settlement agreement (final) (brandewie v. wal-mart … · pageid #: 1129. 5 and is in the best...

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SETTLEMENT AGREEMENT

1. PREAMBLE

1.1 This Settlement Agreement is made and entered into as of the dates of Execution set forth

below, individually and on behalf of the Class Representatives, Settlement Class Members, and

Wal-Mart.

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 and Litigation Expenses” means the attorneys’ fees and litigation

expenses to be requested by Class Counsel subject to Court approval in accordance with this

Agreement.

2.4 “Claim” means a request submitted by a Settlement Class Member to receive a credit in

accordance with the procedures set forth in this Agreement.

2.5 “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 credit.

2.6 “Claim Form” means a form substantially in the form of the Exhibit attached to the

Agreement which Settlement Class Members shall use to submit Claims to the Claims

Administrator.

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

2.8 “Claims Administrator” means, subject to Court approval, Class Action Administration,

Inc, the entity who shall perform certain notice and claims administration functions in

accordance with this Agreement.

2.9 “Class Counsel” means William B. Eadie, Nicholas A. DiCello, Daniel Frech, Dennis R.

Lansdowne, and Stuart E. Scott of Spangenberg Shibley & Liber LLP, and Daniel J. Myers of

Myers Law, LLC.

2.10 “Class Member Payment Amount” means the portion of the Class Settlement Amount

which shall be used to provide credits to Approved Claimants in accordance with this

Agreement.

2.11 “Class Representatives” means Shaun Brandewie and John A. Newbrough III.

2.12 “Class Representative Incentive Payment” means the amounts Class Counsel shall

request be paid to the Class Representatives in accordance with this Agreement.

Case: 1:14-cv-00965-JG Doc #: 73-1 Filed: 07/08/15 1 of 44. PageID #: 1126

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2.13 “Class Settlement Amount” means the maximum amount of money that Wal-Mart will

be obligated to pay under this Settlement, $5,000,000.00, as provided for in this Agreement.

Under no circumstances shall Wal-Mart be obligated to pay more than the Class Settlement

Amount in connection with this Settlement.

2.14 “Court” means the District Court and any appellate court which may review any orders

entered by the District Court related to this Settlement.

2.15 “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.

2.16 “District Court” means the United States District Court for the Northern District of Ohio.

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

2.18 “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 Wal-

Mart, substantially in the form of the proposed Final Judgment and Order of Dismissal attached

hereto as an Exhibit, which this Settlement contemplates will be entered and approved by the

Court.

2.19 “Gift Card” means a gift card issued by Wal-Mart Stores Arkansas, LLC and redeemable

towards purchases at Walmart Retail Locations, Sam’s Club Retail Locations or on-line at

Walmart.com or Samsclub.com.

2.20 “Litigation” means the case of Shaun Brandewie, et al v Wal-Mart Stores, Inc., Case No.

1:14CV00965 (United States District Court for the Northern District of Ohio).

2.21 “Notice and Administration Costs” means the costs which Wal-Mart 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.

2.22 “Notice” means the documents substantially in the form of the documents attached hereto

as an Exhibit, 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.

2.23 “Notice Period” means the minimum amount of time during which Notice will be made

as approved by the Court.

2.24 “Notice Plan” means the document describing the various methods by which notice will

be provided to Settlement Class Members. The Notice Plan will initiate no later than 20 days

after the Court has granted preliminary approval.

2.25 “Opt Out Letter” 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.


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2.26 “Parties” means the Class Representatives and Wal-Mart.

2.27 “QSF” means the Qualified Settlement Fund to be set up in accordance with this

Agreement.

2.28 “Releasing Settlement Class Members” means the Class Representatives, and all

Settlement Class Members, other than those who submit Opt-Out Letters.

2.29 “Sam’s Club Retail Locations” means all Sam’s Club retail locations in the fifty United

States.

2.30 “Settlement” means the compromise and settlement of the Litigation as contemplated by

this Agreement.

2.31 “Settlement Class” means the following: all persons who, during the Settlement Class

Period, purchased, or were given as a gift a product purchased, from a Walmart Retail Location,

Sam’s Club Retail Location, or online from Walmart.com or Samsclub.com for delivery within

the United States, to whom Wal-Mart gave a refund or credit, but where the amount of sales tax

refunded or credited was less than the full amount of sales tax paid at the time the product was

purchased, excluding cases where Wal-Mart provided a product exchange rather than a refund,

and further excluding Wal-Mart and its officers and directors.

2.32 “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.

2.33 “Settlement Class Members” means the Class Representatives and all members of the

Settlement Class.

2.34 “Settlement Class Period” means the period of time from May 2, 2010 up through and

including the date the District Court grants preliminary approval to the Settlement.

2.35 “Settlement Effective Date” means the first day following the last of the following

occurrences:

2.35.1. 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 and dismissing this Litigation with prejudice as to Wal-Mart has expired with

no appeal or other judicial review having been taken or sought; or

2.35.2. 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


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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.

2.35.3. The provisions and deadlines set forth in this Section apply even if there are no

objections to the Settlement.

2.36 “Settlement Website” means the website created and managed by the Claims

Administrator which will provide Settlement Class Members with access to the Notice, the

online Claim Form, and other information regarding the Settlement.

2.37 “Summary Notice” means short forms of notice, substantially in the form of the attached

Exhibit, 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 as further described in the

Notice Plan.

2.38 “Wal-Mart” means Wal-Mart Stores, Inc., Wal-Mart Stores East, LLC, Sam’s West,

Inc., Walmart.com USA LLC, Wal-Mart Stores Arkansas, LLC and each of their current or

former subsidiaries, affiliates, predecessors, insurers, agents, employees, successors, assigns,

officers, officials, directors, partners, employers, attorneys, personal representatives, executors,

and shareholders.

2.39 “Walmart Retail Locations” means all Walmart stores, supercenters, neighborhood

markets or other Walmart retail locations in the fifty United States.

3. RECITALS

3.1 On May 2, 2014, plaintiffs Shaun Brandewie and John Newbrough III filed a Complaint

against Wal-Mart Stores, Inc. in the United States District Court for the Northern District of

Ohio alleging that they did not receive a full refund for certain returned item as alleged more

particularly in the Complaint. Wal-Mart denies all of Plaintiffs’ allegations as set forth in its

Answer and Amended Answer to the Complaint in the Litigation.

3.2 On April 15, 2015, the Plaintiffs and Wal-Mart participated in a private mediation with

the Honorable Layn R. Phillips. As a result of that mediation session, and as a result of other

arms-length negotiations, the Parties reached an agreement to settle the Litigation as set forth in

this Agreement.

3.3 The Class Representatives believe this Litigation is meritorious. Class Counsel

represents 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 Wal-Mart,

including, but not limited to: (i) reviewing relevant documents; (ii) researching the applicable

law and the potential defenses; (iii) conducting depositions; (iv) hiring and consulting with

experts; (v) developing the argument for class certification; (vi) advocating for the rights of the

putative class; and (vii) preparing for trial. Based on their own independent investigation and

evaluation, Class Counsel are of the opinion that the Settlement is fair, reasonable, and adequate


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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 Wal-Mart, trial

risk, and appellate risk.

