Case 1:15-cv-12945-WGY Document 1 Filed 07/14/15 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JACQUELINE A. COTE, on behalf of herself )

and all others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

CNIL ACTION NO. _ _

CLASS ACTION COMPLAINT Plaintiff Jacqueline Cote ("Plaintiff' or "Jackie") brings this employment discrimination action against Defendant Wal-Mart Stores, Inc. ("Wal-Mart" or "Defendant") on behalf ofherself and similarly situated Wal-Mart employees who had lawful, valid marriages with a person of the same sex and were unlawfully deprived of employment-based spousal health insurance benefits because of their sex.

INTRODUCTION 1. This is an action brought pursuant to Title VII of the federal Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and the Massachusetts Fair Employment Practices Law, Mass. Gen. Laws ch. 151B § 4, on behalf of a class of current and former Wal-Mart employees who, prior to January 1, 2014, were entitled to receive spousal health insurance benefits through Wal-Mart and were in legal, valid marriages with a person of the same sex, but were denied spousal health insurance benefits by Wal-Mart due to Wal-Mart's

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discriminatory national policy, pattern, and practice ofrefusing to provide employees with spouses of the same sex health insurance benefits for their spouses.
2. In this action, Jackie alleges that Wal-Mart refused to provide employment-based spousal health insurance benefits for same-sex spouses of eligible Wal-Mart employees because Jackie and other putative Class Members are or were married to a person of the same sex during their employment at Wal-Mart, because Jackie and other putative Class Members do not conform to Wal-Mart's gender-based stereotypes that a woman should only be married to a man and that a man should only be married to a woman, and because Jackie and other putative Class Members associate with a person of the same sex.
3. If Jackie and other putative Class Members had been married to a person of a different sex, or if Jackie and other putative Class Members had been of the different sex than their spouses, Wal-Mart would have provided health insurance benefits to their spouses. Instead, Wal-Mart intentionally discriminated against Jackie and other putative Class Members on the basis of their sex with respect to their employment compensation and the employee benefits they received as Wal-Mart employees. Such discrimination violates Title VII of the federal Civil Rights Act, the federal Equal Pay Act, and the Massachusetts Fair Employment Practices Law.
JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over Plaintiff's federal claims pursuant to 42 U.S.C. § 2000e-5(f){3), 29 U.S.C. § 216(b), and 28 U.S.C. §§ 1331, 1343, and 2201. This Court has subject matter jurisdiction over Plaintiff's Massachusetts Fair Employment Practices Law claim pursuant to 28 U.S.C. § 1367, as
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that claim is so related to her federal claims that they form the same case or controversy.
5. Plaintiff has fully exhausted her administrative remedies before filing suit in this District, including on behalf of herself and other members of the proposed Class. On September 19, 2014, Jackie filed a charge of discrimination on behalf of herself and other putative Class Members with the United States Equal Employment Opportunity Commission ("EEOC"), alleging that Wal-Mart had violated Title VII of the Civil Rights Act and the Massachusetts Fair Employment Practices Law by engaging in sex discrimination against her and similarly situated Wal-Mart employees nationwide. Charge of Jacqueline A. Cote, attached as Ex. 1.
6. On January 29, 2015, the EEOC issued a final determination in which the agency found that "Respondent's (Wal-Mart's) refusal to add [Jackie Cote's] spouse to her health insurance coverage following their marriage constituted discrimination on the basis of her sex, female." U.S. Equal Employment Opportunity Commission, Final Determination, attached as Ex. 2. As the EEOC explained, Jackie "was subjected to employment discrimination in that she was treated differently and denied benefits because of her sex, since such coverage would be provided if she were a woman married to a man." ld. (emphasis in original).
7. On May 29, 2015, the EEOC issued a "Right to Sue" letter authorizing Jackie to file a Title VII action within 90 days of her receipt of the letter. U.S. Equal Employment Opportunity Commission, Notice of Right to Sue, attached as Ex. 3.
8. This Complaint is filed within the required time limits set forth in 42
u.s.c. § 2000e-5(t)(1).
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9. All other prerequisites to the filing of this suit have been met. 10. Venue is proper in this District pursuant to 42 U.S.C. § 2000e-5(f)(3), because the unlawful practice Plaintiff challenges in this action was committed in this District and unlawfully deprived Plaintiff of compensation and benefits in this District. Venue is also proper under 28 U.S.C. § 1391, because all parties are deemed to reside in this District and because a substantial part of the events giving rise to Plaintiff's claims occurred in this District, including the unlawful employment practices alleged in this action.
PARTIES 11. Plaintiff JACQUELINE COTE is a citizen of the Commonwealth of Massachusetts and the United States of America, and she resides in New Bedford, Massachusetts. 12. Jackie was an employee ofDefendant WAL-MART STORES, INC. within the meaning of 42 U.S.C. § 2000e(f), 29 U.S.C. § 203(e), and Mass. Gen. Laws ch. 151B § 1(6). 13. Defendant WAL-MART STORES, INC. is the world's largest publiclyowned corporation, retailer, and private employer with over two million employees worldwide. It is this nation's largest private employer with more than 1.3 million U.S. associates at more than 5,000 stores and clubs nationwide. Wal-Mart's corporate headquarters are located in Arkansas. Wal-Mart earned more than $468 billion of revenues in fiscal year 2013 and more than $476 billion of revenues in fiscal year 2014. 14. Defendant Wal-Mart is an employer within the meaning of 42 U.S.C. § 2000e(b), 29 U.S.C. § 203(d), and Mass. Gen. Laws ch. 151B § 1(5).
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PLAINTIFF'S FACTUAL ALLEGATIONS

15.

Jackie was hired by Wal-Mart in April1999 as a Temporary Set-Up

Associate at Wal-Mart Supercenter Store# 2046 in Augusta, Maine.

16.

Since Apri11999, Jackie has continuously worked for Wal-Mart in

various stores and locations throughout Maine and Massachusetts.

17.

In June 2015, Jackie began a period ofleave, as she had done in the

past, to attend to the medical needs ofher wife. Prior to June 2015, Jackie worked as

the Office Associate at Wal-Mart Supercenter Store# 2953 in Swansea, MA. Jackie

intends to continue her employment with Wal-Mart after concluding her period of

leave.

18.

Throughout her employment at Wal-Mart, Jackie performed her job

in a satisfactory manner at all times.

19.

As part of Jackie's compensation, she received employee health

insurance benefits. Those benefits are self-insured by Wal-Mart and administered

through Blue Cross Blue Shield. Wal-Mart pays the majority of the cost of employees'

health insurance benefits.

20.

Wal-Mart provides qualified employees with the option of obtaining

health insurance benefits for their spouses and similarly pays the majority of the cost of

spouses' health insurance benefits.

21.

Prior to her leave of absence, Jackie was a qualified employee for the

purpose of receiving spousal health insurance benefits. Jackie currently receives

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spousal health insurance benefits from Wal-Mart, and will continue to receive such

benefits when she returns to her position at Wal-Mart at the conclusion of her leave.

22.

Prior to January 1, 2014, Wal-Mart had a national policy, pattern,

and practice of refusing to provide employees who were married to a person of the

same sex health insurance benefits for their spouses.

23.

On May 22, 2004, Jackie married her spouse Diana Smithson

("Dee") in Provincetown, Massachusetts.

24.

At all times, Jackie and Dee's marriage has been lawful and

recognized by the Commonwealth of Massachusetts.

25.

Jackie and Dee currently live together in New Bedford,

Massachusetts.

26.

Dee is a former employee ofWal-Mart.

27.

Dee worked for Wal-Mart from 1999 until approximately 2008,

when she left her employment to stay at home to be the primary caregiver for Jackie's

mother, who was suffering from dementia and living with Jackie and Dee.

28.

Upon ceasing her employment at Wal-Mart, Dee lost her individual

health insurance coverage from Wal-Mart, but Dee was able to continue that coverage

by electing and paying for coverage under the Consolidated Omnibus Budget

Reconciliation Act ("COBRA") for a limited period of time.

29.

After Dee's COBRA coverage ran out, Dee purchased individual

health insurance coverage from Mid-West Life Insurance Company ofTennessee

("Mid-West"). Dee and Jackie both paid Dee's premium for her individual health

insurance coverage from Mid-West.

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30.

Enrolling Dee in Jackie's health insurance plan through Wal-Mart

became particularly important to Jackie and Dee, because Dee's individual health

insurance coverage through Mid-West was too expensive for Jackie and Dee to afford

and it was imperative for Dee to maintain health insurance because of her previous

breast cancer diagnosis in 1995.

31.

Beginning in or around 2008, Jackie regularly attempted to enroll

Dee in her health insurance plan for spousal health insurance benefits during Wat-

Mart's annual open enrollment period.

32.

Each time that Jackie attempted to enroll Dee in Wal-Mart's spousal

health insurance plan - by using an online computer system that required Jackie to

enter Dee's sex (female) into the online enrollment program- Jackie immediately

received a notification that she could not proceed further with her request and that she

should call Wal-Mart's home office.

33.

When Jackie called Wal-Mart's home office to request that Dee be

added to her health insurance as her spouse, Jackie was told on the phone by a Wal-

Mart representative that Wal-Mart did not offer health insurance coverage to same-sex

spouses, even though Jackie was otherwise qualified to receive spousal health insurance

benefits and despite Wal-Mart's previous knowledge of Dee's history with cancer.

34.

In August 2012, Dee was diagnosed with ovarian cancer. As a result

of her diagnosis, Dee had to undergo numerous and expensive treatments, including

chemotherapy.

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35.

Since August 2012, Dee has been in and out of the hospital many

times due to her cancer, the side effects from her chemotherapy treatment, and other

health complications related to her cancer and cancer treatment.

36.

In October 2012, Dee lost her individual health insurance coverage

through Mid-West and was unable to obtain other health insurance thereafter.

37.

When Jackie once again attempted to enroll Dee for spousal health

insurance coverage during Wal-Mart's annual open emollment period in October 2012

Jackie was once again denied the opportunity to add Dee to her health insurance

coverage as a spouse.

38.

Sometime after the United States Supreme Court held Section 3 of

the Defense of Marriage Act ("DOMA") unconstitutional in United States v. Windsor,

133 S. Ct. 2675 (2013), Jackie called Wal-Mart's home office to determine if she could

now emoll Dee for Wal-Mart's spousal health insurance coverage. Jackie was told on

the phone by a Wal-Mart representative that Wal-Mart had no plans to alter its policy to

allow same-sex spouses of eligible Wal-Mart employees to emoll for spousal health

insurance benefits.

39.

Dee remained without health insurance until January 1, 2014, due to

Wal-Mart's discriminatory national policy, pattern, and practice of refusing to provide

employees with same-sex spouses health insurance benefits for their spouses.

40.

Wal-Mart refused to provide spousal health insurance benefits for

Jackie's spouse because Jackie is a woman married to another woman, even though

Wal-Mart would have provided such coverage if Jackie were a man married to a

woman.

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41.

Wal-Mart refused to provide spousal health insurance benefits for

Jackie's spouse because Jackie's spouse is a woman, even though Wal-Mart would

have provided such coverage if Jackie's spouse were a man or ifJackie were a man

who was married to a woman.

42.

Wal-Mart refused to provide spousal health insurance benefits for

Jackie's spouse because ofWal-Mart's sex-based stereotypes and stereotyping that a

woman should only be married to a man and not to a woman.

43.

Wal-Mart refused to provide spousal health insurance benefits for

Jackie's spouse because Jackie associates with someone of the same sex.

44.

Wal-Mart refused to provide spousal health insurance benefits for

Jackie's spouse because of Jackie and Dee's same-sex sexual orientation.

45.

As a result ofWal-Mart's national policy, pattern, and practice of

refusing to provide employees with spouses of the same sex spousal health insurance

benefits, Jackie and Dee have suffered significant economic and non-economic harm,

including negative financial consequences, health issues, emotional and physical harm,

as well as pain and suffering.

46.

In particular, because ofWal-Mart's discriminatory national policy,

pattern and practice, Jackie and Dee have incurred, at a minimum, $150,000 of

uninsured medical expenses from approximately 2012 to January 1, 2014.

4 7.

Owing that amount of debt has not only been enormously stressful to

Jackie and Dee, but it also has further complicated and harmed Dee's health, well-

being, and recovery.

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48.

Although Wal-Mart voluntarily extended spousal health insurance

benefits to the same-sex spouses ofWal-Mart employees beginning on January 1, 2014,

it is and has been Wal-Mart's position that it has no legal obligation to extend spousal

health insurance benefits to employees with same-sex spouses. During the EEOC's

investigation of Jackie's sex discrimination charge, Wal-Mart took the position that

Title VII does not require it to provide health care benefits to the same-sex spouses of

its employees and that a state law that requires Wal-Mart to provide such benefits to

same-sex spouses would be preempted by federal law.

49.

Although same-sex spouses of employees are now eligible for Wal-

Mart's spousal health insurance benefits, Plaintiff's understanding is that Wal-Mart

believes that it could legally rescind that extension of coverage at any time and thereby

eliminate the spousal health insurance that Dee and other same-sex spouses ofWal-

Mart employees currently receive.

50.

Wal-Mart has not acknowledged that it has a continuing, legal

obligation to extend available spousal health insurance benefits to the same-sex spouses

of eligible Wal-Mart employees.

51.

Wal-Mart's position that it has no continuing, legal obligation to

provide these benefits equally to same-sex spouses creates significant uncertainty and

insecurity for Jackie, Dee, and other same-sex married couples, renders their benefits

insecure, and constitutes continuing and ongoing sex discrimination.

