Motion for Preliminary Approval - Kukorinis v. Walmart

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:19-CV-20592-MARTINEZ/OTAZO-REYES

VASSILIOS KUKORINIS, on behalf of

himself and those similarly situated,

Plaintiff,

v.

WALMART, INC., a Delaware

corporation

Defendant.

PLAINTIFF’S UNOPPOSED MOTION TO DIRECT CLASS NOTICE AND GRANT

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND

INCORPORATED MEMORANDUM OF LAW1

Plaintiff Vassilios Kukorinis (“Plaintiff”), respectfully moves for an order directing class

notice and granting preliminary approval of the proposed class action settlement with Defendant

Walmart, Inc. (“Walmart” or “Defendant”) (together, the Plaintiff and Walmart are referred to as

the “Parties”), the terms of which are set forth in the “Settlement Agreement and Release”

(“Settlement Agreement”), attached hereto as Exhibit 1. In so moving, Plaintiff respectfully

requests the Court: 1) enter the Proposed Order directing dissemination of the Class Notice,

attached as Exhibit D to the Settlement Agreement; 2) appoint Epiq Class Action and Claims

Solutions, Inc., as the Claims Administrator; 3) certify the Settlement Class as defined herein; 4)

appoint Plaintiff as Class Representative for the Settlement Class; 5) appoint Plaintiff’s Counsel

1 Walmart does not concede the Plaintiff’s allegations, nor does it concede all of the factual

statements set forth herein. For purposes of this Settlement, however, Walmart does not oppose

the filing of this Motion for Preliminary Approval.

Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 1 of 33

as Settlement Class Counsel; 6) approve the establishment of the Qualified Settlement Fund; and

7) set a hearing for the purpose of deciding whether to grant final approval of the Settlement.


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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. SUMMARY OF LITIGATION .......................................................................................... 3

A. Procedural History .................................................................................................. 3

B. Information About the Settlement .......................................................................... 4

III. THE TERMS OF THE SETTLEMENT AGREEMENT ................................................... 5

A. The Settlement Class............................................................................................... 5

B. The Settlement Benefits .......................................................................................... 6

C. Business Practice Commitments ............................................................................. 7

D. Proposed Notice Program ....................................................................................... 7

E. Service Awards and Attorneys’ Fees, Costs, and Expenses ................................... 8

F. Release of Claims ................................................................................................... 9

IV. ARGUMENT ...................................................................................................................... 9

A. Legal Standards ....................................................................................................... 9

B. The Proposed Nationwide Settlement is Permissible ........................................... 10

C. The Proposed Settlement is Fair, Reasonable, and Adequate ............................... 11

1. The Settlement Class was Adequately Represented ................................. 11

2. The Proposed Settlement was Negotiated at Arm’s-Length ..................... 12

3. Plaintiff had Sufficient Information to Weigh the Benefits of Settlement 12

4. The Settlement Relief is Fair, Reasonable, and Adequate ........................ 13

5. Agreements Required to be Identified by Rule 23(e)(3) .......................... 18

6. Class Members are Treated Equitably Relative to Each Other ................. 18

D. Certification of the Settlement Class is Appropriate ............................................ 18

1. The Settlement Class Meets the Requirements of Rules 23(a) and (b)(3) 19

a. Numerosity .....................................................................................19


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b. Commonality..................................................................................20

c. Typicality .......................................................................................21

d. Adequacy .......................................................................................21

e. Predominance .................................................................................22

f. Superiority......................................................................................23

E. The Proposed Class Notice Satisfies Rule 23 ....................................................... 24

F. The Court Should Approve the Establishment of a Qualified Settlement Fund ... 25

G. The Court Should Schedule a Final Approval Hearing and Pertinent Deadlines . 25

VI. CONCLUSION ................................................................................................................. 26


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TABLE OF AUTHORITIES

Cases

Agan v. Katzman & Korr, P.A., 222 F.R.D. 692 (S.D. Fla. 2004) ................................................ 23

Allen v. Alabama State Bd. of Ed., 190 F.R.D. 602 (M.D. Ala. 2000) ......................................... 16

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). ..................................................... 19, 22

Bennett v. Behring Corp., 737 F.2d 982 (11th Cir.1984) ....................................................... 10, 15

Cooper v. S. Co., 390 F.3d 695, 714 (11th Cir. 2004) .................................................................. 21

Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ...........................................................................15

David v. Am. Suzuki Motor Corp., 2010 WL 1628362 (S.D. Fla. April 15, 2010) .......................23

Deas v. Russell Stover Candies, Inc., 2005 WL 8158201 (N.D. Ala. Dec. 22, 2005) ...................23

Fabricant v. Sears Roebuck, 202 F.R.D. 310, 313 (S.D. Fla. 2001 .............................................. 19

Figueroa v. Sharper Image Corp., 517 F.Supp.2d 1292 (S.D. Fla. 2007) ................................... 21

Francisco v. Numismatic Guaranty Corp. of Am., 2008 WL 649124 (S.D. Fla. Jan. 31, 2008) .. 11

Fresco v. Auto Data Direct, Inc., 2007 WL 2330895 (S.D. Fla. May 14, 2007) ..................... 9, 12

Gonzalez v. TCR Sports Brd. Holding, LLP, 2019 WL 2249941 (S.D. Fla. May 24, 2019) .. 13, 18

Hines v. Widnall, 334 F.3d 1253 (11th Cir. 2003) ........................................................................ 21

Ibrahim v. Acosta, 326 F.R.D. 696 (S.D. Fla. 2018) .................................................................... 11

In re Checking Account Overdraft Litig., 275 F.R.D. 654 (S.D. Fla. 2011) ............... 10, 12, 20, 23

In re Sunbeam Sec. Litig., 176 F.Supp.2d 1323 (S.D. Fla. 2001) ................................................. 15

In re U.S. Oil & Gas Litig., 967 F.2d 489 (11th Cir. 1992) .............................................. 10, 15, 16

Kennedy v. Tallant, 710 F.2d 711 (11th Cir. 1983). ..................................................................... 21

Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) ................................................................ 22

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984) .................................. 21


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Leszczynski v. Allianz Ins., 176 F.R.D. 659 (S.D. Fla. 1997). ...................................................... 20

Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005).......................... 12, 13, 19, 21

Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013) ............... 20

Morgan v. Public Storage, 301 F.Supp.3d 1237 (S.D. Fla. 2016) ................................................ 11

Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429 (11th Cir. 2012) ............................. 14

Perez v. Asurion Corp., 501 F. Supp. 2d 1360 (S.D. Fla. 2007) ...................................... 12, 15, 16

Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014) .................... 13

Sikes v. Teleline, Inc., 281 F.3d 1350, 1359 (11th Cir. 2002) ...................................................... 23

Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) .............................................. 10–11

Turner v. Gen. Elec. Co., 2006 WL 2620275 (M.D. Fla. Sept. 13, 2006) .................. 10, 11, 15, 16

Walco Investments, Inc. v. Thenen, 168 F.R.D. 315, 323 (S.D. Fla. 1996). ................................. 19

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551–57 (2011) .............................................. 22

Williams v. Mohawk Industries, Inc., 568 F.3d 1350, 1355 (11th Cir. 2009)............................... 20

Wolff v. Cash 4 Titles, 2012 WL 5290155 .................................................................................... 18

Other Authorities

Attorneys’ Fees in Class Actions: 2009-2013 .............................................................................. 18

Manual for Complex Litig. at § 30.42 .......................................................................................... 12

Newberg on Class Actions § 13:10 ................................................................................................. 9

Rules

Fed. R. Civ. P 23 .................................................................................................................... passim

Fed. R. Evid. 408 .........................................................................................................................1, 4


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I. INTRODUCTION2

On February 13, 2019, Plaintiff filed this proposed class action against Walmart

concerning the alleged systematic overcharging for beef, pork, poultry, fish, and other types of

packaged foods marked with unit pricing and sold accordingly thereto (the “Weighted Goods”).

Specifically, from February 13, 2015, to present (the “Class Period”), Plaintiff alleged that

Walmart advertised deceptive unit prices for Weighted Goods placed on sale close to their

respective expiration dates. It is further alleged that Walmart advertised those Weighted Goods

at specific unit sales prices, but upon closer inspection, the final sale prices did not coincide with

the unit sales prices based on the weight of the products as represented on the original labels (the

“Pricing Practice”). As a result, Walmart consumers did not receive the promised value for the

Weighted Goods they purchased.

By way of example, on November 18, 2018, Walmart sold a package of chicken tenders

that weighed 1.18 pounds, at a unit price of $5.78 per pound, that originally retailed for $6.82.

(Doc. No. 1-1). Walmart provided this information on the original label of the chicken tenders.

As the product’s expiration date approached, Walmart reduced the unit sale price to $3.77 per

pound, which should have resulted in a reduced sale price of $4.45 based on the information on

the original label (i.e., 1.18 pounds at $3.77 per pound). (Doc. No. 1-1). Instead, however, the

price for those chicken tenders Walmart charged at checkout was $5.93, which resulted in an

overcharge of $1.48 more than was justified by the sales label. (Doc. No. 1-1). Through

investigation and information exchanged pursuant to Rule 408, Plaintiff and Class Counsel

identified numerous examples of the Pricing Practice impacting the final sales price of Weighted

2 Unless otherwise noted, all capitalized terms are defined in the Settlement.


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Goods in Florida, as well as California, Illinois, Louisiana, and other states nationwide. (Doc.

No. 32, ¶ 37, 38). Based on a rigorous analysis of that evidence and information, Class Counsel

has determined the average overcharge for the Pricing Practices on the Weighted Goods

nationwide was approximately $1.67 for each purchase of the Weighted Goods.

Now, following significant investigation and lengthy arms’-length settlement negotiations

spanning months, the Parties have agreed on a classwide nationwide settlement to resolve the

claims described above (the “Settlement”). The pertinent terms of the Settlement are as follows:

Walmart will fund a non-reversionary Qualified Settlement Fund of a Floor of at least

$4,500,000.00 and, should the Settlement exceed $4,500,000.00, Walmart will fund that Qualified

Settlement Fund up to a Ceiling of $9,500,000.00. The Qualified Settlement Fund will be used to

pay for: (1) reimbursement of Settlement Class Members’ overcharges, including up to $10.00 for

sworn attestation of purchases of Weighted Goods, $40.00 for documented purchases of Weighted

Goods with receipts or proofs of purchase, but without the packaging to demonstrate the actual

amount overcharged, and non-capped amounts for all documented purchases of Weighted Goods

with receipts, proofs of purchase, and packaging demonstrating the actual amount of the

overcharge, as more fully described in sections 6.3.1.1 through 6.3.1.3 of the Settlement

Agreement; (2) notice and claims administration costs; (3) the Service Award; (4) Attorneys’ Fees,

Costs, and Expenses; and (5) Litigation Expenses. As part of the Settlement, Walmart has also

agreed to maintain certain business practice commitments relating to remediation of the pricing

and marking of Weighted Goods, which has been provided to Plaintiff’s Counsel.

Pursuant to Rule 23(e)(1)(B), an order directing notice to the class is justified where the

Court concludes it will likely be able to: (1) approve the Settlement as fair, reasonable, and

adequate; and (2) certify the class for purposes of judgment on the Settlement. Accordingly,


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Plaintiff requests that the Court permit the issuance of Notice to the Settlement Class of the

proposed Settlement, approve the form and manner of Notice to the class, appoint Epiq Class

Action and Claims Solutions, Inc., to administer the class notice plan and to fulfill the duties of

the Claims Administrator as outlined in the Settlement Agreement, appoint Plaintiff as Settlement

Class Representative, appoint Plaintiff’s Counsel as Settlement Class Counsel, approve the

establishment of the Qualified Settlement Fund and schedule a final approval hearing to determine

whether the Settlement should be finally approved.

II. SUMMARY OF LITIGATION

A. Procedural History

Plaintiff filed this proposed class action against Walmart for the Pricing Practices related

to the Weighted Goods, seeking to recover the overpayments for the proposed Florida class

during the Class Period. (Doc. No. 1). In pursuit of the proposed Florida class, Plaintiff brought

two causes of action: 1) violation of Florida’s Deceptive and Unfair Trade Practices Act

(“FDUTPA”); and 2) unjust enrichment. (Doc. No. 1).

On April 8, 2019, Walmart moved to dismiss Plaintiff’s Class Action Complaint, which

focused on the alleged lack of details concerning the purchases and harm, and also challenged

the legal bases of Plaintiff’s claims. (Doc. No. 14). Following Walmart’s first Motion to Dismiss,

Plaintiff amended his complaint on April 22, 2019, to supplement his allegations and detail

additional examples of the Pricing Practices for the Weighted Goods, as well as detailing the

locations at which the Pricing Practices for the Weighted Goods were observed throughout twelve

stores in Florida’s Middle and Southern Districts. (Doc. No. 15, ¶¶ 33–36(l)).

On May 17, 2019, Walmart moved to dismiss Plaintiff’s Amended Complaint, (Doc. No.

24), to which Plaintiff responded in opposition on May 31, 2019, (Doc. No. 25), and Walmart

replied on June 7, 2019. (Doc. No. 26). After fully briefing the dispositive motion, the Parties


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began exploring potential resolution of the case, and in September 2019, the Parties formally

selected a nationally known and extremely experienced mediator, Michelle Yoshida of Phillips

ADR, to mediate the case. (Doc. No. 29). Following two mediations under the guidance of Ms.

Yoshida, the Parties were substantially close to settlement of this matter on a nationwide basis,

and on May 28, 2020, jointly requested a stay of deadlines to permit the Parties to focus efforts

toward resolution. (Doc. No. 29).

On June 1, 2020, the Court denied Walmart’s Motion to Dismiss. (Doc. No. 30). On June

8, 2020, anticipating the Settlement presented in this Motion, the Parties stipulated to the

amendment of Plaintiff’s Amended Complaint to include nationwide allegations pursuant to

Federal Rule of Civil Procedure 15(a)(2). (Doc. No. 31). Plaintiff, unopposed by Walmart, now

respectfully moves this Court for preliminary approval of the Settlement for the benefit of the

nationwide Settlement Class and to disseminate Notice of same.

B. Information About the Settlement

To help facilitate settlement negotiations, the Parties agreed on and retained Michelle

Yoshida of Phillips ADR to conduct a mediation. JAY Decl., ¶ 13. As a condition of mediation,

Plaintiff’s Counsel sought pertinent information from Walmart regarding the Pricing Practices and

Weighted Goods, including sales data for the Weighted Goods during the Class Period. Walmart

agreed to provide this information pursuant to Federal Rule of Evidence 408. JAY Decl., ¶ 14.

In advance of the mediation, the Parties briefed their respective positions on the facts,

claims, defenses, and assessments of the continued risks of litigation before Ms. Yoshida. JAY

Decl., ¶¶ 15, 16. On November 19, 2019, the Parties participated in their first full-day mediation

session with Ms. Yoshida that included attorneys and representatives for both Parties on behalf of

the proposed Florida class. Following those negotiations, the Parties agreed to exchange additional

information and engage in additional discovery to pursue a second mediation on behalf of a


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nationwide settlement class. On March 18, 2020, the Parties then engaged in the second mediation

on behalf of a nationwide class, and participated in additional sessions in the following weeks

culminating in the Settlement Agreement currently before this Court for approval. The negotiations

were hard-fought throughout and the settlement process was conducted at arm’s length. Following

these multiple day-long negotiations, the Parties were able to reach an agreement on the

substantive terms of the Settlement. JAY Decl., ¶¶ 17–20. As a condition of Settlement, Walmart

produced certain documents responsive to Plaintiff’s first discovery requests and provided detailed

sales data for Weighted Goods Walmart sold in Florida and nationwide during the Class Period.

JAY Decl., ¶¶ 14, 18, 26.

Based on Plaintiff Counsel’s independent investigation of the relevant facts and applicable

law, experience with other fraudulent, deceptive, and unfair trade practices cases, and the

information provided by Walmart, as well as work with an expert in this field, Plaintiff’s Counsel

has determined that the Settlement is fair, reasonable, adequate, and in the best interest of the

Settlement Class. JAY Decl., ¶¶ 26–33, 39. Accordingly, the Parties worked together to prepare a

comprehensive set of settlement documents, which are embodied in the Settlement Agreement and

the exhibits attached thereto. Ibid.

III. THE TERMS OF THE SETTLEMENT AGREEMENT

A. The Settlement Class

The proposed Settlement Class is defined as all persons who purchased Weighted Goods

from Walmart in the United States from February 13, 2015, to the date of publication of notice of

settlement (i.e., Court approved settlement) whose Weighted Goods’ unit sale price was not


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accurately reflected in the final sale price.3 SA, § 2.29.

B. The Settlement Benefits

Walmart has agreed to fund a non-reversionary Qualified Settlement Fund with a minimum

of $4,500,000.00 (the “Floor”) and a maximum of $9,500,000.00 (the “Ceiling”). SA, §§ 6.1,

6.2.1–6.2.4.3; JAY Decl., ¶ 27. The Qualified Settlement Fund will be used to pay for the

reimbursement of purchases of Weighted Goods that were purchased during the Class Period and

the reduced sale price was inaccurate based on the Pricing Practices (the “Overpayments”). See

SA, § 6.3.1–6.3.1.3. Examples of Overpayments that are eligible for reimbursement through the

Settlement include:

• Undocumented Overpayments, capped at six (6) purchases with an

average Overpayment of $1.67 per purchase, summed to $10.00;

• Overpayments where the Settlement Class Member has receipts or other

proof of purchases to substantiate the number of Weighted Goods

purchased, but lacks proof to substantiate the actual amount overcharged,

capped at ten (24) purchases with an average Overpayment of $1.67 per

purchase, summed to $40.00; and

• Overpayments where the Settlement Class Member has receipts or other

proof of purchases to substantiate the number of Weighted Goods

purchased, and the Settlement Class Member has the packaging to

demonstrate the actual amount overcharged, the Settlement Class Member

will recover the actual amount of Overpayments, without any cap.

The documentation necessary to establish Overpayments is not overly burdensome and can

consist of documents such as receipts, product packaging, among other relevant documentation.

See SA, § 6.3.1–6.3.1.3; JAY Decl., ¶¶ 28–31. If the claim is rejected for any reason, there is also

a consumer-friendly process whereby claimants will have the opportunity to cure any deficiencies

3 Excluded from the Settlement Class are: (1) the judges presiding over this Action, and members

of their direct families; (2) the Defendant, its subsidiaries, parent companies, successors,

predecessors, and any entity in which the Defendant or its parents have a controlling interest and

their current or former officers, directors, and employees; (3) Settlement Class Members who

submit a valid Request for Exclusion prior to the Opt-Out Deadline. SA, § 2.29.


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in their submission if the Claims Administrator determines a claim for Overpayments is deficient

in whole or part. SA, § 6.3.9; JAY Decl., ¶ 42.

C. Business Practice Commitments

In addition to the monetary compensation provided to class members by the Settlement,

Walmart has reviewed the examples of the Pricing Practices identified in Plaintiff’s Second

Amended Complaint and provided during mediation, and committed to the remediation of the

Pricing Practices. These commitments will be paid for by Walmart separate and apart from the

Qualified Settlement Fund. JAY Decl., ¶ 33.

D. Proposed Notice Program

The Parties propose that Epiq Class Action and Claims Solutions, Inc. (“Epiq”) be

appointed as the Claims Administrator tasked with providing Notice and processing claims. Epiq

is a nationally recognized class action notice and administration firm that has designed a class

notice program for this case, which Plaintiff’s Counsel and Epiq believe is an effective program.

See Declaration of Cameron Azari of Epiq Class Action and Claims Solutions, Inc., In Support of

Class Notice and Claims Administration (“Azari Decl.”), ¶¶ 2–8, attached as Exhibit 3; JAY Decl.,

¶ 34.

Subject to Court approval, this Notice program involves utilizes national consumer print

publications, internet banner advertising, social media, sponsored search, and a national

informational release. Azari Decl., ¶¶ 9–26; JAY Decl., ¶ 34. The approximate cost of notice and

administration is $560,000.00, which will be paid from the Qualified Settlement Fund. Azari Decl.,

¶ 30; JAY Decl., ¶ 34; SA, § 6.2.3.

Epiq will also establish a Settlement Website in the form agreed to by the Parties and the

Court. Azari Decl., ¶ 27; JAY Decl., ¶ 35. In addition to the Notice, the Settlement Website will

include information about the Settlement, related case documents, and the Settlement Agreement.


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Class members can submit claims electronically on the Settlement Website or by mail. SA, § 2.37;

JAY Decl., ¶ 35. The documentation necessary to establish overcharges can be uploaded through

the Settlement Website or mailed in paper form. JAY Decl., ¶¶ 28–32, 35. The Claim Form

provides examples of documentation that can establish various types of losses. See Claim Form,

Exhibit C to SA.