3.4 Wal-Mart 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. Wal-Mart 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 consistent with due process. Wal-Mart further asserts that it has

complied with all applicable provisions of federal or state statutory and common law. Wal-Mart

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, Wal-Mart will not oppose the

District 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, Wal-Mart

does not waive its objections to certification of the Settlement Class, or any other class, in this

Litigation as a litigation class.

3.5 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 Wal-Mart, 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 process described in this

Agreement. Wal-Mart 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 Wal-Mart with prejudice.

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

4. CERTIFICATION OF THE SETTLEMENT CLASS

4.1 If necessary to implement the Settlement, Class Counsel shall request that the District

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

Class Counsel agree that certification of the Settlement Class is a conditional certification for

settlement purposes only, and that Wal-Mart 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 District Court does not grant final approval of the

Settlement, or if final approval is not granted following the appeal of any order by the District

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


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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 Wal-Mart that class certification is proper in this Litigation or any other litigation

against Wal-Mart. Moreover, Wal-Mart 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 consistent with due process. The Parties and 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 Wal-

Mart.

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 Wal-Mart and Class Counsel may 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, Wal-Mart agrees to the following:

6.2 Programmatic Relief.

6.2.1. Wal-Mart is developing an electronic solution to be implemented at Walmart

Retail Locations and Sam’s Club Retail Locations nationwide, as follows:

6.2.1.1. Walmart Retail Locations: The electronic solution will automate the

process of calculating the applicable sales tax refund (if any) when an item

purchased at a Walmart Retail Location within the United States, or on line from

Walmart.com for delivery within the United States, is returned to a Walmart

Retail Location that is in a different tax jurisdiction than the jurisdiction in which

the item was (a) purchased from another Walmart Retail Location; or (b)

delivered if originally purchased on line. Certain promotional events may be

excluded from the electronic solution; in such circumstances any tax refunds

which may be owed if such an item is returned will be calculated manually. This


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electronic solution may be initiated in stages, but it is presently anticipated that

this electronic solution shall be initiated at all Walmart Retail Locations on or

before November 1, 2016. Counsel for Wal-Mart shall provide confirmation to

the Court and Class Counsel once the electronic solution described in this

Agreement has been initiated.

6.2.1.2. Sam’s Club Retail Locations: The electronic solution will automate

the process of calculating the applicable sales tax refund (if any) when an item

purchased at a Sam’s Club Retail Location within the United States, or on line

from Samsclub.com for delivery within the United States, is returned to a Sam’s

Club Retail Location that is in a different tax jurisdiction than the jurisdiction in

which the item was (a) purchased from another Sam’s Club Retail Location; or

(b) delivered if originally purchased on line. Certain promotional events may be

excluded from the electronic solution; in such circumstances any tax refunds

which may be owed if such an item is returned will be calculated manually. This

electronic solution may be initiated in stages, but it is presently anticipated that

this electronic solution shall be initiated at all Sam’s Club Retail Locations on or

before November 1, 2016. Counsel for Wal-Mart shall provide confirmation to

the Court and Class Counsel once the electronic solution described in this

Agreement has been initiated.

6.2.2. Wal-Mart agrees that for a period of three years from November 1, 2016 or from

the Effective Date of this Settlement, whichever is later, it will continue to use this

electronic solution, or other similar and reasonably feasible technology. Certain

promotional events may be excluded from the requirements of this subsection.

6.3 Wal-Mart agrees to pay the Class Settlement Amount of $5,000,000, allocated as follows:

6.3.1. Class Member Payment Amount:

6.3.1.1. The Class Member Payment Amount shall consist of the amount

remaining from the Class Settlement Amount after the amounts approved by the

Court for Attorneys’ Fees and Litigation Expenses, Class Representative

Incentive Awards and Notice and Administration Costs have been subtracted from

the Class Settlement Amount. It is anticipated that the Class Member Payment

Amount will be $3,025,000.

6.3.1.2. The Class Member Payment Amount shall be used to provide

Approved Claimants with a credit in the form of a Gift Card redeemable towards

purchases made at Walmart Retail Locations, Sam’s Club Retail Locations or

online at Walmart.com or Samsclub.com.

6.3.1.3. The Claims Administrator will manage the claims process in

cooperation with Class Counsel and Wal-Mart and in accordance with the

following parameters:

6.3.1.3.1. Subject to the first come first serve provisions of

Subsection 6.3.1.3.6, the Claims Administrator shall pay credits from the


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Class Member Payment Amount to any Settlement Class Member who (i)

does not submit a timely and valid Opt-Out Letter; and (ii) submits a

timely and valid Claim in accordance with the terms of this Agreement.

6.3.1.3.2. Claims shall be made by submitting a Claim Form online

through the Settlement Website, provided, however, that the Claims

Administrator will make an alternative Claim submission process

available upon request by a Claimant as reasonably practicable, such as by

way of a mailed Claim submission.

6.3.1.3.3. To be timely, a Claim Form must be submitted to the

Claims Administrator by the Claim Filing Deadline. The Claim Filing

Deadline is 60 days after the close of the Notice Period.

6.3.1.3.4. The Claim Form shall be substantially similar to the form

attached as an Exhibit to this Agreement, and include a statement by the

Claimant verifying that he or she is a Settlement Class Member.

6.3.1.3.5. Each Settlement Class Member may only receive one credit

no matter how many returns the individual Settlement Class Member may

have made during the Settlement Class Period.

6.3.1.3.6. Credits are available to Settlement Class Members on a

first-come, first-served basis. The aggregate total of credits to be made

available to Settlement Class Members shall not exceed the Class Member

Payment Amount. In the event the claims made meet or are reasonably

close to meeting the Class Member Payment Amount, the Claims

Administrator shall take reasonable steps to avoid Claims exceeding the

Class Member Payment Amount.

6.3.1.3.7. It is presently anticipated that credits will be in the amount

of $3.00, however the final amount of the credit could be higher if the total

number of approved Claims do not exhaust the Class Member Payment

Amount. If the aggregate total of credits claimed is less than the Class

Member Payment Amount, the Claims Administrator shall increase the

amount of each credit on a pro rata basis so that the aggregate total of

credits to be paid out equals the Class Member Payment Amount as nearly

as practicable provided, however, that the maximum value of the credit

shall not exceed $15.00.

6.3.1.3.8. In the event that not all of the Class Member Payment

Amount is paid out after all credits have been paid to approved Claimants

in accordance with Section 6.3.1.3.7, such remaining monies shall be

donated to one or more public interest organizations as agreed to by the

Parties and approved by the Court under the cy pres doctrine.

