DFC GLOBAL CORP. 10-Q 2009
Court file # CV-08-363659-00CP
SUPERIOR COURT OF JUSTICE
B E T W E E N
KENNETH SMITH, as Estate Trustee of the Last Will and Testament of
Margaret Smith, deceased, and RONALD ADRIEN ORIET
NATIONAL MONEY MART COMPANY and
DOLLAR FINANCIAL GROUP, INC.
Proceeding Under the Class Proceedings Act, 1992
made as of June 5, 2009
TABLE OF CONTENTS
Subject to Court approval as provided herein, the Parties hereby stipulate and agree that, in consideration of the promises and covenants set forth in the Agreement and upon the Approval Order approving the Settlement and directing the implementation of the terms and conditions of the Settlement as set forth in the Agreement becoming final, the Action will be settled and compromised upon the terms and conditions contained herein.
A. Margaret Smith (now deceased) and Ronald Oriet commenced the Action against the Defendants alleging among other things that the Defendants charged, or permitted to be charged, fees for short term loans which constituted interest at a criminal rate contrary to s. 347 of the Criminal Code of Canada;
B. The Defendants have denied and continue to deny the Plaintiffs claims in the Action and have denied any wrongdoing or liability to the Plaintiffs of any kind, and have raised numerous affirmative defences;
C. Based upon extensive analysis of the facts and the law applicable to the Plaintiffs claims, and taking into account the extensive burdens and expense of continued litigation, including the risks and uncertainties associated with the completion of the Trial and any potential appeal, the risk of collection, as well as the fair, cost-effective and assured method of resolving the Plaintiffs claims and the claims of the Settlement Class, Class Counsel and the Plaintiffs, with the benefit of advice from Class Counsel, concluded that the Agreement is fair and reasonable, and in the best interests of the Settlement Class;
D. The Defendants similarly have concluded that the Agreement is desirable in order to avoid the time, risks and expense of continuing with the Trial and any potential appeals, and to resolve finally and completely the pending and potential claims of the Plaintiffs and the Settlement Class;
E. The Plaintiffs and the Defendants engaged in lengthy, hard fought and extensive litigation, negotiations and independent mediation sessions on multiple occasions, which mediation sessions resulted in the adjournment of the Trial and the Agreement. The terms and conditions of the Agreement are recommended by the independent mediator, the Honourable Frank Iacobucci, C.C., Q.C.;
F. The Parties intend by the Agreement to resolve, terminate and finally conclude any and all Settled Claims pursuant to the terms of the Agreement, and further intend that the Released Persons shall receive complete releases and final peace from all such Settled Claims on behalf of the Settlement Class; and
NOW, THEREFORE, for value received, the Parties stipulate and agree, subject to Court approval, that any and all Settled Claims shall be finally settled and resolved on the terms and conditions set forth in the Agreement:
2.1 As used in the Agreement, including the Recitals and Schedules hereto, in addition to any definitions elsewhere in the Agreement, the following terms shall have the meanings set forth below:
SECTION 3REQUIRED EVENTS AND COOPERATION
3.1 The Plaintiffs will make a motion to the Court requesting approval of the First Notice in the terms of the First Notice Order including orders:
3.2 The Plaintiffs will also make a motion to the Court requesting approval of the Settlement and providing the relief specified herein, which relief shall be subject to the terms and conditions of the Agreement and the Parties performance of their continuing rights and obligations hereunder. The Approval Order will, among other things:
3.3 The Parties agree that the Fast Cash Advance transactions for which there is no electronic link between origination and deposits will be treated as Eligible Fast Cash Advance Transactions for the purposes of the Settlement.
3.4 As soon as reasonably practicable after December 31, 2009, Money Mart will produce to the Plaintiffs the following electronic customer data for the Settlement Class for corporate stores, Current Franchisees stores and Former Franchisees stores for the Settlement Period:
provided however that Class Counsel and Money Mart may by agreement vary the contents in these databases.
3.5 The Parties will use their best efforts to agree on:
3.6 If the Parties do not reach agreement on the matters set out in Section 3.5 by January 31, 2010, the matters will be immediately referred to the Honourable Frank Iacobucci for summary determination without a right of appeal.