The proposed Notice meets the standards of Rule 23(c)(2)(B). See Summary Notice,

Exhibit A to SA. The Notice uses plain English in an easy-to-read format that concisely explains

to Settlement Class Members the nature of the Litigation and their options under the Settlement.

It includes information such as the case caption, a description of the Settlement Class, a description

of the claims and the history of the Litigation, a description of the Settlement and the claims being

released, the names of counsel proposed to be appointed to represent the Settlement Class, a

statement of the maximum amount of attorneys’ fees, costs, and expenses that Plaintiff’s Counsel

will seek, the maximum amount Plaintiff will seek for a Service Award at the final approval

hearing, a description of the procedures and deadlines for requesting exclusion and objecting to

the Settlement, the URL to access the Settlement Website containing relevant case documents, and

how to obtain further information. See Summary Notice, Exhibit A; JAY Decl., ¶ 35.

E. Service Awards and Attorneys’ Fees, Costs, and Expenses

The Qualified Settlement Fund will be used to pay for an award of Attorneys’ Fees, Costs,

and Expenses and a Service Award payment as approved by the Court. Plaintiff’s Counsel will

move for an attorneys’ fee award not to exceed twenty five percent (25%) of the Qualified

Settlement Fund Ceiling and for reimbursement of Litigation Costs not to exceed $100,000. SA,

§ 6.2.1; JAY Decl., ¶ 37. Plaintiff’s Counsel will also move for a Service Award payment for the

Plaintiff not to exceed $25,000.00 for his time and effort in pursing this Litigation on behalf of

the Settlement Class. SA, § 6.2.2; JAY Decl., ¶ 37. Plaintiff’s approval of the Settlement is not


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conditioned in any manner on his receiving a Service Award or its amount. JAY Decl., ¶ 37.

Plaintiff’s Counsel will file the motion for Attorneys’ Fees, Costs, and Expenses, and a Service

Award payment no later than 21 days before the Opt-Out and Objection Deadlines. Walmart takes

no position on the amounts to be sought for Attorneys’ Fees, Costs, and Expenses or for a Service

Award, but does not object to reasonable awards by the Court. SA, §§ 6.2.1–6.2.2; JAY Decl., ¶

37.

F. Release of Claims

In exchange for the benefits provided under the Settlement, Settlement Class Members will

release any legal claims that may arise from or relate to the facts alleged in the Second Amended

Complaint, as specified in Section 13 of the Settlement Agreement. SA, §§ 2.31, 13.1–13.5; JAY

Decl., ¶ 38.

IV. ARGUMENT

A. Legal Standards

Approval of a proposed settlement is a two-step process. First, the court decides whether

the proposed settlement is “within the range of possible approval,” Fresco v. Auto Data Direct,

Inc., 2007 WL 2330895, at *4 (S.D. Fla. May 14, 2007), to decide “whether to direct notice …

to the class, invite the class’s reaction, and schedule a final fairness hearing.” 4 Newberg on Class

Actions § 13:10 (5th ed. 2015). Second, at the final approval hearing, the court decides if the

settlement is fair, reasonable, and adequate. Id.

Under Rule 23(e)(1), as amended December 1, 2018, the Court must direct notice to the

class of a class action settlement upon determining that notice is justified because the Court

concludes it is “more likely than not” to finally approve the settlement and certify a settlement

class. See Fed. R. Civ. P. 23(e)(1)(B). The amendments specify that before finally approving a

settlement, a court should consider whether: (1) the class was adequately represented; (2) the


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settlement was negotiated at arm’s length; (3) the relief is adequate, taking into account the costs,

risks, and delay of trial and appeal; how the relief will be distributed; the terms governing

attorneys’ fees; and any side agreements; and (4) whether class members are treated equitably

relative to each other. Id. In assessing whether a settlement is fair, reasonable, and adequate,

courts in this Circuit may also consider the so-called Bennett factors, which include: (1) the

likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the

range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the

complexity, expense and duration of the litigation; (5) the substance and amount of opposition to

the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett v.

Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). In weighing these factors, the court’s

“judgment is informed by the strong judicial policy favoring settlement as well as by the

realization that compromise is the essence of settlement.” Id. (citations omitted).

Settlement “has special importance in class actions with their notable uncertainty,

difficulties of proof, and length. Settlements of complex cases contribute greatly to the efficient

use of judicial resources, and achieve the speedy resolution of justice[.]” Turner v. Gen. Elec.

Co., 2006 WL 2620275, at *2 (M.D. Fla. Sept. 13, 2006). For these reasons, “[p]ublic policy

strongly favors the pretrial settlement of class action lawsuits.” In re U.S. Oil & Gas Litig., 967

F.2d 489, 493 (11th Cir. 1992).

B. The Proposed Nationwide Settlement is Permissible

On June 9, 2020, this Court inquired whether a tort-based claim with a Florida-based

plaintiff is certifiable for settlement purposes on a nationwide basis. (Doc. No. 35). This Court is

well within its discretion to do so. See, e.g., In re Checking Account Overdraft Litig., 830

F.Supp.2d 1330, 1331 (S.D. Fla. 2011) (King, J.) (certifying nationwide class action settlement

based on common law and state-based consumer protection laws). Sullivan v. DB Investments,


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Inc., 667 F.3d 273, at 310 (3d Cir. 2011) (noting that “were [courts] to mandate that a class include

only those alleging ‘colorable’ claims, [courts] would effectively rule out the ability of a defendant

to achieve ‘global peace’ by obtaining releases from all those who might wish to assert claims,

meritorious or not. We need not take judicial notice of the fact that plaintiffs with non-viable claims

do nonetheless commence legal action.”); Morgan v. Public Storage, 301 F.Supp.3d 1237, 1243

(S.D. Fla. 2016) (approving nationwide settlement following decertification of a contested

nationwide class leaving only proposed FDUTPA-based class for trial) (Ungaro, J.); Francisco v.

Numismatic Guaranty Corp. of Am., No. 06-61677-CIV, 2008 WL 649124, *3 (S.D. Fla. Jan. 31,

2008) (certifying nationwide settlement class of coin purchasers for alleged misrepresentations

from coin company based on Florida consumer protection law and common law) (Martinez, J.);

Turner, 2006 WL 262027, *1 (approving nationwide settlement class of appliance purchasers

based on warranty, negligence, and unjust enrichment claims) (Steele, J.).

C. The Proposed Settlement is Fair, Reasonable, and Adequate

1. The Settlement Class was Adequately Represented

Adequacy of representation is an issue traditionally considered in connection with class

certification and involves two questions: “(1) whether plaintiffs’ counsel are qualified,

experienced, and generally able to conduct the proposed litigation” and “(2) whether plaintiffs

have interests antagonistic to those of the rest of the class.” Ibrahim v. Acosta, 326 F.R.D. 696,

701 (S.D. Fla. 2018) (quotations omitted). Here, Plaintiff has the same interests as Settlement Class

Members as he is asserting the same claims and shares the same injuries. Further, the record

demonstrates that Plaintiff’s Counsel worked diligently to bring this Litigation to resolution,

including securing meaningful monetary benefits for the Settlement Class. Finally, as supported

by the declaration of John Yanchunis, Plaintiff’s Counsel are experienced in the area of class

litigation, and as the Court may recall, Mr. Yanchunis served as co-lead counsel in the resolution


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of the Fresco litigation in 2008, where this Court approved a class settlement of claims under the

Driver’s Protection Privacy Act. See JAY Decl., ¶¶ 4, 15–26, 31, 32, 39, 42.

2. The Proposed Settlement was Negotiated at Arm’s-Length

The Settlement resulted from arm’s-length negotiations between experienced counsel with

an understanding of the strengths and weaknesses of their respective positions in this Litigation,

assisted by an experienced mediator. JAY Decl., ¶¶ 15–17. These circumstances weigh in favor of

approval. See, e.g., In re Checking, 275 F.R.D. at 662 (approving settlement where it “was reached

in the absence of collusion, is the product of informed, good-faith, arms’-length negotiations

between the parties and their capable and experienced counsel, and was reached with the assistance

of a well-qualified and experienced mediator”); Perez v. Asurion Corp., 501 F.Supp.2d 1360, 1384

(S.D. Fla. 2007) (concluding that class settlement was not collusive in part because it was overseen

by “an experienced and well-respected mediator”); see also Manual for Complex Litig. at § 30.42

(“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement

reached in arm’s-length negotiations between experienced, capable counsel after meaningful

discovery.”) (internal marks omitted).

Additionally, the Parties spent significant time negotiating the terms of the final written

Settlement Agreement which is now presented to the Court for approval. JAY Decl., ¶¶ 17–24. At

all times, these negotiations were at arm’s length and, while courteous and professional, the

negotiations were intense and hard-fought on all sides. JAY Decl., ¶ 17.

3. Plaintiff had Sufficient Information to Weigh the Benefits of Settlement

“The stage of the proceedings at which a settlement is achieved is evaluated to ensure that

Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and

weigh the benefits of settlement against further litigation.” Lipuma v. Am. Express Co., 406

F.Supp.2d 1298, 1324 (S.D. Fla. 2005) (citations omitted). In addition, “[e]arly settlements are


13

favored” such that “vast formal discovery need not be taken.” Saccoccio v. JP Morgan Chase

Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014) (citations omitted).

While the Parties settled somewhat early in the litigation, the Parties had sufficient

information to adequately evaluate the merits of the case. The Parties exchanged significant

information in conjunction with settlement. After an exchange of discovery requests, the Parties

met, conferred, and agreed upon the scope of information Walmart would produce concerning

sales data for Weighted Goods in Florida and nationwide, which were reviewed by Plaintiff’s

Counsel and their expert in conjunction with the Settlement. JAY Decl., ¶¶ 11–16, 18.

Additionally, Plaintiff’s Counsel had information developed during their independent

investigation, and we relied on our experience presenting expert evidence and litigating the key

legal issues in other mislabeling and products cases to assist in evaluating the merits of this case.

JAY Decl., ¶¶ 11–16, 18, 21, 22, 26, 39. As recognized in other cases, “[i]nformation obtained

from other cases may be used to assist in evaluating the merits of a proposed settlement of a

different case.” Lipuma, 406 F. Supp. 2d at 1325. Accordingly, Plaintiff had more than sufficient

information available to weigh the benefits of Settlement against further litigation. See, e.g.,

Gonzalez v. TCR Sports Broad. Holding, LLP, 2019 WL 2249941, at *5 (S.D. Fla. May 24, 2019)

(“the early settlement reached between the parties and the extent to which the parties were

informed about the merits of their claims and defenses weighs in favor of approving the Settlement

Agreement.”).

4. The Settlement Relief is Fair, Reasonable, and Adequate

In terms of relief offered, this Settlement is comprehensive, and the specific benefits are

real and substantive for Settlement Class Members who otherwise would have no avenue for

recovery against Walmart for the Pricing Practices, including full refund for the amount of

Weighted Goods purchased if the Settlement Class Member can demonstrate with receipts, proof


14

of purchase, packaging labels, and other documentation the amount the Settlement Class Member

was overcharged for the Weighted Goods. If the Settlement Class Member has documentation to

demonstrate purchases of the Weighted Goods, but does not have the packaging to demonstrate

the amount overcharged, that Settlement Class Member will be entitled to recover up to $40.00. If

the Settlement Class Member has no documentation, but attests to purchasing Weighted Goods

during the Class Period, that Settlement Class Member will be entitled to recover up to $10.00.

For example, in the case of the Plaintiff’s allegations in the Second Amended Complaint,

because he has receipts, proof of purchase, and packaging to demonstrate the exact amount

overcharged, he would be entitled to recover all monies he was overcharged for his purchases of

Weighted Goods. If the Plaintiff did not have the packaging, but had his receipts, he would be

entitled to recover $1.67 (the average overcharge revealed from the investigation) for each

purchase of a Weighted Good during the Class Period, capped at 24 purchases (i.e., a total of

$40.00). Finally, if the Plaintiff had no documentation, but attested to the number of purchases he

made during the Class Period, he would be entitled to recover $1.67 for each purchase of a

Weighted Good during the Class Period, capped at 6 purchases (i.e., a total of $10.00).

Plaintiff’s Counsel assert that the relief is fair, reasonable, adequate, and superior to the

relief individuals could obtain in litigation; this relief is based on documentary evidence and

designed to fairly compensate Settlement Class Members without requiring cumbersome

production of information Settlement Class Members may not have retained due to the nature of

these types of purchases. JAY Decl., ¶ 28. The Court may rely upon such experienced counsel’s

judgment in assessing the fairness of the Settlement. See, e.g., Nelson v. Mead Johnson & Johnson

Co., 484 Fed. App’x. 429, 434 (11th Cir. 2012) (“Absent fraud, collusion, or the like, the district

court should be hesitant to substitute its own judgment for that of counsel.”).


15

a. The Risks, Costs, and Delay of Continued Litigation

The costs, risks, and delay of trial and appeal weigh in favor of settlement approval.

Although Plaintiff is confident in the merits of his claims, the risks involved in prosecuting a class

action through trial cannot be disregarded. Plaintiff’s claims indeed survived Walmart’s Motion to

Dismiss, (Doc. No. 30), but would need to succeed at class certification—a risky and uncertain

aspect of this particular litigation. JAY Decl., ¶¶ 25, 39, 40.

Almost all class actions involve a high level of risk, expense, and complexity, which is one

reason that judicial policy so strongly favors resolving class actions through settlement. In re U.S.

Oil & Gas Litig., 967 F.2d at 493; Bennett, 737 F.2d at 986 (approval of class action settlement

should be granted so long as the settlement is “fair, adequate and reasonable and is not the product

of collusion between the parties.”). The Court “should always review the proposed settlement in

light of the strong judicial policy that favors settlements.” Id. at 986. “[A]bsent fraud, collusion,

or the like, [the Court] should be hesitant to substitute its own judgment for that of counsel,” and

may rely on the opinions and representations of experienced class counsel in approving a

settlement. Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). “Where a substantial question

exists regarding the likelihood of success at trial, this factor weighs in favor of approving a

proposed class action settlement.” Perez, 501 F.Supp.2d at 1380 (Moreno, J.) (citing In re

Sunbeam Sec. Litig., 176 F.Supp.2d 1323, 1330–31 (S.D. Fla. 2001)).

The risk involved is highlighted by the fact that ascertainability in this case would prove

challenging and require complex evidence and analysis that would engulf the litigation expenses

and likely eclipse the amount recovered on behalf of the class. See, e.g., Turner, 2006 WL

2620275, at *2 (holding that settlements have “special importance in class actions with their

notable uncertainty, difficulties of proof, and length. Settlements of complex cases contribute

greatly to the efficient use of judicial resources, and achieve the speedy resolution of justice[.]”).


16

Although Plaintiff survived Walmart’s Motion to Dismiss, Plaintiff and the Settlement Class still

face risks in defeating summary judgment and certifying a class. Id.. Through the Settlement,

Plaintiff and Settlement Class Members gain significant benefits without having to face further

risk. See, e.g., In re U.S. Oil & Gas Litig., 967 F.2d at 493 (holding that “[p]ublic policy strongly

favors the pretrial settlement of class action lawsuits”). Indeed, “the question is not ‘whether the

proposed [settlement] is the best possible deal,’ but whether it is ‘at a minimum, fair, adequate and

reasonable.’” Allen v. Alabama State Bd. Of Ed., 190 F.R.D. 602, 608 (M.D. Ala. 2000) (citation

omitted); see Perez, 501 F.Supp.2d at 1380 (evaluating risk in favor of settlement).

The delay attendant in continuing to litigate this case also favors approval of the Settlement.

This Litigation has been pending more than a year. Even before the COVID-19 pandemic, which

has and will likely continue to cause significant delays across federal civil cases, many more

months and significant additional costs would be required for the Parties and the Court to complete

the pre-trial proceedings, summary judgment and Daubert motions, and class certification. After

trial, the Parties could appeal the Court’s orders on that motions practice, which could take years

to complete. Assuming the Parties went to trial and verdict, there would remain the possibility that

the verdict could be reversed by this Court or on appeal. JAY Decl., ¶ 25, 39, 40.

By contrast, the proposed Settlement provides the Settlement Class with substantial,

guaranteed relief. A relatively early settlement is especially warranted because Settlement Class

Members benefit immediately from refunds and payments to be applied as they see fit for any

purpose; the relief in this case does not involve coupons, gift cards, or any other form of payment

that would restrict the manner in which the Settlement Class Member would enjoy the benefits.

JAY Decl., ¶¶ 27–32. At trial, there is a possibility that only class members who already

experienced damages in the form of monetary losses would be able to recover. By contrast, this


17

Settlement provides benefits to the entire class, including not only reimbursement for monetary

damages and time, but also benefits like business practice commitments. JAY Decl., ¶ 27–32.

Thus, the cost, risks, and delay of trial and appeal support a finding that this Court will

likely approve the Settlement.

b. The Method of Distributing Relief is Effective

The settlement distribution process, developed with Plaintiff’s Counsel’s knowledge and

experience overseeing the administration of myriad settlements, will be efficient and effective.

Settlement Class Members can easily file claims for the amounts they believe they were

overcharged or opt for relief based on the number of purchases they made either with documentary

proof or based on a sworn attestation thereof. JAY Decl., ¶¶ 27–32. Documentation requirements

are not onerous, and not even required for some benefits; and, there is a consumer-friendly dispute

process if a claim is denied in whole or part. JAY Decl., ¶¶ 27–32; Azari Decl., ¶¶ 19, 27.

c. The Terms Relating to Attorneys’ Fees, Costs, and Expenses are

Reasonable

Plaintiff’s Counsel will separately move for attorneys’ fees in an amount not to exceed

$2,375,000.00, or twenty-five percent (25%), of the Settlement Fund Ceiling and reimbursement

of Litigation Expenses not to exceed $100,000. JAY Decl., ¶ 37. Pursuant to the Settlement

Agreement, Plaintiff’s Counsel will file their motion for attorneys’ fees and expenses at least 21

days before the Opt-Out and Objection Deadlines and promptly post the filing on the Settlement

Website so that Settlement Class Members will have the opportunity to present their views on the

request. SA, §§ 2.37, 6.3.2, 6.3.4, 10.2.1. Payment for these fees, costs, and expenses will not be

issued until after the Effective Date of Settlement. SA, § 6.2.1, 11.1.2.

“Although there is no hard and fast rule mandating a certain percentage of a common fund

which may be awarded as a fee, an award of one-third of the common fund is consistent with the


18

trend in this Circuit.” Gonzalez, 2019 WL 2249941, at *6 (internal quotations omitted and citing

cases); see also Wolff v. Cash 4 Titles, 2012 WL 5290155, at *5–6 (S.D. Fla. Sept. 26, 2012) (“The

average percentage award in the Eleventh Circuit mirrors that of awards nationwide—roughly one-

third”); Eisenberg, et al., Attorneys’ Fees in Class Actions: 2009-2013, 92 N.Y.U. LAW REV.

937, 951 (2017) (empirical study showing the median award in the 11th Circuit is 33%). Here,

Class Counsel are not seeking the full 33% to which they could be entitled under 11th Circuit law.

While Plaintiff’s Counsel will provide a more thorough analysis of the reasonableness of

its forthcoming motion for attorneys’ fees, costs, and expenses, at this stage, the Court can

conclude that it is likely to approve the Settlement for purposes of sending Notice to the Settlement

Class, even if it has not yet made a final determination as to attorneys’ fees, costs, and expenses,

especially here where the proposed attorneys’ fees for which Class Counsel will petition are no

greater than 25%—well below the presumptive 33% in the 11th Circuit.

5. Agreements Required to be Identified by Rule 23(e)(3)

Under Rule 23(e)(3), “[t]he parties seeking approval must file a statement identifying any

agreement made in connection with the proposal.” There is no agreement between the Parties,

except as set forth in the Settlement Agreement. JAY Dec., ¶ 37.

6. Class Members are Treated Equitably Relative to Each Other

The last requirement under Rule 23(e) is that the Settlement “treats class members

equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). Here, the Settlement treats all

Settlement Class Members equitably relative to one another because all are eligible to receive

reimbursement based on their damages, not on any unequitable basis. JAY Dec., ¶¶ 27–32.

D. Certification of the Settlement Class is Appropriate

The second requirement in Rule 23(e)(1) for issuance of notice to the class is a finding that

the Court will “likely be able to . . . certify the class for purposes of judgment” on the proposed


19

settlement. Here, the Settlement Class meets the requirements for certification under Rule 23(b)(3),

so the Court should conclude that issuing notice is justified.

“A class may be certified solely for purposes of settlement where a settlement is reached

before a litigated determination of the class certification issue.” Lipuma, 406 F. Supp. 2d at 1313–

14 (quotations omitted). The Supreme Court has held that because a class settlement obviates a

trial, the district judge deciding whether to certify a settlement class action “need not inquire

whether the case, if tried, would present intractable management problems,” under Rule 23(b)(3).