6.3.1.3.9. Each Gift Card shall be subject to applicable laws, the

walmart.com Terms of Use (available at www.walmart.com), and the


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walmart.com Gift Card Terms and Conditions (available at

www.walmart.com), and any other terms of use or terms and conditions

governing Gift Cards in effect at the time the Gift Cards are issued. Gift

cards that are provided to a Settlement Class Member but not redeemed

within the applicable period shall be handled in accordance with

applicable law. With respect to transferability, unless an applicable law

provides to the contrary, each Gift Card shall be fully transferable but may

not be resold unless the Settlement Class Member is a licensed reseller.

6.3.1.3.10. The Claims Administrator shall distribute Gift Cards to

Approved Claimants within a reasonable time after the later of the

Settlement Effective Date or the Claims Filing Deadline, whichever is

later, provided, however, that the Claims Administrator shall cooperate

with the Parties to ensure any Gift Card funding or account structure is in

place prior to distribution. To the extent practicable, Gift Cards shall be

distributed via email to the email address provided by the Claimant in the

Claim Form, provided, however, that the Claims Administrator may

distribute Gift Cards by mail, or other reasonable and cost-effective

process in appropriate circumstances.

6.3.2. Attorneys’ Fees and Litigation Expenses.

6.3.2.1. Plaintiffs shall apply to the Court for an award of reasonable

Attorneys’ Fees and Litigation Expenses. Subject to Court approval, Wal-Mart

will pay reasonable Attorneys’ Fees and Litigation Expenses up to $1,750,000.

6.3.2.2. Wal-Mart acknowledges Class Counsel’s role as a substantial catalyst

in Wal-Mart’s agreeing to provide the Programmatic Relief.

6.3.3. Class Representative Incentive Payments

6.3.3.1. Plaintiffs shall apply to the Court for incentive payment to be paid to

each of the two Class Representatives. Subject to Court approval, Wal-Mart will

not object to an incentive payment in the amount of $5,000 to each Class

Representative, with such monies to be paid from any award for Attorneys’ Fees

and Litigation Expenses awarded by the Court in accordance with this Agreement.

6.3.4. Notice and Administration Costs.

6.3.4.1. Wal-Mart shall pay reasonable Notice and Administration Costs up to

$225,000.

6.3.5. Under no circumstances shall Wal-Mart be obligated to pay more than the Class

Settlement Amount in connection with this Settlement.


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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 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

Wal-Mart has the right to approve the proposed Notice Plan prior to its submission to the Court,

which approval Wal-Mart shall not unreasonably withhold. Subject to Court approval, the Notice

and Summary Notice to be provided shall be in substantially the form of the attached Exhibits.

The Notice shall provide information regarding how to submit a Claim, and regarding the opt-out

and objection processes.

7.3 Wal-Mart may, in its sole discretion, terminate this settlement if the Court requires

individual, direct notice to Settlement Class Members. If Wal-Mart exercises its option to

terminate due to the Court’s requiring individual, direct notice, it shall provide Class Counsel

with written notice of its election, at which point the Agreement is void in accordance with

Section 18.1.

7.4 The Notice Period, subject to Court approval, is 75 days.

8. CAFA NOTICE

8.1 Wal-Mart 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

Letter. For an Opt Out Letter to be accepted it must be timely and valid. To be timely it must be

submitted by the Claim Filing Deadline. To be valid, the Opt Out Letter 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 outs.

9.2 Settlement Class Members may not submit both an Opt Out Letter and a Claim Form. If

a Settlement Class Member submits both an Opt Out Letter and a Claim Form, the Claim Form

will govern and the Opt Out Letter will be considered invalid.

9.3 The Claims Administrator shall maintain a list of persons who have submitted Opt Out

Letters 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

District Court of his or her objection, in writing, within 30 days of the close of the Notice Period.


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10.2 To be considered valid, an objection must be in writing, include the objector’s name and

address, and include the basis for the objection (including why the objector believes the

settlement is not in the best interest of the Settlement Class), along with any and all documents

that support the objection, which documents must include legible copies of receipts

demonstrating the objector is a member of the Settlement Class as defined herein. The objection

must also indicate whether or not the objector intends to appear at the hearing on the motion for

final approval of the Settlement. The objection must be filed with the Court on or before the

objection deadline, and a copy must be served on Class Counsel and on Counsel for Wal-Mart.

10.3 Settlement Class Members who do not file and serve timely written objections in

accordance with the procedures set forth in this Agreement 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, including, without limitation, the

fairness, reasonableness, or adequacy of the proposed settlement, or any award of attorneys’ fees

or reimbursement of costs and expenses.

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 Wal-Mart to the QSF is:

11.1.1. Within 10 business days following the date on which the District Court enters an

order granting preliminary approval of the Settlement, or within 10 business days of the

date on which the District Court enters an order approving the QSF, whichever is later,

Wal-Mart shall transfer the 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 Wal-Mart. If, however, Wal-Mart

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 Wal-Mart.

11.1.2. Subject to Section 11.1.3, within 10 business days following the Settlement

Effective Date, Wal-Mart shall transfer to the QSF amounts sufficient to cover the

remainder of the Class Settlement Amount (or such lesser amount as awarded by the

Court), to include the Class Member Payment Amount, Attorneys’ Fees and Litigation

Expenses awarded by the Court, and Class Representative Incentive Payments awarded

by the Court. Class Counsel shall provide the QSF with the information as to whom the

Attorneys’ Fees and Litigation Expenses and Class Representative Incentive Payments

should be distributed.

11.1.3. In the event of any appeals following the Court’s grant of final approval to the

Settlement, the amounts to be transferred by Wal-Mart for Attorneys’ Fees and Litigation

Expenses, less any amounts for Class Representative Incentive Awards approved by the

Court, shall be transferred to the QSF within 10 business days following the Court’s entry

of an order granting final approval to the Settlement and placed in an interest bearing

account. Upon the Settlement Effective Date, Class Counsel shall retain any interest


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earned with respect to the amounts awarded for Attorneys’ Fees and Litigation Expenses.

In the event the Settlement is not finally approved following any such appeal, or the

Settlement Effective Date does not otherwise occur, the amounts funded by Wal-Mart

pursuant to this Section including all interest earned, shall be refunded to Wal-Mart.

12. QUALIFIED SETTLEMENT FUND

12.1 As required under this Agreement, Wal-Mart shall transfer to the Trustee, as selected by

agreement of the Parties, the required portions of the Class Settlement Amount, to be held as a

separate trust constituting a QSF as described in Treasury Regulation §1.468B-1, 26 C.F.R.

§1.468B-1. Class Counsel and Wal-Mart jointly shall, and shall cause the Trustee to, 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. Wal-Mart 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 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. Wal-Mart 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 Wal-Mart 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, Wal-Mart 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 Trustee 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 Wal-Mart or the Claims Administrator, the Claims Administrator,

the Trustee and Wal-Mart 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, Wal-Mart 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 Letters, the allowance or

disallowance of claims by Claimants, payments to 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


13

deposits shall fully discharge Wal-Mart’s obligations to Claimants and 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 Class Counsel,

and payment of taxes and administrative costs in accordance with the provisions hereof, subject

only to the rights of Wal-Mart or 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 Wal-Mart or the Claims

Administrator, independently or 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 Wal-Mart 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 Trustee’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

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.


