I don't think they can go VIN-by-VIN for 9/18/15-6/28/16 cars; the settlement requires that any such buyers get the Adjustment. That possibility's still out there for post-6/28/16 buyers, though. I don't think we'll know until we start seeing (and hearing about) offers for some of those.
Edit: But now that you mention it, it does make for an interesting point. The FTC consent order requires that 9/18/15-6/28/16 buyers get the adjustment (an additional fraction of the restitution, based on the percentage of the Eligible Seller Restitution (ESR) pool remaining after all Eligible Sellers have been paid). But then there's the "no double-dipping" provision you mention. So what does that provision actually do? It's in the section on ESR, so the obvious thought would be that it affects the ESR--but that couldn't be the case, as they have to have paid (or at least finalized) all the ESR claims before they know what the adjustment is going to be. The only other possible meaning would be that it would affect the restitution to the current owner--but that would mean the owner wouldn't get the adjustment that the consent order says they have to get. And in that case, about half of the 9/18/15-6/28/16 buyers would miss out on that adjustment. So I wouldn't think that could be the right answer. So what does that paragraph actually do? I can't think of any other possibilities.
It sounds like any effect that paragraph would have on the post-6/28/16 buyers, it would have equally on the 9/18/15-6/28/16 buyers.
Well if it isn't by VIN then like you said, the pool would go 100% either way if NO ONE or EVERYONE as an EO filed. Perhaps a poor assumption we made was that the restitution was figured at 50% for all post 9/15 buyers. Maybe that was just a starting point to give people a "worst case scenario". Realistically that's pretty smart, under promise and over deliver. I think the math is a little more complicated than we all let on. If no one claimed the cars as EO or ES ( post 9/15), the money would go nowhere. If lets say there was 10 cars and all 10 were claimed by both ES and EO's, then if the pool was $1000 in sum, each person would get $50 as the pool is divided 20 ways.
Further:
If there are 10 cars all claimed by EO's and 5 are claimed by ES's, then you would have to pay each of the 5 cars $50 each to the ES due to no double dipping ( we are confident of that language), respectively. That's a total of $250 to the 5 ES's. The $750 remaining goes to the 10 EO's, for $75 each, or 75% total including ES bonus. So if you think about this, the "78%" figure comes from approximately half of the ES pool making claims.
I think if we all scoured the documents again we would see where post 6/28 is a superseding deal where the seller loses all rights because they sold after 6/28. All that matters is where the ball lands and I don't think they are giving consideration to the fact that you the ES had your hands on a car in passing. Because what if three people bought and sold the same car in the time-frame? How would that be resolved? Divide the $100 three/four ways so as to avoid double dipping? I'm sure this is one in a million situation but I can't see them pushing out the 50% restitution figure if that was even possible to begin with.