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997). However, the settlement context

demands “undiluted, even heightened, attention” to “unwarranted or overbroad class definitions.”

Id. Class certification is proper if the proposed class, proposed class representative, and proposed

class counsel satisfy the numerosity, commonality, typicality, and adequacy of representation

requirements of Rule 23(a). Fed. R. Civ. P 23(a)(1)–(4); see also Fabricant v. Sears Roebuck, 202

F.R.D. 310, 313 (S.D. Fla. 2001). Additionally, where (as in this case) certification is sought under

Rule 23(b)(3), the plaintiff must demonstrate that common questions of law or fact predominate

over individual issues and that a class action is superior to other methods of adjudicating the

claims. Fed. R. Civ. P. 23(b)(3); Amchem, 521 U.S. at 615-16. District courts are given broad

discretion to determine whether certification of a class action lawsuit is appropriate. Walco

Investments, Inc. v. Thenen, 168 F.R.D. 315, 323 (S.D. Fla. 1996). Because this case meets all of

the requirements of Rule 23(a) and (b)(3), as set forth below, certification for settlement purposes

is appropriate.

1. The Settlement Class Meets the Requirements of Rules 23(a) and (b)(3)

a. Numerosity

Numerosity requires “the class [be] so numerous that joinder of all members is

impractical.” Fed. R. Civ. P. 23(a)(1). “While ‘mere allegations of numerosity are insufficient,’


20

Fed. R. Civ. P. 23(a)(1) imposes a ‘generally low hurdle,’ and ‘a plaintiff need not show the precise

number of members in the class.’” Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D.

674, 684 (S.D. Fla. 2013) (citation omitted). Courts require only that plaintiffs provide “some

evidence of the number of members in the purported class, or at least a reasonable estimate of that

number.” Leszczynski v. Allianz Ins., 176 F.R.D. 659, 669 (S.D. Fla. 1997). Here, the Settlement

Class is all persons who purchased Weighted Goods from Walmart in the United States from

February 13, 2015, to present (or the date the Court approves this Settlement), whose Weighted

Goods’ unit sale price was not accurately reflected in the final sale price. Hundreds of thousands,

if not millions, of consumers over this more than five-year period would potentially fall into the

Settlement Class. Numerosity is thus easily satisfied.

b. Commonality

“The threshold for commonality under Rule 23(a)(2) is not high.” In re Checking, 275

F.R.D. at 659. “[C]ommonality requires that there be at least one issue whose resolution will affect

all or a significant number of the putative class members.” Williams v. Mohawk Industries, Inc.,

568 F.3d 1350, 1355 (11th Cir. 2009).

Here, the commonality requirement of Rule 23(a)(2) is readily satisfied because Settlement

Class Members are joined by the common questions of law and fact that arise from the same

behavior—the Pricing Practice related to the Weighted Goods. As Plaintiff alleged, the critical

issues posed by this action include: 1) whether the Pricing Practices on Weighted Goods resulted

in Walmart being unjustly enriched; and 2) whether Plaintiff and Settlement Class Members

sustained damages. These common issues aggregate toward the singular conduct of Walmart with

respect to the Pricing Practice. Perez, 501 F.Supp.2d at 1373 (finding that proposed settlement

class certified under Rule 23(b)(3) had common questions of law and fact predominated over any


21

individualized inquiries for settlement class members); Figueroa v. Sharper Image Corp., 517

F.Supp.2d 1292, 1319 (S.D. Fla. 2007) (same); Lipuma, 406 F.Supp.2d at 1314 (same).

c. Typicality

The next prerequisite to certification, typicality, “measures whether a significant nexus

exists between the claims of the named representative and those of the class at large.” Hines v.

Widnall, 334 F.3d 1253, 1256 (11th Cir. 2003); Fed. R. Civ. P. 23(a)(3). A class representative’s

claims are typical of the claims of the class if they “arise from the same event or pattern or practice

and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,

1337 (11th Cir. 1984); see also Cooper v. S. Co., 390 F.3d 695, 714 (11th Cir. 2004) (“Neither the

typicality nor the commonality requirement mandates that all putative class members share

identical claims, and . . . factual differences among the claims of the putative members do not

defeat certification.”) (internal quotations omitted). Simply put, when the same course of conduct

is directed at both the named plaintiff and the members of the proposed class, the typicality

requirement is met. Kennedy v. Tallant, 710 F.2d 711, 717 (11th Cir. 1983).

Here, the typicality requirement is satisfied for the same reasons that Plaintiff’s claims meet

the commonality requirement. Specifically, Plaintiff’s claims are typical of those of the Settlement

Class because they arise from the same Pricing Practice and from the same legal duty Walmart

had to charge the proper amount for the Weighted Goods that Plaintiff and the Settlement Class

Members purchased across the country, comprising a clear nexus between Plaintiff’s claims and

those of the Settlement Class Members. Hines, 334 F.3d at 1256. Typicality is thus satisfied.

d. Adequacy

Rule 23(a)(4) requires that the class representative “not possess interests which are

antagonistic to the interests of the class.” 1 Newberg on Class Actions § 3:21. Additionally, the

class representatives’ counsel “must be qualified, experienced, and generally able to conduct the


22

litigation.” Id.; Amchem, 521 U.S. at 625–26. As noted above, the Plaintiff is a member of the

Settlement Class and does not possess any interests antagonistic to the Settlement Class. JAY

Decl., ¶ 44. Plaintiff purchased the Weighted Goods from Walmart and was harmed because he

was overcharged for the Weighted Goods. Additionally, Plaintiff has vigorously prosecuted this

Litigation for the benefit of all Settlement Class Members by filing the underlying action,

reviewing pleadings, conferring with Plaintiff’s Counsel, attending mediation, and providing input

in crafting and approving the Settlement. Id.

In addition, Plaintiff’s Counsel are qualified to represent the Settlement Class. JAY Decl.,

¶¶ 4, 15–26, 31, 32, 39, 42. In this case, we have spent considerable time investigating Settlement

Class Members’ injuries and claims and negotiating a well-informed Settlement on behalf of the

Settlement Class. Accordingly, the Rule 23(a) prerequisites have been met.

e. Predominance

Rule 23(b)(3)’s predominance requirement focuses primarily on whether a defendant’s

liability is common enough to be resolved on a class basis, see Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2551–57 (2011), and whether the proposed class is “sufficiently cohesive to

warrant adjudication by representation,” Amchem, 521 U.S. at 623. Common issues of fact and

law predominate in a case if they have “a direct impact on every class member’s effort to establish

liability and on every class member’s entitlement to injunctive and monetary relief.” Klay v.

Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004).

In this case, the key predominating questions are whether Walmart had a duty to charge

Plaintiff and Settlement Class Members the amount for the Weighted Goods as reflected in the

reduced unit price and weight, and whether Walmart breached that duty. The many common

questions of fact and law that arise from Walmart’s conduct predominate over any individualized

issues. See, e.g., Deas v. Russell Stover Candies, Inc., No. CV-04-C-0491-S, 2005 WL 8158201,


https://advance.lexis.com/document/?pdmfid=1000516&crid=f8876591-838c-4d28-b1fe-01090b811cd4&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A82K5-91D1-652H-F0DX-00000-00&pddocid=urn%3AcontentItem%3A82K5-91D1-652H-F0DX-00000-00&pdcontentcomponentid=6421&pdshepid=urn%3AcontentItem%3A534V-81T1-J9X5-S3S8-00000-00&pdshepcat=initial&pdteaserkey=sr10&ecomp=7nLhk&earg=sr10&prid=55725c44-d1dc-49ee-9229-da043db64faa

https://advance.lexis.com/document/?pdmfid=1000516&crid=f8876591-838c-4d28-b1fe-01090b811cd4&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A82K5-91D1-652H-F0DX-00000-00&pddocid=urn%3AcontentItem%3A82K5-91D1-652H-F0DX-00000-00&pdcontentcomponentid=6421&pdshepid=urn%3AcontentItem%3A534V-81T1-J9X5-S3S8-00000-00&pdshepcat=initial&pdteaserkey=sr10&ecomp=7nLhk&earg=sr10&prid=55725c44-d1dc-49ee-9229-da043db64faa

23

*3 (N.D. Ala. Dec. 22, 2005) (common issues concerning mislabeling predominate over

individualized inquires). Additionally, because the claims are being certified for purposes of

settlement, there are no issues with manageability, and resolution of thousands of claims in one

action is far superior to individual lawsuits. David v. Am. Suzuki Motor Corp., No. 08-cv-22278,

2010 WL 1628362, *3 (S.D. Fla. April 15, 2010) (Gold, J.). Accordingly, the common questions

of fact and law that arise from Walmart’s conduct predominate over any individualized issues.

f. Superiority

Finally, a class action is superior to other methods available to fairly, adequately, and

efficiently resolve the claims of the proposed Settlement Class. To determine if superiority

requirements are met for certification of a settlement class, courts consider: (1) the class members’

interests in individually controlling the prosecution or defense of separate actions; (2) the extent

and nature of any litigation concerning the controversy already begun by or against class members;

and (3) the desirability or undesirability of concentrating the litigation of the claims in the

particular forum. See Fed. R. Civ. P. 23(b)(3). At its most basic, “[t]he inquiry into whether the

class action is the superior method for a particular case focuses on ‘increased efficiency.’” Agan

v. Katzman & Korr, P.A., 222 F.R.D. 692, 700 (S.D. Fla. 2004) (quoting Sikes v. Teleline, Inc.,

281 F.3d 1350, 1359 (11th Cir. 2002)).

Proceeding as a class action in this case is superior to other means of adjudication. There

is no indication in this Litigation that any Settlement Class Member wishes to litigate their claims

individually, and there are no other cases that have been filed. And with the high cost of litigating

a case like this—requiring expert investigation and testimony to prove how and why the Pricing

Practices occurred and resulted in overpayment for the Weighted Goods in small amounts

sometimes fewer than one dollar, individualized litigation is impracticable. See In re Checking,

286 F.R.D. at 659 (“The class action fills an essential role when the [plaintiffs] would not have the


24

incentive or resources to prosecute relatively small claims in individual suits, leaving the defendant

free from legal accountability.”).

Accordingly, resolution of this Litigation through a class action settlement in this Court

will achieve significant economies for the Parties, the proposed Settlement Class, and the Court,

satisfying the superiority requirement. The Court respectfully should certify the Settlement Class,

as the superiority requirement, along with all other requirements Rule 23(a) and (b), is satisfied.

E. The Proposed Class Notice Satisfies Rule 23

Under Rule 23(e)(1)(B), “[t]he court must direct notice in a reasonable manner to all class

members who would be bound by the [settlement] proposal.” Likewise, in directing notice “to a

class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must direct

to class members the best notice that is practicable under the circumstances, including individual

notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).

The proposed Summary Notice (Exhibit A to the Settlement Agreement) and Class Notice

(Exhibit B to the Settlement Agreement) readily meet these requirements, and the Notice program,

using multiple modes of providing notice to the class via national consumer print publications,

internet banner advertising, social media, sponsored search, and a national information release,

constitutes the best practicable notice under the circumstances of this case. The Notice uses “plain

English” to inform Settlement Class Members of, among other things, the nature of the class

claims, the essential terms of the Settlement, the date, time and place of the Final Approval

Hearing, how to object or opt-out of the Settlement, and the binding effect of the Settlement on

Settlement Class Members. The Notice also contains information regarding Plaintiff’s Counsel’s

request for fees and expenses, and the proposed Service Award to Plaintiff. Thus, the Notice

satisfies the specific requirements of Federal Rule of Civil Procedure 23(c)(2)(B), sufficiently


25

informs Settlement Class Members of the terms of the proposed Settlement and their available

options, and is the best notice that is practicable under the circumstances.

F. The Court Should Approve the Establishment of a Qualified Settlement Fund

Establishing a Qualified Settlement Fund to receive and hold the settlement funds, and to

distribute the funds according to the terms of the SA and under the administration of the Claims

Administrator, meets the criteria under the regulations and also would serve the best interests of

the Parties. The Qualified Settlement Fund will be a segregated bank account opened at a financial

institution mutually agreed by the Parties. The Qualified Settlement Fund will receive the

settlement funds from Walmart and will hold that sum, and any earnings thereon, until the Claims

Administrator has completed all administration of such funds and income thereon, as well as

disbursements to Settlement Class Members, Plaintiff and Settlement Class Counsel, and payment

of taxes and administrative costs, as more fully set forth in Section 11 of the SA and subject to

further approvals of this Court, if required.

G. The Court Should Schedule a Final Approval Hearing and Pertinent Deadlines

In connection with the preliminary approval of the Settlement, Plaintiff proposes that the

Court adopt the following schedule, which is set forth in the accompanying proposed order:

Event Timing

Deadline for Walmart to disseminate CAFA notices [10 days from the filing of this motion]

Notice Deadline [30 days following Preliminary

Approval Order]

Deadline for Plaintiff’s Counsel to file motion for

attorneys’ fees, costs, expenses and service award

[21 days before Objection and Opt-Out

Deadlines]

Objection Deadline [40 days after Notice Deadline]

Opt-Out Deadline [40 days after Notice Deadline]

Deadline for Plaintiff to file motion for final approval

of settlement and responses to any timely submitted

Settlement Class Member objections, which shall

[21 days prior to Final Approval

hearing]


26

include a declaration from the Claims Administrator

confirming execution of and compliance with its

obligations in the Settlement Agreement as of the date

of the declaration and identifying all Settlement Class

Members who submitted timely requests for exclusion

Claims Deadline [100 days after Notice Deadline]

Final Approval Hearing No earlier than 100 days after entry of

the Preliminary Approval Order

V. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests the Court enter the accompanying

Proposed Order directing dissemination of Notice, appointing Epiq Class Action and Claims

Solutions, Inc., as Claims Administrator, certifying the Settlement Class for settlement purposes,

appointing Plaintiff as Class Representative for the Settlement Class, appointing Plaintiff’s

Counsel as Settlement Class Counsel, approving the establishment of the Qualified Settlement

Fund and setting a hearing for the purpose of deciding whether to grant final approval of the

Settlement.

Dated: August 7, 2020 Respectfully submitted,

MORGAN & MORGAN

COMPLEX LITIGATION GROUP

/s/ John A. Yanchunis

John A. Yanchunis (Bar No. 324681)

Ryan McGee (Bar No. 64957)

201 N. Franklin St., 7th Floor

Tampa, FL 33602

Telephone: (813) 223-5505

Facsimile: (813) 222-2434

[email protected]

[email protected]


mailto:[email protected]


27

CERTIFICATE OF SERVICE

I hereby certify that on August 7, 2020, I electronically filed the foregoing document with

the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this

day on any and all counsel of record or pro se parties in the manner specified, either via

transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized

manner for those counsel or parties who are not authorized to receive electronically Notices of

Electronic Filing.

/s/ John A. Yanchunis


Exhibit 1

Case 1:19-cv-20592-JEM Document 41-1 Entered on FLSD Docket 08/07/2020 Page 1 of 51

1

SETTLEMENT AGREEMENT

1. PREAMBLE

1.1 This Settlement Agreement is made and entered into as of the date of Execution, by and between Plaintiff Vassilios Kukorinis, individually and on behalf of the Settlement Class Members, and Walmart, Inc. (collectively the “Parties”), in the action Vassilios Kukorinis, et al. v. Walmart Inc., et al., Case No. 1:19-cv-20592-JEM (United States District Court for the Southern District of Florida).

2. DEFINITIONS

2.1 “Agreement” means this Settlement Agreement.

2.2 “Approved Claimant” means any Claimant whose Claim is approved by the Claims Administrator.

2.3 “Attorneys’ Fees, Costs, and Expenses” means the attorneys’ fees, costs, and expenses to be requested by Settlement Class Counsel subject to Court approval in accordance with this Agreement.

2.4 “Ceiling” means the maximum possible payment of nine million five hundred thousand dollars ($9,500,000.00) to be made by Walmart under this Agreement.

2.5 “Claim” means a claim submitted by a Settlement Class Member by way of a Claim Form to receive a payment in accordance with the procedures set forth in this Agreement.

2.6 “Claim Filing Deadline” means the date by which Settlement Class Members must submit a Claim Form to the Claims Administrator in accordance with this Agreement in order to be eligible to receive a payment, which shall be 40 days after Notice Period

2.7 “Claim Form” means a form substantially similar to the form attached hereto as Exhibit C which Settlement Class Members shall use to submit Claims to the Claims Administrator.

2.8 “Claimant” means any Settlement Class Member who submits a Claim.

2.9 “Claims Administrator” means, subject to Court approval, Epiq Global, the entity who shall perform certain notice and claims administration functions in accordance with this Agreement.

2.10 “Class Settlement Amount” means up to nine million five hundred thousand dollars ($9,500,000.00), which shall be the maximum amount of money that Walmart will be obligated to pay under this Settlement, as provided for in this Agreement. Under no circumstances shall Walmart be obligated to pay more than the Class Settlement Amount in connection with this Settlement.


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2.11 “Court” means the United States District Court for the Southern District of Florida and any appellate court which may review any orders entered by the United States District Court for the Southern District of Florida related to this Settlement.

2.12 “Days” as used to calculate dates for events provided herein (unless the date is expressed in terms of “business days”) has the same meaning as used when calculating days under the Federal Rules of Civil Procedure.

2.13 “Execution” means the signing of this Agreement by all signatories hereto.

2.14 “Final Judgment and Order of Dismissal” means the Final Judgment and Order of Dismissal approving the Settlement and dismissing the Litigation with prejudice as against Walmart, substantially similar to the form of the proposed Final Judgment and Order of Dismissal, attached hereto as Exhibit E, which this Agreement contemplates will be entered and approved by the Court.

2.15 “Floor” means the minimum payment of four million five hundred thousand dollars ($4,500,000.00) to be made by Walmart under this Agreement.

2.16 “Litigation” means the case of Vassilios Kukorinis, et al. v. Walmart Inc., et al., Case No. 1:19-cv-20592-JEM (United States District Court for the Southern District of Florida).

2.17 “Notice and Administration Costs” means the costs which Walmart has agreed to pay to the Claims Administrator for the purposes of sending Notice, administrating the Claims process and performing other settlement administration functions in accordance with this Agreement.

2.18 “Notice” means the documents substantially similar to the documents attached hereto as Exhibits A and B, which have been agreed to by the Parties subject to Court approval and which shall be used for purposes of giving notice to the Settlement Class Members.

2.19 “Notice Period” means the minimum amount of time during which Notice will be made as approved by the Court, which the Parties propose to be 60 days.

2.20 “Notice Plan” means the document describing the various methods by which notice will be provided to Settlement Class Members.

2.21 “Notice Deadline” means the last day by which Notice must issue to the Settlement Class Members, and will be 30 days after entry of the Preliminary Approval Order.

2.22 “Objection Deadline” means the last day on which a Settlement Class Member may file an objection to the Settlement, including Settlement Class Counsel’s request for Attorneys’ Fees, Costs, and Expenses and a Service Award, which will be 40 days after the Notice Period.

2.23 “Opt-Out Deadline” means the last day on which a Settlement Class Member may file an Opt-Out Request to be excluded from the Settlement Class, which will be 40 days after the Notice Deadline.


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2.24 “Opt-Out Request” means a request by a Settlement Class Member to exclude himself or herself from the Settlement Class using the procedures set forth in this Agreement.

2.25 “Parties” means the Settlement Class Representative and Walmart.

2.26 “QSF” means the Qualified Settlement Fund to be established in accordance with this Agreement.

2.27 “Releasing Settlement Class Members” means the Settlement Class Representative and all Settlement Class Members, excluding any Settlement Class Member who submits an Opt-Out Request.

2.28 “Settlement” means the compromise and settlement of the Litigation as contemplated by this Agreement.

2.29 “Settlement Class” means all persons who purchased Weighted Goods from Walmart in the United States from February 13, 2015 to the date of publication of notice of settlement whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price. Excluded from the Settlement Class are: (1) the judges presiding over this Litigation and members of their direct families; (2) Walmart; and (3) Settlement Class Members who submit a valid and timely Opt-Out Request prior to the Opt-Out Deadline.

2.30 “Settlement Class Counsel” means John A. Yanchunis, Esq. and Ryan J. McGee, Esq.

2.31 “Settlement Class Member Released Claims” means the claims, rights, penalties, demands, damages, debts, accounts, duties, costs and expenses (other than those costs and expenses required to be paid pursuant to this Settlement Agreement), liens, charges, complaints, causes of action, obligations, or liabilities that are released, acquitted and discharged by the Settlement Class Members pursuant to this Agreement.

2.32 “Settlement Class Members” means the Settlement Class Representative and all members of the Settlement Class.

2.33 “Settlement Class Period” means the period beginning February 13, 2015 through the date of publication of notice of settlement, or some other reasonable date agreed to by the parties.