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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 Wal-

Mart 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.

13.2 The Settlement Class Member Released Claims also includes a release of all claims for

Attorneys’ Fees and Costs incurred by Releasing Settlement Class Members or by 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 that are presently unknown, unanticipated, or undisclosed to any Releasing

Settlement Class Members arising out of 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. 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 as Settlement

Class Members may now have as a result of the alleged facts, circumstances, and occurrences

underlying the claims set forth in the Litigation under the terms of Section 1542 (a) of the

California Civil Code (or similar statute in effect in any other jurisdiction), which provides as

follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH

THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS

FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS

SETTLEMENT WITH DEBTOR.


15

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 Class Counsel shall apply to the District Court for the entry of an order granting

preliminary approval of the Settlement substantially in the following form:

14.1.1. Preliminarily approving the Settlement;

14.1.2. Conditionally certify 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 on the question of whether the proposed Settlement

should be finally approved as fair, reasonable, and adequate as to the Settlement Class;

14.1.5. Approving Spangenberg Shibley & Liber LLP, and Daniel J. Myers as Class

Counsel;

14.1.6. Approving Shaun Brandewie and John Newbrough III as Class Representatives;

14.1.7. Approving Class Action Administration, Inc. as Claims Administrator.

14.2 Wal-Mart shall cooperate with Class Counsel to obtain preliminary approval.

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 voided.

15. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL

15.1 Following preliminary approval by the District Court of the Settlement, Class Counsel

will submit a proposed Final Judgment and Order of Dismissal substantially in the form attached

hereto as an Exhibit. 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.


16

15.1.4. Approve Class Counsel’s application for an award of Attorneys’ Fees and

Litigation Expenses pursuant to this Agreement;

15.1.5. Approve the Class Representative Incentive Payments;

15.1.6. Dismiss this Litigation as between the Class Representatives and the Settlement

Class Members, on the one hand, and Wal-Mart on the other hand, on the merits and with

prejudice and permanently bar the Class Representatives and all Settlement Class

Members (other than those who timely filed valid Opt-Out Letters) from further

prosecuting any of the Settlement Class Member Released Claims against Wal-Mart.

15.2 Wal-Mart shall cooperate with Class Counsel to obtain final approval and the dismissal

of the Litigation as to Wal-Mart.

15.3 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, Class Counsel

shall, with the assistance and cooperation of Wal-Mart 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 or deemed an admission of

liability, culpability, or wrongdoing on the part of Wal-Mart, and Wal-Mart denies liability for

any alleged wrongdoing. Wal-Mart 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 Wal-Mart 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 Wal-Mart’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,


17

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 Wal-Mart, 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 Wal-Mart in response to such materials do

not constitute, are not intended to constitute, and will not be deemed to constitute an admission

by Wal-Mart 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 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, Wal-Mart 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, Wal-Mart’s objections and defenses to any class-wide treatment and nothing

in this Agreement or any document related to this Agreement shall be construed as a waiver by

Wal-Mart 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 Wal-Mart, and the Parties shall

return to their respective positions prior to the Court’s entry of the order staying case dates

(Doc.# 70).

18.2 In the event that the Court does not approve the Attorneys’ Fees and Litigation Expenses

in the amount requested by Class Counsel, or in the event that the Attorneys’ Fees and Litigation

Expenses requested by Class Counsel is reduced, that finding shall not be a basis for rendering

the entire Settlement Agreement null, void, or unenforceable. Class Counsel retains their right to

appeal any decision by the Court regarding the Attorneys’ Fees and Litigation Expenses.


18

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:

William B. Eadie

Nicholas A. DiCello

Daniel Frech

Dennis R. Lansdowne

Stuart E. Scott

SPANGENGERG SHIBLEY & LIBER LLP

1001 Lakeside Avenue, East

Suite 1700

Cleveland, Ohio 44114

21.1.2. To Wal-Mart:


19

Brian L. Duffy

Naomi G. Beer

GREENBERG TRAURIG, LLP

1200 17th Street, Suite 2400

Denver, Colorado 80202-5835

Tele: (303) 572-6500

Fax: (303) 572-6540

Email: [email protected]

[email protected]

M. Scott Incerto

Peter A. Stokes

NORTON ROSE FULBRIGHT US LLP

98 San Jacinto Blvd., Suite 1100

Austin, Texas 78701

Tele: (512) 474-5201

Fax: (512) 36-4598

Email:

[email protected]

[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 Wal-Mart, their retained attorneys, their accountants and financial or tax

advisers, their retained consultants, the Court, and the mediator Judge Layn R. Phillips and his

staff, unless otherwise agreed to by Class Counsel and Wal-Mart or unless otherwise ordered by

the Court. Notwithstanding the other provisions of this Section, Wal-Mart 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 The Parties shall agree on a statement that Plaintiff may use to announce the settlement

after final approval has been granted. The Parties shall not make any other statements to the

media regarding this settlement. However, in the event that either party is contacted by the

media, the party shall be free to respond to such inquiries. This Paragraph does not preclude

appropriate notice by publication as set forth in the Notice Plan.

24. DOCUMENTS AND DISCOVERY

24.1 Class Counsel will maintain confidentiality of documents and data produced by Wal-

Mart in the Litigation pursuant to any protective order entered in the case.

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


mailto:[email protected]

mailto:[email protected]

20

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 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 Letter, 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, shall constitute one and the same Agreement, which shall be binding upon

and effective as to all Parties.

25.8 Arbitration. The Parties agree to binding, non-appealable arbitration before the

Honorable Layn R. Phillips to resolve any disagreements over the implementation of the terms of

the Settlement, this Agreement, or any other documents necessary to effectuate the Settlement.

Unless otherwise ordered by Judge Phillips, the Parties will split the costs of any such arbitration

and all Parties will bear their own attorneys’ fees.

25.9 Applicable Law. This Agreement shall be governed by Ohio law without regard to its

choice of law or conflicts of law principles or provisions.


ACCEPTED AND AGREED:

Shaun Brandewie Date

John Newbrough III Date

ON BEHALF OF PLAINTIFFS AND SETTLING CLASS MEMBERS:

William B. Eadie Date SPANGENBERG SHIBLEY & LIBER LLP

ON BEHALF OF WAL-MART:

July 8. 2015 Date

Date

21


cl10298

Typewritten Text

July 8, 2015

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Shaun Brandewie, et al. v. Wal-Mart Stores, Inc.,

(Case Number 1:14-CV-00965)

CLAIM FORM

If, during the period May 2, 2010 through [preliminary approval date] you purchased, or were given as a gift a product purchased, from a Walmart Discount Store, Supercenter or Neighborhood Market, Sam’s Club, or on-line at Walmart.com or Samsclub.com for delivery within the United States, and received a refund or credit for the returned product but the amount of sales tax refunded or credited was less than the full amount of sales tax paid at the time the product was purchased, you may be eligible to participate in this Settlement.

