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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (CINCINNATI)

SARA HAWES, et al.,

Plaintiffs,

v.

MACY’S WEST STORES, INC.,

Defendant.

Civil Action: 1:17-CV-00754

Judge Douglas R. Cole

CHIARALUCE, et al.,

Plaintiffs,

v.

MACY’S INC., et al.,

Defendants.

Civil Action: 2:20-CV-00081

Judge Douglas R. Cole

PLAINTIFFS’ NOTICE OF RENEWED MOTION AND SUPPLEMENTAL 

MEMORANDUM OF LAW IN SUPPORT OF FINAL APPROVAL OF THE AMENDED 

SETTLEMENT

Plaintiffs Sara Hawes, Cassandra Chiaraluce, and Jonathan Fontaine (“Named Plaintiffs”), 

by and through Class Counsel, hereby submit this notice of Renewed Motion and Supplemental 

Memorandum of Law in Support of Final Approval of the Amended Settlement Agreement

(“Settlement”).

The number of claims submitted by class members since October 20, 2023 has increased 

substantially. If the existing claims are paid pursuant to even the original plan of distribution, the 

fund will be exhausted. See generally Supplemental Declaration of Michael McShane in Support 

of Plaintiffs’ Renewed Motion and Supplemental Memorandum of Law in Support of Final 

Approval of the Amended Settlement (“McShane Dec.”) As of the filing of the instant Renewed 

Motion for Final Approval of the Amended Settlement Agreement, 1,573,256 claims have been 

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submitted by class numbers. McShane Decl. at ¶ 4. This is a nearly three-fold increase from the 

608,346 claims received at the time of the October 20, 2023 final approval hearing. McShane Decl. 

at ¶ 2 (Dkt. No. 169).

The Court previously recognized the effectiveness of the notice plan during the final 

approval hearing and stated in pertinent part: “The notice plan has already proven remarkedly 

successful at generating claim submissions.” (Dkt. No. 169 at p. 8). Angeion, the Court appointed 

claims administrator, will continue to monitor the notice program, claims activity, and employ 

additional notice tools throughout the claims period to reach and notify class members about the 

Settlement. Angeion anticipates that an elevated rate of claim form submissions will continue 

throughout the duration of the six-month claims period. (Dkt. No. 143, Weisbrot Decl.).

On December 20, 2023, the Court issued an Order and Opinion denying Plaintiffs’ motion 

for final approval and rejecting the Settlement “due to a concern about one aspect of the 

Settlement--the proposed cy pres distribution.” (Dkt. No. 169, pp. 1-2) (“Order and Opinion”). The 

Court explained that “The bottom line is that the cy pres award included in the Settlement 

Agreement diverts class funds to an unrelated third party, whose use of the funds will not benefit 

the class’s interests here, directly or indirectly. Thus, the Court concludes it must reject the 

settlement.” Id. at p. 41. The Court’s concerns about the proposed Settlement Agreement were

limited to this single issue.

The Plaintiffs can now report to the Court that the Parties have agreed to amend and modify

paragraph 6.4 of Settlement Agreement so as to remove the use of cy pres. See Amendment to 

Class Action Settlement Agreement (McShane Decl. at Exhibit B). The large number of claims 

received to date has already exhausted the fund even though the claims period has not yet 

commenced. See McShane Decl. at ¶ 3-4. This has rendered the issue of whether or not to consider 

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a cy pres recipient a moot point. In addition, and even though the present number of claims will 

exhaust the settlement fund, the Parties agreed to amend and modify paragraphs 6.1.3 and 6.3 of 

the Settlement to lift the cap on the amount of money a Class Member can receive under the 

settlement, and instead add a potential additional distribution to all class members on a pro rata 

basis. This will ensure that all funds are distributed to the Class Members and benefits will be 

provided as follows:

The original Settlement Agreement created three categories of claimants who can collect 

under the settlement: 

• Class members whose purchases Macy’s can verify through its own records 

[Category 1] 

• Class members who provide proof of purchase through a receipt [Category 2] 

• Class members who attest under penalty of perjury that they purchased CVC 

sheets [Category 3]

Settlement Agreement, section 6.1; Dkt. No. 143-2 at p. 9. Under the original Settlement 

Agreement, Category 1 and Category 2 class members would receive $7.50 per sheet set, and 

Category 3 class members would receive $2.50 per household. Then, if excess funds were 

available, Category 1 and Category 2 class members could participate in a second distribution in 

which they could receive up to 50% (equating to an average $17.97 per purchase) of the amount 

of their sheet purchase. Settlement Agreement, section 6.3; Dkt. No. 143-2 at p. 10. Category 3 

class members were not eligible to participate in the second distribution.

