Payless Toning Shoe Class Action
IN THE ARKANSAS CIRCUIT COURT FOR PULASKI COUNTY, ARKANSAS
LAVERNE HAMPTON AND ERIN BRADY, INDIVIDUALLY AND ON BEHALF OF A CLASS
OF SIMILARLY SITUATED INDIVIDUALS V. PAYLESS SHOESOURCE, INC.
CLASS ACTION SETTLEMENT NOTICE
PLEASE READ THIS NOTICE CAREFULLY.
A state court authorized this Notice and it is posted on the Web by Court order.
A proposed settlement (the "Settlement Agreement") has been reached in this case against Payless ShoeSource, Inc. ("Payless" or "Defendant"). You may be a member of the Settlement Class and might be eligible to receive a merchandise certificate worth $8.00 if you are a person who purchased any Champion-branded toning shoes during the period January 21, 2006 through June 25, 2012. If you are a Settlement Class member and the Court gives final approval to the Settlement Agreement:
- You may be entitled to receive an $8.00 merchandise certificate (a "Settlement Payment").
- You will be giving up the right to bring certain legal claims in the future, as discussed more fully below.
- These rights and options – and the deadlines to exercise them – are explained below.
- The Court in charge of this case has preliminarily approved the Settlement Agreement and must decide whether to give final approval to the Settlement Agreement. Settlement Payments will be made if the Court gives final approval to the Settlement Agreement, and if there are any appeals, after they are resolved. Please be patient.
|YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT|
|SUBMIT A CLAIM FORM||If you are a Settlement Class member and would like to receive your Settlement Payment, you must submit a Claim Form, either through the mail or by by clicking here. You will be giving up legal claims against the Defendant and other related entities. Your claim must be submitted or postmarked no later than January 5, 2013. A paper Claim Form is attached or can be downloaded by clicking here.|
|DO NOTHING||If you do nothing, you will not receive your Settlement Payment. You will, however, still be giving up legal claims against Defendant and other related entities.|
|EXCLUDE YOURSELF||You will receive no benefits, but you will not be giving up your right to sue Defendant or related entities.|
|OBJECT||Write to the Court about why you don't like the Settlement Agreement and do not want it to be approved. Whether or not you file a claim, you may also object to the settlement.|
|GO TO A HEARING||Write to the Court about why you don't like the Settlement Agreement and do not want it to be approved. Whether or not you file a claim, you may also object to the settlement.|
- This lawsuit alleges that Payless engaged in untrue and deceptive advertising promotion and marketing practices associated with its Champion-brand toning shoes.
The lawsuit has been brought on behalf of a nationwide class of persons who purchased any Champion-branded style of toning shoes. To see a copy of the lawsuit, click here. No court has determined the correctness of the ultimate position of any of the parties in this lawsuit. Rather, the parties have agreed to settle the lawsuit so as to avoid the uncertainties, the expense, and the diversion of resources from further litigation. This Notice is not an admission by either party as to the strength of the other's position or of any weakness in its own position.
- In a class action, one or more people called Class Representatives (in this case, Laverne Hampton and Erin Brady), sue on behalf of a group (or a "class") of people who have similar claims. After the parties reached an agreement to settle the case, the Court recognized this as a case that should be treated as a class action for settlement purposes.
- The Court has not decided that the Plaintiff or the Defendant should win this case. Instead, both sides agreed to a settlement. That way, they avoid the cost of a trial, and the Settlement Class members will get compensation now rather than, if at all, years from now.
- As described above, the Court decided that everyone who fits this description is a member of the Settlement Class:All persons who purchased any Champion-branded style of toning shoes (including without limitation, pod bottom and rocker bottom) between January 21, 2006 and June 25, 2012.
If you believe you are a Settlement Class member, you may obtain a claim form by clicking here.
- Payless has agreed to issue a single use merchandise certificate worth $8.00 to each Settlement Class member who submits a valid claim. Each merchandise certificate will be fully transferable and good for the purchase of footwear sold by Payless (at any Payless store in the U.S. or online through www.payless.com). In the event that an $8.00 merchandise certificate is used for the purchase of an item costing less than $8.00 (including applicable taxes), the bearer shall not receive a cash refund or a credit for the unused amount. The merchandise certificate is subject to the following restrictions: is valid for twelve (12) months after issuance, has no cash value, is not combinable with other offers and not valid for the purchase of non-footwear items, excludes sales taxes, is not valid on gift card past purchases, and will not be replaced if lost or stolen.