52.

Benefits provided by Wal-Mart as a matter of grace that can be

eliminated at Wal-Mart's discretion are not secure and could potentially be withdrawn

just when large health care costs are incurred.

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53.

As a result ofWal-Mart's ongoing discriminatory conduct in its

handling of the provision of spousal health insurance benefits to same-sex spouses,

Jackie has been, and is being, discriminated against and denied secure compensation

and benefits she would receive absent discrimination. Such discrimination presents an

actual and ongoing controversy between the parties.

CLASS ALLEGATIONS

54.

Plaintiffbrings this action as a class action pursuant to Rule 23(a)

and (b)(3) of the Federal Rules of Civil Procedure on behalf of the following classes:

National Class ("National Class" or "Class"):

(1) All current or former employees ofWal-Mart Stores, Inc. in the United

States who (a) had legal and valid marriages with a person of the same

sex prior to January 1, 2014, (b) would have been eligible to receive

spousal health insurance benefits from Wal-Mart Stores, Inc. prior to

January 1, 2014 but for Wal-Mart Stores Inc.'s prohibition on same-sex

spouses qualifying for spousal health insurance benefits, and (c) did not

receive spousal health insurance benefits from Wal-Mart Stores, Inc.

prior to January 1, 2014; OR

(2) All current employees ofWal-Mart Stores, Inc. who currently have legal

and valid marriages with a person of the same sex and currently receive

spousal health insurance benefits from Wal-Mart Stores, Inc.

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Massachusetts Subclass:

All current or former employees ofWal-Mart Stores, Inc. who (a) were

employed by Wal-Mart Stores, Inc. in the Commonwealth of Massachusetts

prior to January 1, 2014, (b) had legal and valid marriages with a person of

the same sex prior to January 1, 2014, (c) would have been eligible to

receive spousal health insurance benefits from Wal-Mart Stores, Inc. prior to

January 1, 2014 but for Wal-Mart Stores, Inc.'s prohibition on same-sex

spouses qualifying for spousal health insurance benefits, and (d) did not

receive spousal health insurance benefits from Wal-Mart Stores, Inc. prior to

January 1, 2014.

55.

Excluded from the National Class and the Massachusetts Subclass

are all current or former Wal-Mart Stores, Inc. employees who previously reached

settlements or judgments against Wal-Mart resolving or releasing any claims related to

Wal-Mart's policy, pattern, and practice of refusing to provide employees with spouses

of the same sex health insurance benefits for their spouses.

Impracticability ofJoinder

56.

The Class is so numerous that joinder of all members is

impracticable.

57.

Upon information and belief, hundreds to thousands of current or

former Wal-Mart employees are members of the proposed Class, and a large portion of

the members of the proposed National Class are members of the proposed

Massachusetts Subclass.

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58.

Wal-Mart Stores, Inc. is the world's largest publicly-owned

corporation, retailer, and private employer with over two million employees worldwide.

It is this nation's largest private employer with more than 1.3 million U.S. employees at

more than 5,000 stores and clubs nationwide.

59.

Prior to January 1, 2014, Wal-Mart operated stores and employed

workers in all 50 states and the District of Columbia, including 14 states where

marriages of same-sex couples were lawful (Massachusetts, Maine, Washington,

Delaware, Hawaii, lllinois, Minnesota, New Hampshire, New York, Rhode Island,

Vermont, California, New Jersey, and New Mexico), as well as the District of

Columbia.

60.

Members of the proposed Class are geographically dispersed

throughout the United States, in jurisdictions that performed or recognized marriages of

same-sex couples and states that had not yet performed or recognized marriages of

same-sex couples.

Commonality

61.

There are numerous questions of law and fact that are common to

each member of the proposed Class.

62.

The central questions in this case are (1) whether Wal-Mart's

national policy, pattern, and practice of refusing to provide employees with spouses of

the same sex spousal health insurance coverage prior to January 1, 2014 constitutes sex

discrimination pursuant to Title VII of the federal Civil Rights Act of 1964 and the

Massachusetts Fair Employment Practices Law, and (2) whether Wal-Mart has a

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continuing, legal obligation to provide spousal health insurance benefits to same-sex spouses of eligible employees in the future.

63.

There are numerous additional common questions of law and fact,

including the following:

a. Whether Wal-Mart had a nationwide policy of refusing to provide employees with spouses of the same sex spousal health insurance benefits prior to January 1, 2014 ("Wal-Mart's nationwide policy");

b. Whether Wal-Mart would have provided spousal health insurance benefits to female employees who were married to women if instead they had been married to men or ifinstead they had been men married to women, and whether Walmart would have provided spousal health insurance benefits to male employees who were married to men if instead they had been married to women or if instead they had been women married to men?

c. Whether Wal-Mart denied spousal health insurance benefits to employees with same-sex spouses based on a sex-based classification or otherwise intentionally discriminated because of sex?

d. Whether Wal-Mart denied spousal health insurance benefits to employees with same-sex spouses because ofor relying upon sex-based stereotypes, including a stereotype that a woman should only be married to a man, not to a woman, and that a man should only be married to a woman, not to a man?

e. Whether Wal-Mart's nationwide policy violated Title VII by denying compensation, terms, conditions, or privileges of employment because of sex?

f. Whether members of the proposed Class had lawful, valid marriages?

g. What types and amounts of damages members of the proposed Class suffered because Wal-Mart refused to provide spousal health insurance benefits to employees with same-sex spouses?

h. Whether Wal-Mart's violations were willful, malicious, outrageous, egregious, purposeful, or in reckless disregard of the likelihood that its conduct would cause serious harm to members of the proposed Class?

1. Whether Wal-Mart's national policy constitutes a continuing violation?

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Typicality

64.

Plaintiff's claims are typical of other members of the proposed

National Class and the proposed Massachusetts Subclass. Plaintiff challenges a single,

official, nationwide policy, pattern, and practice under which Wal-Mart refused to

provide employees with spouses of the same sex spousal health insurance benefits prior to January 1, 2014. This policy barred eligibility for spousal health insurance benefits for all Wal-Mart employees who had legal, valid marriages with a person of the same sex throughout the United States prior to January 1, 2014. Plaintiffs civil rights were

violated in the same manner as other members of the proposed National Class and

proposed Massachusetts Subclass who were subjected to Wal-Mart's nationwide

policy.

Adequacy

65.

Plaintiff will fairly and adequately protect the interests of other

members of the proposed National Class and the Massachusetts Subclass. Plaintiffis aware of no conflict with any other member of the proposed National Class or the Massachusetts Subclass. Plaintiff understands her obligations as a class representative,

has already undertaken steps to fulfill them, and is prepared to continue to fulfill her

duties as class representative.

66.

Wal-Mart has no unique defenses against Plaintiff that would

interfere with Plaintiff's representation of the National Class or the Massachusetts

Subclass.

67.

Plaintiff's counsel are experienced in federal court class action

litigation, including civil rights and employment litigation, and have considerable

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experience and expertise in providing legal representation to the lesbian, gay, bisexual, transgender, and queer ("LGBTQ") community, and litigating sex discrimination claims.

Rule 23(b)(3)

68.

This action is properly maintainable as a class action under Rule

23(b)(3) ofthe Federal Rules of Civil Procedure.

69.

The questions oflaw and fact common to the members of the Class

predominate over questions affecting individual members, and a class action is superior

to other available methods for the fair and efficient resolution of this controversy.

70.

By resolving the common issues described above in a single class

proceeding, each member of the proposed National Class will receive a determination

of whether Wal-Mart's national policy, pattern, and practice of refusing to provide

employees with spouses of the same sex spousal health insurance benefits violated Title

VII ofthe federal Civil Rights Act of 1964 and whether Wal-Mart has a legal obligation

to continue to extend available spousal health insurance benefits to the same-sex

spouses of eligible employees, and each member of the Massachusetts Subclass will

receive a determination of whether Wal-Mart's same policy, pattern, and practice

violated the Massachusetts Fair Employment Practices Law.

71.

Upon information and belief, there are no other pending lawsuits in

which members of the Class have raised similar allegations, and there is only a single,

other individual charge pending before the EEOC that raises the same issue(s) as the

instant Complaint.

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72.

This is an appropriate forum for these claims because, among other

reasons, jurisdiction and venue are proper, the named Plaintiff and a significant portion

of the Class Members reside in this District, Wal-Mart's sufficient contacts in this

District impute Wal-Mart's residency within this District, and a substantial part of the

events giving rise to the Plaintiff's claims occurred in this District, including the

unlawful employment practice alleged in this Complaint. In addition, because Wal-

Mart had a single, nationwide policy, pattern, and practice, concentrating the litigation

in a single district will enable all members of the proposed Class to obtain a single

determination of the merits of their claims against Wal-Mart.

73.

There are no difficulties in managing this case as a class action.

CLAIMS FOR RELIEF

COUNT I: VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §§ 2000e, et seq.
(All Plaintiffs against Defendant)

74.

Plaintiff Jackie Cote repeats andre-alleges the allegations set forth in

Paragraphs 1-73 as if fully set forth herein.

75.

Plaintiffbrings this claim on her own behalf and on behalf of all

members of the proposed National Class.

76.

Wal-Mart refused to provide employment-based spousal health

insurance benefits for same-sex spouses of eligible Wal-Mart employees solely because

Jackie and other members of the proposed National Class are married to someone of the

same sex or were married to someone of the same sex during their employment at Wal-

Mart, even though Wal-Mart would have provided such health insurance benefits to

Jackie and other members of the proposed National Class if they were married to

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someone of a differ~t sex, or if Jac.kie and other members of the proposed National Class Members were a different sex than their spouses.

77.

Wal-Mart refused to provide spousal health insurance benefits to

Wal-Mart employees with same-sex spouses because of sex-based stereotypes and

stereotyping that a woman should only be married to a man and not to a woman, and

that a man should only be married to a woman and not to a man.

78.

Wal-Mart refused to provide spousal health insurance benefits to

Wal-Mart employees with same-sex spouses because such employees associate with someone of the same sex.

79.

Wal-Mart's intentional discriminatory actions were taken either with

malice or with reckless indifference to the rights of Jackie and other members of the

proposed National Class under law.

80.

Wal-Mart has violated Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e, et seq., by discriminating against Jackie and other

members of the proposed National Class with respect to their compensation, terms, conditions, or privileges of their employment because of their sex, by classifying Jackie and other members ofthe proposed National Class in a way that deprived them or tended to deprive them of employment opportunities because of their sex, and by

denying current employees ofWal-Mart who have marriages with a person of the same sex the same certainty and security as different-sex spouses that they will continue to receive spousal health insurance benefits in the future.

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COUNT II: VIOLATION OF THE EQUAL PAY ACT,
29 u.s.c. § 206(d)
(Plaintiff Cote against Defendant)

81.

Plaintiff Jackie Cote repeats and re-alleges the allegations set forth in

Paragraphs 1-80 as if fully set forth herein.

82.

Plaintiffbrings this claim on her own behalf.

83.

Wal-Mart has paid wages at a lower rate to Jackie, a woman who is

married to a woman, than to men who are married to women, for equal work on jobs

the performance of which requires equal skill, effort, and responsibility, and which are

performed under similar working conditions.

84.

Wal-Mart has violated the Equal Pay Act, 29 U.S.C. § 206(d), by

refusing to provide spousal health insurance benefits to Jackie on the same terms

provided to men who are married to women and by refusing to provide the same

certainty of spousal health insurance benefits to Jackie as is currently provided to men

who are married to women.

85.

Wal-Mart's violation of the Equal Pay Act was willful.

COUNT III: VIOLATION OF THE MASSACHUSETTS FAIR EMPLOYMENT PRACTICES LAW, MASS. GEN. LAWS. CH.151B § 4
(All Members of the Massachusetts Subclass against Defendant)

86.

Plaintiff Jackie Cote repeats andre-alleges the allegations set forth in

Paragraphs 1-85 as if fully set forth herein.

87.

Plaintiffbrings this claim on her own behalf and on behalf of all

members of the proposed Massachusetts Subclass.

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88.

Wal-Mart refused to provide employment-based spousal health

insurance benefits for same-sex spouses of eligible Wal-Mart employees employed in

Massachusetts solely because Jackie and other members of the proposed Massachusetts

Subclass are married to someone of the same sex or were married to someone of the

same sex during their employment at Wal-Mart, even though Wal-Mart would have provided such health insurance benefits to Jackie and other members of the proposed Massachusetts Subclass if they were married to someone of a different sex, or if Jackie

and other members of the proposed Massachusetts Subclass were a different sex than their spouses.

89.

Wal-Mart refused to provide spousal health insurance benefits to

Wal-Mart employees with same-sex spouses because of sex-based stereotypes and stereotyping that a woman should only be married to a man and not to a woman, and that a man should only be married to a woman and not to a man.

90.

Wal-Mart refused to provide spousal health insurance benefits to

Wal-Mart employees with same-sex spouses because such employees associate with

someone of the same sex.

91.

Wal-Mart's intentional discriminatory actions were outrageous,

egregious, and taken with malice or reckless indifference to the rights of Jackie and

other members of the proposed Massachusetts Subclass under law. Wal-Mart's discriminatory conduct was a conscious or purposeful effort to demean employees who were married to a person of the same sex. Wal-Mart was aware that its discriminatory conduct would cause serious harm to employees who were married to a person of the same sex by excluding them from Wal-Mart's health insurance coverage. Wal-Mart's

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policy resulted in actual harm to Plaintiff and other members of the proposed Massachusetts Subclass. Wal-Mart carried out its discriminatory policy for many years, even after learning that its denial of spousal health insurance benefits to employees married to a person of the same sex was causing profound harm to such employees and their spouses.