2.34 “Settlement Class Representative” or “Plaintiff” means Vassilios Kukorinis, the named Plaintiff in the Litigation, who is a member of the Settlement Class.

2.35 “Service Award” means the compensation requested by Settlement Class Counsel and awarded by the Court to the Settlement Class Representative in recognition for his role in this Litigation, which, in accordance with this Agreement, will be counted against the Floor.

2.36 “Settlement Effective Date” means the first day following the last of the following occurrences:

2.36.1. The date the time to appeal or seek permission to appeal or seek other judicial review of the entry of the Final Judgment and Order of Dismissal approving the Settlement


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and dismissing this Litigation with prejudice as to Walmart has expired with no appeal or other judicial review having been taken or sought; or

2.36.2. If an appeal or other judicial review has been taken or sought, the latest of: (i) the date the Final Judgment and Order of Dismissal is finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial review therefrom; or (ii) the date the appeal(s) or other judicial review therefrom are finally dismissed with no possibility of subsequent appeal or other judicial review; or (iii) if remanded to the District Court or to a lower appellate court following an appeal or other review, the date the Final Judgment and Order of Dismissal is entered by the District Court after remand and the time to appeal or seek permission to appeal or seek other judicial review of the entry of that Final Judgment and Order of Dismissal has expired with no further appeal or other judicial review having been taken or sought. If further appeal is sought after a remand, the time periods in this Sub-Section shall apply.

2.36.3. The provisions and deadlines set forth in this Section apply even if there are no objections to the Settlement.

2.37 “Settlement Website” means the website created and managed by the Claims Administrator which will provide Settlement Class Members with access to the Notice, the Claim Form, case documents, and other information regarding the Settlement.

2.38 “Summary Notice” means a short form of notice, substantially similar to the form attached hereto as Exhibit A, which has been agreed to by the Parties subject to Court approval and which shall be used for purposes of giving notice to the Settlement Class Members as further described in the Notice Plan.

2.39 “Walmart” means Walmart Inc. (f/k/a Wal-Mart Stores, Inc.) and its agents, directors, officers, attorneys, employees, affiliates, parents, subsidiaries, divisions, suppliers, successors, and assigns.

2.40 “Weighted Goods” means beef, pork, poultry, fish and other types of goods marked with unit pricing and sold accordingly thereto.

3. RECITALS

3.1 On February 13, 2019, Plaintiff Vassilios Kukorinis brought a putative class action against Walmart in the United States District Court for the Southern District of Florida, Case No. 1:19-cv-20592-JEM. Plaintiff alleges that Walmart improperly labels Weighted Goods when it reduces the price of those goods as they near their expiration dates. Based on this allegation, Plaintiff has alleged claims under Florida’s Deceptive and Unfair Trade Practices Act, Florida Statute Section 501.201, et seq. (“FDUTPA”) on behalf of himself and a putative class of “persons who purchased Weighted Goods from Walmart in Florida from February 13, 2015 to present, whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price.” Plaintiff has since amended his Complaint to plead a nationwide class.

3.2 On April 8, 2019, Walmart moved to dismiss Plaintiff’s Complaint. In response, Plaintiff amended his Complaint on April 22, 2019. On May 17, 2019, Walmart filed a motion to dismiss


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the claims alleged in the Amended Complaint. On June 1, 2020, the Court denied Walmart’s motion to dismiss.

3.3 Plaintiff and Walmart participated in a private mediation with Ms. Michelle Yoshida of Phillips ADR Enterprises P.C. As a result of mediation, and as a result of other mediator-facilitated, arms-length negotiations that followed the mediation, the Parties reached an agreement to settle the Litigation as set forth in this Agreement.

3.4 The Settlement Class Representative believes this Litigation is meritorious. Settlement Class Counsel represent that they have conducted a thorough investigation into the facts of this case, and have diligently pursued an investigation of the Settlement Class Members’ claims against Walmart, including, but not limited to: (i) reviewing relevant documents; (ii) researching the applicable law and the potential defenses; (iii) hiring and consulting with experts; (iv) developing the argument for class certification; (v) advocating for the rights of the putative class; and (vi) preparing for trial. Based on their own independent investigation and evaluation, Settlement Class Counsel are of the opinion that the Settlement is fair, reasonable, and adequate, and is in the best interest of the Settlement Class Members in light of all known facts and circumstances, including the risk of significant delay, the defenses asserted by Walmart, class certification risk, trial risk, and appellate risk.

3.5 Walmart denies any liability or wrongdoing of any kind associated with the claims alleged and contends that this Litigation is not appropriate for class action treatment pursuant to Rule 23 of the Federal Rules of Civil Procedure or any other federal or state rule, statute, law, or provision. Walmart continues to assert that the Litigation fails to meet the prerequisites necessary for class action treatment under applicable law, especially, but not solely, with respect to predominance and manageability because the need to determine individualized issues make the Litigation unmanageable and inconsistent with due process. Walmart further asserts that it has complied with all applicable provisions of federal or state statutory and common law. Walmart further states that despite its good faith belief that it is not liable for any of the claims asserted, and despite its good faith belief that certification is not appropriate, Walmart will not oppose the Court’s certification of the Settlement Class contemplated by this Agreement solely for purposes of effectuating this Settlement. Other than for purposes of this Settlement, Walmart does not waive its objections to certification of the Settlement Class, or any other class, in this Litigation as a litigation class.

3.6 The entry of Final Judgment in this Litigation shall dismiss with prejudice all claims which were or which could have been alleged in the Litigation against Walmart, with the exception of any claims which might be retained by Settlement Class Members who exclude themselves from the Settlement, if any, in accordance with the Opt-Out Request process described in this Agreement. Walmart shall retain any existing defenses to such excluded claims. The Parties agree to cooperate and take all steps necessary and appropriate to obtain preliminary and final approval of this Settlement, to effectuate its terms, and, to the extent of the obligations set forth herein, to dismiss this Litigation against Walmart with prejudice.

3.7 Each of these Recitals is incorporated into this Agreement as if fully set forth herein.


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4. CERTIFICATION OF THE SETTLEMENT CLASS

4.1 If necessary to implement the Settlement, Settlement Class Counsel shall request that the Court enter an order regarding conditional settlement class certification in this Litigation to cover the Settlement Class Period and all claims and individuals covered by this Settlement. The form of class certification order shall, subject to Court approval, expressly state that the Parties and Settlement Class Counsel agree that certification of the Settlement Class is a conditional certification for settlement purposes only, and that Walmart retains its right to object to certification of this Litigation, or any other class action, under Federal Rule 23 or any other applicable rule, statute, law, or provision.

4.2 Any certification of the Settlement Class is a conditional certification for settlement purposes only, and if for any reason the Court does not grant final approval of the Settlement, or if final approval is not granted following the appeal of any order by the Court, or if for any reason the Settlement Effective Date does not occur, the certification of the Settlement Class for settlement purposes shall be deemed null and void, and each Party shall retain all of their respective rights as they existed prior to execution of this Settlement Agreement, and neither this Settlement Agreement, nor any of its accompanying exhibits or any orders entered by the Court in connection with this Settlement Agreement, shall be admissible or used for any purpose in this Litigation.

4.3 Any certification of the Settlement Class for settlement purposes is in no way an admission by Walmart that class certification is proper in this Litigation or any other litigation against Walmart. Moreover, Walmart continues to assert that this Litigation fails to meet the prerequisites necessary for class action treatment under applicable law, especially, but not solely, with respect to predominance and manageability because the need to determine individualized issues make the case unmanageable and inconsistent with due process. The Parties and Settlement Class Counsel further agree that, other than to effectuate the Settlement of this Litigation in this jurisdiction, the certification of the Settlement Class for settlement purposes and all documents related thereto, including this Agreement and all accompanying exhibits and all orders entered by the Court in connection with this Agreement, are only intended to be used under the specific facts and circumstances of this case and are not intended to be used in any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or other proceeding against Walmart.

5. SETTLEMENT CLASS

5.1 The Parties shall request that the Court enter a certification order and certify for settlement purposes only the Settlement Class as defined in this Agreement.

5.2 This Settlement is conditioned on the Court’s certifying the Settlement Class for settlement purposes.

5.3 Walmart and Settlement Class Counsel may jointly request that the Court certify additional settlement subclasses if appropriate.

6. TERMS OF SETTLEMENT

6.1 Subject to the other terms and conditions of this Agreement, and subject to Court approval, Walmart agrees to pay, on a claims made basis, a minimum Floor amount of $4,500,000.00 up to


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a maximum Ceiling amount of $9,500,000.00. The monies shall be paid into a QSF to be administered by the Claims Administrator. Amounts approved by the Court for payment of Notice and Administration Costs, a Service Award, the payment of Attorneys’ Fees, Costs, and Expenses to Settlement Class Counsel and for Claims by Settlement Class Members shall all count against the Floor. In no event will the total payments by Walmart pursuant to this settlement exceed the Ceiling of $9,500,000.00.

6.2 The Class Settlement Amount shall be paid out as follows:

6.2.1. Reasonable Attorneys’ Fees, Costs, and Expenses. Settlement Class Counsel shall apply to the Court for an award of reasonable Attorneys’ Fees, Costs, and Expenses that shall count against the Floor. Walmart takes no position on the amounts to be sought by Settlement Class Counsel for an award of Attorneys’ Fees, Costs, and Expenses, but does not object to a reasonable award of Attorneys’ Fees, Costs, and Expenses sought in accordance with this Agreement. In the event that the Court does not approve the award of Attorneys’ Fees, Costs, and Expenses requested by Settlement Class Counsel, or the Court awards Attorneys’ Fees, Costs, and Expenses in an amount less than that requested by Settlement Class Counsel, such decision shall not affect the validity and enforceability of the settlement and shall not be a basis for rendering the entire settlement null, void, or unenforceable. Settlement Class Counsel retains their right to appeal any decision by the Court regarding its award of Attorneys’ Fees, Costs, and Expenses.

6.2.2. Reasonable Service Award. Settlement Class Counsel shall apply to the Court for a Service Award that shall count against the Floor. Walmart takes no position on the amount to be sought by Settlement Class Counsel for a Service Award, but does not object to a reasonable Service Award sought in accordance with this Agreement. The denial by the Court of any such application shall not affect the validity and enforceability of the Settlement and shall not be a basis for anyone to seek to void the Settlement.

6.2.3. Notice and Administration Costs. The actual Notice and Administration Costs incurred in accordance with Sections 6 and 7 of this Agreement shall count against the Floor. It is anticipated that Notice and Administration Costs shall not exceed $600,000.

6.2.4. Settlement Class Members who submit approved claims shall receive a proportionate individual Settlement Class Member Payment that shall be paid from the settlement funds remaining up to the Class Settlement Amount, which shall be allocated as follows:

6.2.4.1.In the event that the combined total of the amounts approved by the Court

for Attorneys’ Fees, Costs and Expenses, Service Award, and Notice and Administration Costs, plus the aggregate of the approved Claims submitted by all Settlement Class Members, is less than the Floor, the value of approved individual Settlement Class Member Payment to be paid to each claiming Settlement Class Member shall be increased on a pro-rata basis so that the combined total of the Attorneys’ Fees, Costs, and Expenses, Service


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Award, Notice and Administration Costs, and aggregate total of approved Claims submitted by all Settlement Class Members equals the Floor.

6.2.4.2.In the event that the combined total of amounts approved by the Court for Attorneys’ Fees, Costs, and Expenses, Service Award, and Notice and Administration Costs, plus the aggregate of the approved Claims submitted by all Settlement Class Members, exceeds the Floor but is less than the Class Settlement Amount, there shall not be any pro-rata increase to individual Settlement Class Member Payments and the difference remaining below the Ceiling shall remain with Walmart.

6.2.4.3.In the event that the combined total of amounts approved by the Court for Attorneys’ Fees, Costs, and Expenses, Service Award, and Notice and Administration Costs, plus the aggregate of the approved Claims submitted by all Settlement Class Members, exceeds the Class Settlement Amount, there shall be a pro rata decrease of the value of approved individual Settlement Class Member Payments to be paid to each claiming Settlement Class Member so that the combined total equals the Class Settlement Amount. Under no circumstances shall Walmart pay more than the $9,500,000.00 Class Settlement Amount.

6.3 The Claims Administrator will manage the claims process in cooperation with Settlement Class Counsel and Walmart and in accordance with the following parameters:

6.3.1. An Approved Claimant shall be entitled to receive only one of the following individual Settlement Class Member Payment Amounts in accordance with the allocation described below in §§ 6.3.1.1–6.3.1.3, subject to a potential pro rata increase or decrease as set forth at Section 6.2.4. Payment of any Settlement Class Member Payment Amount shall not be construed or deemed an admission of liability, culpability, or wrongdoing on the part of Walmart. Walmart denies liability for any alleged wrongdoing.

6.3.1.1. If the Approved Claimant does not have receipts, proof of purchase, or other documentation, but attests to purchasing the Weighted Goods on sale during the Class Period, that Approved Claimant will be entitled to $1.67 per purchase, capped at 6 purchases (i.e., $10.00);

6.3.1.2. If the Approved Claimant has receipts, proof of purchase, and other documentation to substantiate the number of Weighted Goods purchased on sale, but lacks proof to substantiate the actual amount overcharged, that Approved Claimant will be entitled to $1.67 per purchase, capped at 24 purchases (i.e., $40.00);


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6.3.1.3. If the Approved Claimant has receipts, proof of purchase, and other documentation to substantiate the number of Weighted Goods purchased on sale, and also has the packaging to demonstrate the actual amount overcharged, that Approved Claimant will be entitled to recover the actual amounts overpaid, without any cap.

6.3.2. Claims shall be made by mailing or submitting via the Settlement Website a fully completed and signed Claim Form to the Claims Administrator.

6.3.3. A Claim Form shall be approved if it is timely and valid.

6.3.4. To be timely, a Claim Form must be submitted to the Claims Administrator via the Settlement Website or postmarked on or before the Claim Filing Deadline, as approved by the Court. The Parties will propose to the Court that the Claim Filing Deadline be 40 days after close of the Notice Period.

6.3.5. To be valid, a Claim Form must be completed in full and be signed under penalty of perjury.

6.3.6. The Claim Form shall be substantially similar to the form attached hereto as Exhibit B and shall include a statement by the Claimant verifying that he or she is a Settlement Class Member.

6.3.7. Audit rights: Within fourteen (14) days of the Claims Filing Deadline, the Claims Administrator shall provide counsel for the Parties with a report that contains the information provided in the Claim Forms and its determination whether or not each Claim should be approved or denied. Original Claim Forms will also be made available to counsel for the parties upon request. Within thirty (30) days of having received the report of proposed approved and denied Claims from the Claims Administrator, Settlement Class Counsel and Walmart’s counsel shall meet and confer regarding any issues that either Settlement Class Counsel or Walmart believes need to be raised with the Claims Administrator regarding the Claims. Settlement Class Counsel and Walmart’s counsel agree to use their best efforts to resolve any disputes. If necessary, the Parties may request that the Claims Administrator conduct reasonable follow up with particular Claimants in the event of questions regarding the information provided by any Claimant or take other reasonable steps as agreed to by the Parties.

6.3.8. Subject to the Audit Rights set forth in Section 6.3.7, the Claims Administrator shall distribute settlement payments to Approved Claimants within a reasonable time after the Settlement Effective Date. The Claims Administrator shall cooperate with the Parties to ensure any funding or account structure is in place prior to distribution.


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6.3.9. To the extent the Settlement Administrator determines a claim is deficient in whole or part, within a reasonable time of making such a determination, but not more than fifteen (15) days after said determination, the Settlement Administrator shall notify the Settlement Class Member of the deficiencies and give the Settlement Class Member twenty-one (21) days to cure the deficiencies. Such notifications shall be sent via e-mail, unless the claimant did not provide an e-mail address, in which case such notifications shall be sent via U.S. mail. If the Settlement Class Member attempts to cure the deficiencies, but, at the sole discretion and authority of the Settlement Administrator, fails to do so, the Settlement Administrator shall notify the Settlement Class Member of that determination within ten (10) days. The Settlement Administrator may consult with Class Counsel and Defense Counsel in making such determinations.

7. NOTICE TO THE CLASS

7.1 The Claims Administrator shall provide notice of the Settlement to Settlement Class Members in accordance with the Notice Plan as approved by the Court. Given the difficulties in ascertaining individual Settlement Class Members, the Parties agree that publication notice (including through the internet) is the best practicable notice of this Settlement.

7.2 The Parties shall confer regarding the Notice Plan prior to its submission to the Court and Walmart has the right to approve the proposed Notice Plan prior to its submission to the Court, which approval Walmart shall not unreasonably withhold. Subject to Court approval, the Notice and Summary Notice to be provided shall be substantially similar to the forms attached hereto as Exhibits A and B. The Notice shall provide information regarding how to submit a Claim, and regarding the opt-out and objection processes.

7.3 Walmart may, in its sole discretion, terminate this settlement if the Court requires individual, direct notice to Settlement Class Members. If Walmart exercises its option to terminate due to the Court’s requiring individual, direct notice, it shall provide Settlement Class Counsel with written notice of its election, at which point the Agreement is void in accordance with Section 18.

7.4 The Notice Period, subject to Court approval, is sixty (60) days.

8. CAFA NOTICE

8.1 Walmart shall provide notice to the appropriate governmental authorities in accordance with CAFA.

9. OPT-OUT PROCESS

9.1 A Settlement Class Member who wishes to exclude himself or herself from this Settlement, and from the release of claims pursuant to this Settlement, shall submit an Opt-Out Request. For an Opt-Out Request to be accepted it must be timely and valid. To be timely it must be submitted by the Opt-Out Deadline. To be valid, the Opt-Out Request shall contain a statement that the Settlement Class Member requests to be excluded from the Settlement Class and must also be signed by the Settlement Class Member and dated in accordance with the instructions in the Notice. The Claims Administrator may invalidate mass-generated Opt-Out Requests.


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9.2 Settlement Class Members may not submit both an Opt-Out Request and a Claim Form. If a Settlement Class Member submits both an Opt-Out Request and a Claim Form, the Claim Form will govern and the Opt-Out Request will be considered invalid.

9.3 The Claims Administrator shall maintain a list of persons who have submitted Opt-Out Requests and shall provide such list to the Parties on a weekly basis.

10. OBJECTION PROCESS

10.1 A Settlement Class Member who wishes to object to the Settlement must notify the Court of his or her objection, in writing, on or before the Claim Filing Deadline.

10.2 The Parties will request that the Court enter an order requiring any Settlement Class Member who wishes to be heard orally at the final approval hearing, or who wishes for any objection to be considered, to file a written notice of objection with the Court by the objection date contained in the Notice, as well as any notice of intention to appear at the final approval hearing. The objection must also be served on counsel of record by Objection Deadline. To state a valid objection to the Settlement, an objecting Settlement Class Member must personally sign the objection and provide the following information in connection with and as part of any objection: (i) full name, current address, and current telephone number; (ii) documentation sufficient to establish membership in the Settlement Class; (iii) a statement of the position the objector wishes to assert, including the factual and legal grounds for the position and objection; and (iv) copies of any other documents that the objector wishes to submit in support of his/her/its position. In addition, the objecting Settlement Class Member must identify any previously filed objections filed by the Settlement Class Member and his/her/its counsel in any state or federal court. This listing must contain (i) the name of the case; (ii) the case number; (iii) the court in which the objection was filed; and (iv) the outcome of the objection. Subject to approval of the Court, any objecting Settlement Class Member may appear in person or by counsel at the final approval hearing held by the Court to show cause why the proposed Settlement should not be approved as fair, reasonable, and adequate, or to object to any petitions for attorneys’ fees, reimbursement of reasonable litigation costs and expenses, and service awards. In this respect, the objecting Settlement Class Member must file with the clerk of the Court, and serve on all counsel designated in the Notice, a notice of intention to appear by the objection deadline or on such other date that may be set forth in the Notice. The notice of intention to appear must include copies of any papers, exhibits, or other evidence that the objecting Settlement Class Member (or his/her/its counsel) will present to the Court in connection with the Final Approval Hearing. Any Settlement Class Member who does not provide a notice of intention to appear in complete accordance with the deadlines and other specifications set out in the Notice, and who has not filed an objection in complete accordance with the deadlines and other specifications set forth in this Settlement and the Notice, subject to the approval of the Court, will be deemed to have waived any objections to the Settlement and can be barred from speaking or otherwise presenting any views at the Final Approval Hearing.


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10.2.1. The Settlement Administrator shall promptly post all objections to the Settlement Website so that Settlement Class Members will have the opportunity to present their views on the Attorneys’ Fees, Costs, and Expenses, Service Award, and any other aspect of the Settlement.