- No later than sixty (60) days after the final settlement date, Payless agrees to undertake reasonable efforts to avoid any action with respect to its advertising and marketing practices related to toning shoes and any other footwear that purports to improve or increase muscle tone, strength, or activation. For a more detailed description of these marketing limitations, see Section B(5) of the Settlement Agreement.
Payless will pay all expenses of giving notice in this case and all charges and expenses of the Settlement Administrator appointed by the Court to administer notice and claims in this case.
- You will receive these benefits within 60 days after the Settlement Agreement has been finally approved and the time to appeal that approval to a higher court has expired and/or any appeals have been resolved in favor of the Settlement Agreement.
- You must submit a timely, truthful, accurate, and properly completed Claim Form. If you do not do so, you will not receive any Settlement Payment. You may obtain a Claim Form by following the instructions below (see Question 17, below). You may either submit the Claim Form online by clicking here or you may print out the Claim Form, fill it out completely and mail it in so that it is received or postmarked no later than January 5, 2013.
- Unless you exclude yourself (a process that is explained in answer to Question 10, below), you are staying in the Settlement Class and agreeing to the Settlement Agreement. Generally, that means that you cannot sue, continue to sue, or be part of a future suit involving the claims raised in this case. In other words, you are agreeing to "release" those claims. Unless you exclude yourself, you are "releasing" these claims, regardless of whether you submit a claim or not.
The exact release contained in the Settlement Agreement is much more detailed, and you may want or need to consider it before making your decision about participating in the settlement. You can see a complete copy of the Settlement Agreement by clicking here.
- Any Class Member who wants to exclude himself or herself and not be bound by the Settlement Agreement must mail a letter or postcard to the Settlement Administrator so that it is postmarked no later than October 7, 2012. The request for exclusion must include (a) the name and case number of the lawsuit; (b) the full name and address of the person requesting exclusion; and (c) a statement that the person is a Settlement Class member and wishes to be excluded from the Settlement Class. If the Settlement Administrator does not receive a qualifying request from a Settlement Class member that is postmarked on or before the response deadline, then that person will be deemed to have forever waived his or her right to opt out of the Settlement Class. Persons who properly and timely submit qualifying requests for exclusion shall have no further role in the lawsuits. Moreover, they shall not be entitled to any benefit as a result of the lawsuits.
The Settlement Administrator's address is Payless Toning Shoe Class Action, c/o Heffler Claims Administration, P.O. Box 60252, Philadelphia, PA 19102.
- No, you will not receive anything resulting from the settlement of this case if you exclude yourself. But you will have the right to attempt to sue Defendant over the claims raised in this case, either on your own or as part of a different lawsuit, including by bringing an individual action in Small Claims Court. The amount of time the law gives you to sue over such claims (that is, the "statutes of limitation") may or may not have been extended because of this case; however, even if they were extended previously, they will not be extended any further if you exclude yourself. If you want your own attorney to represent you in an individual case, the terms of such representation are a matter for you and your attorney to negotiate. You are not required (and sometimes not permitted) to be represented by an attorney to bring a claim in Small Claims Court.
- The Court has approved Scott E. Poynter of Emerson Poynter, LLP, Richard E. Norman of Crowley Norman LLP, and William B. Putnam of Taylor law Partners, LLP to be the attorneys representing the class. They are called the "Class Counsel." They believe, after conducting an extensive investigation, that the Settlement Agreement is fair, reasonable, and in the best interests of the class. You will not be charged for these lawyers. If you want to be represented by your own lawyer in this case, you may hire one at your expense.
- To date, Class Counsel have not received any payment for their work in prosecuting this Action on behalf of the Settlement Class, nor have counsel been reimbursed for their out-of-pocket expenses. The fees and expenses requested by Class Counsel would compensate them for their efforts in achieving the benefits described above for the benefit of the Settlement Class and for their risk in undertaking this representation on a contingency basis.
At the Final Approval Hearing (explained below in answer to Question No. 15), Class Counsel will request an award of attorneys' expenses and cost in an amount up to $650,000, which request Defendant has agreed is reasonable and will not oppose. In advance of the final approval hearing, Class Counsel will file a petition for such payment. The Court may award less than this amount. Under the Settlement Agreement, any amount awarded to Class Counsel will be paid by Defendant in addition to the sums paid to the Settlement Class.