92.

Wal-Mart has violated the Massachusetts Fair Employment Practices

Law by discriminating against Jackie and other members of the proposed

Massachusetts Subclass in compensation or in terms, conditions, or privileges of

employment based upon sex and by denying Jackie and other members of the proposed

Massachusetts Subclass the same certainty of spousal health insurance benefits for their

same-sex spouses as is currently extended to different-sex spouses.

JURY DEMAND

93. Complaint.

Plaintiff hereby demands a trial by jury on all issues raised in her

PRAYER FOR RELIEF WHEREFORE, PlaintiffJackie Cote prays that this Court:

A.

Certify the class described above under Rules 23(a) and (b)(3) of the

Federal Rules of Civil Procedure, designate Jacqueline Cote as representative of the

National Class and the Massachusetts Subclass, and designate Plaintiff's counsel of record

as Class Counsel for the Class.

B.

Grant declaratory relief, including but not limited to: (a) a

declaration that Wal-Mart violated Title VII of the federal Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e, et seq.; (b) a declaration that Wal-Mart violated the Equal

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Pay Act, 29 U.S.C. § 206(d); (c) a declaration that Wal-Mart violated the Massachusetts

Fair Employment Practices Law, Mass. Gen. Laws ch. 151B § 4; and (d) a declaration that

Wal-Mart is required, as a matter oflaw, to make spousal health insurance coverage

benefits available to eligible employees with same-sex spouses on the same terms that Wal-

Mart makes such coverage available to eligible employees with different-sex spouses.

C.

Enter a permanent injunction prohibiting Wal-Mart from taking any

action to deny spousal health insurance coverage benefits to Plaintiff and other similarly

situated Wal-Mart employees to the extent that Wal-Mart continues to make spousal

health insurance coverage benefits generally available to its employees;

D.

Award all damages that Plaintiff and members of the proposed

National Class and proposed Massachusetts Subclass have sustained as a result ofWal-

Mart's discriminatory conduct, including back pay, damages for lost compensation and

job benefits that they would have received but for the discriminatory practices ofWal-

Mart, and the out-of-pocket medical expenses incurred as a consequence ofWal-Mart's

refusal to provide spousal health insurance benefits to employees with same-sex spouses;

E.

Award compensatory and consequential damages to Plaintiff and

members of the proposed National Class and proposed Massachusetts Subclass, including

damages for emotional distress;

F.

Award punitive damages to Plaintiff and members of the proposed

National Class and proposed Massachusetts Subclass;

G.

Award pre-judgment and post-judgment interest, as provided by law;

H.

Award attorneys' fees and costs to Plaintiff and members ofthe

National Class and proposed Massachusetts Subclass to the extent allowable by law,

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Case 1:15-cv-12945-WGY Document 1 Filed 07/14/15 Page 23 of 23

includingunder42 U.S.C. § 2000e-5(k), 29 U.S.C. § 216(b), and Mass. Gen. Laws ch.

151B § 9; and

I.

Grant such other relief as is just and appropriate.

DATED: July 14, 2015

Respectfully submitted, JACQUELINE COTE By her attorneys,

WASHINGTON LAWYERS' COMMITTEE FOR CNIL RIGHTS AND URBAN AFFAIRS

GAY & LESBIAN ADVOCATES & DEFENDERS

Is/ Peter Romer-Friedman Peter Romer-Friedman (pro hac vice to be filed) 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 (202) 319-1 000 peter romerfriedman@washlaw.org

Is/ Gary Buseck Gary Buseck, BBO# 067540 Allison W. Wright, BBO# 684753 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 gbuseck@g1ad.org awright@glad.org

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 Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 1 of 69
Exhibit 1

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 2 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JACQUELINE A. COTE, on behalf of herself and others similarly situated,
Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

Civil Action No. 15-cv-12945-WGY

SETTLEMENT AGREEMENT

1.

PREAMBLE

1.1 This Case, Cote v. Wal-Mart Stores, Inc. , No. 15-cv-12945-WGY (D. Mass.) was brought by Jacqueline Cote on behalf of herself and others similarly situated against Wal-Mart Stores, Inc., alleging, among other things, that prior to January 1, 2014 Wal-Mart Stores, Inc. did not provide spousal health insurance to employees who had lawful marriages to same-sex spouses and that such a denial violated Title VII of the Civil Rights Act. WalMart Stores, Inc. denies all of the allegations alleged in the Complaint. In the interest of resolving this dispute between the Parties without the significant expense, delay, and inconvenience of further litigation of the collective and individual issues raised in this Case, and in reliance upon the representations, mutual promises, covenants, and obligations set out in this Settlement Agreement, and for good and valuable consideration also set out in this Settlement Agreement, the Parties, through their undersigned counsel of record, hereby stipulate and agree as follows. This Settlement Agreement is made and entered into as of the dates of Execution set forth below, between the Settlement Class Representative on behalf of herself and the Settlement Class Members and Wal-Mart Stores, Inc., all as further defined below.

2.

DEFINITIONS

2.1 The term "Agreement" or "Settlement Agreement" as used herein means this Settlement Agreement between the Parties.

2.2 The term '~ttorneys' Fees and Litigation Expenses" as used herein means the Attorneys' Fees and Litigation Expenses to be requested by Class Counsel, subject to Court approval in accordance with Section 5.4 ofthis Agreement.

2.3 The term " CAFA Notice" as used herein means the notice to be made in accordance with the Class Action Fairness Act, 28 U.S.C. § 1715.

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 3 of 69
2.4 The term "Class Settlement Amount" means the Seven Million Five Hundred Thousand Dollars ($7,500,000) that Walmart has agreed to pay pursuant to this Settlement, as described more fully in Section 5.1 of this Agreement.
2.5 The Term "Claim Form" as used herein means the forms for submission of Short Form Claims and Long Form Claims (as both are described in Section 5.3 and its subparts) each of which are attached hereto as Exhibit A, which Settlement Class Members must submit in order to be considered for eligibility to receive a payment under this Settlement.
2.6 The term "Claims Administrator" as used herein means KCC Class Action Services LLC ("KCC"), the entity that, subject to Court approval, shall perform the duties of, among other things: (i) establishing a Qualified Settlement Fund and Qualified Settlement Fund Account, and determining and finalizing the calculations of settlement payments and tax withholding amounts for the Qualified Claimants, as applicable; (ii) preparing, printing and disseminating to the Settlement Class Members the Notice Packet and return envelope in accordance with the Notice Plan; (iii) receiving and reviewing the Claim Forms submitted by Settlement Class Members to determine initial eligibility based on marriage date and the amount of payment; (iv) tracking returned Notices and Requests to Opt Out; (v) ascertaining current address and addressee information for each Notice Packet returned as undeliverable, and re-disseminating the Notice Packet and return envelope to Settlement Class Members whose Notice Packet was returned as undeliverable; (vi) notifying the Parties of determinations regarding submitted Requests to Opt Out, consistent with this Agreement; (vii) determining the final Settlement Payment for each Settlement Class Member in accordance with this Agreement; (viii) mailing the settlement checks to Settlement Class Members who are entitled to receive Settlement Payments; (ix) wiring Class Counsel's attorneys' fees, expenses, and costs, and mailing the Service Payment and Settlement Payments in accordance with this Agreement and Order of the Court; (x) referring to Class Counsel and, where appropriate also to Walmart's Counsel, all inquiries by Settlement Class Members that the Claims Administrator cannot resolve and/or that involve matters not within the Claim Administrator's duties specified herein; (xi) responding to inquiries of Class Counsel or Walmart's Counsel; (xii) promptly apprising counsel for the Parties of the activities of the Claims Administrator; (xiii) send notices to self-identifiers; (xiv) establishing a web site to provide Settlement Class Members with information about this Agreement; (xv) provide publication notice to the Settlement Class Members; and (xvi) other notice and administration duties in accordance with this Agreement and the District Court's orders.
2. 7 The term "Class Counsef' as used herein means the following counsel: GLBTQ Legal Advocates & Defenders (GLAD), the Washington Lawyers' Committee for Civil Rights and Urban Affairs, Outten & Golden LLP, and Arnold & Porter LLP.
2.8 The term "Court" as used herein means the District Court and any appellate court that may review any orders entered by the District Court related to this Settlement.
2.9 The term "Defendant" as used herein means Wal-Mart Stores, Inc.
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2.10 The term "District Court" as used herein means the United States District Court for the District of Massachusetts.
2.11 The term "Execution" as used herein means the s1gmng of this Agreement by all signatories hereto.
2.12 The term "Final Judgment and Order of Dismissaf' as used herein refers to the Final Judgment and Order of Dismissal approving the Settlement and dismissing the Litigation with prejudice as against Defendant, substantially in the form of the proposed Final Judgment and Order of Dismissal attached hereto as Exhibit B which this Settlement contemplates will be entered and approved by the Court.
2.13 The term "Health Care Costs" as used herein includes any medical, dental, and/or vision costs that may have been reimbursable or otherwise covered under any applicable Walmart sponsored Health Insurance Policy, as set forth in the applicable Summary Plan Descriptions ("SPDs") for each year of the Settlement Class Period. Copies of the SPDs for each year of the Settlement Class Period shall be made available to Settlement Class Members on the web site maintained by the Claims Administrator.
2.14 The term "Health Insurance Benefits" as used herein means the medical, dental and/or vision benefits available to eligible Walmart associates, as set forth in the applicable Summary Plan Descriptions ("SPDs") for each year of the Settlement Class Period.
2.15 The term "Health Insurance Policy or Policies" as used herein includes any insurance policy that insured against or covered any medical, dental, and/or vision costs.
2.16 The term "Legal Same-Sex Spouse" as used herein means the same-sex spouse to whom any Settlement Class Member was legally married during the Settlement Class Period. The Settlement Class Member was legally married if her or his marriage was obtained from a state or jurisdiction that performed and/or recognized marriage between same-sex spouses. For the purpose of this Agreement, the state or jurisdiction where the Settlement Class Member resided or worked at the time of her or his marriage and/or during the Settlement Class Period is irrelevant to whether the Settlement Class Member was legally married to a same-sex spouse during the Settlement Class Period.
2.17 The term "Litigation" as used herein means the action titled Jacqueline Cote v. Wal-Mart Stores, Inc. , Case No. 15-cv-12945-WGY, pending in the United States District Court for the District of Massachusetts (Judge William Young).
2.18 The term "Net Settlement Amount" as used herein means that portion of the Class Settlement Amount remaining after the subtraction of: (a) Attorneys' Fees and Litigation Expenses approved and awarded by the Court; (b) the Service Payment approved and awarded by the Court; and (c) Notice and Administration Costs.
2.19 The term "Notice Packet" as used herein means the Notice attached hereto as Exhibit C and the Claim Forms attached hereto as Exhibit A. "Notice" means the Court-approved Notice of Proposed Settlement of Class Action Lawsuit and the Notice Process set forth in Section 7.
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2.20 The term "Notice and Administration Costs" as used herein means the costs to send Notice, administer the Settlement, and for the Claims Administrator to perform all other reasonable duties contemplated by this Agreement.
2.21 The term "Parties" as used herein means the Settlement Class Representative and Walmart.
2.22 The term "Plan of Allocation" as used herein means the method by which the Net Settlement Amount shall be allocated among the Settlement Class Members who do not submit a timely and valid Request to Opt Out, as set forth in Section 5 of this Agreement.
2.23 The term "Preliminary Approval Order" as used herein means the District Court's order granting preliminary approval of this Settlement.
2.24 The term "Programmatic Relief' as used herein means the programmatic, non-monetary relief agreed to by the Settlement Class Representative (on behalf of the Settlement Class Members) and Walmart, in accordance with Section 6 of this Agreement.
2.25 The term "QSF' as used herein means the Qualified Settlement Fund to be established by the Claims Administrator in accordance with this Agreement.
2.26 The term "Qualified Claimants" as used herein means the Settlement Class Members who are entitled to receive a Settlement Payment under this Agreement.
2.27 The term "Released Claims" as used herein means the claims, rights, demands, charges, complaints, causes of action, obligations, damages, penalties, debts, costs and expenses (other than those costs and expenses required to be paid pursuant to this Settlement Agreement), liens, or liabilities of any and every kind that are released, acquitted and forever discharged pursuant to Section 13 of this Agreement.
2.28 The term "Releasees" as used herein means Walmart and each of its current and former subsidiaries, parent corporations, affiliates, predecessors, insurers, agents, employees, successors, assigns, officers, officials, directors, employers, attorneys, personal representatives, executors, and shareholders, including their respective pension, profit sharing, savings, health, and other employee benefit plans of any nature, the successors of such plans, and those plans' respective current or former trustees and administrators, agents, employees, and fiduciaries, as well as the personal representatives or executors of any such persons.
2.29 The term "Releasing Same-Sex Spouses" as used herein means the Legal Same-Sex Spouses of Releasing Settlement Class Members.
2.30 The term "Releasing Settlement Class Members" as used herein means the Settlement Class Representative and all Settlement Class Members, other than those who submit timely and valid Requests to Opt Out.
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2.31 The term "Request to Opt Out" as used herein means the request to opt out that is sent by any Settlement Class Member who does not wish to remain in the Settlement Class, in accordance with Section 9 of this Agreement.
2.32 The term "Service Payment" as used herein means the amount of the service payment that Class Counsel shall request to be paid to the Settlement Class Representative and that the Court shall approve, in accordance with Section 5.5 ofthis Agreement.
2.33 The term "Settlement" as used herein means the compromise and settlement of the Litigation as contemplated by this Agreement, including this Settlement Agreement.
2.34 The term "Settlement Class" as used herein means the settlement class to be certified for settlement purposes in accordance with Section 4 of this Agreement. The Settlement Class consists of (A) all current and former associates (as that term is used by Walmart to encompass all Walmart employees) who work or worked for Walmart in the 50 United States, the District of Columbia or Puerto Rico (whether at a retail Store, Supercenter, Neighborhood Market, Sam's Club, Distribution Center, Home Office, dotcom, or any other Walmart facility) during the Settlement Class Period who (B) (i) were legally married to a Legal Same-Sex Spouse during the Settlement Class Period; and (ii) would have been eligible to receive spousal Health Insurance Benefits from Walmart for that Legal Same-Sex Spouse during the Settlement Class Period but for the limitation during the Settlement Class Period on providing spousal Health Insurance Benefits to Legal Same-Sex Spouses; and (iii) did not receive same-sex spousal Health Insurance Benefits from Walmart (such as through an HMO Plan) during some or all of the Settlement Class Period during which they worked at Walmart. Excluded from the Settlement Class are any individuals who previously obtained a judgment regarding or entered into a settlement regarding Walmart's limitation during the Settlement Class Period on providing spousal Health Insurance Benefits to Legal Same-Sex Spouses.
2.35 The term "Settlement Class List" as used herein means the listing of the Settlement Class Members to whom Notice shall be distributed in accordance with this Agreement.
2.36 The term "Settlement Class Members" as used herein means the Settlement Class Representative and all members of the Settlement Class.
2.37 The term "Settlement Class Period'' as used herein means the period of time from January 1, 2011 through and including December 31,2013.
2.38 The term "Settlement Class Representative" as used herein means Jacqueline Cote, the named plaintiff in the litigation and the person Class Counsel shall request be appointed by the District Court as the Settlement Class Representative for purposes of the Settlement Class. Jacqueline Cote is also a member of the Settlement Class.
2.39 The term "Settlement Effective Date" as used herein means the first day following the later of the occurrences identified in Section 2.39.1 and 2.39.2:
2.39.1. The date on which 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
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approving the Settlement and dismissing this Litigation with prejudice as to Defendant has expired with no appeal or other judicial review having been taken or sought; or