3.7 If the Court orders the payment of Cash Credits, the Parties will use their best efforts to agree on:
failing agreement, these issues will be determined by the Court in a summary manner. This data will be incorporated into the Cash Credits Database.
3.8 The Parties shall cooperate, assist each other and take all reasonable steps in order to accomplish all events contemplated by the Agreement.
SECTION 4NOTICE TO THE SETTLEMENT CLASS
4.1 Subject to Court approval, the First Notice and the Second Notice, substantially in the form of Schedules B and C respectively, will be published and disseminated to Settlement Class Members in accordance with the Notice Plan attached as Schedule A.
4.2 If the Settlement is terminated in accordance with the provisions of Section 12, a Termination Notice will be published and disseminated to the Settlement Class Members in a manner to be determined by the Court.
4.3 In addition to the Settlement Amount, Money Mart will pay the costs of publishing and disseminating the First Notice, the Second Notice, the Termination Notice, if any, the notice of the motion contemplated by Section 5.19 and the costs of Money Marts Counsel to receive the objectors materials and the Requests for Exclusion and report to the Court thereon.
SECTION 5MONEY MARTS SETTLEMENT OBLIGATIONS
5.1 On and following the Settlement Date, Money Mart will comply with the Settlement Obligations in the manner required by the provisions of the Agreement and the directions of the Court.
a) Debt Release
5.2 After the deadline for Requests for Exclusion, Money Mart will completely and unconditionally release, forever discharge and acquit the Indebted Class Members. As set out in the Notice Plan, Money Mart will then immediately take steps to notify the Indebted Class Members that they have been released by Money Mart, the Former Franchises and the Current Franchisees from their indebtedness, that they are in good standing and that they can avail themselves of all the products and services available at Money Mart Stores, subject to normal qualification criteria.
5.3 For the purpose of implementing the Debt Release and notice thereof to the Indebted Class Members, Money Mart will create and maintain the Debt Release Database.
b) Transaction Credits
5.4 Money Mart will allocate, distribute and honour the Transaction Credits as required by the provisions of the Agreement.
5.5 Transaction Credits will be subject to the following terms:
5.6 Money Mart will hold Transaction Credits totaling $300,000 (1% of $30 million) in the Transaction Reserve Fund and any awards relating to Transaction Credits made by the Referee will be paid from the Transaction Reserve Fund.
5.7 Indebted Class Members will not be entitled to Transaction Credits.
5.8 Each Credit Class Member will be allocated Transaction Credits on the following terms:
5.9 The Transaction Credits allocated to each Credit Class Member in accordance with Section 5.8 will be recorded in the Transaction Credits Database. Money Mart will update the Transaction Credits Database as Transaction Credits are used or transferred.
5.10 From time to time, each Credit Class Member may determine the Transaction Credits to which he or she is entitled by:
when so doing, provide such information as is required by Money Mart to verify the Credit Class Members identity.
5.11 If a Credit Class Member attends any Money Mart Store intending to do business with Money Mart or seeking information about his or her Transaction Credits, Money Mart will advise the Credit Class Member of his or her entitlements under the Agreement.
5.12 If necessary, because of outdated personal information, Credit Class Members may be required to provide updated personal information to Money Mart before receiving the Transaction Credits allocated to him or her.
5.13 A Credit Class Member may use his or her Transaction Credits for Eligible Services by attending at any Money Mart Store and presenting appropriate government issued photo identification establishing identity and each such use will be recorded electronically in Money Marts computer records.
5.14 Alternatively, a Credit Class Member may obtain Certificates evidencing some or all of his or her Transaction Credits by:
5.15 Prior to the Expiration Date, a Credit Class Member may, from time to time, transfer some or all of his or her Transaction Credits to any other Settlement Class Member or to any other individual.
5.16 A Credit Class Member may:
5.17 The transferee of a Transaction Credit may use the Transaction Credit for an Eligible Service as if he or she is a Credit Class Member, subject to normal qualification criteria.