Subject to approval by the Court, Defendant has also agreed to pay $2,000 to each of the Class Representatives for their services in helping prosecute the lawsuits.
Payment of the incentive award and attorneys' fees and expenses, the administrative costs of the Settlement Administrator, and costs of providing notice will be paid by Defendant in addition to the benefits provided to the members of the Settlement Class and will not reduce the benefits available to the Settlement Class.
- Class Members who do not request exclusion from the Settlement Class may object to the proposed settlement. Class Members who choose to object to the proposed settlement must file written notices of intent to object with the Court, with copies via first-class mail and facsimile, to Class Counsel, Defendant's counsel, and the Settlement Administrator, no later than October 7, 2012 (the "Objection Deadline"). The objection must include (a) the name and case number of the Action; (b) the full name, address and telephone number of the person objecting; (c) the words "Notice of Objection" or "Formal Objection;" (d) a signed statement that he or she is a member of the Settlement Class, including evidence of adequate proof of purchase or, if none is available, a declaration under oath that the consumer has no proof of purchase and that he or she purchased a Payless' Toning Shoe Product; (e) a clear and concise terms, the legal and factual arguments supporting the objection; and (f) all documents or writings that such Class member desires the Court to consider.
The objection will not be valid if it objects to the Action's appropriateness or merits only.
Class Members who fail to make objections in this manner will be deemed to have waived any objections and will be foreclosed from making any objections to this Agreement.
Unless otherwise ordered by the Court, the Settlement Class members shall not be permitted to speak at the Final Approval Hearing unless they have submitted a timely objection. While the declaration described in (d) above is prima facie evidence that the objector is a member of the Settlement Class, Plaintiffs and Defendant or both may take discovery regarding the matter, subject to Court Approval.
Any Class Member complying with the foregoing may appear at the Settlement Approval Hearing, in person or by counsel, and be heard to the extent allowed by the Court, applying applicable Arkansas law, in opposition to the fairness, reasonableness and adequacy of the proposed settlement, and on the application for an award of attorneys' fees and costs.
The right to object to the proposed settlement must be exercised individually by an individual Class Member, not as a member of a group or subclass and, except in the case of a deceased, minor or incapacitated Class Member, not by the act of another person acting or purporting to act in a representative capacity.
If the Objector is represented by an attorney, such attorney must comply with all applicable Arkansas laws and rules for filing pleadings and documents in Arkansas Courts.
In addition to the information required by (a) – (f), above, a notice of intent to object must contain the following information, if the Class Member or his/her attorney requests permission to speak at the Settlement Approval Hearing:
- A detailed statement of the specific legal and factual basis for each and every objection;
- A list of any and all witnesses whom the Objector may call at the Settlement Approval Hearing, with the address of each witness and a summary of his or her proposed testimony;
- A detailed description of any and all evidence the Objector may offer at the Settlement Approval Hearing, including photocopies of any and all exhibits which the Objector may introduce at the Settlement Approval Hearing; and
- Documentary proof of membership in the Settlement Class.
- identifies all other class action cases in which the attorney, or any member of the attorneys' firm, has appeared either as counsel on behalf of an objecting class member or as lead counsel on behalf of a class, including the case style, case number, and court; and
- details the ultimate disposition of any objection filed by the attorney in any class action case and describes whether the objection was resolved for a payment of fees with no alteration to the underlying class action settlement agreement or, in the event the objection was resolved with an enhancement to the underlying class action settlement agreement, describes those enhancements and how the class action settlement was modified.
Any Class Member who does not file a timely notice of intent to object in accordance with the above paragraphs and the Settlement Agreement shall waive the right to object or to be heard at the Settlement Approval Hearing and shall be forever barred from making any objection to the Proposed settlement. Class Members have the right to exclude themselves from the proposed settlement and pursue a separate and independent remedy against Payless by complying with the exclusion provisions set forth above and in the Settlement Agreement. Class Members who object to the proposed settlement shall remain Class Members, and have voluntarily waived their right to pursue an independent remedy against Payless. If their objections to the proposed settlement are overruled in whole or in part, they will be forever bound by the Judgment of the Court. In order to be considered, any objection must be received or postmarked no later than October 7, 2012.