Under the Settlement, eligible class members may receive a share of the Settlement proceeds in the form of an electronic Gift Card redeemable towards purchases made at a Walmart retail location, Sam’s Club retail location or online at Walmart.com or Samsclub.com, on a first-come, first-served basis. You may only receive one Gift Card no matter how many purchases or returns you have made. The Gift Card will be worth $3.00, but could be higher if the total claims do not exhaust the available settlement funds. If the available settlement funds are exhausted before you make your claim, you will not receive a Gift Card, so do not delay. Additional information regarding the Gift Cards, how to submit a Claim and about the Settlement itself is provided in the Notice of Class Settlement, in the Settlement Agreement, and on the Settlement website at [insert web address for FAQ].

To participate in the Settlement and submit a Claim, you must be an eligible Settlement Class Member and complete and submit this Claim Form on or before [60 days after notice period]. All fields must be fully and accurately completed. Gift Cards will be sent to the email address provided below. 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 ST Zip (_______)_______________ Telephone number


FILING DEADLINE

HAS PASSED

weadie

Rounded Exhibit Stamp

2

PURCHASE/RETURN INFORMATION: Description of product purchased and returned Location of original purchase (street, city, state)

____________________________________________ Check where purchased: __Walmart __Walmart.com __Sam’s Club

__Samsclub.com Date of Purchase, if known

Location product was returned to (street, city, state)

____________________________________________ Check where returned: __Walmart __Sam’s Club

Date of return, if known

Check this box if you have additional purchases that were returned to a different location that resulted in less than a full refund of the sales tax amount

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.

EMAIL ADDRESS FOR GIFT CARD: Must provide a valid email address to receive the electronic Gift Card.

My email address is: ___________________________________________

Confirm email address: ________________________________________

ACKNOWLEDGEMENT:


FILING DEADLINE

HAS PASSED

3

By clicking “SUBMIT” and submitting this form, I am affirming that the information I have provided in 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.

________________________________________ _________________________ Type your full name authorizing your signature Today’s date


FILING DEADLINE

HAS PASSED

Questions? Visit www.WalMartSalesTaxSettlement.com or call toll-free 1-844-239-6705. Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

TO: All persons who, during the Settlement Class Period, purchased, or were given as a gift a product purchased, from

a Wal-Mart Retail Location, Sam’s Club Retail Location, or online from Walmart.com or Samsclub.com for

delivery within the United States, to whom Wal-Mart gave a refund or credit, but where the amount of sales tax

refunded or credited was less than the full amount of sales tax paid at the time the product was purchased,

excluding cases where Wal-Mart provided a product exchange rather than a refund, and further excluding Wal-

Mart and its officers and directors.

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

Shaun Brandewie et al. v. Wal-Mart Stores, Inc. Class Action Settlement

Case Name: Shaun Brandewie, et al. v. Wal-Mart Stores, Inc., (Case Number 1:14-CV-00965)

Class Period: May 2, 2010 through ______________ [Preliminary Approval Date]

Deadlines:

Objections: ___________ [30 days after end of Notice Period]

Exclusions: ___________ [60 days after end of Notice Period]

Claim Filing: ___________ [60 days after end of Notice Period]

Court Hearing on Fairness of Settlement: ___________

More Information:

Brandewie v. Wal-Mart Stores Claims Administrator

c/o Class Action Administration Inc.

PO Box 6878

Broomfield, CO 80021

Toll Free: 1-844-239-6705

www.WalMartSalesTaxSettlement.com

Your Legal Rights and Options in this Settlement:

Submit an online Claim Form

In order to receive a monetary benefit from the Settlement, you must complete and

submit an online Claim Form at www.WalMartSalesTaxSettlement.com within the

time specified.

Exclude Yourself

You have the right to exclude yourself from this settlement. If you exclude yourself

you will receive no benefits, 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.


weadie



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, during the Settlement Class Period, purchased, or were given as a gift a product purchased, from

a Wal-Mart Retail Location, Sam’s Club Retail Location, or online from Walmart.com or Samsclub.com for

delivery within the United States, to whom Wal-Mart gave a refund or credit, but where the amount of sales tax

refunded or credited was less than the full amount of sales tax paid at the time the product was purchased,

excluding cases where Wal-Mart provided a product exchange rather than a refund, and further excluding Wal-

Mart and its officers and directors.

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 Northern District of Ohio, and

the case is known as Brandewie, et al. v. Wal-Mart Stores, Inc., Case Number 1:14-CV-00965. The people who sued are

called the Lead Plaintiffs, and the company they sued, Wal-Mart Stores, Inc., is called the Defendant.

The Court authorized this notice because Settlement Class Members have a right to know about a proposed settlement of

this class action lawsuit, and about their 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 Wal-Mart at times gave a refund or credit on a product purchased from a Wal-Mart or Sam’;s

Club retail location within the United States or online from Walmart.com or Samsclub.com for delivery within the United

States, and the amount of sales tax refunded or credited was less than the full amount of sales tax paid at the time the

product was purchased.

Wal-Mart denies any and all liability or wrongdoing with respect to the claims alleged in the lawsuit, but desires to settle

the case because a settlement will avoid the risk, expense and distraction of continued litigation.

3. Why is this a class action?

In a class action, one or more people, called Class Representatives (in this case Shaun Brandewie and John A.

Newbrough III), sue on behalf of people who have similar claims. All these people are members of the Settlement Class

or Settlement Class Members. One court resolves the issues for all Settlement Class Members, except for those who

exclude themselves from the Settlement Class.

4. Why is there a settlement?

The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides agreed to a settlement. That way, they

avoid the cost of a trial and the risk, expense and distraction of continued litigation. The Class Representatives and the

attorneys think the settlement is best for everyone involved.



Who Is In The Settlement

5. How do I know if I am part of the settlement?

The Court has decided that for settlement purposes, any individual person who purchased, or was given as a gift a product

purchased from a Wal-Mart store or Sam’s Club within the United States, or on line from Walmart.com or Samsclub.com

for delivery within the United States, returned the product, and the amount of sales tax refunded or credited was less than

initially paid between May 2, 2010 and ___________ [Preliminary Approval Order] is considered a Settlement Class

Member.

6. Are there exceptions to being included?

Excluded from the Class are cases where Wal-Mart provided a product exchange rather than a refund. Officers and

directors of Wal-Mart are also excluded.

7. I’m still not sure if I am included.

If you are still not sure if you are included in the Class, you may speak with a claims specialist by calling the Brandewie

v. Wal-Mart Stores Claims Administrator toll-free at 1-844-239-6705.