10.3 Settlement Class Members who do not file and serve timely written objections in accordance with the procedures set forth in this Agreement will be deemed to have waived any objections to the Settlement and are forever foreclosed from making any objection (whether by appeal or otherwise) to the Settlement, or any aspect of the Settlement, or any aspect of the settlement, including, without limitation, the fairness, reasonableness, or adequacy of the proposed settlement, or any award of attorneys’ fees or reimbursement of costs and expenses or service awards.

11. DISTRIBUTION PROCESS

11.1 The Class Settlement Amount shall be funded through a QSF in accordance with this Agreement. The timing of the payments by Walmart to the QSF is:

11.1.1. Within 14 business days following the date on which the Court enters an order granting preliminary approval of the Settlement, or within 14 business days of the date on which the District Court enters an order approving the QSF, whichever is later, Walmart shall transfer the estimated amount of Notice and Administration Costs to the QSF, who shall distribute that amount to the Claims Administrator. In the event that the Settlement Effective Date does not occur, any amounts actually used by the Claims Administrator for notice and administration shall not be refundable to Walmart. If, however, Walmart has paid into the QSF monies for Notice and Administration Costs which have not been used by the Claims Administrator, those amounts not used by the Claims Administrator shall be refunded to Walmart.

11.1.2. Within 14 business days following the Settlement Effective Date, Walmart shall transfer to the QSF amounts sufficient to cover the remainder of the Class Settlement Amount, to include the Settlement Class Member Payments (subject to any pro rata increase or decrease pursuant to Section 6.2.4), Attorneys’ Fees, Costs, and Expenses awarded by the Court, and Service Award awarded by the Court. The QSF shall distribute these amounts as awarded by the Court. Settlement Class Counsel shall provide the QSF with the information as to whom the Attorneys’ Fees, Costs, and Expenses and the Settlement Class Representative Award should be distributed.

12. QUALIFIED SETTLEMENT FUND

12.1 As required under this Agreement, Walmart shall transfer the required portions of the Class Settlement Amount to a Qualified Settlement Fund (“QSF”), to be held as a separate trust as described in Treasury Regulation §1.468B-1, 26 C.F.R. §1.468B-1. Settlement Class Counsel and Walmart jointly shall take such steps as shall be necessary to qualify the QSF under §468B of the Internal Revenue Code, 26 U.S.C. §468B, and the regulations promulgated pursuant thereto. Walmart shall be considered the “transferor” within the meaning of Treasury Regulation §1.468B-1(d)(1). The Claims Administrator shall be the “administrator” within the meaning of Treasury


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Regulation §1.468B-2(k)(3). The Parties shall cooperate in securing an order of the Court to establish the QSF in accordance with the terms hereof in conjunction with its preliminary approval of the Settlement and Notice as described in the Agreement. The Court shall retain jurisdiction over the administration of the QSF. Walmart shall supply to the Claims Administrator and to the Internal Revenue Service the statement described in Treasury Regulation §1.468B-3(e)(2) no later than February 15th of the year following each calendar year in which Walmart makes a transfer to the QSF. It is intended that the transfers to the QSF will satisfy the “all events test” and the “economic performance” requirement of §461(h)(1) of the Internal Revenue Code, and Treasury Regulation §1.461-1(a)(2). Accordingly, Walmart shall not include the income of the QSF in its income. Rather, the QSF shall be taxed on its modified gross income, excluding the sums transferred to it, and shall make payment of resulting taxes from its own funds. In computing the QSF’s modified gross income, deductions shall be allowed for its administrative costs and other deductible expenses incurred in connection with the operation of the QSF, including, without limitation, state and local taxes and legal, accounting, and other fees relating to the operation of the QSF.

12.2 Upon establishment of the QSF, the Claims Administrator shall apply for an employer identification number for the QSF utilizing Internal Revenue Service Form SS-4 and in accordance with Treasury Regulation §1.468B-2(k)(4).

12.3 If requested by either Walmart or the Claims Administrator, the Claims Administrator and Walmart shall fully cooperate in filing a relation-back election under Treasury Regulation §1.468B-1(j)(2) to treat the QSF as coming into existence as a settlement fund as of the earliest possible date.

12.4 Following its deposits as described in this Agreement, Walmart shall have no responsibility, financial obligation, or liability whatsoever with respect to the notifications to the Class required hereunder, the processing of Claims and Opt-Out Requests, the allowance or disallowance of claims by Claimants, payments to Settlement Class Counsel, investment of QSF funds, payment of federal, state, and local income, employment, unemployment, excise, and other taxes imposed on the QSF or its disbursements, or payment of the administrative, legal, accounting, or other costs occasioned by the use or administration of the QSF, since it is agreed that such deposits shall fully discharge Walmart’s obligations to Claimants and Settlement Class Counsel and for expenses of administration in respect to the disposition of the Class Settlement Amount hereunder. Rather, the Claims Administrator shall have sole authority and responsibility for the administration of such funds and income thereon, disbursement to Claimants and Settlement Class Counsel, and payment of taxes and administrative costs in accordance with the provisions hereof, subject only to the rights of Walmart or Settlement Class Counsel to seek redress for any breach of the terms hereof.

12.5 The Claims Administrator shall cause to be filed, on behalf of the QSF, all required federal, state, and local tax returns, information returns and tax withholdings statements in accordance with the provisions of Treasury Regulation §1.468B-2(k)(1) and Treasury Regulation §1.468B-2(l)(2)(ii). The Claims Administrator may, at the expense of the QSF, retain legal counsel and an independent, certified public accountant to consult with and advise the Claims Administrator or the Trustee with respect to the preparation and filing of such materials and the federal, state and local tax compliance of the QSF. Either Walmart or the Claims Administrator, independently or


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jointly, may, but are not required to, apply to the Internal Revenue Service and/or any applicable state taxing authority for an advance ruling as to any issue pertinent to the qualification of the QSF under Internal Revenue Code §468B and Treasury Regulations promulgated thereunder, its tax status under applicable state law, and/or its tax payment, reporting and withholding duties, so long as Walmart and the remaining Parties are reasonably satisfied that such application and ruling will not compromise the confidentiality of settlement evidenced herein as required by this Agreement. Subject to any contrary holdings in any such ruling, Settlement Class Members shall be responsible for payment of appropriate federal, state, and local income taxes on any claim paid out pursuant to this Agreement. The Parties agree that no portion of any distributions from the QSF to the Settlement Class Members is made in satisfaction of any excluded liability as described in Treasury Regulation § 1.468B-1(g), related to Qualified Settlement Funds.

12.6 The taxable year of the QSF shall be the calendar year in accordance with Treasury Regulation §1.468B-2(j). The QSF shall utilize the accrual method of accounting within the meaning of § 446(c) of the Internal Revenue Code.

12.7 Based on the Claims Administrator’s recommendation and approval by the Parties, the QSF may be invested in United States Treasury bills, money market funds primarily invested in the same, or certificates of deposit (CDs), provided that such portions of the QSF as may reasonably be required to pay current QSF administrative expenses, taxes or disbursements to Claimants or Settlement Class Counsel may be deposited in bank accounts which are federally insured to the greatest extent practicable. All federal, state, and local taxes imposed with respect to income earned by, or property of, the QSF, shall be paid from the QSF.

12.8 The Claims Administrator may amend, either in whole or in part, any administrative provision of this Section or the trust instrument through which the QSF is established to maintain the qualification of the QSF pursuant to the above-described authorities provided that the rights and liabilities of the Parties hereto and the Class are not altered thereby in any material respect.

13. COMPREHENSIVE WAIVER, RELEASE, AND DISMISSAL

13.1 Subject to final approval by the Court of the Settlement, and for good and valuable consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged, all Releasing Settlement Class Members irrevocably release, acquit, and forever discharge Walmart of and from any and all claims, rights, causes of action, penalties, demands, damages, debts, accounts, duties, costs and expenses (other than those costs and expenses required to be paid pursuant to this Agreement), liens, charges, complaints, causes of action, obligations, or liability of any and every kind that were asserted in the Litigation, or that could have been asserted but were not asserted in the Litigation, or in any other court or forum, whether known or unknown, on the basis of, connected with, arising out of, or related in whole or in part to any or all of the alleged acts, omissions, facts, matters, transactions, circumstances, and occurrences that were directly or indirectly alleged, asserted, described, set forth, or referred to in the Litigation, whether such allegations were or could have been based on common law or equity, or on any statute, rule, regulation, order, or law, whether federal, state, or local.


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13.1.1. Releasing Parties agree that the provisions of this Agreement and any claim thereunder constitute a good faith settlement under California Code of Civil Procedure §§ 877 and 877.6, Hawaii Revised Statutes 663-15.5, and comparable laws in other states, that Class Counsel and Releasing Parties shall cooperate fully in any effort of Released Parties to establish such good faith settlement before any court (including without limitation, by joining in any motion or other procedure and providing declarations and other evidence to establish such good faith settlement where requested by any Released Party) and that all payments made under this Agreement relate to claims arising out of or related to any or all of the alleged acts, omissions, facts, matters, transactions, circumstances, and occurrences that were directly or indirectly alleged, asserted, described, set forth, or referred to in the Litigation, whether such allegations were or could have been based on common law or equity, or on any statute, rule, regulation, order, or law, whether federal, state, or local. 13.1.2. In the event that any Releasing Party seeks to invoke California Civil Code § 1542, which provides that:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

(or any other like provision or principle of law of any jurisdiction) in connection with the alleged acts, omissions, facts, matters, transactions, circumstances, and occurrences that were directly or indirectly alleged, asserted, described, set forth, or referred to in the Litigation, whether such allegations were or could have been based on common law or equity, or on any statute, rule, regulation, order, or law, whether federal, state, or local, the Releasing Parties and each of them now expressly waive the provision of California Civil Code § 1542 (or any other like provision or principle of law of any jurisdiction) to the full extent that these provisions may be applicable to this release. Each of the Releasing Parties hereby does consider, and shall be deemed to have considered, the possibility that the number or magnitude of all claims may not currently be known; nevertheless, each of the Releasing Parties assumes the risk that claims and facts additional, different, or contrary to the claims and facts that each believes or understands to exist, may now exist, or may be discovered after this Agreement becomes effective. Each of the Releasing Parties agrees that any such additional, different, or contrary claims and facts shall in no way limit, waive, or reduce the foregoing release, which shall remain in full force and effect.

13.2 The Settlement Class Member Released Claims also includes a release of all claims for Attorneys’ Fees, Costs, and Expenses incurred by Releasing Settlement Class Members or by Settlement Class Counsel or any other attorney in connection with the Litigation, and this Settlement, and all claims related to conduct in discovery in the Litigation.

13.3 Releasing Settlement Class Members understand and agree that the release of the Settlement Class Member Released Claims is a full and final general release applying to both those Settlement Class Member Released Claims that are currently known, anticipated, or disclosed to Releasing Settlement Class Members and to all those Settlement Class Member Released Claims


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that are presently unknown, unanticipated, or undisclosed to any Releasing Settlement Class Members arising out of or related to the alleged facts, circumstances, and occurrences underlying the claims set forth in the Litigation. Releasing Settlement Class Members acknowledge that the facts could be different than they now know or suspect to be the case, but they are nonetheless releasing all such unknown claims. In exchange for the good and valuable consideration set forth herein, all Releasing Settlement Class Members further waive any and all rights or benefits that they as individuals or the classes may now have as a result of the alleged facts, circumstances, and occurrences underlying the claims set forth in the Litigation.

13.4 The Parties acknowledge that this Settlement, including the releases provided in this Section, reflects a compromise of disputed claims.

13.5 The Final Judgment and Order of Dismissal shall dismiss the Litigation with prejudice and shall incorporate the terms of this release.

14. DUTIES OF THE PARTIES WITH RESPECT TO OBTAINING PRELIMINARY COURT APPROVAL

14.1 Settlement Class Counsel shall apply to the Court for the entry of an order granting preliminary approval of the Settlement substantially in the following form (and substantially similar to the form of the Preliminary Approval Order attached hereto as Exhibit D):

14.1.1. Preliminarily approving the Settlement;

14.1.2. Conditionally certifying the Settlement Class for settlement purposes in accordance with applicable legal standards and this Agreement;

14.1.3. Approving as to form and content the proposed Notice Plan, including the proposed Notice and Summary Notice;

14.1.4. Scheduling a fairness hearing to determine whether the proposed Settlement should be finally approved as fair, reasonable, and adequate as to the Settlement Class;

14.1.5. Appointing John A. Yanchunis, Esq. and Ryan J. McGee, Esq. as Settlement Class Counsel;

14.1.6. Approving Vassilios Kukorinis as Settlement Class Representative;

14.1.7. Approving Epiq Class Action and Claims Solutions, Inc., as Claims Administrator; and

14.1.8. Approving the establishment of a Qualified Settlement Fund.

14.2 Walmart shall cooperate in good faith with Settlement Class Counsel to obtain preliminary approval.


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14.3 The Parties shall continue to take any steps necessary to stay any pending proceedings so as to preserve the status quo until either the Settlement Effective Date occurs or the Settlement Agreement is finally voided.

15. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL

15.1 Following preliminary approval by the Court of the Settlement, and no later than the filing of the motion for final approval, Settlement Class Counsel will submit a proposed Final Judgment and Order of Dismissal substantially similar to the form of the Final Judgment and Order of Dismissal attached hereto as Exhibit E. The proposed Final Judgment and Order of Dismissal shall:

15.1.1. Approve the Settlement, adjudging the terms thereof to be fair, reasonable, and adequate and directing consummation of its terms and provisions;

15.1.2. Certify the Settlement Class for settlement purposes in accordance with applicable legal standards and this Agreement;

15.1.3. Approve payment of the Class Settlement Amount pursuant to this Agreement.

15.1.4. Approve Settlement Class Counsel’s application for an award of Attorneys’ Fees, Costs, and Expenses pursuant to this Agreement;

15.1.5. Approve the Service Award;

15.1.6. Dismiss the Litigation as between the Settlement Class Representative and the Settlement Class Members, on the one hand, and Walmart on the other hand, on the merits and with prejudice and permanently bar the Settlement Class Representative and all Settlement Class Members (other than those who timely filed valid Opt-Out Requests) from further prosecuting any of the Settlement Class Member Released Claims against Walmart.

15.2 Walmart shall cooperate with Settlement Class Counsel to obtain final approval and the dismissal of the Litigation as to Walmart.

15.3 Settlement Class Counsel shall use best efforts to obtain the issuance by the Court of a good faith settlement bar order, in accordance with this Agreement.

15.4 The Final Judgment and Order of Dismissal shall not be considered final until the occurrence of the Settlement Effective Date.

16. MUTUAL FULL COOPERATION

16.1 The Parties agree to cooperate fully with each other to accomplish the terms of this Settlement, including but not limited to execution of all necessary documents, and to take such other action as may reasonably be necessary to implement the terms of this Settlement. The Parties shall use their best efforts, including all efforts contemplated by this Settlement and any other efforts that may become necessary by order of the Court or otherwise, to effectuate the terms of this Settlement. As soon as practicable after execution of this Settlement, Settlement Class


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Counsel shall, with the assistance and cooperation of Walmart and its counsel, take all necessary steps to secure the Court’s Final Judgment.

17. STATEMENT OF NO ADMISSION

17.1 Nothing contained in this Agreement shall be construed against Walmart or deemed an admission of liability, culpability, or wrongdoing on the part of Walmart, and Walmart denies liability for any alleged wrongdoing. Walmart expressly denies liability for the claims asserted and specifically denies and does not admit any of the pleaded facts not admitted in its pleadings in the Litigation. Nor shall this Agreement constitute an admission by Walmart as to any interpretation of laws or as to the merits, validity, or accuracy of any claims made against it in the Litigation. Likewise, nothing in this agreement shall be construed or deemed an admission by Plaintiffs or the Settlement Class with regards to the validity of any of Walmart’s defenses or affirmative defenses. Each of the Parties has entered into this Settlement with the intention to avoid further disputes and litigation with the attendant inconvenience and expenses.

17.2 This Agreement, and all related documents, including the Settlement Agreement, the certification for settlement purposes entered pursuant to this Agreement, and any Claims, Requests to Opt-Out, Objections or other materials submitted by Settlement Class Members and all other actions taken in implementation of the Settlement, including any statements, discussions, or communications, and any materials prepared, exchanged, issued, or used during the course of the negotiations leading to this Agreement are settlement documents and shall be inadmissible in evidence and shall not be used for any purpose in this Litigation or in any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or proceeding, or any other litigation against Walmart, for any purpose, except in an action or proceeding to approve, interpret, or enforce the terms of this Agreement.

17.3 The Claims Forms, Requests to Opt-Out, Objections, and any other evidence produced or created by any Settlement Class Member in connection with the claims resolutions procedures pursuant to this Settlement, and any actions taken by Walmart in response to such materials do not constitute, are not intended to constitute, and will not be deemed to constitute an admission by Walmart of any violation of any federal, state, or local law, statute, ordinance, regulation, rule, or executive order, or any obligation or duty at law or in equity.

17.4 Any certification of the Settlement Class in accordance with the terms of this Agreement is for settlement purposes only. Nothing in this Agreement will be construed as an admission or acknowledgement of any kind that any class should be certified in this Litigation or in any other action or proceeding. Further, neither this Agreement, nor the Court’s actions with regard to this Agreement, will be deemed admissible in this Litigation and are not intended to be admissible (and Plaintiffs and Settlement Class Counsel shall not seek their admission), in any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or proceeding, or in any other litigation, regarding the propriety of class certification or collective treatment. In the event that this Agreement is not approved by the District Court or any appellate court, or otherwise fails to become effective and enforceable, or is terminated, or the Settlement Effective Date does not occur for any reason, Walmart will not be deemed to have waived, limited, or affected in any way any of its objections or defenses in the Litigation. Such objections and defenses include, but are not limited to, Walmart’s objections and defenses to any class-wide treatment and nothing in this


19

Agreement or any document related to this Agreement shall be construed as a waiver by Walmart of its contention that class certification is not appropriate and is contrary to law in this Litigation or any other case or proceeding.

18. VOIDING THE AGREEMENT

18.1 In the event that this Settlement is not approved, or if for any reason the Settlement Effective Date does not occur, the Settlement Agreement shall be deemed null, void, and unenforceable and shall not be used nor shall it be admissible in any subsequent proceedings either in this Court or in any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or other proceeding, or other litigation against Walmart, and the Parties shall return to their respective positions prior to the Court’s consideration of this Settlement.

18.2 In the event that the Court does not approve the Attorneys’ Fees, Costs, and Expenses in the amount requested by Settlement Class Counsel, or in the event that the Attorneys’ Fees, Costs, and Expenses requested by Settlement Class Counsel is reduced, that finding shall not be a basis for rendering the entire Settlement Agreement null, void, or unenforceable. Settlement Class Counsel retains their right to appeal any decision by the Court regarding the Attorneys’ Fees, Costs, and Expenses.

19. SIGNATORIES’ AUTHORITY

19.1 The respective signatories to this Agreement each represent that they are fully authorized to enter into this Settlement on behalf of the respective Parties for submission to the Court for preliminary and final approval.

20. NO PRIOR ASSIGNMENTS

20.1 The Parties represent, covenant, and warrant that they have not directly or indirectly, assigned, transferred, encumbered, or purported to assign, transfer, or encumber to any person or entity any portion of any liability, claim, demand, action, cause of action, or right released and discharged in this Settlement.

21. NOTICES

21.1 Unless otherwise specifically provided herein, all notices, demands, or other communications given hereunder shall be in writing and shall be deemed to have been duly given: (i) on the date given, if given by hand delivery; (ii) within one (1) business day, if sent by overnight delivery services such as Federal Express or similar courier; (iii) on the third business day after mailing by United States registered or certified mail, return receipt requested, or (iv) on the day received for delivery by e-mail. All notices given under this Agreement shall be addressed as follows:

21.1.1. To the Class:

John A. Yanchunis, Esq. MORGAN & MORGAN


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201 N. Franklin St., 7th Floor Tampa, FL 33602 Tele: (813) 223-5505 Fax: (813) 222-2434 E-mail: [email protected]

21.1.2. To Walmart:

Naomi G. Beer GREENBERG TRAURIG, LLP 1144 15th Street, Suite 3300 Denver, Colorado 80202 Tele: (303) 572-6500 Fax: (303) 572-6540 Email: [email protected] Mark A. Salky GREENBERG TRAURIG, LLP 333 S.E. 2nd Avenue Miami, Florida 33131 Tele: (305) 579-0816 Fax: (305) 579-0717 Email: [email protected]

22. CONFIDENTIALITY

22.1 The negotiations related to this Agreement (including the negotiations regarding the Term Sheet, negotiations related to the drafting of this Agreement, and any negotiations prior to preliminary approval or between the time of preliminary and final approval) will remain strictly confidential and shall not be discussed with anyone other than the Settlement Class Representatives and Walmart, their retained attorneys, their accountants and financial or tax advisers, their retained consultants, the Court, and the mediator Ms. Michelle Yoshida and her staff, unless otherwise agreed to by Settlement Class Counsel and Walmart or unless otherwise ordered by the Court. Notwithstanding the other provisions of this Section, Walmart may, if necessary, disclose the settlement in filings that Wal-Mart Stores, Inc., is required to make with the Securities and Exchange Commission, including 10-Q and 10-K filings, or in other disclosures to investors.