5.18 A Transaction Credit is unused until the credit is actually applied by Money Mart as a credit in conjunction with a contract for an Eligible Service. For greater certainty, a Certificate is unused until it is used in conjunction with a contract for an Eligible Service.
c) Unused Credits
5.19 Immediately after the Expiration Date, the Unused Credits will be applied for the benefit of Money Mart customers (including all Indebted Class Members and Credit Class Members) who obtain a Fast Cash Advance or payday loan from Money Mart from that date forward in the form of a credit against Money Marts usual and ordinary rates. The manner of the application of the Unused Credits will be fixed by the Court taking into consideration commercial reasonableness and competitive circumstances. The Unused Credits will be applied as the Court directs until they are all used. Money Mart and/or the Class Counsel Representative will give each other notice of the motion contemplated by this Section which is to be returnable on or shortly after the Expiration Date.
5.20 For the purpose of facilitating the distribution and use of the Unused Credits, Money Mart will create and maintain the Unused Credits Database.
d) The Settlement Amount
5.21 Money Mart has paid to Sutts, Strosberg LLP the sum of $7.5 million on account of the Settlement Amount pursuant to the order of Justice Spies dated June 5, 2009.
5.22 Money Mart will pay the $20 million balance of the Settlement Amount in the following installments:
5.23 The Court will direct to whom and when the amounts set out in Section 5.22 will be paid but such directions will not require Money Mart to pay any monies except in accordance with the schedule of payments particularized in Section 5.22.
e) Interest on the Settlement Amount
5.24 Money Mart will pay interest at the prejudgment interest rate set by the Courts of Justice Act from and after July 15, 2010 on any unpaid balance owing under Section 5.22(b) and from and after July 15, 2011 on any unpaid balance owing under Section 5.22(c).
5.25 No interest will be paid to any Class Members. Rather, on the Anniversary Dates after July 15, 2010, Money Mart will pay all accrued interest cy près to the Law Foundation of Ontario on the following terms:
f) Cash Credits
5.26 Money Mart will pay 10% of that portion of the Settlement Amount available for distribution as Cash Credits to the Class Proceedings Fund.
5.27 The portion of the Settlement Amount, if any, remaining after payment of Class Counsel Fees and payment to the Class Proceedings Fund will be paid by Money Mart as Cash Credits to the Credit Class Members in accordance with the Agreement. Money Mart will pay the Cash Credits to the Credit Class Members from and after July 15, 2011.
5.28 Money Mart will hold an amount totaling 1% of the Settlement Amount available for distribution as Cash Credits in the Cash Reserve Fund. Any awards relating to Cash Credits made by the Referee will be paid from the Cash Reserve Fund.
5.29 Cash Credits are neither transferable nor assignable. A Credit Class Members right to claim Cash Credits will expire on the Expiration Date.
5.30 Cash Credits will be paid only to Credit Class Members and not to Indebted Class Members.
5.31 Credit Class Members will be allocated Cash Credits on the following terms:
5.32 From time to time, each Credit Class Member may determine the Cash Credits to which he or she is entitled by:
when so doing, provide such information as is required by Money Mart to verify the Credit Class Members identity.
5.33 If a Credit Class Member attends a Money Mart Store intending to do business with Money Mart or seeking information about his or her Cash Credit, Money Mart will advise the Credit Class Member of his or her entitlements under the Agreement.
5.34 If necessary, because of outdated personal information, Money Mart may require Credit Class Members to provide updated personal information to Money Mart before receiving their Cash Credit.
5.35 If the Court directs that Cash Credits are to be paid to the Credit Class Members, Money Mart will pay the amount allocated to each Credit Class Member, from and after July 15, 2011. Each Credit Class Member may obtain his or her Cash Credit:
5.36 The Cash Credit allocated to each Credit Class Member in accordance with Section 5.31 will be recorded in the Cash Credits Database. Money Mart will update the Cash Credits Database as Cash Credits are paid.
5.37 At the Expiration Date, Money Mart will pay the unpaid Cash Credits, the interest thereon and the balance in the Cash Reserve Fund, if any, cy près for the benefit of the Settlement Class to The Law Foundation of Ontario on the terms set out at Section 5.25.
g) Class Proceedings Fund
5.38 Money Mart will pay to the Class Proceedings Fund $3 million by making annual payments equal to:
5.39 In addition to any amount paid in accordance with Section 5.38, if Money Mart is required to distribute Cash Credits to the Credit Class Members, it will pay 10% of that portion of the Settlement Amount available for distribution as Cash Credits to the Class Proceedings Fund on July 15, 2011.
h) Administration Expenses
5.40 Money Mart will pay all costs of administration and notice as required pursuant to the provisions of the Agreement.
5.41 For greater certainty:
SECTION 6SETTLEMENT ADMINISTRATION
6.1 Money Marts Counsel will be appointed to receive all objections to the Settlement. As soon after receipt as possible, he will provide copies of them to Class Counsel for the purposes of the Approval Hearing, and he will report to the Court thereon by affidavit on February 18, 2010 and if necessary by supplementary report at the Approval Hearing.
