MCDONOUGH et al v. TOYS "R" US et al

Filing 897

ALLOCATION ORDER-1(footnote)... CONCLUSION. PLAINTIFFS' MOTION FOR ENTRY OF PROPOSED ALLOCATION ORDER (MCDONOUGH, 06-CV-242, ECF NO.865; ELLIOTT, 09-CV-6151, ECF NO. 155) IS GRANTED IN PART AND DENIED IN PART.. THE CLAIMS OF 81 CLASS MEMBERS WHO SUBMITTED VALID CURATIVE RESPONSES AFTER DEFICIENCY PROCESS DEADLINE ARE APPROVED.. SIGNED BY HONORABLE ANITA B. BRODY ON 1/21/2015. 1/21/2015 ENTERED AND COPIES VIA ECF.(mo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAROL M. MCDONOUGH, et al.,
Plaintiffs,
v.
TOYS “R” US, INC., d/b/a Babies “R” Us, et
al.,
Defendants.

No. 2:06-cv-0242-AB

ARIEL ELLIOTT, et al.,
Plaintiffs,
v.
TOYS “R” US, INC., d/b/a Babies “R” Us, et
al.,
Defendants.

No. 2:09-cv-06151-AB

ALLOCATION ORDER1
AND NOW, this ___21Sst___ day of January, 2015, it is ORDERED:
1.

The Court modifies the proposed allocation of the Settlement Fund as set forth

below.2 The Court’s modified allocation of the Settlement Fund is fair, reasonable, and adequate
and in the best interests of Plaintiffs and the Settlement Subclasses as a whole, as well as each
Settlement Class individually and the Settlement Class Members.
2.

The Court directs the Settlement Trustees and/or the Claims Administrator to

allocate and distribute the Net Settlement Fund, after payment of all required expenses under the
Settlement Agreement as well as any payments due from the Fee and Expense Order and subject
to the provisions below, on a pro rata basis to all Authorized Claimants.
3.

The Claims Administrator is directed to make payments to Authorized Claimants

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All capitalized, italicized terms are used as defined in the Fourth Amended Settlement Agreement
(Agreement).
2
This Allocation Order modifies the Order attached to the Agreement as Exhibit F. See ECF No. 864.
Pursuant to Paragraph 19 of the Agreement, modification of the proposed allocation order does not affect
the validity of the settlement.

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as follows:
A.

Class Counsel has submitted to the Claims Administrator information

regarding each Settlement Product to enable the Claims Administrator to calculate the
estimated retail price for each year (the “ERP”) of each product. See ECF No. 893. The
ERP must be calculated from pricing information obtained from the defendants and public
sources.
B.

Payments to Authorized Claimants
i.

ii.

iii.

4.

Each Authorized Claimant who either files or previously filed a
valid Claim Form and who submits or previously submitted
documents that the Claims Administrator determines are valid
proof of purchase and purchase price shall be entitled to a payment
from the Net Settlement Fund in the amount of twenty percent
(20%) of his or her actual purchase price of each Settlement
Product, subject to the pro rata reductions or enhancements.
Each Authorized Claimant (i) who files or previously filed a valid
Claim Form and who submits or previously submitted documents
that the Claims Administrator determines are valid proof of
purchase but does not provide proof of his or her actual purchase
price, or (ii) for whom BRU has provided records of a valid proof
of purchase to the Claims Administrator shall be entitled to a
payment from the Net Settlement Fund in the amount of twenty
percent (20%) of the ERP of each Settlement Product, subject to
the pro rata reductions or enhancements. The amounts computed
for any Authorized Claimant as set forth in these sub-paragraphs
3(B)(i) or 3(B)(ii) shall be referred to as “Initial Authorized
Payments.”
Examples of the types of documents that may constitute valid
documentary proof of purchase include, but are not limited to:
receipts, cancelled checks, credit card statements, photographs, or
corroborating, sworn affidavits from two other people. It will be
within the discretion of the Claims Administrator to determine
what constitutes valid documentary proof of purchase.