The Settlement Benefits

8. What does the settlement provide?

The settlement provides for both programmatic and monetary relief:

A. Wal-Mart is automating certain systems so that for return transactions that take place at a Wal-Mart or Sam’s Club

location with a different tax rate than the purchase transaction, the difference in the tax rates will be automatically

calculated. Wal-Mart may implement the automated system in stages, but it is presently anticipated that the automated

system will be initiated at all Wal-Mart and Sam’s Club locations and for Walmart.com and Samsclub.com by November

1, 2016. Wal-Mart agrees to continue to use this automated system, or a similar solution, for a period of at least three

years.

B. Wal-Mart will fund a Class Settlement Amount in the amount of $5,000,000. The Class Settlement Amount will be

used to provide Settlement Class Members with the opportunity to apply for and receive a credit in the form of a gift card

(redeemable towards purchases made at Walmart stores, Sam’s Club stores, walmart.com, or samsclub.com), pay for

administration of the settlement proceeds, pay attorney fees and expenses, and to pay for incentive awards to the Class

Representatives. The value of the gift card will be between $3.00 and $15.00, depending on the number of claims

submitted.

C. In exchange for these settlement benefits, Plaintiffs 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.

9. How much will my payment be?

Each Settlement Class Member is entitled to a credit of at least $3.00, available on a first-come, first-served basis, until

the available fund is exhausted. If the number of claims submitted does not exhaust the available fund, the value of each

credit will be increased as funds are available to a maximum of $15.00. Each Settlement Class Member may only receive

one credit no matter how many returns they may have made during the Settlement Class Period.



How You Get A Payment

10. How can I get a payment?

To qualify for a payment from the settlement, you must submit an online Claim Form. To file a Claim Form, visit the

settlement website, www.WalMartSalesTaxSettlement.com. You must complete the Claim Form in full and submit to

the Claims Administrator on or before [60 days after notice period]. Failure to provide complete and accurate information

could result in a denial of your claim. As noted above, payments will be made on a first come first serve basis. If the

available settlement funds are exhausted before you make your claim, you will not receive any payment, so do not delay.

11. When would I get my payment?

The Court will hold a hearing on _________________ to decide whether to approve the settlement. If the settlement

receives final approval, an electronic gift card will be emailed in a timely manner, provided there are no appeals to the

Court’s decision. Please be patient.

12. 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 Wal-Mart Stores, Inc. 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

13. 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 letter saying that you want to be excluded from Brandewie v. Wal-Mart Stores, Inc. The letter must

contain your name, address, telephone number and your signature. Your request for exclusion must be mailed to the

address below, postmarked no later than _______________:


c/o Class Action Administration, Inc.

PO Box 6878


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.

14. 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 Wal-Mart Stores, Inc. 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 Class to continue your own lawsuit.



15. 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

16. Do I have a lawyer in this case?

The Court has appointed the law firm of Spangenberg Shibley & Liber LLP (www.spanglaw.com) to represent you and

other members of the Class. Together, the lawyers are called Class Counsel. 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.

17. How will the lawyers be paid?

Class Counsel will ask the Court to award them attorneys’ fees and expenses, and an incentive payment for the Lead

Plaintiffs, together totaling $1,750,000, from the Class Settlement Amount. Wal-Mart will pay the attorneys’ fees and

expenses as part of the Class Settlement Amount.

The attorneys’ fees and expenses requested will be the only payment to Class Counsel for their efforts in achieving this

settlement and for their risk in undertaking this representation on a wholly contingent basis. To date, Class Counsel have

not been paid for their services in conducting this litigation on behalf of the Lead Plaintiffs and the Class, nor for their

substantial expenses.

Objecting To The Settlement

18. 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 Brandewie et al. v. Wal-Mart Stores, Inc., Case Number 1:14-CV-00965. Your written objection must include: (a) the

name and case number of the Action; (b) your full name and address; (c) an explanation of why you believe the settlement

is not in the best interest of the Settlement Class along with any documents that support your objection; (d) legible copies

of receipts demonstrating that you are a member of the Settlement Class; and (e) a statement of whether or not you intend

to appear at the Fairness Hearing. This objection must be received at these three different places and must be post-

marked no later than ___________________:

Clerk of the Court

ATTN: Case No. 1:14-CV-00965

United States District Court

Northern District of Ohio

Carl B. Stokes U.S. Court House

801 West Superior Avenue


Class Counsel

SPANGENGERG SHIBLEY & LIBER LLP

ATTN: Walmart Settlement Objection

1001 Lakeside Avenue, East, Suite 1700


Defense Counsel

GREENBERG TRAURIG, LLP

1200 17th Street, Suite 2400

Denver, Colorado 80202-5835


http://www.spanglaw.com/


19. 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.

The Court’s Fairness Hearing

20. When and where will the Court decide whether to approve the settlement?

The Court will hold a Fairness Hearing at __:__ a.m. on _____________________, in the United States District Court for

the Northern District of Ohio, Carl B. Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, Ohio 44113

Courtroom 18A. At this hearing, the Court will consider whether the settlement is fair, reasonable and adequate. If there

are objections, the Court will consider them. The Judge will listen to people who have asked to speak at the hearing.

After the hearing, the Court will decide whether to approve the settlement.

21. Do I have to come to the hearing?

No. Class Counsel will answer questions the Judge may have. But, you are welcome to come at your own expense. If

you submit an objection, you do not have to come to the Court to talk about it. As long as you delivered your written

objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.

22. May I speak at the hearing?

You may ask the Court for permission to speak at the fairness hearing. To do so, you must send a letter saying that it is

your intention to appear in Brandewie et al. v. Wal-Mart Stores, Inc., Case Number 1:14-CV-00965. Be sure to include

your name, address, telephone number and your signature. Your notice of intention to appear must be sent to the Clerk of

the Court, Class Counsel, and Defense Counsel, at the addresses listed above by ___________. You cannot speak at the

hearing if you exclude yourself from the Class.

23. What happens if the Court does not approve the Settlement?

If the Court does not enter an Order approving the Settlement, or if the Court enters an Order approving the settlement but

appellate review is sought and the Order is reversed and no final Order approving the settlement is entered, the settlement

shall become null and void and the case will proceed as if the settlement was never entered into.

Getting More Information

24. Are there more details about the settlement?

This Notice summarizes the proposed settlement. More details are in the full version of the Settlement Agreement. You

can obtain a copy of the Settlement Agreement from the settlement website, www.WalMartSalesTaxSettlement.com, or

from the Clerk’s office at the United States District Court for the Northern District of Ohio, Carl B. Stokes U.S. Court

House, 801 West Superior Avenue, Cleveland, Ohio 44113, during regular business hours.



25. How do I get more information?

If you would like more information about the settlement, you can visit the settlement website,

www.WalMartSalesTaxSettlement.com, or call the Claims Administrator toll free at 1-844-239-6705.

It is your responsibility to inform the Claims Administrator of address changes until your benefit is received.