23. PRESS RELEASE

23.1 No Party, nor their counsel, shall initiate any statements to the media regarding the settlement. The Parties shall agree on a statement to be used in the event of press inquiries regarding the settlement. The Parties shall not make any other statements to the media regarding this settlement unless agreed upon by the Parties.




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24. DOCUMENTS AND DISCOVERY

24.1 Settlement Class Counsel will maintain confidentiality of documents and data produced by Walmart in the Litigation pursuant to any protective order entered in the litigation, and within sixty days following the Settlement Effective Date, shall either return such documents and data or certify that such documents and data have been destroyed.

25. MISCELLANEOUS PROVISIONS

25.1 Construction. The Parties agree that the terms and conditions of this Settlement are the result of lengthy, intensive arms-length negotiations between the Parties and that this Settlement shall not be construed in favor of or against any party by reason of the extent to which any party or her or his counsel participated in the drafting of this Settlement.

25.2 Captions and Interpretations. Paragraph titles or captions contained in this Agreement are a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Settlement or any provision of this Agreement. Each term of this Agreement is contractual and not merely a recital.

25.3 Modification. This Agreement may not be changed, altered, or modified, except in a writing signed by the Parties and approved by the Court. Notwithstanding the foregoing, the Parties agree that any dates contained in this Agreement may be modified by agreement of the Parties without Court approval if the Parties agree and cause exists for such modification. This Settlement may not be discharged except by performance in accordance with its terms or by a writing signed by the Parties.

25.4 Integration Clause. This Agreement, the Exhibits hereto, and any other documents delivered pursuant hereto contain the entire agreement between the Parties relating to the resolution of the Litigation, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or such Party’s legal counsel, are merged in this Agreement. No rights under this Settlement may be waived except in writing and signed by the Party against whom such waiver is to be enforced.

25.5 Binding on Assigns. This Settlement shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, trustees, executors, administrators, successors, and assigns.

25.6 Settlement Class Counsel Signatories. It is agreed that because the Settlement Class Members are so numerous, it is impossible or impractical to have each Settlement Class Member execute this Settlement. The notice provided in accordance with the Notice Plan will provide all Settlement Class Members with a summary of the Settlement, and will advise all Settlement Class Members of the binding nature of the release. Excepting only those Settlement Class Members who timely submit a valid Opt-Out Request, such Notice shall have the same force and effect as if this Settlement were executed by each Settlement Class Member.

25.7 Counterparts. This Agreement may be executed by facsimile signature and in any number of counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts,


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JenniferC

Typewriter

August 7, 2020

Exhibit 1-A


Questions? Visit [[settlement website]], or call toll-free [[phone number]] Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

TO: All those persons who purchased Weighted Goods from Walmart in the United States from February 13, 2015 to [[DATE]] whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price.

A federal court authorized this notice. This is not a solicitation from a lawyer.

Si desea recibir esta notificación en español, llámenos o visite nuestra página web.

Vassilios Kukorinis, et al. v. Walmart Inc.

Case Name: Vassilios Kukorinis, et al. v. Walmart, Inc., Case No. 1:19-cv-20592-JEM

Class Period: February 13, 2015 through [[DATE]]

Deadlines:

x Objections: [[DATE]]

x Exclusions: [[DATE]]

x Claim Filing: [[DATE]]

x Court Hearing on Fairness of Settlement: [[DATE]]

More Information:

[[Walmart Weighted Goods Settlement]] c/o [[Administrator]]

Toll Free: [[phone number]] [[settlement website URL]]

Your Legal Rights and Options in this Settlement:

Submit a Claim Form In order to receive a monetary benefit from the Settlement, you must complete a Claim Form and mail it to the Claims Administrator or submit an online Claim Form on the settlement website on or before the Claim Filing Deadline.

Exclude Yourself You have the right to exclude yourself from this Settlement. If you exclude yourself you will receive no payment, but you will not be giving up your legal claims against the Defendant.

Object to the Settlement Write to the Court about why you don’t like the Settlement. You may also appear at the fairness hearing. The Court will consider your objections whether or not you appear at the fairness hearing.

Go to the Fairness Hearing Ask to speak in Court about the fairness of the Settlement.

Do Nothing Get no payment. Give up rights.

These rights and options and the deadlines to exercise them are explained below.

BASIC INFORMATION



1. What is the purpose of this Notice?

The Court has granted preliminary approval of a class action settlement.

To be a part of this Settlement, you must meet the following definition of the Settlement Class:

All persons who purchased Weighted Goods from Walmart in the United States from February 13, 2015 to [[DATE OF NOTICE PUBLICATION]] whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price.

“Weighted Goods” means beef, pork, poultry, fish and other types of goods marked with unit pricing and sold accordingly thereto.

This notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the Southern District of Florida, Miami Division, and the case is known as Vassilios Kukorinis, et al. v. Walmart, Inc., Case No. 1:19-cv-20592-JEM.

The Court authorized this notice because Settlement Class Members have a right to know about the proposed Settlement of the lawsuit, and about their rights and options, before the Court decides whether to approve the Settlement. If the Court approves it and after objections and appeals are resolved, an administrator appointed by the Court will disburse Settlement benefits allowed under the Settlement Agreement between the parties.

2. What is this lawsuit about?

The lawsuit claims that at times Walmart improperly labeled “Weighted Goods” when it reduced the price of those goods as they neared their expiration dates, allegedly causing instances where Plaintiff and other customers were overcharged for certain reduced-priced perishable goods and did not receive the full value of the goods purchased.

Walmart denies the Plaintiff’s allegations and denies any and all wrongdoing or liability with respect to the claims asserted in the lawsuit.

Neither the Court nor a jury have considered or decided the merits of the allegations in the lawsuit. The parties have negotiated and entered into the proposed Settlement to avoid the risk, uncertain outcome, expense and distraction of continued litigation.

3. Why is this a class action?

In a class action, a person (or multiple people) called the “Class Representative” (in this case, Vassilios Kukorinis) sues on behalf of a “class” of all people who have the same or similar claims, depending on how the class is defined. One court resolves all the claims of the people who are or would be members of the class. When, as here, the class action settles, the members of the class become Settlement Class Members, except for those who elect to exclude themselves from the Settlement Class.

4. Why is there a settlement?

The Court did not decide in favor of the Plaintiff or Defendant. Instead, both sides agreed to a settlement in order to avoid the cost of a trial and the risk, expense and distraction of continued litigation. The Class Representative and the attorneys think the Settlement is best for everyone involved.

WHO IS INCLUDED IN THE SETTLEMENT



5. How do I know if I am part of the settlement?

The Court has decided that, for settlement purposes, any person who purchased Weighted Goods from Walmart in the United States from February 13, 2015 to [[DATE OF NOTICE PUBLICATION]] whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price, is considered a Settlement Class Member. “Weighted Goods” means beef, pork, poultry, fish and other types of goods marked with unit pricing and sold accordingly thereto.

6. I’m still not sure if I am included.

If you are still not sure if you are included in the Settlement Class, you may speak with a claims specialist by calling the Claims Administrator toll-free at [[phone number]].

SETTLEMENT BENEFITS

7. What does the settlement provide?

The settlement provides for the following relief:

A. Walmart will fund a Qualified Settlement Fund of a minimum floor amount of $4,500,000 and, depending on the number of valid claims submitted, up to a maximum of $9,500,000. The Qualified Settlement Fund will be used to provide Settlement Class Members with the opportunity to submit a claim for a monetary payment and to pay for the costs of notice and administration of the settlement, attorneys’ fees and litigation expenses, and a service award to the Class Representative.

B. In exchange for these settlement benefits, the Class Representative and each Settlement Class Member who has not validly and timely requested exclusion from the settlement shall be deemed to have fully, finally, and forever released any and all claims against the Defendant relating to the nature of the lawsuit.

8. How much will my payment be?

Each Settlement Class Member is entitled to a monetary payment under the Settlement, but the actual amount will not be known until the Claims Administrator has received and processed all of the timely and valid Claims after the close of the Notice period. The Settlement Class Members will be sorted into three groups: 1) those who attest to the number of Weighted Goods they purchased, but do not have any receipts, packaging, or other documentation (the monetary payment for this group will be capped at a total of $10.00); 2) those who attest to the number of Weighted Goods they purchased and have receipts, but no packaging or other documentation to demonstrate how much they were overcharged (the monetary payment for this group will be capped at a total of $40.00); and 3) those who attest to the number of Weighted Goods they purchased and have receipts, packaging, and other documentation to demonstrate how much they were overcharged (the monetary payment for this group will not be capped). Individual payments will be calculated on a pro rata basis, meaning the amount could be higher or lower depending on the number of claims submitted and ultimately approved. Each Settlement Class Member may only choose one of the three groups and receive only one payment no matter how many Weighted Goods they may have purchased during the Settlement Class Period.

HOW YOU GET A PAYMENT

9. How can I get a payment?

To qualify for a payment from the Settlement, you must be a Settlement Class Member and submit a Claim Form. A Claim Form is included with the mailed Notice, and you also may obtain a Claim Form on the settlement website [[settlement website]] To submit your Claim Form, you may submit an electronic Claim Form online at the settlement website [[settlement website]] or mail a physical Claim Form to the Claims Administrator. Claim Forms must be postmarked or



submitted online on or before [[DATE]]. Failure to provide complete and accurate information could result in a denial of your claim.

10. When would I get my payment?

The Court will hold a hearing on [[DATE]] to decide whether to approve the settlement. If the settlement receives final approval, a payment in the form of a check will be mailed to approved claimants in a timely manner, provided there are no appeals of the Court’s decision. The checks will be mailed to the residential addresses provided on the submitted Claim Forms. Please be patient – the process can take weeks or even months before the checks are ready to be mailed.

11. What am I giving up to stay in the Class?

Unless you exclude yourself, you are staying in the Settlement Class, regardless of whether or not you submit a Claim Form. This means that you will be bound by the release of claims set forth in the Settlement Agreement and can’t sue, continue to sue, or be part of any other lawsuit against Walmart that pertains to the same legal issues in this case. It also means that all of the Court’s orders will apply to you and legally bind you.

EXCLUDING YOURSELF FROM THE SETTLEMENT

12. How do I exclude myself from the settlement?

If you do not want a payment and do not want to be legally bound by the terms of the Settlement, you must exclude yourself by sending a timely and valid “Opt Out Letter” to the Claims Administrator. To be timely and valid, the letter must include the Settlement Class Member’s full name and a statement that the Settlement Class Member requests to be excluded from the Settlement Class, and must also be signed and dated by the Settlement Class Member. The request for exclusion must be mailed to the address below, postmarked no later than [[DATE]]:

[[Claims Administrator Address and Contact Info]]

You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you are not eligible to receive any settlement payment, and you cannot object to the settlement; however you will not be legally bound by anything that happens in this lawsuit.

13. If I don’t exclude myself, can I sue for the same thing later?

No. Unless you exclude yourself, you give up the right to sue Walmart for the same claims that this settlement resolves. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit.

14. If I exclude myself, can I receive payment from this settlement?

No. If you exclude yourself from the settlement, you will no longer be entitled to payment. Do not send in a Claim Form if you also exclude yourself.

THE LAWYERS REPRESENTING YOU



15. Do I have a lawyer in this case?

The Court has appointed attorneys John A. Yanchunis, Esq. and Ryan J. McGee, Esq. of the Morgan & Morgan law firm in Tampa, Florida as Settlement Class Counsel to represent you and other members of the Settlement Class. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

16. How will the lawyers be paid?

Settlement Class Counsel will ask the Court to award them reasonable attorneys’ fees in an amount not to exceed $2,375,000.00 (which is calculated from the Ceiling, of $9,500,000.00) from the Qualified Settlement Fund, and litigation expenses not to exceed $100,000.00, also to be paid from the Qualified Settlement Fund. If approved by the Court, Walmart will pay the attorneys’ fees and litigation expenses as part of the Qualified Settlement Fund.

The attorneys’ fees and litigation expenses requested will be the only payment to Settlement Class Counsel for their efforts in achieving this settlement and for their risk in undertaking this representation on a wholly contingent basis. To date, Settlement Class Counsel have not been paid for their services in conducting this litigation on behalf of the Class Representative and the Settlement Class, nor for their substantial expenses.

OBJECTING TO THE SETTLEMENT

17. How do I tell the Court that I don’t like the settlement?

If you’re a Settlement Class Member, and have not excluded yourself from the settlement, you can object to the settlement if you don’t like any part of it. You can give reasons why you think the Court should not approve it, and the Court will consider your views. To object, you must send a letter to the Court and the Parties saying that you object to the settlement in Vassilios Kukorinis, et al. v. Walmart, Inc., Case No. Case No. 1:19-cv-20592-JEM. To state a valid objection to the Settlement, an objecting Settlement Class Member must personally sign the objection and provide the following information in connection with and as part of any objection: (i) full name, current address, and current telephone number; (ii) documentation sufficient to establish membership in the Settlement Class; (iii) a statement of the position the objector wishes to assert, including the factual and legal grounds for the position and objection; and (iv) copies of any other documents that the objector wishes to submit in support of his/her/its position. In addition, the objecting Settlement Class Member must identify any previously filed objections filed by the Settlement Class Member and his/her/its counsel in any state or federal court. This listing must contain (i) the name of the case; (ii) the case number; (iii) the court in which the objection was filed; and (iv) the outcome of the objection. This objection must be mailed to these three different places and must be postmarked no later than [[DATE]]:

Clerk of the Court ATTN: Case No. 1:19-cv-20592-JEM United States District Court Southern District of Florida Miami Division 400 North Miami Ave Miami, Florida 33128

Settlement Class Counsel John A. Yanchunis, Esq. Ryan J. McGee, Esq. Morgan & Morgan 201 N. Franklin St. 7th Floor Tampa, Florida 33602

Defense Counsel Naomi Beer GREENBERG TRAURIG, LLP 1200 17th Street, Suite 2400 Denver, Colorado 80202-5835

18. What’s the difference between objecting and excluding myself?

Objecting is simply telling the Court that you do not like something about the settlement. You can object only if you do not exclude yourself from the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Class or the lawsuit. If you exclude yourself, you have no basis to object because the case no longer affects you.


Exhibit 1-B


www.xxxxxxxxxxxxxxx.com 1-xxx-xxx-xxxx

PUBLICATION NOTICE

United States District Court for the Southern District of Florida

If you purchased Weighted Goods from Walmart in the United States from February 13, 2015 to DATE and the Weighted Goods’ unit sale price was not accurately reflected in the final sale price you could

receive a payment from a class action settlement. Si desea recibir esta notificación en español, llámenos o visite nuestra página web.

What is the lawsuit about? The lawsuit claims that at times Walmart improperly labeled “Weighted Goods” when it reduced the price of those goods as they neared their expiration dates, allegedly causing instances where customers were overcharged for certain reduced-priced perishable goods and did not receive the full value of the goods purchased. Walmart denies these allegations and all liability regarding the claims asserted in the lawsuit.

Who is included? The Court has decided that any person who purchased Weighted Goods from Walmart in the United States from February 13, 2015 to DATE whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price, is considered a Settlement Class Member. “Weighted Goods” means beef, pork, poultry, fish and other types of goods marked with unit pricing and sold accordingly thereto.

What does the Settlement provide? The Settlement provides for the following relief: A. Walmart will fund a Qualified Settlement Fund (“QSF”) of between $4,500,000 and, depending on the number of valid claims submitted, up to $9,500,000. The QSF will be used to pay Settlement Class Members who submit a claim, and pay for the costs of notice and administration of the Settlement, attorneys’ fees and litigation expenses, and a service award to the Class Representative.

B. In exchange for the payment, the Class Representative and each Settlement Class Member who has not validly and timely requested exclusion from the Settlement will have fully, finally, and forever released any and all claims against Walmart relating to the nature of the lawsuit.

Each Settlement Class Member is entitled to a monetary payment under the Settlement, but the actual amount will not be known until all Claims have been processed.

What are your options? To qualify for a payment from the Settlement, you must submit a Claim Form before DATE. If you do not want a payment and do not want to be legally bound by the Settlement, you must exclude yourself with a timely and valid “Opt Out Letter” postmarked no later than DATE. Unless you exclude yourself, you give up the right to sue Walmart for the same claims that this Settlement resolves. You must exclude yourself from this Settlement Class to continue your own lawsuit. If you are a Settlement Class Member, and have not excluded yourself from the Settlement, you can object to the Settlement if you don’t like any part of it. This objection must be postmarked no later than DATE. The Court will hold a Fairness Hearing on DATE, to consider whether the Settlement is fair, reasonable and adequate and whether to approve attorneys’ fees not to exceed $2,375,000 and litigation expenses not to exceed $100,000, both from the QSF. You may appear at the Fairness Hearing, but you are not required to attend. You may also hire your own attorney, at your own expense, to appear or speak for you at the hearing. The Notice of Class Settlement available at the website below explains how to ask the Court for permission to speak at the hearing. For more information, call or visit the website below.


Exhibit 1-C


UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION Vassilios Kukorinis, et al. v. Walmart, Inc.

Case Number 1:19-cv-20592-JEM

CLAIM FORM

TO SUBMIT A CLAIM, YOU MUST COMPLETE AND SUBMIT THIS CLAIM FORM ON OR BEFORE [[DATE]].

THIS CLAIM FORM SHOULD BE SUBMITTED TO [[NAME/ADDRESS]]

You may be eligible to submit a Claim in the settlement of the lawsuit called Vassilios Kukorinis, et al. v. Walmart, Inc., Case No. 1:19-cv-20592-JEM (United States District Court for the Southern District of Florida, Miami Division) if you are a member of the Settlement Class and submit a timely and valid Claim.

Under the Settlement, eligible Settlement Class Members may submit a Claim to receive a proportionate share of the Settlement proceeds. Members of the Settlement Class include “all persons who purchased Weighted Goods from Walmart in the United States during the period February 13, 2015 through [[DATE OF NOTICE PUBLICATION]]…whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price.” “Weighted Goods” means beef, pork, poultry, fish and other types of goods marked with unit pricing and sold accordingly thereto.

Each Settlement Class Member may submit only one Claim, and each eligible Settlement Class Member who submits a timely and valid Claim may receive only one payment under the Settlement, no matter how many purchases of Weighted Goods may have been made during the Settlement Class Period. Additional information regarding the Settlement, Settlement benefits, and how to submit a Claim is provided in the Notice of Class Settlement, in the Settlement Agreement, and on the Settlement website [[WEBSITE]].

All fields must be fully and accurately completed, including the Acknowledgement at the end of the form. Failure to provide complete and accurate information could result in a denial of your Claim. CLAIMANT INFORMATION: First Name MI Last Name Current Mailing Address Unit/Apt City State Zip E-mail address (_______)_______________________ Telephone Number

Please complete the back of the Claim Form.


2

YOU MAY ONLY CHECK ONE BOX BELOW PLEASE READ THESE OPTIONS CAREFULLY AND SELECT ONLY ONE OPTION Check this box if you believe you are a Settlement Class Member as defined in the Notice of Class Settlement and are eligible to participate in this Settlement.

I purchased __________ (number) Weighted Goods between February 13, 2015 and [[DATE]]. Without giving any more information, you will be eligible for a refund up to $10.00.

Check this box if you have receipts for the Weighted Goods you purchased, and fill out the following information:

I purchased __________ (number) Weighted Goods between February 13, 2015 and [[DATE]]. Based on this information, you will be eligible for a refund up to $40.00.

Check this box if you have the packaging for the Weighted Goods you purchased showing the inaccurate reduced price for the Weighted Goods, and fill out the following information:

The total refund I am requesting is $ __________, which is based on the packaging showing the inaccurate reduced price for the Weighted Goods. That packaging is attached to this Claim Form I am submitting. Based on this information, you will be eligible for a refund up to the amount you provided.

ACKNOWLEDGEMENT:

I affirm that the information I have provided on this Claim Form is true and correct to the best of my knowledge and this is the only Claim Form that I have submitted. I further understand, acknowledge, and agree that I am eligible to receive only ONE payment from this Settlement based on my eligibility as a Settlement Class Member.

I further understand, acknowledge, and agree that the amount I will receive shall be calculated in accordance with the terms of the Settlement Agreement and subject to the terms of the Settlement Agreement, including the Release of Claims as more fully described in the Settlement Agreement.

Signature ____________________________________ Date ___________________


Exhibit 1-D


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION VASSILIOS KUKORINIS, on behalf of himself and those similarly situated, Plaintiff, v. WALMART, INC., a Delaware corporation Defendant.