The amendment adds a potential third distribution such that if there are funds remaining 

after the second distribution, all of the remaining funds will be distributed to the class [all 

members] on a pro rata basis. Amended Settlement Agreement, section 6.4.

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Importantly, the amendments to the Settlement Agreement do not change or alter the 

payment formula used to determine Class Members’ settlement benefits, which the Court 

determined was fair, reasonable and adequate. (Dkt. No. 169 at pp. 24-26). Rather, it allows for 

the possibility of an increase in the amount of money or settlement benefits a claiming Class 

Member can receive because the per claim cap on the amount available to each class member has 

been removed. The amendments will not under any circumstance result in the possibility of any 

class member receiving less money than they would have received prior to the amendment. 

McShane Decl. at ¶ 5.

The removal of a cy pres recipient directly alleviates the Court’s concerns about the 

Settlement as stated in its Order and Opinion. The removal of a cy pres recipient will not negatively 

affect or impact any absent Class Members’ rights in any manner. Thus, the Settlement remains 

fair, reasonable and adequate and cures the Court’s “only” concern about the Settlement by 

removing the cy pres component. (Dkt. No. 169). Accordingly, Plaintiffs respectfully request that 

their Renewed Motion for Final Approval of the Settlement be granted.

Plaintiffs incorporate here the briefing, facts, law, and argument previously provided to the 

Court in their Motion for Preliminary Approval of Class Action Settlement; Motion for an Award 

of Attorneys’ Fees, Reimbursement of Expenses, and Award of Class Representative Service 

Awards; Defendants’ Motion for Final Approval of Class Action Settlement; and made during the 

final approval hearing which took place on October 20, 2023. (Dkt. Nos.: 143, 147, and 153).

I. RELEVANT PROCEDURAL BACKGROUND

On March 24, 2023, the Plaintiffs filed Plaintiffs’ Motion for Preliminary Approval of 

Class Action Settlement. (Dkt. No. 143).

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On May 1, 2023, the Court entered its Order Preliminarily Approving Class Action

Settlement, appointed Angeion as notice provider, and directed that the notice plan be 

implemented. (Dkt. No. 144). On August 4, 2023, the Plaintiffs filed Plaintiffs’ Motion for an 

Award of Attorneys’ Fees, Reimbursement of Expenses, and Award of Class Representative 

Service Awards. (Dkt. No. 147). Although the Court did not rule on this latter motion and that 

motion remains before the Court, the Plaintiffs incorporate herein the relevant briefing, and the 

oral argument presented at the October 20, 2023, Fairness Hearing and renew this motion. 

On September 27, 2023, Plaintiffs and Defendants both filed motions for Final Approval 

of Class Action Settlement. (Dkt. Nos.: 153, 155).

On October 20, 2023, the Court held a Fairness Hearing. 

On December 20, 2023, the Court entered an Order and Opinion and certified Plaintiffs’ 

Motion for a Nationwide Class, denied Plaintiffs’ Motion for Final Approval and denied Plaintiffs’ 

Motion for attorneys’ fees, incentive awards and expenses as moot. (Dkt. No. 169).

II. DISCUSSION

A. The Significant Number of Claims Received Have Already Exhausted the 

Fund and Eliminated the Need for a Cy Pres Recipient.

The Settlement fund amount is $10,500,000. (Dkt. No. 153-1). As noted in the Parties’

briefing, submissions and colloquy with the Court at the final approval hearing, the notice and 

other administrative expenses, incentive payments, attorneys’ fees and expenses will be paid out 

of the Settlement Fund. After reducing the fund by these amounts, there will remain in the fund,

approximately $5,531,741.59 to distribute to eligible claimants. See McShane Decl. at ¶ 3; Dkt. 