2.39.2. 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; (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, after the Final Judgment and Order of Dismissal has been entered by the District Court after remand, upon which 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.

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

2.40 The term "Settlement Payment" or "Final Payment" as used herein means the final payment that a Settlement Class Member is entitled to receive under this Agreement after submitting a Claim Form and pursuant to the calculations to be made under Section 5 of this Agreement.

2.41 The term "Walmart" as used herein means Defendant Wal-Mart Stores, Inc.

3.

RECITALS

3.1 On July 14, 2015, Plaintiff Jacqueline Cote filed a complaint against Walmart in the United States District Court for the District of Massachusetts alleging that Walmart discriminated against Plaintiff and the putative class members because, prior to the 2014 plan year, Walmart did not provide health care benefits to its associates who had samesex spouses on the same terms that it provided spousal health care benefits to associates with opposite-sex spouses. Plaintiff asserted claims for damages and injunctive relief on behalf of a nationwide class under Title VII of the federal Civil Rights Act and on behalf of a Massachusetts state-wide class under the Massachusetts Fair Employment Practices Law. Plaintiff also asserted an individual claim under the federal Equal Pay Act.

3.2 Walmart denies each and every one of the Plaintiff's allegations, as set forth in its Answer to the Complaint and other pleadings filed in the Litigation.

3.3 Beginning in February 2016, the Parties participated in a series of private mediation sessions with Mark Irvings, a private mediator with substantial experience in employment cases. As a result of those mediation sessions, and as a result of additional arms-length negotiations, the Parties reached an agreement to resolve the Litigation in accordance with the terms of this Agreement. All prior written documents exchanged between the Parties are superseded and replaced by this Agreement.
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3.4 The Settlement Class Representative and Class Counsel believe that the claims of the Settlement Class Members are meritorious. Class Counsel represent that they have conducted a thorough investigation into the facts of this case, and have diligently pursued an investigation of the named Plaintiffs and the Settlement Class Members' claims against the Defendant, including, but not limited to: (i) interviewing dozens of class members and analyzing the results of class member interviews; (ii) reviewing and analyzing relevant documents, including thousands of pages of documents and databases produced by Walmart and documents provided to Class Counsel by Settlement Class Members; (iii) researching the applicable substantive and procedural law and Walmart's potential defenses; (iv) consulting with experts to develop a model for valuing the potential damages of Settlement Class Members; (v) developing and preparing factual and legal arguments for a class certification motion and other substantive motions; (vi) advocating for the rights of the Settlement Class Members; and (vii) preparing for and engaging in mediation with Walmart and Walmart's counsel. Based on their own independent investigation and evaluation, Class Counsel are of the opinion that the Settlement is fair, reasonable, and adequate and that the Settlement is in the best interests of the Settlement Class Members in light of all known facts and circumstances, including the risk of significant delay, the defenses asserted by the Defendant, trial risk, and appellate risk.

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

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

4.

SETTLEMENT CLASS

4.1 In order to implement the Settlement, Class Counsel shall request that the District Court certify the Settlement Class described in Section 2.34, above, pursuant to Rule 23(a) and (b)(3) ofthe Federal Rules of Civil Procedure.

4.2 With respect to determining which individuals "would have been eligible to receive spousal Health Insurance Benefits from Walmart for that Legal Same-Sex Spouse during

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the Settlement Class Period but for the limitation during the Settlement Class Period on providing spousal Health Insurance Benefits to Legal Same-Sex Spouses," as provided for in Section 2.34, Walmart and/or a third-party retained by Walmart at Walmart's sole cost shall make such determinations based on the eligibility criteria in effect at the time of the Settlement Class Member's employment during the Settlement Class Period. Eligibility determinations made in accordance with this Section shall be subject to review by a neutral in accordance with Section 5.2. The decision of the neutral shall
be final and not subject to appeal or any other review.

4.3 The Parties agree that certification of the Settlement Class is for settlement purposes only, and Walmart's non-objection to this certification is in no way an admission by Walmart that class certification is proper in this or any other Litigation for any other purpose. Walmart further incorporates by reference Section 3.5.

4.4 The Parties further agree that 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, void, and unenforceable, and the provisions of Section 18 shall apply.

5.

MONETARY TERMS OF SETTLEMENT

5.1 Subject to the other terms and conditions of this Agreement, and subject to Court approval, Walmart agrees to pay the Class Settlement Amount of Seven Million Five Hundred Thousand Dollars ($7,500,000). No portion of the Class Settlement Amount
shall revert to Walmart.

5.2 All payments to Settlement Class Members, all Attorneys' Fees and Litigation Expenses awarded by the Court to Class Counsel, any Service Payment awarded by the Court to the Settlement Class Representative, and all Notice and Administration Costs shall be paid from the Class Settlement Amount. Other than the costs incurred by Walmart to prepare and send the CAFA Notice, to make eligibility determinations in accordance with Section 4.2 and, where necessary, to obtain a neutral review of those determinations, to implement the Programmatic Relief, and amounts required for the Employers' Share of Taxes in accordance with Section 5.7, the Class Settlement Amount shall be the maximum amount of money that Walmart shall pay under this Settlement.

5.3 Payments to Settlement Class Members

5.3.1. The Net Settlement Amount shall be the amount remammg from the Class Settlement Amount after Attorneys' Fees and Litigation Expenses awarded by the Court, any Service Payment awarded to the Settlement Class Representative by the Court, and all Notice and Administration Costs have been subtracted.

5.3.2. Settlement Class Members who do not timely serve a valid Request to Opt Out of the Settlement shall be eligible to recover a share of the Net Settlement Amount in accordance with the Plan of Allocation described in Section 5.3.3.

