INITIATIVES, INC.
United States District Court for the Eastern District of California

If You Purchased Zicam Pre-Cold Products, A Class Action Lawsuit May Affect Your Legal Rights

  • Purchasers of certain Zicam products have sued Zicam LLC and Matrixx Initiatives, Inc., (“Defendants”) alleging that those companies misrepresent the effectiveness of those products.
  • The Court has allowed the lawsuit to be a class action on behalf of all purchasers of Zicam RapidMelts Original, Zicam RapidMelts Ultra, Zicam Oral Mist, Zicam Ultra Crystals, Zicam Liqui-Lozenges, Zicam Lozenges Ultra, and Zicam Chewables after February 15, 2011 in California, Delaware, Washington D.C., Kansas, Missouri, New Jersey, Ohio, Utah, Virginia and West Virginia. These products are collectively referred to as the “Zicam Pre-Cold Products.”
  • The Court has not decided whether Defendants did anything wrong.  There are no benefits available now, and no guarantee there will be.  However, your legal rights are affected, and you have a choice to make now:
    you have a choice to make now:

    Your Legal Rights and Options

    What is this?

    The Court has certified this lawsuit as a class action.  The lawsuit alleges that Defendants made false and misleading representations about the effectiveness of the Zicam Pre-Cold Products.   

    Do Nothing

    Stay in the lawsuit.  Await the outcome.  Give up certain rights.
    By doing nothing, you keep the possibility of getting money or benefits that may come from a trial or a settlement.  But, you will give up any rights to sue Defendants separately about the same legal claims in this lawsuit.

    Exclude Yourself

    Get out of this lawsuit.  Get no benefits from this lawsuit.  Keep rights.
    If you ask to be excluded and money or benefits are later awarded, you won’t share in those.  But, you keep any rights to sue Defendants separately about the same legal claims in this lawsuit.

  • Your options – and the deadlines to exercise them – are explained in the notice. To ask to be excluded, you must act before May 17, 2017.
  • Lawyers must prove the claims against Defendants at a trial. If money or benefits are obtained from Defendants, you will be notified about how to ask for a share.

BASIC INFORMATION

1. Why did I get the notice?

The notice explains that the Court has allowed, or “certified,” a class action lawsuit that may affect you.  You have legal rights and options that you may exercise before the Court holds a trial.  The trial is to decide whether the claims being made against Defendants, on your behalf, are correct.  Chief Judge Morrison C. England, Jr. of the United States Court for the Eastern District of California is overseeing this class action.  The lawsuit is known as Melgar v. Zicam LLC, Case No. 2:14-cv-00160-MCE-AC.

2. What is this lawsuit about?

This lawsuit is about whether Defendants made false and misleading representations about the effectiveness of the Zicam Pre-Cold Products.

3. What is a class action and who is involved?

In a class action lawsuit, one or more people called “Class Representatives” (in this case, Plaintiff Yesenia Melgar) sue on behalf of other people who have similar claims. The people together are a “Class” or “Class Members.” The named plaintiff who sued – and all the Class Members like them – are called the Plaintiffs. The companies they sued (in this case, Defendants Zicam LLC and Matrixx Initiatives, Inc.) are called the Defendants. One court resolves the issues for everyone in the Class – except for those people who choose to exclude themselves from the Class.

4. Am I part of this Class?

The Court certified the following class:
A Class of all all purchasers of Zicam RapidMelts Original, Zicam RapidMelts Ultra, Zicam Oral Mist, Zicam Ultra Crystals, Zicam Liqui-Lozenges, Zicam Lozenges Ultra, and Zicam Chewables (“the Products”) after February 15, 2011 in California, Delaware, D.C., Kansas, Missouri, New Jersey, Ohio, Utah, Virginia and West Virginia.

5. Why is this lawsuit a class action?

The Court decided that this lawsuit can be a class action and move towards a trial because it meets the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal courts. More information about why the Court is allowing this lawsuit to be a class action is in the Court’s Order Certifying the Class in the Court Documents section of this website.

THE CLAIMS IN THE LAWSUIT

6. What does the lawsuit complain about?

Defendants manufacture and distribute the Zicam Pre-Cold Products. Plaintiff alleges that Defendants misrepresent the effectiveness of the Zicam Pre-Cold Products and that the products are placebos. You can read Plaintiff’s First Amended Complaint in the Court Documents section of this website

7. How do Defendants answer?

Defendants deny any wrongdoing and deny the Plaintiff’s allegations. You can read Defendants’ Answer to the First Amended Complaint in the Court Documents section of this website

8. Has the Court decided who is right?

The Court hasn’t decided whether the Defendants or the Plaintiff are correct. By establishing the Class and issuing the Notice, the Court is not suggesting that the Plaintiff will win or lose this case. The Plaintiff must prove her claims in the litigation, including at a trial, if necessary.