No. 143-1; hearing transcript pp 44-47.

The current number of claims received thus far is 1,573,256. McShane Decl. at ¶ 2. The 

number of verified claims is 117,153. Id. 

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The total value of the claims is calculated as follows. There are 1,573,256 claims of 

which 117,153 are verified. Id. at ¶ 4. This leaves unverified claims totaling 1,456,103, which if 

paid at a rate of $2.50 per claim pursuant to the settlement agreement will total $3,640,257.50 in 

value. Id. The maximum value of the verified claims is 50% of the average cost per purchase or 

$17.97. Id. Multiplying $17.97 by 117,153 equals $2,105,239.41. Id. When the total value of the 

unverified claims is added to verified claims, the total claims value is $5,745,496.91; which 

exceeds the fund balance of $5,531,741.59 by a total of $213,755.32. Id. 

The value of the claims received to date will exhaust the settlement fund thereby allowing

for the elimination of cy pres all together. Any funds returned to the fund (i.e., settlement checks 

mailed to claims members that are returned undelivered or uncashed) will be escheated to the 

associated state(s) of the class members as unclaimed property. See In re Motorsports Merch. 

Antitrust Litig., 160 F. Supp. 2d 1392, 1393–94 (N.D. Ga. 2001) citing 2 Herbert B. Newberg & 

Alba Conte, Newberg on Class Actions §§ 10.13 to 10.25 (3d ed.1992) (“In general, the courts 

have considered four options when faced with unclaimed settlement funds: cy pres distributions; 

pro rata distribution to class members; escheat the funds to a governmental body; and reversion 

to defendant.”)

B. Removal of the Cy Pres Recipient Does Not Negatively Affect or Limit any 

Class Member’s Rights Under the Settlement. Nor Does the Removal Affect 

the Fairness, Reasonableness, or Adequacy of the Settlement or Necessitate 

Additional Notice. 

The removal of the cy pres from the Settlement does not diminish the cash benefits eligible 

Class Members are to receive whatsoever (it does increase the amount claimants may receive). See

Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3d Cir. 1983) (“The court’s principal 

obligation is simply to ensure that the fund distribution is fair and reasonable to all participants in 

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the fund. The proposed settlement in the instant case divides the settlement fund in the ratio of 

current to former employees, and no suggestion has been advanced that any other method of 

division would be fairer to either group.”). Rather, the elimination of the cy pres distribution and 

replacement with a pro rata distribution may result in class members receiving additional money 

or settlement benefits than they would have otherwise received under the original settlement. It is 

an improvement or enhancement to the Settlement.

The removal of the cy pres here does not negatively affect or limit any Class Member’s 

rights under the Settlement. Nor does the removal affect the fairness, reasonableness, or adequacy 

of the Settlement. See Rikos v. Procter & Gamble Co., No. 1:11-CV-226, 2022 WL 715972, at *2 

(S.D. Ohio Mar. 10, 2022) (finding that the “‘additions,’” concerning the settlement 

administrator’s efforts to issue new checks; and provide funds to a cy pres recipient, did not 

“‘materially alter’ the Approved Settlement”); In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. 

Litig., 268 F. Supp. 2d 907, 918 n.17 (N.D. Ohio 2003) (finding amendments acceptable where 

they did not alter that “the Court’s fairness analysis”); Swetz v. GSK Consumer Health, Inc., No. 

7:20-CV-04731-NSR, 2021 WL 5449932, at *7 (S.D.N.Y. Nov. 22, 2021) (“Likewise, the Parties 

may, without further order of the Court or notice to the Settlement Class, agree to and adopt such 

amendments to the Settlement Agreement ... that do not limit the rights of Settlement Class 

Members under the Settlement Agreement.”); Art Shy v. Navistar Int’l Corp., No. 3:92-CV-0333, 

2021 WL 1399277, at *3 (S.D. Ohio Apr. 14, 2021) (finding modification of Settlement acceptable 

so long as no class member’s rights are “legally harmed”); Id. citing Keepseagle v. Vilsack, 102 F. 