Any objections and required information and notices must be sent to the Court via first-class mail and to Class Counsel, Defendants' counsel, and the Settlement Administrator via first-class mail and facsimile: mail and facsimile:
Clerk of the Court
Court for Pulaski County
401 West Markham Street, Room 100
Little Rock, AR 72201-2659
FAX: (501) 340-8340
Scott E. Poynter Emerson Poynter, LLP
500 President Clinton
Ave., Suite 300
Little Rock, AR 72201
FAX: (501) 907-2556
Marshall S. Ney
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
5414 Pinnacle Point Dr., Suite 500
Rogers, AR 72758-8131
FAX: (479) 464-5680
Payless Toning Shoe Class Action, c/o
Heffler Claims Administration,
P.O. Box 60252,
Philadelphia, PA 19102
FAX: (215) 665-0613
YOU MAY NOT DO THIS ONLINE.
The Final Approval Hearing
The Court has preliminarily approved the Settlement Agreement and will hold a hearing to decide whether to give final approval to the Settlement Agreement. You may attend and you may ask to speak, but you don't have to.
The Court will hold the Final Approval Hearing on November 13, 2012 at 8:00 a.m. in Room 240 of the Arkansas Circuit Court for Pulaski County Courthouse at 401 West Markham Street, Little Rock, AR 72201-2659. The purpose of the hearing will be for the Court to determine whether the Settlement Agreement should be approved as fair, reasonable and adequate and in the best interests of the Class; to consider the parties' agreement that Class Counsel should be paid $650,000 for an award of attorneys' fees and reimbursement of costs and expenses, and to consider the request for an incentive awards to Laverne Hampton and Erin Brady in the amount of $2,000 each. At that hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement Agreement that have properly been requested, as set forth above.
The hearing may be changed to a different date or time without notice.
You are not required to come to the Final Approval Hearing.
If the Court determines that the Settlement Agreement should be approved as fair, reasonable and adequate and in the best interests of the Class, any Settlement Class members who have not excluded themselves and their representatives are barred from filing any lawsuit asserting any claims against Defendant that relate to the claims discussed above.
Getting More Information
This Notice is necessarily an incomplete summary of the Settlement Agreement and its terms. You are free to inspect the court files from 9:00 a.m. until 4:30 p.m. on weekdays at the office of the Clerk of the Court, Arkansas Circuit Court for Pulaski County Courthouse at 401 West Markham Street, Little Rock, AR 72201-2659. You may also see a complete copy of the Settlement Agreement by clicking here. You can call the Settlement Administrator at 1-855-745-3393, if you have any questions. Before doing so, please read this full Notice carefully. You may also find additional information elsewhere on the website, including in the FAQ section.
Do not call or direct any inquiries to the Court, to Defendant or to Defendant's lawyers.
Filing a Claim
To complete and submit a Claim Form online, click here.
You may instead print a Claim Form, fill it out completely, and mail it in so that it is received or postmarked no later than January 5, 2013. Click here to download a paper Claim Form.
If you choose to file a paper Claim Form, mail it only to the following address: Payless Toning Shoes Class Action, c/o Heffler Claims Administration, P.O. Box 60252, Philadelphia, PA 19102. Either format (hard copy or online filing) is acceptable. Online filing is quicker and cheaper. Please mail your Claim Form only to the address above or submit it through this website.
On any communication concerning this case, you should always provide a telephone number where you can be reached with any questions.
Date: September 7, 2012
PLEASE DO NOT CONTACT THE COURT OR COUNSEL FOR DEFENDANT ABOUT THIS NOTICE. YOU MAY CALL THE SETTLEMENT ADMINISTRATOR AT 1-855-745-3393.
- October 7, 2012
- October 7, 2012
- November 13, 2012
Settlement Approval Hearing
- January 5, 2013
Claim Filing Deadline
Contact UsAs Settlement Administrator, we welcome your inquiries, comments, and/or requests.
Contact us easily:
- fill out our contact form;
- call us at 1-855-745-3393
Excluding Yourself from the SettlementIf you don't want to receive the benefits from the Settlement Agreement, but you want to keep any right to sue that you may have or you want to continue to sue the Defendant on your own over the claims in this case, then you must take steps to get out of the settlement. This is called excluding yourself.
The Lawyers Representing You
Objecting to the Settlement
You can tell the Court that you don't agree with the Settlement Agreement or some part of it. Only those that remain in the Settlement Class may object to the Settlement Agreement. Whether or not you file a claim, you may also object to the settlement. You cannot object if you have opted out of the Settlement Class.