DO NOT CONTACT THE COURT WITH QUESTIONS ABOUT THIS NOTICE.


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Brandewie v Wal-Mart Stores, Inc.

PROPOSED NOTICE PLAN

Overview and Data Available

Given the difficulties in ascertaining individual Settlement Class Members, the parties have

agreed that the best practicable Notice for this Settlement Class be by publication (including

through the internet) as further described below. The Claims Administrator agrees with this

assessment based on its role during litigation in reviewing the defendant’s available data.

Since the Settlement Class Members are spread geographically across the U.S., the Notice Plan

will be comprised of the following components:

A. Paid Media – Newspaper notice via national newspapers; (USA Today and Wall Street

Journal)

B. Earned Media – Press releases to all states;

C. Digital Media – Banner ads directed to states with sales tax

D. Pay-per-click – Pay per click ads directed to states with sales tax

E. Social Media - Facebook

F. Internet Presence - Internet notice through a case-specific website;

G. Call Center Support – Allows individuals who learn about the Settlement to efficiently

receive information and have their questions answered.

A. Paid Media

1. Given Wal-Mart’s national presence, paid media notice will concentrate on nationwide

publications.

2. A 1/8-page Summary Notice (see Exhibit A) will be placed in two editions of the

following newspapers in two separate weeks:

a) USA Today (National Edition)

b) Wall Street Journal (National Edition)

3. Paid Media cost: $37,900; circulation of 2.4+ million


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B. Earned Media

1. The Notice Plan includes an earned media component to augment the newspaper

notices to create additional avenues for reaching Settlement Class Members. A press

release will be distributed via PR Newswire to all states.

2. The press release will be sent to thousands of media outlets in all 50 states, including

newspapers, television, radio, and internet news outlets. Midway through the claims

period, a second press release will be issued.

3. The press release will reference the Settlement Website and provide basic information

about the settlement.

4. Earned Media cost: $3,000; reaches thousands of media outlets in all 50 states

C. Digital Media

1. Basic information regarding the settlement will be used to create a Digital Banner Ad

(see Exhibit B) to be displayed on various networks of digital media. These banner ads

will show when a visitor to one of the network sites is identified as being from a state

with a state sales tax.

2. When the display ad is clicked, it will take the visitor to the Settlement Website.

3. Digital media reach is measured in “impressions”, which is the number of times the

Digital Banner Notice is displayed to a website visitor. A single individual can have the

Digital Banner Notice displayed more than once.

4. Digital Media cost: $30,000; estimated number of impressions: 30 million

D. Pay-Per-Click

1. Basic information regarding the settlement will be used to create a textual Pay-Per-Click

Notice (see Exhibit C). This form of notice will be displayed on the Google and

Bing/Yahoo networks when searches are made that may be relevant to the Settlement.

2. Pay-per-click ads are displayed on search results when a web user types in certain key

words. The only time a charge is incurred is when the user clicks on the Pay-Per-Click

Notice, which will take the visitor to the Settlement Website.


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3. The charge incurred for each click on the Pay-Per-Click Notice are determined by a bid

amount and are impacted by other bids for similar key words. The Claims

Administrator is currently estimating a cost of $0.25 per click charge, but this can vary.

4. Pay-Per-Click cost: $20,000 allocated; estimated clicks: 80,000

E. Social Media

1. Basic information about the Settlement will be used to create a Social Media Notice (see

Exhibit D).

2. The Social Media Notice will be displayed on Facebook. The Social Media Notice will

only be displayed to individuals whose profile indicates they live in a state that has a

sales tax and that the individual is over the age of 21 ([or 18?].

3. When the Facebook ad is clicked, it will take the visitor to the Settlement Website.

4. Social Media reach is measured in “impressions”, which is the number of times the

Social Media Notice is displayed to user of Facebook. A single individual can have the

Social Media Notice displayed more than once.

5. Social Media Notice cost: $20,000; estimated number of impressions: 160 million

F. Internet Presence

1. A dedicated Settlement Website will be established so that individuals can learn more

about the proposed Settlement and determine if they are Settlement Class Members.

Website visitors will be able to view the Long Form Notice and file a Claim Form.

2. An email form will be available on the website for individuals to submit questions to the

Claims Administrator.

3. All other forms of Notice will direct Settlement Class Members to the Settlement

Website for additional information.

4. The Claims Administrator will ensure that the website is able to be searched and found

using the most common search engines.


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G. Call Center Support

1. Many of the forms of Notice will provide a toll-free number that Settlement Class

Members can call to listen to a simple menu system with basic information about the

Settlement. During normal business hours, callers will also be able to speak with one of

the Claims Administrator’s project team members to have their questions answered.

2. The Claims Administrator recommends allowing class members to speak with a live

person since it is an effective way for individuals to understand the nature of the case

and determine if they are a Settlement Class Member

3. If the caller does not have internet access, the Claims Administrator will allow for callers

to request a Claim Form and Summary Notice be mailed to them.


NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND FAIRNESS HEARING

If, during the period May 2, 2010 through [insert date] you purchased, or were

given as a gift, a product purchased from Wal-Mart or Sam’s Club, and received a

refund or credit for the returned product but the amount of sales tax refunded or

credited was less than the full amount of sales tax paid at the time the product was

purchased, a class action settlement may affect your rights.

You are hereby notified that a settlement has been reached in the

United States District Court for the Northern District of Ohio (the

“Court”) in a class action lawsuit entitled Shaun Brandewie, et al.

v. Wal-Mart Stores, Inc., Case No. 1:14-CV-965 (the “Action”).

This notice is summary only. You should read the full notice for

complete information. You can get a copy of the full notice as

directed below.

WHO’S INCLUDED?

The Court has decided that for settlement purposes, any

individual person who purchased, or was given as a gift a product

purchased from a Wal-Mart or Sam’s Club in the U.S. or online

from Walmart.com or Samsclub.com for delivery in the U.S.,

returned the product, and the amount of sales tax refunded or

credited was less than initially paid between May 2, 2010 and

___________ [Preliminary Approval Order] is considered a

Settlement Class Member. This makes you a member of the

“Settlement Class”.

WHAT IS THIS SETTLEMENT ABOUT?

The lawsuit claims that Wal-Mart at times gave a refund or credit

on a product purchased from a Wal-Mart Retail Location, Sam’s

Club Retail Location, or online from Walmart.com or

Samsclub.com, and the amount of sales tax refunded or credited

was less than the full amount of sales tax paid at the time the

product was purchased.

WHAT DOES THE SETTLEMENT PROVIDE?

The settlement provides for both injunctive and monetary relief.

For monetary relief, Walmart has agreed to pay $5 million to pay

for claims, attorneys’ fees and expenses, incentive awards to

class members, and administration of the settlement proceeds.

To qualify for a payment from the settlement, you must submit

an online Claim Form. To file a Claim Form, visit the settlement

website, www.WalMartSalesTaxSettlement.com. Your online

claim must be submitted no later than __________________.