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5.3.3. Settlement Class Members shall receive final shares of the Net Settlement Amount pursuant to the following Plan of Allocation. Under the Plan of Allocation, a Settlement Class Member may file either: (1) a Long Form to receive payments as set forth in Section 5.3.3.1 and/or Section 5.3.3.2, by providing proof of out-of-pocket Health Care Costs and/or the costs of purchasing a separate Health Insurance Policy or Policies; or (2) a Short Form to receive a pro-rata share of the Net Settlement Amount after payments have been made to claimants who file Long Form Claims, based on the number of months that the Settlement Class Member was married to a Legal Same-Sex Spouse and would have been eligible to receive spousal Health Insurance Benefits from Walmart for that Legal Same-Sex spouse during the Settlement Class Period but for the limitation during that time period on providing such Health Insurance Benefits to Legal Same-Sex Spouses. For Health Care Costs to be established or demonstrated in connection with a Long Form Claim, they must be costs that may have been reimbursable or otherwise covered under any applicable Walmart sponsored Health Insurance Policy, as set forth in the applicable Summary Plan Descriptions ("SPDs") for each year of the Settlement Class Period. As described herein, the "final payment" is the payment that each Settlement Class Member shall receive under this Settlement when payments are disbursed to Settlement Class Members by the Claims Administrator.
5.3.3.1.Lon2: Form Claim- Out-of-Pocket Health Care Costs: Settlement Class Members whose Legal Same-Sex Spouses were not covered by any Health Insurance Policy and who had out-of-pocket Health Care Costs (including costs billed to the Settlement Class Member's Legal Same-Sex Spouse) during the Settlement Class Period while the Settlement Class Member was married to her or his Legal Same-Sex Spouse shall be eligible to receive a payment calculated based on 1.0 times those out-of-pocket Health Care Costs. Settlement Class Members whose spouses were not covered by any Health Insurance Policy and whose out-of-pocket Health Care Costs (including costs billed to the Settlement Class Me.mber's spouse) were $60,000 or greater during the Settlement Class Period while the Settlement Class Member was married to her or his Legal Same-Sex Spouse, shall be eligible to receive a payment calculated based on 2.5 times those Health Care Costs. In order to receive any payments under this Section, such Settlement Class Members must provide the Claims Administrator with proof of such Health Care Costs in accordance with Section 5.3.3.6 and must also affirm that the Health Care Costs for which reimbursement is sought have not been otherwise reimbursed.
5.3.3.2.Long Form Claim for Costs - Separate Health Insuran e Policy or Policies: Settlement Class Members who purchased (or whose spouses purchased) a separate Health Insurance Policy or Policies for their samesex spouses during the Settlement Class Period while the Settlement Class Member was married to her or his Legal Same-Sex Spouse shall be eligible to receive a payment calculated based on 1.0 times the costs of the Health Insurance Policy or Policies paid by the Settlement Class Member
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and/or her or his Legal Same-Sex Spouse during the Settlement Class Period. In order to receive any payment under this Section, such Settlement Class Members must provide the Claims Administrator with proof of the costs of such Health Insurance Policy or Policies in accordance with Section 5.3.3.5.
5.3.3.3.Short Form Claims: All other Settlement Class Members who file a Short Form Claim establishing their membership in the Settlement Class shall be eligible to receive final payments consisting of a pro-rata share of the Net Settlement Amount remaining after payments are made to Settlement Class Members who submit Long Form Claims pursuant to Sections 5.3.3.1 and 5.3.3.2 above, based on the number of months that the Settlement Class Member was married to a Legal Same-Sex Spouse and would have been eligible to receive spousal Health Insurance Benefits from Walmart during the Settlement Class Period but for the limitation during that time period on providing such Health Insurance Benefits to Legal Same-Sex Spouses. 1 Such final payments shall not exceed $5,000 per plan year (or pro-rated portion thereof) for each Settlement Class Member who worked at Walmart and was otherwise eligible for spousal health benefits during the Settlement Class Period. In order to receive such final payments, Settlement Class Members must complete a Claim Form providing their approximate dates of employment and date of marnage.
5.3.3.4.Any Settlement Class Member who wishes to receive a payment under this Settlement must file a Long Form Claim or a Short Form Claim with the Claims Administrator within 60 days of the date the Notice is mailed to Settlement Class Members. In order for a Long Form Claim or a Short Form Claim to be processed by the Claims Administrator and for the Settlement Class Member to receive a final payment, the Claim Form must identify the Settlement Class Member's approximate dates of employment at Walmart and the date of her or his marriage. Walmart (or a third-party entity contracted by Walmart) shall verify each such Settlement Class Member's actual dates of employment at Walmart and her or his eligibility to receive spousal health insurance during the Settlement Class Period. Within 14 days of Walmart making these determinations, the Claims Administrator shall mail a description of the determination to the relevant Settlement Class Member. If the Settlement Class Member wishes to challenge Walmart's determination of her or his employment by Walmart or eligibility to receive spousal health insurance, the Settlement Class Member must within 14 days of receiving the determination mail to the
1 For example, a Settlement Class Member who was married to a Legal Same-Sex Spouse and eligible for spousal health insurance for only 6 months during the Settlement Class Period would receive a payment that is 1/6 of the payment that a Settlement Class Member who was married to a Legal Same-Sex Spouse and eligible for spousal health insurance for 36 months during the Settlement Class Period would receive.
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Claims Administrator a statement and any supporting documentation explaining why Walmart's determination is incorrect. Any challenges to Walmart's determinations shall be reviewed by a neutral-agreed to jointly by the Parties and paid by Walmart separately from and in addition to the $7.5 million Class Settlement Amount-who will make a final, binding decision regarding the Settlement Class Member's actual dates of employment and eligibility to receive spousal health insurance during her or his employment by Walmart during the Settlement Class Period. The decision of the neutral shall be final and not subject to appeal or any other review.
5.3.3.5.Settlement Class Members who file Long Form Claims under Section 5.3.3.1 or Section 5.3.3.2 must submit a completed Long Form Claim, attached hereto as Exhibit A, to the Claims Administrator within 60 days of the date the Notice is mailed to Settlement Class Members. To be eligible for a payment under either Section 5.3.3.1 or Section 5.3.3.2, Settlement Class Members must provide evidence through the Long Form Claim, documents, declarations and/or statements that they or their Legal Same-Sex Spouses were charged for such costs and were not reimbursed through other sources. Settlement Class Members may submit such evidence contemporaneously with the Long Form Claim (i.e., within 60 days of the notice mailing) or up to 90 days after the Notice Mailing. In the event that a Settlement Class Member files a Long Form Claim but fails to submit supporting evidence within 80 days of the Notice Mailing, the Claims Administrator will notify Class Counsel so that Class Counsel may contact the Settlement Class Member to confirm whether they wish to complete the Long Form Claim or convert her or his claim to a Short Form Claim. Within 30 days after receiving a completed Long Form Claim and the determination of eligibility referenced in Section 5.3.3.4, Long Form Claim, and any related documentation or information from a Settlement Class Member, the Claims Administrator will make a final, binding determination as to the amount that the Settlement Class Member is entitled to receive under Sections 5.3.3.1 and/or 5.3.32. Within 14 days of making any such determination, the Claims Administrator shall mail a description of the determination to the relevant Settlement Class Member. If the Settlement Class Member wishes to challenge the Claims Administrator's determination, the Settlement Class Member must within 14 days of receiving the determination mail to the Claims Administrator a statement that seeks reconsideration of the determination and describes why the determination should be modified by the Claims Administrator. Upon a showing of good cause for reconsidering the determination, the Claims Administrator may modify the determination. Any determination in this section by the Claim Administrator, including a decision to modify or not modify a prior determination, shall be final and not subject to appeal or any other review.
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5.3.3.6.Settlement Class Members can only receive a final payment by submitting (1) a Long Form Claim for payments under Section 5.3.3.1 and/or 5.3.3.2, or (2) a Short Form Claim to receive a payment to be determined by a pro rata share under Section 5.3.3.3 , but may not file both a Long Form Claim and a Short Form Claim. A single Settlement Class Member, however, may file a Long Form Claim under Section 5.3.3.1 and under Section 5.3.3.2, but may not submit a claim to receive a payment based on both types of costs for the same month. If the pro rata share that a Settlement Class Member would receive under Section 5.3.3.3 by filing a Short Form Claim is greater than the payment he or she would receive by filing a Long Form Claim under Section 5.3.3.1 and/or 5.3.3.2, the Settlement Class Member's Long Form Claim shall be automatically converted into a Short Form Claim and the Settlement Class Member shall receive the greater pro rata share under Section 5.3.3.3 as her or his final payment under the Settlement. 2
5.3.3.7.If Settlement Class Members who file Long Form Claims would be entitled to collectively receive payments that exceed $3.5 million under Sections 5.3.3.1 and 5.3.3.2, such Settlement Class Members will have their payments reduced on a pro rata basis so that they collectively receive final payments that are equal to $3.5 million.3 If the Settlement Class Members who file Long Form Claims would be entitled to collectively receive payments under Sections 5.3.3.1 and 5.3.3.2 that are less than or equal to $3.5 million, the those payments shall be the final payments that such Settlement Class Members receive under the Settlement.
5.3.3.8.In the event that a potential Settlement Class Member who is not listed on the data provided by Walmart to the Claims Administrator pursuant to
2 For example, if each Settlement Class Member who files an approved Short Form Claim is entitled to receive $5,000 per plan year (i.e., the maximum payment per plan year), and a Settlement Class Member who was married to a Legal Same-Sex Spouse and eligible for spousal health insurance for 24 months during the Settlement Class Period submits proof of $3,000 of out-of-pocket Health Care Costs under Section 5.3.3.1 and $5,000 of costs of Health Insurance Policy or Policies under 5.3 .3 .2, the Settlement Class Member would receive $10,000 as a pro rata share of the Net Settlement Agreement (as the $10,000 payment for two plan years exceeds $8,000 in out-of-pocket Health Care Costs and $5,000 of costs of health Insurance Policy or Policies).
3 For example, if all of the Settlement Class Members who file Long Form Claims would be entitled to receive $4 million under Sections 5.3.3.1 and 5.3.3.2, such Settlement Class Members would receive payments that are equal to 87.5% of the of out-of-pocket Health Care Costs under Section 5.3.3.1 and costs of Health Insurance Policy or Policies under 5.3.3.2 that they proved through their Long Form Claims. In such a situation, a Settlement Class Member who would be entitled to receive $100,000 under Sections 5.3.3.1 and 5.3.3.2 instead would receive $87,500 as his or her final payment under the Settlement.
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Section 7.1 (a "Self-Identifier") contacts the Claims Administrator or counsel for the Parties, such Self-Identifier shall be directed to a website maintained by the Claims Administrator where they may download the Notice Packet or request that one be mailed to them. Any such request must be made before the close of the Notice Period. Any Self-Identifier who wishes to submit a Claim Form (including those who download Claim Forms from the website) must do so within 60 days of the Notice Date, or 30 days after first contacting the Claims Administrator, whichever is later. The Claims Administrator shall inform all Self-Identifiers who contact it of this deadline. The Claims Administrator shall maintain a list of all Self-Identifiers, including the date on which each Self-Identifier first contacted the Claims Administrator, and shall provide it to counsel for the parties on a rolling basis during the Notice Period, and shall provide the final list to counsel for the parties no later than 10 days after the close of the Notice Period. Walmart (or a third-party entity contracted by Walmart) shall verify each such Self-Identifier's actual dates of employment at Walmart and her or his eligibility to receive spousal health insurance during the Settlement Class Period on a rolling basis as that information is received from the Claims Administrator, and shall provide its final determination of such eligibility no later than 30 days after receipt of the final list from the Claims Administrator. Within 14 days of Walmart making these determinations, the Claims Administrator shall mail a description of the determination to the relevant Self-Identifier. If the Self-Identifier wishes to challenge Walmart's determination of her or his employment at Walmart or eligibility to receive spousal health insurance, the Self-Identifier must, within 14 days of receiving the determination, mail to the Claims Administrator a statement and any supporting documentation explaining why Walmmi's determination is incorrect. Any challenges to Walmart' s determinations shall be reviewed by a neutral-agreed to jointly by the Parties and paid by Walmart separately from and in addition to the $7.5 million Class Settlement Amount-who will make a final, binding decision regarding the SelfIdentifier actual dates of employment and eligibility to receive spousal health insurance during her or his employment by Walmart during the Settlement Class Period. The decision of the neutral shall be final and not subject to appeal or any other review. In the event that a determination is made that the Self-Identifier was employed and eligible for spousal health insurance during the Settlement Class Period, they shall be deemed a Settlement Class Member provided they meet the other criteria set forth in this Agreement.
5.3.3.9.All Long Form Claims and Short Form Claims submitted by Settlement Class Members must be signed under penalty of perjury.
5.3.3.10. Settlement Class Members who have filed timely Long Form Claims or Short Form Claims shall receive their final payments under the Settlement only after all final payments of Settlement Class Members have been
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determined by the Claims Administrator. At the conclusion of the claims process, the Claims Administrator shall provide counsel for the parties with a listing of all Class Members whose claims have been verified, and the amount of such claims.

5.3.3.11. Any amount of the Net Settlement Amount that remains after all of the payments described above have been paid shall be divided equally between the following cy pres designees: (1) Equality Federation (htt ://www.e ua.lit federalion.or ab ut/) and (2) the National Center for Transgender Equality (htt. ://www.nanse uaut .or /about), subject to approval by the Court. If the Court does not approve one or more of these cy pres designees, Class Counsel may, after consultation with Walmart, propose one or more cy pres designees for the Court to approve.

5.3.4.

The Pmiies have determined that, subject to Court approval, the Plan of Allocation is an appropriate method to distribute the Net Settlement Amount to the Settlement Class Members. The Pmiies further agree that the terms of the Plan of Allocation, including any dollar values assigned to any pmiicular Settlement Class Member or claim, are for purposes of this Settlement only and shall not be construed as an admission by any Party, nor shall they be admissible for any purpose (other than for the purpose of effectuating this Settlement), in this Litigation, or any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or other proceeding. Neither Walmart nor the Walmart Associates' Health and Welfare Plan shall have any duty under this Agreement to provide further payments or benefits to Settlement Class Members for the Settlement Class Period.

5.4 Attorneys' Fees and Litigation Expenses

5.4.1.

Class Counsel shall request that, subject to Court approval, they be paid Attorneys' Fees not to exceed twenty-five percent of the Class Settlement Amount, plus reasonable Litigation Expenses, all to be paid from the Class Settlement Amount. Walmart takes no position on the amounts to be sought by Class Counsel for an award of Attorneys' Fees and Litigation Expenses, but does not object to a reasonable award for Attorneys' Fees and Litigation Expenses by the Court. Any amounts awarded by the Court for Attorneys' Fees and Litigation Expenses shall be paid from the Class Settlement Amount. This Settlement is not contingent on the award of Attorneys' Fees and Litigation Expenses, and 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 Court awards Attorneys' Fees and Litigation Expenses in an amount that is less than the amount requested by Class Counsel, any amounts not approved shall become part of the Net Settlement Amount for distribution to Settlement Class Members. Nothing in this Section or Agreement limits the rights of Class Counsel to appeal any decision by the Court regarding Attorneys' Fees and Litigation Expenses.

5.5 Service Payment

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5.5.1. Class Counsel shall request that, subject to Comi approval, the Settlement Class Representative, Jacqueline Cote, be paid a Service Payment in the amount of Twenty Five Thousand Dollars ($25,000), to compensate her for her services as a class representative and to be paid from the Class Settlement Amount. The Service Payment shall be in addition to any Claim that the Settlement Class Representative might make and receive under the Settlement. Walmart takes no position on the amount sought by Class Counsel as a Service Payment for the Settlement Class Representative, but does not object to a reasonable Service Payment if approved by the Court. This Settlement is not contingent on the approval of the Service Payment, and in the event that the Court does not approve the requested Service Payment, or in the event that the Court awards a Service Payment in an amount that is less than the amount requested by Class Counsel, any amount not approved shall become part of the Net Settlement Amount for distribution to Settlement Class Members.
5.6 Notice and Administration Costs.
5.6.1. The Claims Administrator has estimated that Notice and Administration Cost will be One Hundred and Ten Thousand Dollars ($110,000). The Parties agree that the actual Notice and Administration Cost shall not exceed this figure unless the Parties agree that a reasonable basis exists for additional Notice and Administration Cost to be incurred. Any such increase in the Notice and Administration Cost shall be subject to Court approval. In the event that the actual Notice and Administration Cost is less than this estimate, any remaining funds shall be redistributed to Settlement Class Members or donated to the cy pres designees in accordance with Section 5.3 .3 .11.
5.7 Each recipient of any monies paid in accordance with this Agreement is responsible for any taxes associated with the monies received by that recipient, provided however that Walmart agrees to pay the employers' share of taxes of any applicable taxes in addition to the Class Settlement Amount. The Settlement Class Representative, on behalf of herself and the Settlement Class Members, acknowledges and agrees that she has not relied upon any advice from Walmart or Class Counsel as to the taxability of the payments received pursuant to this Settlement Agreement. The amounts paid in connection with Long Form Claims and Short Form Claims submitted by Settlement Class Members shall be allocated such that twenty percent (20%) is treated as wages for the purposes of withholding all applicable local, state and federal taxes and withholdings and eighty percent (80%) is treated as renumeration for damages separate and distinct from lost wages. 4
5.8 By giving such direction to the Claims Administrator regarding tax withholdings on the final payments of Settlement Class Members, the Parties and their counsel are not

4

For example, if a Settlement Class Member receives a $10,000 final Short Form Claim

payment based on his or her pro rata share of the Settlement, taxes would be withheld on $2,000

of the $10,000 final payment, such that the Settlement Class Member would receive $8,000 plus

whatever portion of the $2,000 is not withheld for paying taxes.

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providing Settlement Class Members, the Claims Administrator, or anyone else with legal or tax advice about the applicable taxes that must be paid under federal, state, or local law. The QSF shall be responsible for issuing appropriate tax forms to Settlement Class Members, consistent with this Agreement.

6.

PROGRAMMATIC RELIEF

6.1 Walmart presently offers the same spousal health insurance benefits to associates in the 50 United States, the District of Columbia, and Puetio Rico with same-sex spouses as it does to associates in the 50 United States, the District of Columbia, and Puerto Rico with opposite-sex spouses. Walmart has no intent to modify this practice, and commits to treating same-sex and opposite-sex spouses or couples equally in the provision of health insurance benefits, so long as to do so is consistent with applicable law. Provided, however, that nothing in this Paragraph prevents Walmart from in the future changing the terms of its Health Insurance Benefits plans to modify, remove or add such plans, so long as Health Insurance Benefits are provided to same-sex and opposite-sex spouses on the
same terms.

7.