Case No.: 1:19-CV-20592-MARTINEZ/OTAZO-REYES

[PROPOSED] ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO

DIRECT CLASS NOTICE AND GRANT PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Before the Court is Plaintiff’s unopposed Motion to Direct Class Notice and Grant

Preliminary Approval of Class Action Settlement, (Doc. No. _____) (the “Motion”), the terms of

which are set forth in a Settlement Agreement with accompanying exhibits attached as Exhibit 1

to Plaintiff’s Motion (the “Settlement Agreement”).1 Having fully considered the issue, the Court

hereby GRANTS the Motion and orders as follows:

1. Class Certification for Settlement Purposes Only. The Settlement Agreement

provides for a Settlement Class defined as follows:

All persons who purchased Weighted Goods from Walmart in the United States from February 13, 2015, to the date of this Order, whose Weighted Goods’ unit sale price was not accurately reflected in the final sale price.

Excluded from the Settlement Class are: (1) the judges presiding over this Litigation, and members of their direct families; (2) the Defendant, its subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendant or its parents

1 All defined terms herein have the same meaning as set forth in the Settlement Agreement.


2

have a controlling interest and their current or former officers, directors, and employees; (3) Settlement Class Members who submit a valid Opt-Out Request for exclusion prior to the Opt-Out Deadline.

Pursuant to Federal Rules of Civil Procedure 23(e)(1), the Court finds that giving notice is

justified. The Court finds that it will likely be able to approve the proposed Settlement as fair,

reasonable, and adequate. The Court also finds that it will likely be able to certify the Settlement

Class for purposes of judgment on the Settlement because it meets all of the requirements of Rule

23(a) and the requirements of Rule 23(b)(3). Specifically, the Court finds for settlement purposes

that: a) the Settlement Class is so numerous that joinder of all Settlement Class Members would

be impracticable; b) there are issues of law and fact that are common to the Settlement Class; c)

the claims of the Settlement Class Representative are typical of and arise from the same operative

facts and the Settlement Class Representative seeks similar relief as the claims of the Settlement

Class Members; d) the Settlement Class Representative will fairly and adequately protect the

interests of the Settlement Class as the Settlement Class Representative has no interest antagonistic

to or in conflict with the Settlement Class and has retained experienced and competent counsel to

prosecute this Litigation on behalf of the Settlement Class; e) questions of law or fact common to

Settlement Class Members predominate over any questions affecting only individual members;

and f) a class action and class settlement is superior to other methods available for a fair and

efficient resolution of this Litigation.

2. Settlement Class Representative and Settlement Class Counsel. The Court finds

that the Plaintiff named in the Second Amended Complaint, (Doc. Nos. 31, 32) will likely satisfy

the requirements of Rule 23(e)(2)(A) and should be appointed as the Settlement Class

Representative. Additionally, the Court finds that John A. Yanchunis and Ryan J. McGee of

Morgan & Morgan Complex Litigation Group will likely satisfy the requirements of Rule


3

23(e)(2)(A) and should be appointed as Settlement Class Counsel pursuant to Rule 23(g)(1).

3. Preliminary Settlement Approval. Upon preliminary review, the Court finds the

Settlement is fair, reasonable, and adequate to warrant providing Notice of Settlement to the

Settlement Class and accordingly is preliminarily approved. In making this determination, the

Court has considered the monetary and non-monetary benefits to the Settlement Class, the specific

risks faced by the Settlement Class in prevailing on Settlement Class Representative’s claims, the

stage of the proceedings at which the Settlement was reached, the effectiveness of the proposed

method for distributing relief to the Settlement Class, the proposed manner of allocating benefits

to Settlement Class Members, and all of the other factors required by Rule 23.

4. Jurisdiction. The Court has subject matter jurisdiction pursuant to 28 U.S.C.

§ 1332(d)(2), and personal jurisdiction over the parties before it. Additionally, venue is proper in

this District pursuant to 28 U.S.C. § 1391(b)(1).

5. Final Approval Hearing. A Final Approval Hearing shall be held on

, 202___, at [via telephone or videoconference or in-person] at the Wilkie D.

Ferguson, Jr., United States Courthouse, 400 North Miami Avenue, Room 10-1, Miami, Florida

33128 to determine, among other things, whether: (a) this Litigation should be finally certified as

a class action for settlement purposes pursuant to Fed. R. Civ. P. 23(a) and (b)(3); (b) the

Settlement should be approved as fair, reasonable and adequate, and finally approved pursuant to

Fed. R. Civ. P. 23(e); (c) this Litigation should be dismissed with prejudice pursuant to the terms

of the Settlement Agreement; (d) Settlement Class Members should be bound by the releases set

forth in the Settlement Agreement; (e) the application of Settlement Class Counsel for an award

of Attorneys’ Fees, Costs, and Expenses should be approved pursuant to Fed. R. Civ. P. 23(h); and

(f) the application of the Settlement Class Representative for a Service Award should be approved.


4

6. Claims Administrator. The Court appoints Epiq Class Action and Claims

Solutions, Inc., as the Claims Administrator, with responsibility for class notice and claims

administration. The Claims Administrator is directed to perform all tasks the Settlement

Agreement requires. The Claims Administrator’s fees will be paid from the Qualified Settlement

Fund pursuant to the Settlement Agreement.

7. Notice. The proposed method for providing Notice set forth in the Settlement

Agreement and the Claim Form attached to the Settlement Agreement as Exhibits A–C are hereby

approved. Non-material modifications to these Exhibits may be made with approval by the parties

but without further order of the Court.

8. Findings Concerning Notice. The Court finds that the proposed form, content, and

method of giving Notice to the Settlement Class as described in the Settlement Agreement and

exhibits: (a) will constitute the best practicable notice to the Settlement Class; (b) are reasonably

calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the

Litigation, the terms of the proposed Settlement, and their rights under the proposed Settlement,

including but not limited to their rights to object to or exclude themselves from the proposed

Settlement and other rights under the terms of the Settlement Agreement; (c) are reasonable and

constitute due, adequate, and sufficient notice to all Settlement Class Members and other persons

entitled to receive notice; (d) meet all applicable requirements of law, including Federal Rule of

Civil Procedure 23(c); and (e), and the Due Process Clause(s) of the United States Constitution.

The Court further finds that the Notice is written in plain language, uses simple terminology, and

is designed to be readily understandable by Settlement Class Members.

The Claims Administrator is directed to carry out the Notice in conformance with the

Settlement Agreement.


5

9. Class Action Fairness Act Notice. Within 10 days after the filing of the motion to

permit issuance of notice, Defendant shall have served or caused to be served a notice of the

proposed Settlement on appropriate state officials in accordance with the requirements under the

Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715(b).

10. Exclusion from Class. Any Settlement Class Member who wishes to be excluded

from the Settlement Class must submit such an Opt-Out Request through the Settlement Website

or mail a written Opt-Out Request for exclusion to the Claims Administrator at the address and in

the manner provided in the Notice. Such Opt-Out Requests for exclusions must meet the Opt-Out

Deadline established by this Order and stated in the Notice.

An Opt-Out Request for exclusion must be in writing and: (a) state the name of this

proceeding ((Kukorinis v. Walmart, Inc., No. 1:19-cv-20592-Martinez/Otazo-Reyes or similar

identifying words such as “Walmart Weighted Goods Class Action”); (b) state the name and

address of the Settlement Class Member seeking exclusion; (c) state “Request for Exclusion” or

words communicating the person’s request for exclusion from the Settlement Class; and (d) must

be signed by the Settlement Class Member.

An Opt-Out Request for exclusion that does not include the foregoing information, or that

is sent to an address other than the one designated in the Notice, or that is not received within the

specified time shall be invalid and the Settlement Class Member serving such a request shall, if

the Final Judgment and Order of Dismissal is entered, be considered a Settlement Class Member

and shall be bound by any judgment entered herein with respect to the Settlement Class.

The Claims Administrator shall forward a list of all Opt-Out Requests for exclusion to

Settlement Class Counsel and to Walmart’s Counsel within at least 7 days of the Opt-Out Deadline.

If the Final Judgment and Order of Dismissal is entered, any Settlement Class Member


6

who has not submitted a timely, valid written Opt-Out Request for exclusion from the Settlement

Class shall be bound by all subsequent proceedings, orders, and judgments in this Litigation,

including but not limited to the release set forth in the Final Judgment and Order of Dismissal.

Settlement Class Members who submit valid and timely Opt-Out Requests for exclusion shall not

be entitled to receive any benefits from the Settlement.

11. Objections and Appearances. Any Settlement Class Member may object to the

Settlement, Settlement Class Counsel’s request for Attorneys’ Fees, Costs, and Expenses, or the

request for the Service Award payment to the Settlement Class Representative; provided, however,

that no Settlement Class Member shall be heard or entitled to contest such matters, unless the

objection is: (a) electronically filed with the Court by the Objection Deadline set out below; (b)

submitted via the Settlement Website; or (c) mailed to the Claims Administrator and the address

listed in the Notice and submitted online or postmarked by no later than the Objection Deadline

set out below. For the objection to be considered by the Court, the objection must be in writing

and include:

(a) The name of this proceeding (Kukorinis v. Walmart, Inc., No. 1:19-cv-20592-Martinez/Otazo-Reyes or similar identifying words such as “Walmart Weighted Goods Class Action”);

(b) The objector’s full name, address, and telephone number;

(c) The grounds for the objection, as well as any documents supporting the objection;

(d) A statement as to whether the objection applies only to the objector and the objector’s circumstances, to a specific subset of the Settlement Class, or to the entire Settlement Class;

(e) the name and address of any attorneys representing the objector with respect to the objection;

(f) A statement regarding whether the objector or his/her attorney intend to appear at the final approval hearing; and

(g) The signature of the objector or his/her attorney.


7

Any Settlement Class Member who fails to comply with the provisions in this Order will

waive and forfeit any and all rights they may have to object, will have their objection stricken from

the record, and will lose their rights to appeal from approval of the Settlement. Any such Settlement

Class Member also shall be bound by all subsequent proceedings, orders, and judgments in this

Litigation, including but not limited to the release set forth in the Final Judgment and Order of

Dismissal if entered.

12. Claims Process. The Settlement Agreement contemplates the establishment of a

Qualified Settlement Fund and a claims process. Walmart will pay a minimum of $4,500,000 (the

“Floor”) and a maximum of $9,500,000 (the “Ceiling”) to create the Qualified Settlement Fund

that will be used to pay claims as determined by the Claims Administrator, pay the costs of

settlement administration, pay Settlement Class Counsel’s Attorneys’ Fees, Costs, and Expenses

as awarded by the Court, and pay the Service Award awarded to the Settlement Class

Representative by the Court.

The Settlement Class Representative and Walmart have created a process for Settlement

Class Members to claim benefits under the Settlement, including monetary relief for Settlement

Class Members who attest to the number of purchases of Weighted Goods during the Class Period

(who will be entitled to recover up to $10.00), Class Members who further provide proof of

purchase or other documentation confirming the number of purchases (who will be entitled to

recover up to $40.00), and Class Members who further provide proof of the packaging or other

documentation demonstrating the amount of the overcharge (who will not be capped on their

recovery). The Court preliminarily approves this process and directs the Claims Administrator to

make the Claim Form or its substantial equivalent available to Settlement Class Members in the

manner specified in the Notice.


8

The Claims Administrator will be responsible for effectuating the claims process.

Settlement Class Members who qualify for and wish to submit a Claim Form shall do so

in accordance with the requirement and procedures specified in the Notice and the Claim Form. If

the Final Judgment and Order of Dismissal is entered, all Settlement Class Members who qualify

for any benefit under the Settlement but fail to submit a claim in accordance with the requirements

and procedures specified in the Notice and the Claim Form shall be forever barred from receiving

any such benefit, but will in all other respects be subject to and bound by the provisions in the

Final Judgment and Order of Dismissal, including the release.

13. Termination of Settlement. This Order shall become null and void and shall be

without prejudice to the rights of the parties, all of whom shall be restored to their respective

positions existing immediately before the Court entered this Order, if: (a) the Settlement is not

finally approved by the Court or is terminated in accordance with the Settlement Agreement; or

(b) there is no Effective Date. In such event, the Settlement and Settlement Agreement shall

become null and void and be of no further force and effect, and neither the Settlement Agreement

nor the Court’s orders, including this Order, relating to the Settlement shall be used or referred to

for any purpose whatsoever.

14. Use of Order. This Order shall be of no force or effect if the Final Judgment and

Order of Dismissal is not entered or there is no Effective Date and shall not be construed or used

as an admission, concession, or declaration by or against Walmart of any fault, wrongdoing,

breach, or liability. Nor shall this Order be construed or used as an admission, concession, or

declaration by or against the Settlement Class Representative or any other Settlement Class

Member that his or her claims lack merit or that the relief requested is inappropriate, improper,

unavailable, or as a waiver by any party of any defense or claims they may have in this Litigation


9

or in any other lawsuit.

15. Qualified Settlement Fund. A Qualified Settlement Fund shall be established and

funded in accordance with Treasury Regulation § 1.468B-1, 26 C.F.R. § 1.468B-l. and the

Settlement Agreement.

16. Continuance of Hearing. The Court reserves the right to adjourn or continue the

Final Approval Hearing and related deadlines without further written notice to the Settlement

Class. If the Court alters any of those dates or times, the revised dates and times shall be posted on

the Settlement Website maintained by the Claims Administrator. The Court may approve the

Settlement, with such modifications as may be agreed upon by the parties, if appropriate, without

further notice to the Settlement Class.

17. Schedule and Deadlines. The Court orders the following schedule of dates for the

specified actions/further proceedings:

Event Timing

Deadline for Defendant to disseminate CAFA notices [10 days from the filing of this motion]

Notice Deadline [30 days following Preliminary Approval Order]

Deadline for Settlement Class Counsel to file motion for Attorneys’ Fees, Costs, Expenses and Service Award

[21 days before Objection and Opt-Out Deadline]

Objection Deadline [40 days after Notice Deadline]

Opt-Out Deadline [40 days after Notice Deadline]

Deadline for Settlement Class Representative to file motion for final approval of settlement and responses to any timely submitted Settlement Class Member objections, which shall include a declaration from the Claims Administrator confirming execution of and compliance with its obligations in the Settlement Agreement as of the date of the declaration and identifying all Settlement Class Members who submitted timely Opt-Out Requests for exclusion

[21 days prior to Final Approval Hearing]

Claims Deadline [100 days after notice deadline]


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Final Approval Hearing No earlier than 100 days after entry of the Preliminary Approval Order

DONE AND ORDERED in Miami, Florida on this day of , 2020.

HONORABLE JOSE E. MARTINEZ UNITED STATES DISTRICT JUDGE


Exhibit 1-E


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:19-CV-20592-MARTINEZ/OTAZO-REYES VASSILIOS KUKORINIS, on behalf of himself and those similarly situated, Plaintiff, v. WALMART, INC., a Delaware corporation Defendant.

THIS MATTER came before the Court on Plaintiff’s Motion for Final Approval of Settlement

(“Final Approval Motion”) and Plaintiff’s Motion for An Award of Attorneys’ Fees, Costs, and Expenses

(“Attorneys’ Fee Motion”).

WHEREAS, the above-captioned matter is a settlement class action pending before the Court;

and

WHEREAS, the Court has received and reviewed the Settlement Agreement entered into

between the Settlement Class Representative and the Settlement Class Members on the one hand, and

Walmart, Inc. (“Walmart”), on the other hand (the “Settlement Agreement”), and has considered the

terms of the proposed settlement set forth therein (the “Settlement”); and

WHEREAS, all terms used herein shall have the same meanings as set forth in the Settlement

Agreement, unless otherwise defined herein; and

WHEREAS, on _______________, the Court entered its order granting Plaintiff’s Unopposed

Motion to Direct Class Notice and Grant Preliminary Approval of Class Action Settlement, (Doc. No.

___) this class action as set forth in the Settlement Agreement, approving the form and method of notice,


and setting a date and time for a fairness hearing to consider whether the Settlement should be finally

approved by the Court pursuant to Federal Rule of Civil Procedure 23 as fair, adequate, and reasonable

(the “Preliminary Approval Order”); and

WHEREAS, the Preliminary Approval Order further directed that all Settlement Class Members

be given notice of the Settlement and of the date for the final fairness hearing; and

WHEREAS, the Parties and the Claims Administrator have advised and confirmed to the Court

that such notice has been given; and

WHEREAS, no objections to the Settlement were filed prior to the Claim Filing Deadline, which

is the last day for any objections to be considered timely [[or objections were filed but overruled]]; and

WHEREAS, [[insert ##]] Settlement Class Members opted out of the Settlement prior to the

Claim Filing Deadline, which was the last day for any opt-outs to be considered timely;

WHEREAS, the Court having conducted a Final Fairness Hearing on _______________ (the

“Final Approval Hearing”), and having considered the arguments presented, all papers filed and all

proceedings had therein;

it is hereby ORDERED AND ADJUDGED that the Motion for Final Approval is GRANTED

as follows:

1. The Court has jurisdiction over the subject matter of this action, all Settlement Class

Members, and the Defendant.

2. In accordance with Federal Rule of Civil Procedure 23, and the requirements of due

process, all Settlement Class Members have been given proper and adequate notice of the Settlement.

Based upon the evidence submitted by the parties to the Settlement Agreement, the Settlement

Agreement, the arguments of counsel, and all the files, records and proceedings in this case, the Court

finds that the Notice and notice methodology implemented pursuant to the Settlement Agreement and


the Court’s Preliminary Approval Order: (a) constituted methods that were reasonably calculated to

inform the members of the Settlement Class of the Settlement and their rights thereunder; (b) constituted

notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of

the pendency of the litigation, their right to object to the Settlement, and their right to appear at the Final

Approval Hearing; (c) were reasonable and constituted due, adequate and sufficient notice to all persons

entitled to notice; and (d) met all applicable requirements of the Federal Rules of Civil Procedure, and

any other applicable law.

3. The Settlement Agreement in this action warrants final approval pursuant to Rule 23 of

the Federal Rules of Civil Procedure because it resulted from vigorously contested litigation, thorough

discovery and motion practice, and extensive good-faith arm’s length negotiations between the parties,

and is it is fair, adequate, and reasonable to those it affects, considering at least the following factors: (i)

the relative strength of the plaintiff’s case on the merits; (ii) the existence of any difficulties of proof or

strong defenses the Plaintiff is likely to encounter if the case goes to trial; (iii) the anticipated duration

and expense of additional litigation; (iv) the degree of opposition to the Settlement.

4. The Final Approval Motion is hereby GRANTED, and the Settlement as set forth in the

Settlement Agreement is hereby APPROVED as fair, reasonable, adequate, and in the public interest,

and the terms of the Settlement Agreement are hereby determined to be fair, reasonable, and adequate,

for the exclusive benefit of the Settlement Class Members. The Parties are directed to consummate the

Settlement Agreement in accordance with its terms.

5. The Court APPROVES payment of a Settlement Class Representative Service Award to

Vassilios Kukorinis in the amount of $_____________and as set forth in the Settlement Agreement.

6. The Court APPROVES payment of Attorneys’ Fees, Costs, and Expenses and Litigation

Expenses to Class Counsel in the amount of $____________________ in accordance with the terms of


the Settlement Agreement and as requested in Plaintiff’s Motion for Award of Attorneys’ Fees, Costs,

and Expenses. The Court further finds that no attorneys have asserted any attorney liens as to the

Attorneys’ Fees, Costs, and Expenses and Litigation Expenses awarded by the Court.

7. The planned distribution of the Class Settlement amount is hereby APPROVED as fair,

adequate, and reasonable. The Class Settlement amount shall be distributed in accordance with the terms

of the Settlement Agreement.

8. This matter is hereby deemed DISMISSED WITH PREJUDICE and without costs to

any Party, other than as specified in the Settlement Agreement and this Order, or to enforce the terms of

the Settlement Agreement and this Order.

9. In consideration of the Class Settlement amount provided under the Settlement

Agreement, and for other good and valuable consideration, each of the Releasing Settlement Class

Members shall, by operation of this Judgment, have fully, finally, and forever released, relinquished, and

discharged all Settlement Class Member Released Claims against Walmart in accordance with Section

13 of the Settlement Agreement, the terms of which section are incorporated herein by reference, shall

have covenanted not to sue Walmart with respect to all such Settlement Class Member Released Claims

and shall be permanently barred and enjoined from instituting, commencing, prosecuting or asserting any

such Settlement Class Member Released Claims against Walmart.

10. This Judgment is the Final Judgment in the suit as to all Settlement Class Member

Released Claims.

