The story of the Toys “R” Us (TRU) collapse in the U.S. has entered a new chapter.
On March 12, law firm Dovel & Luner filed a lawsuit in the New York Supreme Court on behalf of the TRU Creditor Litigation Trust, a group representing many companies harmed during the largest retail bankruptcy in U.S. history. The 111-page complaint alleges “fraud, misrepresentation, and deceit,” “negligent misrepresentation,” “negligent concealment and negligent omission,” and various other breaches of fiduciary duty by some of the company’s top executives and corporate directors from its private equity owners — including KKR, Bain Capital, and Vornado Realty Trust — in connection with the bankruptcy and liquidation of Toys “R” Us that played out between 2017-2019.
According to attorney Greg Dovel, the lawsuit is the result of a nine-month investigation and uncovered “substantial evidence of wrongdoing.” Much of the evidence comes from Toys “R” Us’ internal emails that were made available to the Trust under a court order. Defendants in the suit include former Toys “R” Us CEO and Chairman of the Board David Brandon; former Chief Financial Officer Michael Short; and Richard Barry, who served as executive vice president and global chief merchandising officer. Other defendants include Joshua Bekenstein and Matthew S. Levin of Bain Capital; Paul E. Raether and Nathaniel H. Taylor of KKR; Joseph Macnow and Wendy A. Silverstein of Vornado Realty Trust; and Richard Goodman.
“Toys “R” Us is yet another unfortunate example of corporate greed resulting in executives and private equity firms benefiting at the expense of others,” Dovel says. “The Defendants prioritized their own financial well-being, as well as the financial well-being of three private equity companies, ahead of the company that they were entrusted to run. They siphoned desperately needed funds out of Toys “R” Us as it tumbled into bankruptcy and then misrepresented TRU’s financial situation to induce toymakers to provide goods on credit. Some toymakers lost almost everything.”
In the filing, which seeks a jury trial and more than $1 billion in damages, the Trust highlights previously reported facts, including the $16 million in “retention” bonuses paid out to top executives just days prior to the bankruptcy filing in September 2017; the “advisory fees” paid to Bain, KKR, and Vornado, the same private equity firms that strapped Toys “R” Us with billions in debt following a leveraged buyout in 2005; and the company’s continued ordering and acceptance of product from toymakers on credit, which accelerated during Toy Fair New York 2018 and continued through March 14, 2018 — the day before the company filed for complete liquidation. The suit says that emails from Brandon and Short exchanged with TRU advisors on the morning of Feb. 17, 2018 stated that a liquidation plan was in place for mid-March. Later that same day, Brandon, Barry, and others began meetings at TFNY in which they assured vendors that things were looking up for the company.
“At all times, the former directors and officers of Toys ‘R’ Us and members of management acted in the best interests of the company and its stakeholders,” says Bob Bodian, managing partner at Mintz, attorneys representing the defendants. “Because none of the named defendants has any financial exposure, this lawsuit is just a misguided effort to pressure insurance carriers to pay meritless claims. We will defend against this baseless lawsuit vigorously.”
Last fall, Toys “R” Us made a return to the U.S. with a pair of new stores in New Jersey and Texas operated by Toy Retail Showrooms, a division of Tru Kids Brands, the current owner of the Toys “R” Us trademarks and house brands. Defendant Richard Barry currently serves as CEO at Tru Kids Brands, which is reportedly eyeing a “thoughtful expansion strategy” for growth over the next three to five years.