NOTICE TO THE SETTLEMENT CLASS MEMBERS

7.1 The Claims Administrator shall provide notice of the Settlement to Settlement Class Members as follows:

7.1.1. Within ten (1 0) business days of the date on which the District Court enters an order granting preliminary approval of the Settlement, or on another reasonable date as agreed to by the Parties, Walmart shall provide the Claims Administrator and Class Counsel an Excel chart listing the names, last known addresses and telephone numbers and Social Security numbers for all identifiable potential Settlement Class Members, as that information exists in Walmart's employment records. This listing shall include information regarding those persons identified through the notice process undertaken in accordance with the District Court's ruling as set forth in its January 26, 2016 Order [ECF No. 20], as well as any other persons identified by Class Counsel or Defendant.

7.1.2.

Within twenty (20) business days of the date on which the District Comi enters and order granting preliminary approval of the Settlement, or on another reasonable date as agreed to by the Parties, using the data provided by Walmart (as supplemented by any more current information that may be available from Class Counsel), the Claims Administrator will send the Notice Packet by first class mail (including a postage-paid return envelope) to each Settlement Class Member that has been identified (the "Notice Date"). The Claims Administrator will send a reminder postcard by first class mail half-way through the Notice period. Prior to the mailing of the Notice Packet to the Settlement Class Members, the Claims Administrator shall attempt to confirm the accuracy of the addresses through the United States Post Office's National Change of Address

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database, and shall mail the Notice Packet to any updated address obtained therefrom.

7.1.3.

If any Notice Packet is returned as undeliverable for a Settlement Class Member, the Claims Administrator shall promptly attempt to locate such Settlement Class Member through an electronic search using the Social Security number and/or former address of that person, and shall promptly mail an additional Notice to such person. The Claims Administrator will attempt up to two re-mailings per Settlement Class Member. Each remailing shall re-start the 60 day notice period for that Settlement Class Member, except that in no event shall the close of the notice period exceed 90 days from the Notice Date. The Claims Administrator shall, within ten (1 0) calendar days after the last day on which it makes such a re-mailing, notify Class Counsel and Defendant's Counsel of the precise date of the
end ofthe Notice Period.

7.1.4. The Notice will contain a URL to a web site established and maintained by the Claims Administrator where Settlement Class Members may submit their Claim Forms electronically and in a secured manner.

7 .1.5.

Information regarding the Settlement will also be disseminated through Walmart's Lesbian, Gay, Bisexual, and Transgender (LGBT) "associate resource group," Walmart PRIDE, including through its e-mail listserve
and its Facebook group.

7.1.6.

The Notice will be published in the following manners: through targeted advertisements on Facebook to people who identify with LGBT-related causes and organizations and also associate with Walmart, and
advertisements in LGBT-oriented publications.

8.

CLASS ACTION FAIRNESS ACT NOTICE

8.1 Walmart shall provide CAFA Notice to the appropriate governmental authorities in accordance with the Class Action Fairness Act. Walmart shall pay for the cost of providing the CAFA Notice separate from and in addition to the $7.5 million Class
Settlement Amount.

9.

OPT-OUT PROCESS

9.1 A Settlement Class Member who wishes to exclude herself or himself from this Settlement and from the release of claims pursuant to this Settlement, shall submit a timely and valid Request to Opt Out. To be timely, the Request to Opt Out must be filed within 60 days ofthe Notice Date (or, in the case of are-mailed notice, within 60 days of its mailing but not later than 90 days from the Notice Date). To be valid, the Request to Opt Out shall (1) contain the words "I wish to be excluded from the Settlement Class in the Walmart LGBT Health Benefits Settlement"; (2) contain the Settlement Class Member's name, address, location at which the Settlement Class Member worked at Walmart, the period of time in which the Settlement Class Member worked at Walmart,
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the date of the Settlement Class Member's legal marriage to a same-sex spouse, the last four digits of the Settlement Class Member' s social security number and any other information that is sufficient to identify that the person is a member of the Settlement Class, and (3) be signed and dated .

9.2 A Settlement Class Member who submits a timely Request to Opt Out is not eligible to recover a share of the Net Settlement Amount. The Claims Administrator shall maintain a list of persons who have sent Requests to Opt Out and shall provide such list to the Parties upon request. The Claims Administrator shall retain the originals of all Requests to Opt Out (including the envelopes with the postmarks) received from Settlement Class Members, and shall provide copies of all Requests to Opt Out to counsel for the Parties within three (3) business days of receipt. Walmart retains the right to assert any and all defenses to the claims of persons who opt out from this Settlement.

9.3 Walmart, at its sole discretion, shall have the right to terminate the Settlement in the event that the number of timely opt-outs from the Settlement exceeds 35. In the event that the Settlement is terminated in accordance with this Subsection, the provisions of
Section 18 ofthis Agreement apply.

I 0.

OBJECTION PROCESS

10.1 A Settlement Class Member who wishes to object to the Settlement must timely submit to the Claims Administrator and/or file with the Court a valid objection, in writing, on or before 60 days after the date the Notice is mailed to Settlement Class Members (or, in the case of a re-mailed notice, within 60 days of its mailing but not later than 90 days from the Notice Date). To be considered timely, the objection must be postmarked or otherwise received by the Claims Administrator or the Court on or before the deadline. To be considered valid, an objection must (1) be from a Settlement Class Member, (2) be in writing and contain the words "I object to the Walmart LGBT Health Benefits Settlement," (3) include the objector's name, address, date of marriage to a Legal Same-Sex Spouse, the period of time in which the Settlement Class Member worked at Walmart, at what location or locations the Settlement Class Member worked at Walmart, and the last four digits of the Settlement Class Member's Social Security Number, and (4) be signed and dated. The objection must include the basis for the objection (including why the objector believes the Settlement is not in the best interests of the Settlement Class Members), along with any and all documents that support the objection. The objection must also state whether or not the objector intends to appear at the final approval hearing. Additional instructions regarding how to object to the Settlement shall be contained in the Notice. A Settlement Class Member who submits a Request to Opt Out is not eligible to object to the Settlement.

10.2 The Claims Administrator shall maintain a list of persons who have filed objections and shall provide such list to the Parties upon request. To the extent that Objections are sent to the Claims Administrator, the Claims Administrator shall retain the originals of all objections (including the envelopes with the postmarks) received from Settlement Class Members, and shall provide copies of all objections to counsel for the Parties within three
(3) business days ofreceipt.

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10.3 Settlement Class Members who do not file and serve timely and valid written objections in accordance with the procedures set forth in this Agreement and the Notice shall be deemed to have waived any objections to the Settlement and shall forever be foreclosed from making any objection (whether by appeal or otherwise) to any aspect of the Settlement, including, without limitation, the fairness, reasonableness, or adequacy of the proposed Settlement, or the Court's award of Attorneys' Fees and Litigation Expenses
and a Service Payment.

11. FUNDING AND DISTRIBUTION PROCESS

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

11.1.1.

Within 10 business days following receipt by Walmart of the information needed to transfer funds to the QSF (including wire transfer instructions and W9 for the QSF to be provided by the Claims Administrator), or on another reasonable date as agreed to by the Parties, Walmart shall transfer the estimated 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 Walmati.

11.2 Subject to Section 11.3, within 10 business days following the Settlement Effective Date, Walmart shall transfer to the QSF amounts sufficient to cover the remainder of the Class Settlement Amount. Class Counsel shall provide the QSF with the information as to whom the Attorneys' Fees and Litigation Expenses and the Service Payment should be distributed and what amounts shall be distributed to which law firms. Any additional amounts to be transferred by Walmart for the employer's share of taxes shall be transferred by Walmart directly to the Claims Administrator and not to the QSF.

11.3 Within thirty (30) days of the Effective Date, the Claims Administrator will distribute the money in the Net Settlement Fund by making the following payments:

11.3 .1. Paying Class Counsel's Court-approved attorneys' fees and costs as described in Section 5.4.

11.3.2. Paying the Settlement Class Representative the Court-approved Service Payment as described in Section 5.5.

11.3.3. Paying Settlement Class Members their final payments from the Net Settlement Fund as described in Section 5.3.

11.4 Settlement Class Members will have ninety (90) days from the date the settlement checks are mailed to cash their settlement checks. Twenty (20) days before the close of the ninety (90)-day period for Settlement Class Members to redeem their final payments, the Claims Administrator will provide Class Counsel with the names and contact information, including (1) last known addresses, (2) last known telephone numbers, and (3) if readily available, last known email addresses, for all Settlement Class Members

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who did not cash their settlement checks. Class Counsel may then contact said Settlement Class Members to encourage them to cash their checks.
11.5 At the expiration of the period for redeeming final payments as set forth in Section 11.4, the Claims Administrator shall advise counsel for the Parties what amount, if any, remains in the Settlement Fund, and Class Counsel shall determine, in their sole discretion, whether any such remaining funds will be redistributed to those Settlement Class Members who cashed their settlement checks consistent with each Settlement Class Member's pro rata share of the Net Settlement Fund or, if the amount remaining is insufficient to merit a second distribution, donated to the cy pres designees.
12. QUALIFIED SETTLEMENT FUND
12.1 As required under this Agreement, Walmart shall transfer 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-l. Class Counsel and Walmart jointly shall take such steps as shall be necessary to qualify the QSF under §468B of the Internal Revenue Code, 26 U.S.C. §468B, and the regulations promulgated pursuant thereto. Walmart shall be considered the "transferor" within the meaning of Treasury Regulation § 1.468B-1 (d)(l ). 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 this Agreement. The Comi shall retain jurisdiction over the administration of the QSF. Walmart shall supply to the Claims Administrator and to the Internal Revenue Service the statement described in Treasury Regulation § 1.468B-3(e)(2) no later than February 15th of the year following each calendar year in which Walmart makes a transfer to the QSF. It is intended that the transfers to the QSF will satisfy the "all events test" and the "economic performance" requirement of§ 461 (h)(l) of the Internal Revenue Code, and Treasury Regulation§ 1.461-l(a)(2). Accordingly, Walmart shall not include the income of the QSF in its income. Rather, the QSF shall be taxed on its modified gross income, excluding the sums transferred to it, and shall make payment of resulting taxes from its own funds. In computing the QSF's modified gross income, deductions shall be allowed for its administrative costs and other deductible expenses incurred in connection with the operation of the QSF, including, without limitation, state and local taxes and legal, accounting, and other fees relating to the operation of the QSF.
12.2 Upon establishment of the QSF, the QSF shall apply for an employer identification number for the QSF utilizing Internal Revenue Service Form SS-4 and in accordance with Treasury Regulation § 1.468B-2(k)(4).
12.3 If requested by either Walmart or the Claims Administrator, the Claims Administrator, the QSF and Walmart shall fully cooperate in filing a relation-back election under Treasury Regulation § 1.468B-1 U)(2) to treat the QSF as coming into existence as a settlement fund as of the earliest possible date.
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12.4 Following its deposits as described in Section 11 of this Agreement, and other than as specifically set forth herein, Walmart shall have no 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 deposits shall fully discharge Walmart'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 Walmart 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(1)(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 QSF with respect to the preparation and filing of such materials and the federal, state and local tax compliance of the QSF. Either Walmart or the Claims Administrator, independently or jointly, may, but are not required to, apply to the Internal Revenue Service and/or any applicable state taxing authority for an advance ruling as to any issue pertinent to the qualification of the QSF under Internal Revenue Code §468B and Treasury Regulations promulgated thereunder, its tax status under applicable state law, and/or its tax payment, reporting and withholding duties, so long as Walmart and the remaining Parties are reasonably satisfied that such application and ruling will not compromise the confidentiality of settlement evidenced herein as required by this Agreement. Subject to any contrary holdings in any such ruling, Settlement Class Members shall be responsible for payment of appropriate federal, state, and local income taxes on any claim paid out pursuant to this Agreement. The Parties agree that no portion of any distributions from the QSF to the Settlement Class Members is made in satisfaction of any excluded liability as described in Treasury Regulation § 1.468B-1 (g), related to Qualified Settlement Funds.
12.6 The taxable year of the QSF shall be the calendar year in accordance with Treasury Regulation §1.468B-2(j). The QSF shall utilize the accrual method of accounting within the meaning of§ 446(c) of the Internal Revenue Code.
12.7 Based on the QSF'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
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imposed with respect to income earned by, or property of, the QSF, shall be paid from the QSF.
12.8 The Claims Administrator may amend, either in whole or in part, any administrative provision of this Section or the trust instrument through which the QSF is established to maintain the qualification of the QSF pursuant to the above-described authorities provided that the rights and liabilities of the Parties hereto and the Class are not altered thereby in any material respect.
13. COMPREHENSIVE WAIVER, RELEASE, AND DISMISSAL
13.1 Subject to final approval by the Court of the Settlement, and for good and valuable consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged, all Releasing Settlement Class Members, and each of their Releasing Legal Same-Sex Spouses, do hereby irrevocably release, acquit, and forever discharge all of the Releasees of and from any and all rights, demands, charges, complaints, causes of action, obligations, damages, penalties, debts, costs and expenses (other than those costs and expenses required to be paid pursuant to this Agreement), liens, or liabilities of any and every kind, that were asserted in the Litigation, or that could have been asserted but were not asserted in the Litigation, under the facts pled in the Complaint, 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 and whether for damages or injunctive or any other kind of relief, under the facts pled in the Complaint. This release includes, but is not limited to, claims for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and the Massachusetts Fair Employment Practices Law, Mass. Gen. Laws ch. 151B § 4.
13.2 The Releasing Settlement Class Members and each of their Releasing Legal Same-Sex Spouses understand and agree that the release of the Released Claims is a full and final release applying to both those Released Claims that are currently known, anticipated, or disclosed to the Releasing Settlement Class Members and to their Releasing Same-Sex Spouses and all those Released Claims that are presently unknown, unanticipated, or undisclosed to any Releasing Settlement Class Member arising out of the facts alleged in the Litigation. In exchange for the good and valuable consideration set forth herein, all Releasing Settlement Class Members and all of their Releasing Same-Sex Spouses 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 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:
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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.
13.3 The Parties acknowledge that this Settlement, including the releases provided in this Section, reflects a compromise of disputed claims.
13.4 The Settlement Class Representative, Class Counsel, and Counsel for the Defendant further warrant and affirm that they have not received notice or notification of any medical, third-party insurance carrier, Medicare or Medicaid lien with respect to this Litigation. The Parties are not presently aware of any payments to be made to Settlement Class Members pursuant to this Agreement that will give rise to a medical, third-party insurance carrier, Medicare, or Medicaid lien.
13.5 Notwithstanding anything to the contrary in this Agreement, the releases herein do not prohibit the Releasing Settlement Class Members from filing a charge or complaint with any state or federal governmental agency, from cooperating in good faith with an investigation by a state of federal governmental agency, or from communicating in good faith with any state or federal governmental agency, provided however, that the Releasing Settlement Class Members do release and relinquish any right to receive any award of back pay, front pay, compensatory damages, or punitive damages as a result of participating in any such charge, investigation, or communication.
13.6 As part of the motion for final approval, Class Counsel shall request that the Court enter Final Judgment and an Order of Dismissal, which shall dismiss the Litigation with prejudice, and release the Released Claims as described above, with the exception of any claims which might be retained by Settlement Class Members who exclude themselves from the Settlement, if any. Walmart shall retain any existing defenses to such excluded claims. The Parties agree to cooperate and take all steps necessary and appropriate to obtain preliminary and final approval of this Settlement, to effectuate its terms, and, to the extent of the obligations set forth in this Agreement, to dismiss this Litigation with prejudice. The form of Final Judgment and Order of Dismissal agreed to by the Parties, subject to Court approval, is attached as Exhibit B.
14. DUTIES OF THE PARTIES WITH RESPECT TO OBTAINING PRELIMINARY COURT APPROVAL OF THE SETTLEMENT
14.1 Within 30 days after the full Execution of this Agreement, Class Counsel shall apply to the District Court for the entry of an order granting preliminary approval of the Settlement Agreement substantially in the following form:
14.1.1. Granting preliminary approval to the Settlement Agreement;
14.1.2. Approving as to form and content the proposed Notices and notice plan;
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14.1.3 . Scheduling a final fairness hearing on the question of whether the proposed Settlement should be finally approved as fair, reasonable, and adequate as to the Settlement Class Members, to be held no sooner than 90 days after the date of the Preliminary Approval Order;
14.1.4. Approving GLBTQ Legal Advocates & Defenders (GLAD), the Washington Lawyers' Committee for Civil Rights and Urban Affairs, Outten & Golden LLP, and Arnold & Porter LLP as Class Counsel;
14.1.5. Approving Jacqueline Cote as the Settlement Class Representative; and
14.2 Approving KCC as Claims Administrator.Walmart shall cooperate with Class Counsel as necessary 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 in the event that the Settlement Effective Date does not occur.
15. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL
15.1 Following preliminary approval by the District Court of the Settlement, and no later than 14 calendar days prior to the final fairness hearing, Class Counsel will submit a motion for final approval to include a proposed Final Judgment and Order of Dismissal substantially in the form attached hereto as Exhibit B. The proposed Final Judgment and Order of Dismissal shall:
15 .1.1. Grant final approval to the Settlement, adjudging the terms thereof to be fair, reasonable, and adequate, and directing consummation of its terms and
prOVlSIOns;
15.1.2. Approve Class Counsel's application for Attorneys' Fees and Litigation Expenses;
15.1.3. Approve the Service Payment to the Settlement Class Representative proposed by Class Counsel;
15.1.4. Dismiss this Litigation as between the Settlement Class Members on the one hand, and Walmart on the other hand, with prejudice and permanently bar the Releasing Settlement Class Members and their Releasing Same-Sex Spouses from further prosecuting any of the Released Claims, subject to the Court's continuing jurisdiction described in Section 15.2.
15 .1. 5. State that the District Court shall retain continuing jurisdiction over this action as set forth in Section 15.2
15.2 The District Court shall retain continuing jurisdiction over this action (a) for a period of six months after the Settlement Effective Date, or (b) for a period of one month after all
24