Supp. 3d 306, 313 (D.D.C. 2015) (Rule 23(e)) (“notice or hearing not required for modifying the 

administration of cy pres funds”). Here, none of the class members’ rights have been “legally 

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harmed” or diminished. To the contrary, their rights have been improved with the opportunity of 

receiving additional money or benefits through a third pro rata distribution.

Moreover, courts have held that where amendments to a proposed settlement expand or 

improve rights for the class, new notice is not required. See, e.g., In re Integra Realty Resources, 

Inc., 262 F.3d 1089, 1111 (10th Cir. 2001) (“In this case, the addition of opt-out rights merely 

expanded the rights of class members ... Accordingly, we hold the district court did not abuse its 

discretion by failing to notify class members of their opt-out rights prior to conducting a fairness 

hearing of the settlement’s terms.”); Manners v. American General Life Ins. Co., 1999 U.S. Dist. 

LEXIS 22880, 1999 WL 33581944, at *13 (M.D.Tenn. Aug. 11, 1999) (“Because these 

amendments enhance the relief provided to Class Members, the Court finds that additional notice 

was not and is not necessary.”). Cf. Jones v. Dominion Transmission, No. 2:06-cv-00671, 2009 

U.S. Dist. LEXIS 150039, *14-15 (S.D. W.Va. Jan. 30, 2009) (two amendments to class action 

settlement “did not change the value of the settlement but only clarified the release provisions and 

the method of calculating the settlement proceeds distributed to Flat Rate Subclass Members,” and 

thus a second round of notice under CAFA to state and federal officials was not required). 

Similarly, “[w]here amendments are ‘either minor and technical in nature’ or ‘do[] not materially 

alter the Settlement Agreement, and do[] not change the Court’s fairness analysis,’ courts often 

summarily approve an amendment without clearing the procedural hurdles of Rule 23(e),” i.e. 

without requiring additional notice. Rikos v. P&G Co., No. 1:11-cv-226, 2022 U.S. Dist. LEXIS 

42379, *4-5, 2022 WL 715972 (S.D. Ohio March 10, 2022) (quoting In re Sulzer Hip Prosthesis 

& Knee Prosthesis Liab. Litig., 268 F. Supp. 2d 907, 918 n.17 (N.D. Ohio 2003)).

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III. CONCLUSION

With the elimination of the cy pres provision in the Amended Settlement Agreement, which 

cures the Court’s only concern about the Proposed Settlement Agreement, Plaintiffs respectfully 

request that the Court grant the renewed motions and enter the proposed Order and Final Judgment 

filed herewith. Defendants do not oppose the motion.

Dated: March 12, 2024 

/s/ Michael McShane

Michael McShane

AUDET & PARTNERS, LLP

711 Van Ness Avenue Suite 500

San Francisco, CA 94102

Telephone: (415) 568-2555

Facsimile: (415) 568-2556

mmcshane@audetlaw.com

Charles LaDuca

 Brendan Thompson

CUNEO GILBERT & LADUCA LLP

4725 Wisconsin Avenue NW, Suite 200

Washington, DC 20016

Telephone: (202)789-3960

Facsimile: (202) 789-1813

charlesl@cuneolaw.com

brendant@cuneolaw.com

Charles Schaffer 

LEVIN SEDRAN & BERMAN, LLP

510 Walnut Street, Suite 500

Philadelphia, PA 19106

Telephone: (877) 882-1011

Facsimile: (215) 592-4663

cschaffer@lfsblaw.com

Drew Legando

MERRIMAN LEGANDO

WILLIAMS & KLANG, LLC

1360 West 9th Street, Suite 200

Cleveland, OH 44113

Telephone: (216) 522-9000

drew@merrimanlegal.com

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Stuart L. Cochran

CONDON TOBIN

8080 Park Lane, Suite 700

Dallas, Texas 75231

Telephone: (214) 265-3804 

Facsimile: (214) 265-3800

Erica Mirabella

MIRABELLA LAW LLC

132 Boylston Street, 5th Floor

Boston, MA 02116

Telephone: (855) 505-5342

erica@mirabellallc.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I certify that on March 12, 2024, I electronically filed the foregoing with the Clerk of 

Court using the CM/ECF system, which will send notification of such filing to counsel of record 

in this matter who are registered on the CM/ECF.

/s/ Michael McShane

Michael McShane

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