9. What is the Plaintiff asking for?

The Plaintiff is generally asking Defendants to provide a full refund of the purchase price Class members paid for the Zicam Pre-Cold Products. The Plaintiff’s complaint also seeks to obtain all such other relief to which they may be entitled to including, without limitation, actual and punitive damages.

No money or benefits are available now because the Court has not yet made a final decision whether Defendants did anything wrong, and the two sides have not settled the case. There is no guarantee that money or benefits ever will be obtained. If they are, you will be notified about how to ask for a share.

YOUR RIGHTS AND OPTIONS

You have to decide now whether to stay in the Class or ask to be excluded before the trial.

10. What happens if I do nothing at all?

You don’t have to do anything now if you want to keep the possibility of getting money or benefits from this lawsuit. By doing nothing, you are staying in the Class. If you stay in and the Class is awarded money or benefits, either as a result of the trial or a settlement, you will be notified about how to apply for a share (or how to ask to be excluded from any settlement).

Keep in mind that if you do nothing now, regardless of whether the Class Representative wins or loses the trial, you will not be able to separately sue, or continue to sue, Defendants – as part of any other lawsuit – for the same legal claims that are the subject of this lawsuit. You will also be legally bound by all of the Orders the Court issues and judgments the Court makes in this class action.

11. Why would I ask to be excluded?

If you exclude yourself from the Class – which is sometimes called “opting-out” of the Class – you won’t get any money or benefits from this lawsuit even if the Plaintiff obtains them as a result of the trial or from any settlement (that may or may not be reached) between Defendants and Plaintiff. However, you may then be able to separately sue or continue to sue Defendants for the legal claims that are the subject of this lawsuit. If you exclude yourself, you will not be legally bound by the Court’s judgments in this class action.

If you bring your own lawsuit against Defendants after you exclude yourself, you will have to hire and pay your own lawyer for that lawsuit, and you will have to prove your claims. If you do exclude yourself so you can start or continue your own lawsuit against Defendants, you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations.

12. How do I exclude myself from the Class?

To exclude yourself from the Class, you must send a written request for exclusion that is received no later than May 17, 2017, to:

Zicam Pre-Cold Products Litigation
c/o RG/2 Claims Administration LLC
P.O. Box 59479
Philadelphia, PA 19102-9479

Your request for exclusion must contain: (1) the name of this lawsuit, “Melgar v. Zicam LLC, Case No. 2:14-cv-00160-MCE-AC”; (2) your full name and current address; (3) a clear statement of intention to exclude yourself such as “I wish to be excluded from the Class”; and (4) your signature. You may also get an Exclusion Request form in the Court Documents section of this website.

THE LAWYERS REPRESENTING YOU

13. Do I have a lawyer in this case?

The Court appointed the law firm of Bursor & Fisher, P.A. to represent the Plaintiff and all Class Members as “Class Counsel.” More information about this law firm, its practices, and the lawyers’ experience is available at www.bursor.com.

14. Should I get my own lawyer?

If you choose to remain in the Class, you do not need to hire your own lawyer because Class Counsel are working on your behalf. But, if you want your own lawyer, you will be responsible for paying that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.

15. How will the lawyers be paid?

If Class Counsel get money or benefits for the Class, they may ask the Court for fees and expenses. You will not have to pay these fees and expenses. If the Court grants Class Counsel’s request, the fees and expenses would be either deducted from any money obtained for the Class or paid separately by Defendants.

THE TRIAL

16. How and when will the Court decide who is right?

As long as the case isn’t resolved by a settlement or otherwise, Class Counsel will have to prove the Plaintiff’s claims in this litigation, including at a trial if necessary. There is no guarantee that the Plaintiff will win, or that they will get any money for the Class. The trial date has not yet been determined.

17. Do I have to come to the trial?

You do not need to attend the trial. Class Counsel will present the case for the Class members, and Defendants will present the defenses. You are welcome to come at your own expense. If you wish to participate in the trial, you should contact Class Counsel.

18. Will I get money after the trial?

If the Class obtains money or benefits as a result of the trial or a settlement, you will be notified about how to participate. We do not know how long this will take.

GETTING MORE INFORMATION

19. Are more details available?

Visit the Court Documents section of this website to find the Court’s Order Certifying the Class, the Plaintiff’s First Amended Complaint, Defendants’ Answer, and an Exclusion Request Form.

You may also contact Class Counsel by email at info@bursor.com, or by writing to Zicam Pre-Cold Products Litigation, c/o RG/2 Claims Administration LLC, P.O. Box 59479, Philadelphia, PA 19102-9479.

PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.