11. Without affecting the finality of this Judgment in any way, this Court retains jurisdiction

over (a) implementation of the Settlement and the terms of the Settlement Agreement; (b) distribution of

the Class Settlement amount, the Settlement Class Representative Service Award, and the Attorneys’

Fees, Costs, and Expenses and Litigation Expenses Amount; and (c) all other proceedings related to the


implementation, interpretation, administration, consummation, and enforcement of the terms of the

Settlement Agreement and the Settlement, and the administration of Claims submitted by Settlement

Class Members. The time to appeal from this Judgment shall commence upon its entry.

12. In the event that the Settlement Effective Date does not occur, this Judgment shall be

rendered null and void and shall be vacated, nunc pro tunc, except insofar as expressly provided to the

contrary in the Settlement Agreement or at the direction of any appellate court of competent jurisdiction,

and without prejudice to the status quo ante rights of Plaintiff, the Settlement Class Members, and

Walmart.

13. This Court finds that there is no just reason for delay and expressly directs Judgment and

immediate entry by the Clerk of the Court.

DONE AND ORDERED in Chambers in Miami, Miami-Dade County, Florida, this ____

day of _______________, 202___.

____________________________________ JOSE E. MARTINEZ UNITED STATES DISTRICT JUDGE


Exhibit 2


1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

1:19-CV-20592-MARTINEZ/OTAZO-REYES

VASSILIOS KUKORINIS, on behalf of

himself and those similarly situated,

Plaintiff,

v.

WALMART, INC., a Delaware

corporation

Defendant.

DECLARATION OF JOHN YANCHUNIS IN SUPPORT OF

PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL

I, John A. Yanchunis, declare pursuant to 28 U.S.C. § 1746 as follows:

1. I am an attorney with the law firm of Morgan & Morgan Complex Litigation

Group.1 I am licensed to practice law in the state of Florida. I have been licensed to practice law

in Florida since 1981. I am also admitted to practice in this District. I have personal knowledge of

the matters stated in this declaration and could and would testify to these matters if called as a

witness.

2. I lead the National Consumer Class Action Department of Morgan & Morgan’s

Complex Litigation Group. I am one of the attorneys for Plaintiff and the proposed Class in this

Action. I submit this declaration in support of Plaintiff’s Unopposed Motion for Preliminary

Approval of Class Action Settlement.

1 Unless otherwise noted, all capitalized terms are defined in the Motion for Preliminary Approval

or the Settlement Agreement and Release, which are being filed concurrently herewith.


2

3. My practice—which began after completing a two-year clerkship with United

States District Judge Carl O. Bue, Jr., Southern District of Texas, Houston Division—has

concentrated on complex litigation and spans over 37 years, including consumer class actions for

more than two-thirds of that time. I have represented consumers in numerous successful class

actions involving a wide variety of claims and topics from anti-trust, securities, civil rights,

defective products, deceptive and unfair trade practices, common law fraud, and the protection of

the privacy rights of consumers.

4. For example, this Court appointed me as co-lead counsel in the successful

prosecution of the two largest class action cases in the United States: Fresco v. Automotive

Directions, Inc., Case No. 03-61063-JEM, and Fresco v. R.L. Polk, Case 0:07-cv-60695-JEM

(Southern District of Florida). These cases were filed against the world’s largest data and

information brokers – Experian, R.L. Polk, Acxiom, Reed Elsevier (which owns Lexis-Nexis) and

others – to protect the important privacy rights of consumers.

5. I presently serve and have served in the past as lead, co-lead, or class counsel in

numerous multi- district litigations across the country in a wide variety of areas affecting

consumers. For instance, I served as co-lead of the Home Depot Data Breach, a member of the

Five-member Executive Committee in the Target Data Breach, No. 0:14-md-02522-PAM (Dist.

Minn.), a member of the three-member Plaintiffs’ Steering Committee in In re: U.S. Office

Personnel Management Data Security Breach Litigation, 1:15-cv-01321-ABJ (D.D.C.), and a

member of the Plaintiffs’ Steering Committee in In re Equifax, Inc. Customer Data Security

Breach Litigation, 1:17-md-2800-TWT (N.D. Ga.). I presently serve as Lead Counsel in In re

Yahoo! Inc. Customer Data Security Breach Litigation, 16-MD-02752-LHK (N.D. Cal.), a case

involving a data breach of over 2.9 billion users of Yahoo’s email service. The court in that case


3

recently entered final judgment and approved the settlement of the claims of a class of consumers

in the United States and Israel.

6. As a result of my experience in litigation against the insurance industry, including

class litigation, I served as lead counsel for the insurance regulators for the state of Florida in

connection with their investigations of a number of insurance companies and brokers of allegations

of price fixing, bidding rigging, undisclosed compensation and other related conduct, and

negotiated a number of settlements with insurance companies and brokers who were the subject of

those investigations. These investigations resulted in the recovery of millions of dollars for Florida

policyholders and the implementation of changes to the way insurance is sold in Florida and

throughout the United States.

7. During my career, I have tried numerous cases in state and federal courts, including

one of the largest and longest insurance coverage cases in U.S. history, which was filed in 1991

by The Celotex Corporation and its subsidiary, Carey Canada, Inc. During the seventeen years the

case pended, I served as lead counsel for several insurance companies regarding coverage for

asbestos and environmental claims. The case was tried in three phases over several years beginning

in 1992. I was also lead counsel for these parties in the subsequent appeals that followed a

judgment in favor of my clients.

8. As result of my experience in the area of class litigation and ethics, I have served

as an expert for The Florida Bar on ethical issues arising in class action litigation.

9. I am currently a member in good standing of The Florida Bar, and of all the bars to

which I have been admitted, including the United States Supreme Court, the United States Court

of Appeals for the Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits, and the United States

District Courts of the Southern District of Texas, Northern District of Texas, Eastern District of


4

Wisconsin, Western District of Wisconsin, Western District of Tennessee, Middle District of

Florida, Southern District of Florida, Eastern District of Michigan, and Northern District of

Illinois.

10. Attached as Exhibit 1 to Plaintiff’s Unopposed Motion to Direct Notice and Grant

Preliminary Approval of Class Action Settlement, filed concurrently herewith, is the Settlement

Agreement and Release entered into in this Litigation along with each of its exhibits (“Settlement

Agreement” or “Settlement” or “SA”). 2

11. Before this case was a filed, Plaintiff and Plaintiff’s Counsel conducted an

extensive investigation into the factual underpinnings of this case, and the conduct of Walmart

alleged herein. Additionally, after the filing of this case, and with the benefit of extensive data

provided by Walmart, Plaintiff’s Counsel engaged the services of an expert to analyze the data

provided to develop a damages model.

12. Thereafter, the Parties began exploring potential, preliminary settlement

discussions, and then engaged in more formal settlement negotiations that included the exchange

of information responsive to the discovery requests, settlement information, and term sheets.

13. To help facilitate settlement negotiations, the Parties agreed on and retained Ms.

Michelle Yoshida of Phillips ADR—a highly respected mediator with significant experience

concerning fraudulent, deceptive, and unfair trade practices class actions and other types of

complex class actions—to conduct an initial mediation in this Litigation on November 19, 2019

for the Florida-based class.

14. As a condition of mediation, Plaintiff’s Counsel sought information from Walmart

regarding the sales data for Weighted Goods during the Class Period. Walmart provided this

2 Unless otherwise noted, all capitalized terms are defined in the Settlement.


5

information to Plaintiff’s Counsel pursuant to Federal Rule of Evidence 408.

15. In advance of the mediation, the Parties briefed Ms. Yoshida on their respective

positions on the facts, claims, defenses, and assessments of the risk of litigation.

16. The information exchanged prior to mediation provided my co-counsel and I with

the foundation necessary to understand and appreciate the underlying facets of the Pricing

Practices, the scope of potential overcharges, and the risks of continued litigation. As stated earlier,

we also retained an expert to analyze the data, develop damages models, and determine statistically

the amount potentially at issue in this Litigation.

17. On November 19, 2019, the Parties participated in a full-day mediation session with

Ms. Yoshida that included attorneys and representatives for both Parties, a Walmart representative,

and Plaintiff. The negotiations were hard-fought throughout and the settlement process was

conducted at arm’s length. Following this full-day session of negotiations, the Parties agreed to

further mediate this case as a nationwide class.

18. Following the initial mediation, Walmart provided similar information regarding

sales data for Weighted Goods during the Class Period, but instead of limiting the scope of that

information to Florida sales, Walmart provided nationwide sales data for the Class Period.

19. On March 18, 2020, the Parties participated in a second, full-day mediation session

with Ms. Yoshida via virtual format due to COVID-19. The Parties were able to reach a tentative

settlement, and engaged in additional sessions with Ms. Yoshida to further refine the details of the

Settlement Agreement currently before this Court.

20. During the mediation sessions, the Parties set forth and discussed their respective

positions on the merits of the Class claims and the potential for a settlement that would involve

class-wide relief. The Parties exchanged offers and counteroffers and negotiated the points of each


6

vigorously, including detailing their respective positions and models for class-wide relief.

Ultimately, the Parties were able to reach the fundamentals of resolution.

21. Based on Plaintiff’s Counsel’s independent investigation of the relevant facts and

applicable law, experience with other class actions concerning fraudulent, deceptive, and unfair

trade practices, and the information provided by Walmart, Plaintiff’s Counsel has determined that

the Settlement is fair, reasonable, adequate, and in the best interest of the Settlement Class.

Consequently, the Parties worked together to prepare a comprehensive set of settlement

documents, which are embodied in the Settlement.

22. Additionally, Plaintiff’s Counsel relied on their experience presenting expert

evidence and litigating the key legal issues they were likely to face here in other fraudulent,

deceptive, and unfair trade practices cases to assist in evaluating the merits of this case and

reaching the Settlement.

23. The Settlement resulted from extensive arm’s-length negotiations between

experienced counsel with an understanding of the strengths and weaknesses of their respective

positions in this lawsuit, assisted by an experienced and respected mediator.

24. Additionally, the Parties spent significant time negotiating the terms of the final

written Settlement Agreement which is now presented to the Court for approval. At all times,

these negotiations were at arm’s length and, while courteous and professional, the negotiations

were intense and hard-fought on all sides.

25. Throughout the mediation and settlement process, and before finally entering the

Settlement, we carefully weighed with Plaintiff—who was present for the November mediation

session and available throughout the March mediation session—the following: 1) the benefits to

Plaintiff and the Settlement Class under the terms of this Settlement; 2) the range of the possible


7

results at trial, including that the case could be lost and no relief provided to any class; 3) the

attendant risks and uncertainty of litigation, especially in complex cases such as this case where

certification is by no means a given and would be challenged if litigated and appealed if the Court

certified any proposed class; 4) the difficulties and delays inherent in such litigation in the event

that Walmart were to seek appellate review of the Court’s Final Judgment, even in the event

Plaintiff and any class are successful at trial; 5) Walmart’s vigorous defense of the Litigation and

continued denial of the claims contained in the operative complaint and the pending Motion to

Dismiss, which at the time of mediation had not been ruled upon by the Court; 6) the desirability

of consummating this Settlement to ensure that the Settlement Class received a fair and reasonable

result; and 7) providing Plaintiff and Settlement Class Members prompt relief, including

implementing business practice changes to address the underlying conduct of Walmart.

26. While the Parties settled relatively early in the Litigation, before Plaintiff’s putative

class was certified, the Parties had sufficient information to adequately evaluate the merits of the

case. Plaintiff’s Counsel investigated numerous Walmart stores in multiple cities of numerous

states to identify the alleged Pricing Practices to determine the extent of the Pricing Practices,

which products were at issue, and how prevalent the Weighted Goods were allegedly affected by

the Pricing Practices. Walmart also produced Rule 26 disclosures and certain documents

responsive to Plaintiff’s first requests for production that were reviewed by Plaintiff’s Counsel in

conjunction with the Settlement.

27. Pursuant to the Settlement, Walmart has agreed to fund a non-reversionary

Qualified Settlement Fund in a minimum amount (i.e., Floor) of $4,500,000.00, up to a maximum

amount (i.e., Ceiling) of $9,500,000.00. The Qualified Settlement Fund will be used to pay for the

benefits to the Settlement Class, Notice and administration costs, as well as Attorneys’ Fees, Costs,


8

and Expenses, and Litigation Expenses.

28. The first component of the Settlement is for those Settlement Class Members who

purchased Weighted Goods during the Class Period but have not retained proofs of purchase or

other documentation due to the nature of the Weighted Goods (i.e., the Weighted Goods expire

and proofs of purchase are seldom retained). The documentation necessary is not overly

burdensome—in fact, it consists of an attestation to the number of Weighted Goods the Settlement

Class Member purchased during the Class Period to recover monetary benefits. If the claim is

rejected for any reason, there is also a consumer-friendly appeals process whereby claimants will

have the opportunity to cure any deficiencies in their submission or request an appeal if the Claims

Administrator determines a claim is deficient in whole or part.

29. The second component of the Settlement is for those Settlement Class Members

who purchased Weighted Goods during the Class Period, retained proofs of purchase or other

documentation, but did not retain proof of the packaging to demonstrate the amount of

overpayment. This is an important benefit as Settlement Class Members can receive additional

monetary benefits with the additional requirement of proof of purchase. Likewise, this claims

procedure is subject to the consumer-friendly process, providing claimants with the opportunity to

correct any deficiencies in their submission and appeal rights.

30. The third and final component of the Settlement is for those Settlement Class

Members who purchased Weighted Goods during the Class Period, retained proofs of purchase or

other documentation, and retained proof of the packaging to demonstrate the amount of

overpayment. This benefit is crucial because it permits Settlement Class Members to recover all

amounts they were overcharged during the Class Period. As with the other forms of monetary

benefits, the claims procedure is subject to the consumer-friendly process, providing claimants


9

with the opportunity to correct any deficiencies in their submission and appeal rights.

31. Based on my experience and that of my co-counsel, the Qualified Settlement Fund

will be more than adequate to fund all of the benefits offered under the Settlement. The Settlement

provides tiered recoveries based on the respective levels of proof Settlement Class Members are

able to provide. Due to the nature of the short life and expirations of the Weighted Goods, it is

overwhelmingly likely that the substantial majority of Settlement Class Members will avail

themselves of the first category of recovery (i.e., self-attested purchases); however, the Settlement

provides meaningful monetary benefits to those Settlement Class Members who have additional

evidentiary proof—including full recovery for overcharges with appropriate evidence. Thus, while

there are situations where a Settlement Class Member could recover the entirety of their

overcharges during the Class Period, those instances are typically outliers.

32. Given our experience studying claims rates and benefits selection in other

fraudulent, deceptive, and unfair trade practices, I expect that the Qualified Settlement Fund will

be sufficient to pay out all claims. This process, as well as the structure of the Floor and Ceiling

to the Settlement, will ensure that all Settlement funds will be used to directly benefit the

Settlement Class with no reversion of any funds to Walmart.

33. In addition to the monetary compensation provided to Settlement Class Members

by the Settlement, Walmart has agreed to adopt and implement certain business practice

commitments and remedial measures for at least three years after the Effective Date.

34. The Parties propose that Epiq Class Action Claims Solutions, Inc. (“Epiq”), be

appointed as the Claims Administrator tasked with providing Notice and processing claims. Epiq

is a nationally recognized class action notice and administration firm that has designed a class

notice program for this case, which the Parties and Epiq believe is an effective program. Subject


10

to Court approval, this Notice program utilizes national consumer print publications, internet

banner advertising, social media, sponsored search, and a national information release. The

approximate cost of Notice and administration of claims is $560,000.00, which will be paid from

the Qualified Settlement Fund.

35. Epiq will also establish a Settlement Website in the form agreed to by the Parties

and the Court. In addition to the Notice, the Settlement Website will include information about

the Settlement, related case documents, and the Settlement Agreement. Settlement Class Members

can submit claims by mail or electronically through the Settlement Website. The documentation

necessary to establish entitlement to monetary benefits can be uploaded through the Settlement

Website or mailed in paper form.

36. The Notice uses plain English in an easy-to-read format that concisely explains to

Settlement Class Members the nature of the Litigation and their options under the Settlement. It

includes information such as the case caption, a description of the Settlement Class, a description

of the claims and the history of the Litigation, a description of the Settlement and the claims being

released, the names of Plaintiff’s Counsel, a statement of the maximum amount of Attorneys’

Fees, Costs, and Expenses, as well as Litigation Expenses, that will be sought by Plaintiff’s

Counsel, the maximum amount Plaintiff’s Counsel will seek for a Service Award at the final

approval hearing, a description of the procedures and deadlines for requesting exclusion and

objecting to the Settlement, a link to the Settlement Website containing relevant case documents,

and the manner in which to obtain further information.

37. The Qualified Settlement Fund also will be used to pay for an award of Attorneys’

Fees, Costs, and Expenses, Litigation Expenses, and a Service Award payment as approved by

the Court. Plaintiff’s Counsel will move for an attorneys’ fees award not to exceed one-quarter


11

(25%) of the Qualified Settlement Fund and for reimbursement of Litigation Expenses not to

exceed $100,000.00. Plaintiff’s Counsel will also move for a Service Award payment for the

Plaintiff not to exceed $25,000.00 for his time and effort in pursing this Litigation on behalf of

the Settlement Class. The Plaintiff’s approval of the Settlement is not conditioned in any manner

on his receiving a Service Award or its amount. Plaintiff’s Counsel will file the motion for

attorneys’ fees, costs, and expenses, and service award payment no later than 21 days before the

Opt-Out and Objection Deadlines. Walmart takes no position on the amounts to be sought for

Attorneys’ Fees, Costs, and Expenses or for a Service Award, but does not object to reasonable

awards by the Court.

38. In exchange for the benefits provided under the Settlement, Settlement Class

Members will release any legal claims that may arise from or relate to the facts and claims alleged

in the Complaint filed in this Litigation.

39. Plaintiff’s Counsel, attorneys with extensive experience in leading class actions,

believe that the relief afforded by the Settlement is fair, reasonable, adequate, and comparable to

other settlements on record. The costs, risks, and delay of trial and appeal weigh in favor of

settlement approval. Although Plaintiff’s Counsel is confident in the merits of their claims, the

risks involved in prosecuting a class action through trial cannot be disregarded. Although

Plaintiff’s claims survived Walmart’s Motion to Dismiss, those claims would still need to survive

likely motions practice (e.g., a motion for summary judgment) and succeed at class certification.

Through the Settlement, Plaintiff and Settlement Class Members gain significant benefits without

having to face further risk.

40. The delay attendant in continuing to litigate this case also favors approval of the

Settlement. This Litigation has been pending longer than a year. Even before the COVID-19


12

pandemic, which will likely cause significant delay across federal civil cases, many more months

and significant additional costs would be required for the Parties and the Court to complete the

pre-trial proceedings, summary judgment and Daubert motions, and class certification. After trial,

the Parties could appeal the Court’s class certification and summary judgment decisions, which

could take years to complete. Assuming the Parties went to trial and verdict, there would remain

the possibility that the verdict could be reversed by this Court or on appeal.

41. By contrast, the proposed Settlement Agreement provides the Settlement Class

with substantial, guaranteed relief now. A relatively early settlement is especially warranted here

because it provides relief to Settlement Class Members during uncertain financial times with

COVID-19. This Settlement provides benefits to the entire class, including reimbursement for

monetary damages—regardless of whether the Settlement Class Member kept their respective

proofs of purchase and packaging of the Weighted Goods.

42. The settlement distribution process, developed with Plaintiff’s Counsel’s

knowledge and experience overseeing the administration of fraudulent, deceptive, and unfair trade

practices class action settlements, will be efficient and effective. Settlement Class Members can

easily file claims regardless of the level of documentation they have, but the documentation

requirements for additional relief are not onerous (and not even required for many benefits); and,

there is a consumer-friendly appeal process if a claim is denied in whole or part.

43. The Settlement treats all Settlement Class Members equitably relative to one

another because all who have been damaged are eligible to receive reimbursement based on

expenses incurred, not on any unequitable basis.

44. Plaintiff, the proposed Settlement Class Representative, is a member of the

Settlement Class and does not possess any interests antagonistic to the Settlement Class. He


13

purchased the Weighted Goods subject to the Pricing Practices during the Class Period and, as

demonstrated in his Complaint, overpaid for the Weighted Goods with documentation and proof

of same. Additionally, Plaintiff has vigorously prosecuted this case for the benefit of all

Settlement Class Members by filing the underlying Litigation, reviewing pleadings, conferring

with Plaintiff’s Counsel, and providing input at mediation and in crafting and approving the

Settlement.

45. In addition, Plaintiff’s Counsel are clearly qualified to represent the Settlement

Class. We have extensive experience in prosecuting fraudulent, deceptive, and unfair trade

practices cases. In this case, we have spent considerable time investigating the Pricing Practices

and Weighted Goods across the country, and negotiating a well-informed Settlement on behalf of

the Settlement Class.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct. Executed on August 7, 2020, at Tampa, Florida.

JOHN A. YANCHUNIS, ESQ.


Documents

Motion for Preliminary Approval - Kukorinis v. Walmart