6.2 Money Marts Counsel will be appointed to receive all Requests for Exclusion. As soon after receipt as possible, he will provide copies to Class Counsel and, he will report to the Court thereon at the end of the Opt-Out Period.
6.3 Money Mart will establish a Settlement administration which implements and conforms to the Agreement and the directions of the Court.
6.4 Money Mart will commence the distribution of Transaction Credits as soon as reasonably possible after the deadline for receipt of Requests for Exclusion.
6.5 Money Mart will pay the Transaction Credits that were allocated to persons who opted out into the Transaction Reserve Fund.
6.6 Money Mart shall administer the Settlement in accordance with the provisions of the Agreement under the oversight of the Court and the Class Counsel Representative.
6.7 Money Mart shall perform the Settlement administration in a rational, responsible, cost effective and timely manner.
6.8 Personal information obtained or created in the administration of the Settlement is confidential and, except as required by law, will be used and disclosed only for the purpose of distributing the notices contemplated by the Agreement and the administration of the Settlement.
6.9 Money Mart will maintain reasonably detailed records of its activities under the Agreement until one (1) year after the Courts order that all Settlement Obligations are satisfied. Such records will be made available electronically or as otherwise requested for inspection by the Class Counsel Representative, by the Court and by the Auditor.
6.10 For the purpose of fulfilling their responsibilities and duties under the Agreement, Money Mart will provide the Class Counsel Representative, the Auditor and the Referee with such access to the Cash Credits Database, the Transaction Credits Database, the Debt Release Database, the Unused Credits Database and the master database from which the above databases are generated, the Transaction Reserve Fund and the Cash Reserve Fund as they may require.
6.11 Any one or more of the Parties, the Class Counsel Representative, the Referee or the Auditor may move for directions from the Court in respect of any matter in relation to the Agreement.
a) The Referee
6.12 The Court will appoint the Referee with such powers and rights as are reasonably necessary to discharge the duties and responsibilities set out in the Agreement including those set
out in Schedule H. The Referees appointment expires on the final determination of the motion contemplated by Section 5.19. The Court will, at this motion, decide whether the Referees appointment should be extended and, if so, until when.
6.13 If there is any dispute regarding entitlement to Debt Release, Cash Credits, Transaction Credits, or Unused Credits, or regarding the amount of or receipt of an allocated share of any such credit which cannot be resolved by Money Mart within 30 days of receiving notice of the dispute, the Referee will resolve any such disputes in accordance with the provisions of the Agreement.
6.14 Money Mart will pay the reasonable fees, disbursements and taxes of the Referee which will be fixed by the Court.
b) Class Counsel Representative
6.15 The Court will appoint the Class Counsel Representative with such powers and rights as are reasonably required to discharge the duties and responsibilities set out in the Agreement. Class Counsel Representatives appointment expires on the final determination of the motion contemplated by Section 5.19. The Court will, at this motion, decide whether Class Counsel Representatives appointment should be extended and, if so, until when. The Class Counsel Representative may designate a member of her firm to prepare for and attend any motions. The Parties will use their best efforts to achieve a consent order on all motions.
6.16 Money Mart will pay the reasonable fees, disbursements and taxes of the Class Counsel Representative which will be fixed by the Court and in the event she designates a member of her firm to prepare and attend on motions the reasonable fees, disbursements and taxes of the designated member which will also be fixed by the Court.
c) The Auditor
6.17 The Court will appoint the Auditor with such powers and rights as are reasonably required to discharge the duties and responsibilities set out in the Agreement. The duties and
responsibilities of the Auditor include auditing on an annual basis the Settlement administration and the various databases and funds. The Auditor will deliver a copy of its report to the Court, to Money Mart and to Class Counsel Representative at the following times and on the following topics:
6.18 Money Mart will cooperate with the Auditor and provide the Auditor with access to all records necessary for the Auditor to prepare the reports and to discharge its responsibilities pursuant to the Agreement.