See the full notice for more details.

WHAT ARE MY LEGAL RIGHTS?

1. 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 letter saying that you want to be excluded from

Brandewie v. Wal-Mart Stores, Inc. Your request for exclusion

must be mailed Claims Administrator, postmarked no later

than _______________. If you do not exclude yourself you will

remain a Settlement Class Member and will be eligible to submit

a claim for money benefits. Regardless of whether you submit a

Claim Form, if you do not specifically exclude yourself, you will

be bound by the Proposed Settlement which contains a

release of claims against Wal-Mart. See the full notice for

more details.

2. 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. To object, you must send a letter to

the Court and the Parties saying that you object to the settlement

in Brandewie et al. v. Wal-Mart Stores, Inc., Case Number 1:14-

CV-00965. This objection must be received no later than

___________________. See the full notice on the website for

more details.

WHEN IS THE FAIRNESS HEARING?

The Court will hold a Fairness Hearing at __:__ a.m. on

_____________________, in the United States District Court for

the Northern District of Ohio, [Court address]. At this hearing,

the Court will consider whether the settlement is fair, reasonable

and adequate. After the hearing, the Court will decide whether to

approve the settlement.

For more information, including to obtain a copy of the full

notice, call 1-844-239-6705, or visit the settlement website at

www.WalMartSalesTaxSettlement.com, or write to:


c/o Class Action Administration, Inc.

PO Box 6878



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Digital Banner Ad


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Pay-Per-Click Notice


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Wal-Mart Class Settlement www.WalMartSalesTaxSettlement.comSales Tax Refund Settlement. Find out more about the Settlement.

Facebook Display Ad Options

Wal-Mart Settlement www.WalMartSalesTaxSettlement.comSales Tax Refund Settlement. Your rights may be affected.

Wal-Mart Class Settlement www.WalMartSalesTaxSettlement.comIf you returned merchandise to Wal-Mart or Sam’s Club, a settlement may affect your rights


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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

-------------------------------------------------------

SHAUN BRANDEWIE, et. al., :

:

Plaintiffs, :

:

vs. :

:

WAL-MART STORES, INC., :

:

Defendant. :

:

-------------------------------------------------------

Case No. 1:14-CV-00965

[PROPOSED] ORDER AND FINAL

JUDGMENT APPROVING

SETTLEMENT BETWEEN

SETTLEMENT CLASS PLAINTIFFS

AND WAL-MART STORES, INC.

This matter came before the Court on Plaintiffs’ Motion for Final Approval of Settlement (“Final

Approval Motion”).

WHEREAS, a putative class action is pending before the Court entitled Shaun Brandewie

et al. v. Wal-Mart Stores, Inc., Case No. 1:14CV00965 (United States District Court for the Northern

District of Ohio, Eastern Division);

WHEREAS, the Court has received and reviewed the Settlement Agreement entered into

between the Class Representatives and the Settlement Class Members on the one hand, and Wal-Mart on

the other hand, (the “Agreement”), and has considered the terms of the proposed settlement set forth

therein (the “Settlement”);

WHEREAS, all terms used herein shall have the same meanings as set forth in the

Agreement, unless otherwise defined herein;

WHEREAS, on ____________________, 2015, the Court entered its order preliminarily

approving the Settlement of this class action as set forth in the 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


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finally approved by the Court pursuant to Rule 23(d) of the Federal Rules of Civil Procedure as fair,

adequate, and reasonable (the “Preliminary Approval Order”);

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;

WHEREAS, the Court has received declarations of __________________ attesting to the

provision of notice in substantial accordance with the Preliminary Approval Order;

WHEREAS, as part of the Preliminary Approval Order, the Court certified the Settlement

Class for settlement purposes only in accordance with the terms of the Agreement;

WHEREAS, the Court having considered all timely filed objections to the Settlement; and

WHEREAS, the Court having conducted a Final Fairness Hearing on

_______________________, 2015 (the “Settlement Approval Hearing”), and having considered the

arguments presented, all papers filed and all proceedings had therein;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. The Court has jurisdiction over the subject matter of this action, all Settlement Class

Members, and all Defendants.

2. In accordance with Rule 23(d) of the Federal Rules of Civil Procedure and the

requirements of due process, all members of the Settlement Class 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 the best practicable notice under

the circumstances; (b) constituted notice that was reasonably calculated, under the circumstances, to

apprise members of the Settlement Class of the pendency of the litigation, their right to object to the


3

Settlement, and their right to appear at the Settlement 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(e) of

the Federal Rules of Civil Procedure because it resulted from vigorously contested litigation, extensive

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 the following factors:

(1) the risk of fraud or collusion;

(2) the complexity, expense and likely duration of the litigation;

(3) the amount of discovery engaged in by the parties;

(4) the likelihood of success on the merits;

(5) the opinions of class counsel and class representatives;

(6) the reaction of absent class members; and

(7) the public interest.

Vassalle v. Midland Funding LLC, 708 F.3d 747, 754 (6th Cir. 2013). Settlements that follow sufficient

discovery and genuine arms-length negotiation are presumed fair. In re Inter-Op Hip Prosthesis Liab.

Litig., 204 F.R.D. 330, 351 (N.D. Ohio 2001) (citations omitted).

4. The Final Approval Motion is hereby GRANTED, and the Settlement as set forth in the

Agreement is hereby APPROVED as fair, reasonable, adequate, and in the public interest, and the terms of

the 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 Agreement in accordance with its

terms.


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5. The Court APPROVES the Programmatic Relief and payment of the Class Settlement

Amount in accordance with the terms of the Agreement.

6. The Court APPROVES payment of Class Representative Incentive Payments to Shaun

Brandewie and John A. Newbrough III, in the amount of $5,000 to each.

7. The Court APPROVES payment of Attorneys’ Fees and Litigation Expenses to Class

Counsel in the amount of $1,750,000 in accordance with the terms of the Agreement. The Court further

finds that no attorneys have asserted any attorney liens as to the Attorneys’ Fees and Litigation Expenses

awarded by the Court.

8. 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.

19. The Litigation is hereby DISMISSED WITH PREJUDICE and without costs to any Party,

other than as specified in the Settlement Agreement and this Order.

10. In consideration of the Programmatic Relief and 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 Wal-Mart 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 Wal-Mart 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 Claim against Wal-Mart.

11. This Judgment is the Final Judgment in the suit as to all Settlement Class Member

Released Claims.


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12. 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 Class Representative Incentive Payments and the Attorneys’ Fees 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.

13. 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, and without prejudice to the status quo ante rights of Plaintiffs,

Settlement Class Members, and Wal-Mart.

14. This Court finds that there is no just reason for delay and expressly directs Judgment and

immediate entry by the Clerk of the Court.

IT IS SO ORDERED.

Dated: _________________

The Honorable James S. Gwin

United States District Court,

Northern District of Ohio


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