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 26 of 69

Settlement Class Members have received their final payments under the Settlement and any remaining funds from the Class Settlement Amount have been distributed as cy pres, whichever is greater. The Parties agree to submit to the jurisdiction of the Court and shall be bound by the terms of this Settlement, including, without limitation, disputes related to interpreting, implementing and enforcing the Settlement, and will request that
the Court retain jurisdiction to hear any such disputes

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

15.4 The Final Judgment and Order of Dismissal shall not be considered final until the occurrence ofthe 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 Walmart and its counsel, take all necessary steps to secure the Court's Final Judgment.

17.

STATEMENT OFNO ADMISSION

17.1 Nothing contained in this Agreement shall be construed or deemed an admission of liability, culpability, or wrongdoing on the part of Walmart. Walmart further denies liability for any alleged wrongdoing, expressly deny liability for the claims asserted and deny and do not admit any of the pleaded facts not admitted in their pleadings in the Litigation. Walmart further disagrees that a class in this Litigation is appropriate or authorized under law, other than for purposes of effectuating this Settlement. Nor shall this Agreement constitute an admission by Walma1i 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 Plaintiff or the Settlement Class with regards to the validity of any of Walmart's defenses or affirmative defenses. Each of the Parties has entered into this Settlement with the intention to avoid further disputes and litigation with the attendant
inconvenience and expenses.

17.2 The Parties further agree that this Agreement and all of its Exhibits, any Opt Out Requests or Objections, the Court's actions (including Court orders) related to this Settlement, and all other statements, discussions, negotiations, actions, documents or items (including argument of counsel) undertaken by anyone relating to this Settlement are settlement communications or documents and, as such, they: (a) do not constitute, are not intended to constitute, and will not be deemed to constitute an admission by Defendant as to any violation of any federal, state, or local law, statute, ordinance,

25

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regulation, rule, or executive order, or any obligation or duty at law or in equity; and (b) shall not be admissible 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 Defendant for any purpose, including as evidence of any admission by Defendant of any liability with respect to any claim for damages or other relief, or of the appropriateness of class certification or any element thereof, except in an action or proceeding to approve, interpret, or enforce the terms of this Agreement, including the Release.
18. VOIDING THE AGREEMENT
18.1 Except with respect to the provisions of Section 18.2, in the event that this Settlement is not finally approved, or if for any reason the Settlement Effective Date does not occur, the Settlement and this Agreement shall be deemed null, void, and unenforceable and each Party shall retain all of its respective rights as they existed as of the date notice of the Settlement was first provided to the Court, and neither this Agreement, nor any of its accompanying Exhibits or any orders entered by the Court in connection with this Agreement, shall be admissible or used for any purpose in any subsequent proceedings in this Litigation or in any other judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or other proceeding, including any workers' compensation action. Provided, however, Walmart shall not be reimbursed for any monies reasonably spent by the Claims Administrator, or reasonably owed to the Claims Administrator but not yet paid, for Notice and Administration Costs.
18.2 In the event that the Court does not approve the Attorneys' Fees and Litigation Expenses or the Service Payment in the amount requested by Class Counsel, or in the event that the Attorneys' Fees and Litigation Expenses or Incentive Payments requested by Class Counsel is reduced, such findings shall not be a basis for rendering the entire Settlement Agreement null, void, or unenforceable. Class Counsel retain their right to appeal any decision or order by the Court regarding the Attorneys' Fees and Litigation Expenses.
19. SIGNATORIES' AUTHORITY
19.1 The respective signatories to this Agreement each represent that they are fully authorized to enter into this Settlement on behalf of the respective Parties for submission to the Court for preliminary and final approval.
20. NO PRIOR ASSIGNMENTS
20.1 The Parties represent, covenant, and warrant that they have not directly or indirectly, assigned, transferred, encumbered, or purported to assign, transfer, or encumber to any person or entity any portion of any liability, claim, demand, action, cause of action, or right released and discharged in this Settlement.
21. NOTICES
21 .1 Unless otherwise specifically provided herein, all notices, demands, or other communications given hereunder shall be in writing and shall be deemed to have been
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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. TotheClass:

Juno Turner Peter Romer-Friedman OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, New York 10017 Tele: (212) 245-1000 Fax: (646) 509-2060
Email: iq,u·ner@ utten olden.com
mf@outteng_olden.com 21.1.2. To Walmart:
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: DuffyB@gtlaw.com
BeerN@gtlaw.com

22.

CONFIDENTIALITY

22.1 Subject to the provisions of Section 23, 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 Representative and Walmart, their retained attorneys, their accountants and financial or tax advisers, the retained consultants, the Court, doctors, therapists, and the mediator Mark Irvings and his staff, unless otherwise agreed to by Class Counsel and Walmart or unless otherwise ordered by the Court. Notwithstanding the other provisions of this Section, Walmart may disclose the Settlement in filings that it 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 the terms and language of a Joint Press Release with respect to this Settlement to be released at the time the Motion for Preliminary Approval is filed

27

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with the Court. The Joint Press Release may be reissued upon the grant of preliminary approval and/or final approval by the District Court, and may be updated prior to such reissuance to reflect the then-current status of the District Court's approval as may be appropriate. In the event the Parties or their counsel are contacted by the media about the Settlement or the resolution of the Litigation, they shall refer all such inquiries to the Joint Press Release or to any Court filings not under seal. Provided, however, that the Washington Lawyers' Committee for Civil Rights and GLAD, both of whom represented the named Plaintiff and the Settlement Class in this Litigation, shall not be barred from circulating publicly available information about the Settlement Agreement and the resolution of the Litigation to their members, boards of directors, and/or funders. In addition, all Class Counsel may put the Joint Press Release and items from the publicly available case docket on their web sites with the understanding that any such information shall be consistent with the information contained in the Joint Press Releases and motions for preliminary and final approval.
24. DOCUMENTS AND DISCOVERY
24.1 The destruction or return of documents and discovery shall be governed by Section 19 of the Protective Order that the Parties entered into in this Litigation. See Dkt. Nos. 41-42.
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 their counsel and that this Settlement shall not be construed in favor of or against any Party by reason of the extent to which any Party or her or his counsel participated in the drafting of this Settlement.
25.2 Captions and Interpretations. Paragraph titles or captions contained in this Agreement are a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Settlement or any provision of this Agreement. Each term of this Agreement is contractual and not merely a recital.
25.3 Dates. All dates for events provided in this Agreement based on a number of days (unless the date is expressed in terms of "business days") shall be calculated using the same approach as calculating days under Rule 6 of the Federal Rules of Civil Procedure.
25.4 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.
25.5 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
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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. 25.6 Binding on Assigns. This Settlement shall be binding upon, and inure to the benefit of, the Settlement Class Members and Walmart and their respective heirs, trustees, executors, administrators, successors, and assigns. 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 Applicable Law. This Agreement shall be governed by Massachusetts law without regard to its choice of law or conflicts of law principles or provisions.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 31 of 69

For Plaintiff: Name: Peter Romer-Friedman
TSiitleg: nCa~ ture~ _ /
Date: December 2, 2016

For Walmart:
Name:---------------------
Title:-- - - - -- - - - -
Date: - - -- -------
Date:_ _ _ _ _ _ _ _ _ __

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For Plaintiff:
Name: -----------------------
Title:________________________
Signature:___________________ Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _

For Walmart:
Name: Brian Duffy
'~JHt;r Title: ChiefExecutive Officer
Signature Date: December 2, 2016

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EXHIBIT A

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 34 of 69

Cote v. Wal-Mart Stores, Inc., Case No. 15-cv-12945-WGY (D. Mass.)