6.19 Money Mart will pay the reasonable fees, disbursements and taxes of the Auditor which will be fixed by the Court.
SECTION 7OPT-OUT RIGHTS
7.1 Class Members will not be given a further opportunity to opt out of the Action.
7.2 A New Class Member may opt out of the Action at any time during the Opt-Out Period in accordance with the provisions of the Agreement.
7.3 In order to opt out the New Class Member must return a completed and signed Request for Exclusion to Money Marts Counsel during the Opt-Out Period substantially in the form in Schedule D postmarked, email or fax dated within the Opt-Out Period.
7.4 Any New Class Member who elects to opt out of the Action will:
7.5 Nothing in the Agreement constitutes or shall be deemed to constitute a waiver by any of the Defendants of defences based on statutes of limitations or repose, laches, prescription period or any other limitation or prescription defence. Without limiting the generality of the foregoing, nothing in the Agreement constitutes or shall be deemed to constitute a waiver of such defences in respect of any New Class Member who opts out of the Action in accordance with the provisions of this Section 7.
7.6 At the end of the Opt-Out Period, Money Marts Counsel will report to the Court regarding all Requests for Exclusion on notice to the Class Counsel Representative and the Auditor and provide copies of all completed Requests for Exclusion.
SECTION 8RELEASES AND JURISDICTION OF THE COURT
8.1 As of the Settlement Date, each Class Member and each New Class Member who does not opt out will have by virtue of the Agreement, and by operation of the Approval Order, individually, completely and unconditionally released, forever discharged and acquitted the Released Persons from any and all of the Settled Claims.
8.2 As of the Settlement Date, the Settlement Class Members and anyone claiming through or on behalf of any of them will be forever barred from commencing, instituting or prosecuting the Settled Claims against any one of the Released Persons in any action, litigation, investigation or other proceeding in any court of law or equity, arbitration, tribunal, proceeding, or any other forum, directly, representatively or derivatively relating to the Settled Claims.
8.3 The Parties agree that the Court shall retain exclusive and continuing jurisdiction over the Action, Parties and Settlement Class Members to interpret and enforce the terms, conditions and obligations under the Agreement and the Approval Order.
8.4 Nothing herein shall release a Settlement Class Member from any outstanding obligation owed by a Settlement Class Member to Money Mart except to the extent that Default Transactions are released pursuant to Section 5.2.
8.5 Nothing herein shall release the Released Persons from any outstanding obligation owed by the Released Persons to a Settlement Class Member except to the extent of the release provided pursuant to Section 8.1.
8.6 Nothing herein shall release the Defendants and the Released Persons from their obligations as set out in the Agreement and in the Approval Order.
SECTION 9CLASS COUNSEL FEES
9.1 At the Approval Hearing, Class Counsel may seek Court approval of Class Counsel Fees to be paid from and as a first charge on the Settlement Amount.
9.2 The Defendants will have no involvement in the approval process to determine the amount of Class Counsel Fees.
SECTION 10NO ADMISSIONS/NO USE
10.1 The Agreement, whether or not approved, and any proceedings taken pursuant to the Agreement, are for settlement purposes only. Neither the fact of, nor any provision contained in, the Agreement or its Schedules, nor any action taken hereunder, shall be referenced in any other court proceedings, or construed as, offered in evidence as, received in evidence as, or deemed to be evidence of, a presumption, concession or an admission of any kind by the Plaintiffs or the Defendants of the truth of any fact alleged or the validity of any claim or defence that has been, could have been, or in the future might be asserted in any litigation, court of law or equity, proceeding, arbitration, tribunal, investigation, government action, administrative forum or any other forum, or of any liability, responsibility, fault, wrongdoing or otherwise of the Plaintiffs, the Settlement Class or the Defendants.
10.2 Any certification of the Action in respect of New Class Members pursuant to the terms of the Agreement shall not constitute, and shall not be construed as, an admission on the part of the
Defendants that either the Action, or issues arising in the Action, or any other putative or certified class proceeding, is appropriate for prosecution or trial as a class proceeding.