If payment of the total of the Initial Authorized Payments fails to exhaust the Net

Settlement Fund, then all of the Initial Authorized Payments must be increased by an equal
percentage until the Net Settlement Fund would be exhausted or until each Authorized Claimant

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eligible for an Initial Authorized Payment would receive a maximum of three times his/her Initial
Authorized Payments (“Enhanced Authorized Payments”).
5.

If payment of the total of the Initial Authorized Payments would exhaust the Net

Settlement Fund, then all of the Initial Authorized Payments must be reduced by an equal
percentage (“Reduced Authorized Payments”).
6.

Within 45 days of the Effective Date, the Claims Administrator must identify and

submit to Class Counsel, and to the Court, an accounting of all Initial Authorized Payments,
Enhanced Authorized Payments or Reduced Authorized Payments the Claims Administrator
intends to pay. At the same time, the Claims Administrator will provide Defendants with
sufficient information to (i) identify the aggregate of all amounts the Claims Administrator
intends to pay to Authorized Claimants, and (ii) explain the calculation as provided for in this
Allocation Order. Within 14 days of such notice, Class Counsel must identify any issues or
communicate their agreement with the payments proposed to be made by the Claims
Administrator. If Class Counsel and the Claims Administrator are unable to agree on the
appropriate payments to be made or the resolution of any outstanding issues, they must request
an Order from the Court resolving any such issues. No payments are authorized until so ordered
by the Court (the “Initial Distribution”). Payments must be made by checks valid for 90 days
(the “Payment Period”).
7.

If after the Payment Period there are any funds remaining in the Net Settlement

Fund or any other funds to which the Settlement Fund was allocated or distributed after all
payments ordered by the Court have been made (“Final Remaining Amount”), the Claims
Administrator is directed to pay such Final Remaining Amount to Defendants as Defendants
jointly instruct the Settlement Trustee and/or Claims Administrator.

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8.

Upon payment of the Final Remaining Amount to Defendants, coupons, in the

form described in Exhibit I of the Agreement in a total cumulative amount up to the Final
Remaining Amount (“Coupons”) must be distributed by the Claims Administrator to Authorized
Claimants who (i) cashed or deposited the checks distributed to them in the Initial Distribution;
(ii) have provided, or the Claims Administrator already has, their email addresses; and (iii) did
not receive the Maximum Enhanced Authorized Payment (“Eligible Coupon Recipients”) as
follows:
A.

The total value of Coupons available must be distributed to Eligible

Coupon Recipients based on a pro rata distribution consistent with the allocation and
distribution described in Paragraphs 2-5 above. Each Coupon will be issued only in whole
dollar amounts and this rounding process must be implemented in such a way that it will
neither increase nor decrease the total dollar amount distributed. Once distributed, the
Coupons are fully transferrable.
B.

Within 45 days of the calculation of the Final Remaining Amount, the

Claims Administrator must identify and submit to Class Counsel an accounting of the
Coupons to be distributed.

At the same time, the Claims Administrator will provide

Defendants with sufficient information to (i) identify the aggregate of all Coupon amounts to
be distributed, and (ii) explain the calculation as provided for in this Allocation Order.
Within 14 days of such notice, Class Counsel must identify any issues or communicate their
agreement with the Coupon distribution proposed to be made by the Claims Administrator.
If Class Counsel and the Claims Administrator are unable to agree upon the appropriate
Coupon distribution to be made or the resolution of any outstanding issues, they must

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request an Order from the Court resolving any such issues. Coupons must not be distributed
until so ordered by the Court. Coupons must be valid for 120 days.
9.

This Order finally resolves the claims, rights and liabilities of the parties related to

the allocation of the Settlement Fund.

CONCLUSION


Plaintiffs’ Motion for Entry of Proposed Allocation Order (McDonough, 06-cv242, ECF No. 865; Elliott, 09-cv-6151, ECF No. 155) is GRANTED in part and
DENIED in part.



The claims of 81 class members who submitted valid, curative responses after the
deficiency process deadline are APPROVED.

s/Anita B. Brody
____________________________________
ANITA B. BRODY, J.

Copies VIA ECF on _________ to:

Copies MAILED on _______ to:

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