10.3 Except as may be required to enforce the Settlement and the Agreement, no Class Counsel, and no one employed by, associated with, or a partner with Class Counsel, may directly or indirectly participate or be involved in or in any way assist with respect to any claim made or action by any person which relates to or arose from the Settled Claims.
SECTION 11MISCELLANEOUS PROVISIONS
11.1 The Agreement, including all Schedules hereto, constitutes the entire Agreement among the Parties with regard to the subject matter of the Agreement and shall supersede any previous agreements, representations, communications and understandings among the Parties with respect to the subject matter of the Agreement. Subject to its terms, the Agreement may not be changed, modified, or amended except in writing signed by all Parties, subject to Court approval. The Parties contemplate that the Schedules to the Agreement may be modified by subsequent agreement of Money Mart and Class Counsel and by Court order prior to and after dissemination to the Settlement Class.
11.2 The Agreement shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario.
11.3 The Agreement may be executed by the Parties in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signatures by facsimile shall be as effective as original signatures.
11.4 If the Settlement is approved by the Court and if the Approval Order becomes final, the Agreement shall be binding upon and enure to the benefit of the Plaintiffs, the Settlement Class, the Defendants, the Released Parties and all of their respective heirs, executors, predecessors, successors and assigns.
11.5 The Recitals to the Agreement are true and form part of the Agreement.
11.6 The representations and warranties contained in the Agreement shall survive its execution and implementation.
11.7 The headings of the sections of the Agreement are included for convenience only and shall not be deemed to constitute part of the Agreement or to affect its construction.
11.8 Any notice, instruction, motion for Court approval or motion for directions or Court orders sought in connection with the Agreement or other report or document to be given by any Party to any other Party shall be in writing and delivered personally, by facsimile or e-mail during normal business hours, or sent by registered or certified mail, postage paid:
11.9 The Schedules to the Agreement are:
11.10 The Parties acknowledge that they have required that the Agreement, including Schedules, be prepared in English.
11.11 No waiver of any provision of the Agreement shall be binding on any Party unless consented to in writing by such Party. No waiver of any provision of the Agreement shall
constitute a waiver of any other provision, and no waiver of any provision of the Agreement shall constitute a continuing waiver unless expressly so provided.
SECTION 12TERMINATION OF THE AGREEMENT
12.1 The Agreement shall, without notice, be automatically terminated if:
12.2 In the event the Agreement is terminated in accordance with its terms, or not approved by the Court, or any approval is reversed, vacated, or terminated by any appellate court and/or the Approval Order does not become final:
12.3 If the Agreement is terminated, the provisions of this Section and Sections 4.2, 4.3, 10.1, 10.2, 11.8, 12.2 and the Recitals, Schedules and Definitions applicable thereto shall survive termination and shall continue in full force and effect.
SECTION 13REPRESENTATIONS AND WARRANTIES
13.1 Money Mart and Dollar Financial represent and warrant that:
13.2 The Plaintiffs represent and warrant that:
SECTION 14GUARANTEE BY DOLLAR FINANCIAL
14.1 Dollar Financial hereby guarantees payment to the Settlement Class of all the debts, liabilities and obligations of Money Mart pursuant to the Agreement and the Approval Order.
14.2 Dollar Financials guarantee is a continuing guarantee of all Money Marts debts, liabilities and obligations pursuant to the Approval Order, Agreement and pursuant to any further orders made by the Court.
14.3 The Settlement Class Members shall not be bound to exhaust their recourse against Money Mart before being entitled to make demand to Dollar Financial if Money Mart is the subject of a bankruptcy, or proposal in bankruptcy, or a CCAA application or action. In such
circumstances, immediately following demand, Dollar Financial will satisfy Money Marts outstanding debts, liabilities and obligations under the Agreement.
IN WITNESS WHEREOF, each of the Parties has caused the Agreement to be executed on his /its behalf by their respective counsel, effective as of June 5, 2009.
Court File No. CV-08-363659-00CP
SUPERIOR COURT OF JUSTICE
PROCEEDINGS COMMENCED AT WINDSOR
SUTTS, STROSBERG LLP
600 Westcourt Place
251 Goyeau Street
Windsor ON N9A 6V4
HARVEY T. STROSBERG, QC
LAWYERS FOR THE PLAINTIFFS