SHORT FORM CLAIM

SUBMIT THIS SHORT FORM CLAIM TO RECEIVE A PAYMENT UNDER THIS SETTLEMENT

***

1. Instructions

a. If you wish to receive a payment and participate in the settlement, you must

properly complete and return this Short Form Claim (or a Long Form Claim,

listed behind the Short Form Claim in the Notice packet) (preferably in the

enclosed postage-paid envelope). You may also return your Claim Form by faxing it

to_-_-__ or emailing it to

@

.com.

b. To be considered timely, a Claim Form must be postmarked on or before _ _ __ , 2017, [60 days after mailing of Notice] or faxed or emailed so that it is received on or before [DATE] [60 days after mailing of Notice].
c. To properly complete the Short Claim Form, you must provide the personal information requested below in Paragraph 2, and truthfully respond to the questions below in Paragraph 3 to determine your membership in the Settlement Class and the months for which you are eligible to receive compensation under the Settlement Agreement.
d. Any Claim Form that is not submitted by First Class Mail or the equivalent, or is postmarked or received by fax or email after [DATE] [60 days after mailing of Notice], is not addressed to the proper address, or is not signed and dated by the Settlement Class Member under penalty of perjury will not constitute a valid claim and may prevent you from receiving a payment from the settlement. For more information on the Settlement and how your payment will be calculated, as well as your rights in connection with the settlement, please see the attached Notice.
e. WE ENCOURAGE YOU TO MAKE A COPY OF THE SIGNED CLAIM FORM FOR YOUR RECORDS.
f. Changes of Address: It is your responsibility to keep a current address on file with the Claims Administrator. This is the address that will be used to mail your payment and tax forms. Please make sure to notify the Claims Administrator of any change of address.
g. If your same-sex spouse obtained spousal health insurance coverage through a Walmart-sponsored HMO plan during the Settlement Class Period (January 1, 2011 to December 31, 20 13), you may not be eligible to receive a payment under the settlement for the months during which such coverage was provided to your samesex spouse. If you are unsure whether your same-sex spouse obtained spousal health

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 35 of 69

insurance coverage through a Walmart-sponsored HMO plan during the Settlement Class Period, you should submit an inquiry through the Claims Administrator.
h. If you have any questions about how to complete your Claim Form, or if you have questions about whether or not you are eligible to submit a Claim Form in connection with this Settlement you may contact the Claims Administrator or Class Counsel, whose contact information is provided in the Notice.
2. Personal Information (please print) (Note: Your street address, email address and social security number will be kept confidential by the parties and the Claims Administrator and used only for processing your payment and reporting tax information.)
a. Your name:

b. Your name while a Walmart Sam' s Club or associate (if different): - - - -- - - -- - - - -- -

c. Current Street Address:

d. Current City/State/Zip:

e. Current Email Address:

f. Last 4 Digits of Social Security No: _ _ _ _ _ __ __ _ _ _ __ __ g. Walmart Benefits ID Number (if known): _ __ __ _ _ __ __ __

3. Class Membership
a. Did you work at Walmart or Sam's Club between January 1, 2011 and December 31, 2013?

(please circle) Yes

No

Ifyes, please provide the approximate dates and location ofyour employment
at Walmart or Sam's Club during that time period:

Date employment began:_ _ __ __ _ __ __ _ _ _ _.

Date employment ended: - -- - -- - - -- -- - Location(s) where you worked: _ _ _ _ _ __ _ __ __

b. Were you married to a same-sex spouse at any point in time between January 1, 2011 and December 31, 2013?
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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 36 of 69

(please circle) Yes

No

Ifyes, please provide the dates ofyour marriage to your same-sex spouse

Date ofmarriage:_________________ _

End date of marriage: - - - - - -- - -- - - - - - (if still married write today' s date or "Present")

4. No Assignment of Claims By signing below, I verify that I have not assigned any of the claims described above.
5. Medical Liens
By signing below, I verify that I am not subject to any medical liens arising out of any claims that are the subject of this Settlement. (If you are subject to any medical liens, please contact the Claims Administrator).
6. Authorization to Disclose Protected Health Information
By signing below, I provide my authorization to the Claims Administrator, Class Counsel, and Walmart's counsel to receive the information requested by this Claim Form, including any information that may be protected health information. Any personal information that I provide through this Claim Form shall be treated as confidential and shall be handled pursuant to the protective order approved by the Court in this case.
7. Signature
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
Date: _ __ _ __ _ __ _, 20_
Signature

Print Name SEND TO THE CLAIMS ADMINISTRATOR AT:

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THIS FORM MUST BE MAILED BY U.S. FIRST CLASS MAIL, POSTMARKED OR RECEIVED BY FAX OR EMAIL NO LATER THAN: [DATE]
KEEP A COPY OF TillS FORM FOR YOUR RECORDS. YOU MAY WISH TO REQUEST A RETURN RECEIPT FROM THE POST OFFICE
4

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Cote v. Wal-Mart Stores, Inc., Case No. 15-cv-12945-WGY (D. Mass.)

LONG FORM CLAIM

SUBMIT THIS LONG FORM CLAIM TO RECEIVE A PAYMENT UNDER THIS SETTLEMENT

* * *
1. Instructions

a. If you wish to receive a payment and participate in the settlement, you must

properly complete and return this Long Form Claim (or a Short Form

Claim, listed before the Long Form Claim in the Notice packet) (preferably in

the enclosed postage-paid envelope). You may also return your Claim Form by

faxing it to _-_-__ or emailing it to

@

.com.

b. To be considered timely, a Long Form Claim must be postmarked on or before

[DATE] [60 days after mailing of Notice], or faxed or emailed so that it is

received on or before

, 2017 [60 days after mailing of Notice]. You

will have an additional 30 days to submit any documents, declaration(s), or

statements to support your Long Form Claim, and therefore may submit such

documentation by [DATE] [90 days after mailing of Notice].

c. To properly complete the Long Form Claim, you must provide the personal information requested below in Paragraph 2, and truthfully respond to the questions below in Paragraph 3 to determine your membership in the Settlement Class and the months for which you are eligible to receive compensation under the Settlement Agreement. In addition, you must submit detailed documentation as requested in Paragraph 4 and attach any declaration(s), bills, statements, or other information to demonstrate your same-sex spouse's out-of-pocket Health Care Costs or the cost of purchasing a health insurance
policy for your same-sex spouse during the Class Period.

d. Any Claim Form that is not submitted by First Class Mail or the equivalent, or is postmarked or received by fax or email after [DATE] [60 days after mailing of Notice], is not addressed to the proper address, or is not signed and dated by the Settlement Class Member under penalty of perjury will not constitute a valid claim and may prevent you from receiving a payment under this settlement. For more information on the Settlement and how your payment will be calculated, as well as your rights in connection with the settlement, please see the attached
Notice, above.

e. WE ENCOURAGE YOU TO MAKE A COPY OF THE SIGNED CLAIM FORM FOR YOUR RECORDS.

f. Changes of Address: It is your responsibility to keep a current address on file with the Claims Administrator. This is the address that will be used to mail your

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 39 of 69

payment and tax forms. Please make sure to notify the Claims Administrator of any change of address.
g. If your same-sex spouse obtained spousal health insurance coverage through a Walmart sponsored HMO plan during the Settlement Class Period (January 1, 2011 to December 31, 2013), you may not be eligible to receive a payment under the settlement for the months during which such coverage was provided to your same-sex spouse. If you are unsure whether your same-sex spouse obtained spousal health insurance coverage through a Walmart-sponsored HMO plan during the Settlement Class Period, you should submit an inquiry through the Claims Administrator.
h. If you have any questions about how to complete your Claim Form, or you have questions about whether or not you are eligible to submit a Claim Form in connection with this Settlement, you may contact the Claims Administrator or Class Counsel, whose contact information is provided in the Notice.
2. Personal Information (please print) (Note: Your street address, email address and social security number will be kept confidential by the parties and the Claims Administrator and used only for processing your payment and reporting tax information.)
a. Your name:

b. Your name while a Walmart Sam's Club or associate (if different):

c. Current Street Address:

d. Current City/State/Zip:

e. Current Email Address:

f. Last 4 Digits of Social Security No: - - -- - -- - -- - - - -- g. Walmart Benefits ID #(if known): _ _ __ __ _ __ _ __ __ _ _

3. Class Membership
a. Did you work at Walmart or Sam's Club between January 1, 2011 and December 31, 2013?

(please circle) Yes

No

Ifyes, please provide the approximate dates ofyour employment at Walmart
or Sam 's Club during that time period:

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Date employment began:_ __ _ ______ _ __ __
Date employment ended:--- - -- - -- -- - - -Location(s) where you worked: _ _ __ ______ _ _

b. Were you married to a same-sex spouse at any point in time between January 1, 2011 and December 31, 2013?

(please circle) Yes

No

Ifyes, please provide the dates ofyour marriage to your same-sex spouse

Date of marriage:_ _______ __ ______ __

End date of marriage: _ _ _ _ __ _ __ _ _ _ __ _ _ (if still married write today' s date or "Present")

4. Documenting the Out-of-Pocket Health Care Costs of Your Same-Sex Spouse or the Cost ofPurchasing a Health Insurance Policy for Your Same-Sex Spouse
a. To receive a payment for a Long Form Claim, you must provide documentation of (1) the out-of-pocket Health Care Costs your same-sex spouse
was charged (but which were not forgiven by a medical provider) during the Settlement Class Period (January 1, 2011 to December 31, 2013), including any medical, dental or vision costs, and/or (2) the cost that was actually paid to purchase a health insurance policy for your same-sex spouse from an entity other than Walmart during the Class Period (January 1, 2011 to December 31, 2013). You can provide documentation of out-of-pocket Health Care Costs and the cost of purchasing a health insurance policy during the Class Period, but you cannot submit a claim for both types of costs for the same month(s) during the Class Period.
b. Ifyou are submitting documentation ofout-of-pocket Health Care Costs ofyour
same-sex spouse, please provide thefollowing information.
Describe generally the types of out-of-pocket Health Care Costs which
you are submitting for this claim. Please note that if the out-of-pocket
Health Care Costs which you are submitting would not have been covered under a Walmart sponsored Health Insurance Policy, you cannot submit a claim based on those costs. A list ofexcluded health care services can be found on the Claims Administrator's web site at {insert].

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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 41 of 69

Approximately what months were the health care services provided in the following years of the Class Period?
------------------------------------~2011 ------------------------------------~2012 --------------------------------------~2013
How much were the total charges of out-of-pocket Health Care Costs?
$____________________________
Please confirm that the out-of-pocket Health Care Costs that you are submitting for this claim have NOT been forgiven by the medical provider.
(Please circle) Yes, the costs have NOT been forgiven.
No, some or all ofthe costs HAVE been forgiven
IfNO, what portion ofthe total charges were forgiven
$____________________________

Please confirm that the out-of-pocket Health Care Costs that you are submitting for this claim relate to medical, vision, or dental services that were provided during month(s) in which your spouse was NOT enrolled in any medical Health Insurance Plan.

(Please circle)

Yes, the costs were charged for services in months when my spouse was NOT enrolled in any medical Health Insurance Plan

No, the costs were charged for services in months when my spouse WAS enrolled in a medical Health Insurance Plan
IfNO, please state the months your same-sex spouse WAS enrolled
in a medical Health Insurance Plan during the Class Period:
_________________________.2011 _________________________2012
_________________________2013
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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 42 of 69

c. Ifyou are submitting documentation ofthe cost ofpurchasing a health
insurance policyfor your same-sex spouse, please provide the following information.
What months was your same-sex spouse covered by the alternative health insurance policy or policies during the Class Period?
--------------------------------------~2011 ______________________________________2012

------------------------------------~2013
How much did you or your spouse actually pay to purchase the alternative health insurance policy or policies in each year of the Class Period?
$_________________ _;2011

$

2012

$

2013

d. In an attachment to this Long Form Claim, please provide any and all documentation ofthe out-of-pocket Health Care Costs ofyour same-sex spouse or the cost ofpurchasing a health insurance policy for your same-sex spouse during the Class Period. Such documentation may include any declaration(s), bills, statements, or other information to demonstrate your same-sex spouse's out-of-pocket Health Care Costs or the cost of purchasing a health insurance policy for your same-sex spouse. Your Long Form Claim cannot be processed without this information, which must be received no later than [90
days after mailing of Notice].

5. Determination by the Claims Administrator

After your Long Form Claim is submitted, the Claims Administrator will make a determination about the amount of your out-of-pocket Health Care Costs or cost of purchasing a health insurance policy that will be accepted for the purpose of the payment that you may be entitled to receive under the Settlement. After the determination is made, you will receive a copy of the Claims Administrator's determination of your Long Form Claim, and you then will have an opportunity to ask the Claims Administrator to reconsider its determination by describing why the determination should be modified. Upon a showing of good cause for reconsidering the determination, the Claims
Administrator may modify the determination.

6. No Assignment of Claims

By signing below, I verify that I have not assigned any of the claims described above.

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7. Medical Liens

By signing below, I verify that I am not subject to any medical liens arising out of any claims that are the subject of this Settlement. (If you are subject to any medical liens, please contact the Claims Administrator).

8. Authorization to Disclose Protected Health Information

By signing below, I provide my authorization to the Claims Administrator, Class Counsel, and Walmart's counsel to receive the information requested by this Claim Form, including any information that may be protected health information. Any personal information that I provide through this Claim Form shall be treated as confidential and shall be handled pursuant to the protective order approved by the Court in this case.

9. Signature

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.

Date: ------------------' 20

Signature

Print Name SEND TO THE CLAIMS ADMINISTRATOR AT:

Email: ____ _@_________ .com
THIS FORM MUST BE MAILED BY U.S. FIRST CLASS MAIL, POSTMARKED OR RECEIVED BY FAX OR EMAIL NO LATER THAN: [DATE] [60 days after mailing of Notice]
ANY SUPPORTING DOCUMENTATION TO SUPPORT YOUR LONG FORM CLAIM MUST BE MAILED BY U.S. FIRST CLASS MAIL, POSTMARKED OR RECEIVED BY
FAX OR EMAIL NO LATER THAN: [DATE] [90 days after mailing of Notice]
6

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 44 of 69 KEEP A COPY OF THIS FORM FOR YOUR RECORDS. YOU MAY WISH TO REQUEST A RETURN RECEIPT FROM THE POST OFFICE
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EXHIBITB

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 46 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JACQUELINE A. COTE, On behalf of herself and others similarly situated,
Plaintiff, v.
WAL-MART STORES, INC., Defendant.

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CIVIL ACTION NO. 15-cv-12945-WGY

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[PROPOSED] FINAL ORDER APPROVING SETTLEMENT This matter came before the Court on Plaintiffs Motion for Final Approval of Settlement ("Final Approval Motion"), Plaintiffs Motion for an Award of Attorneys' Fees and Reimbursement of Expenses ("Motion for Fees and Expenses"), and Plaintiffs Motion for a Service Award for the Class Representative ("Motion for a Service Award"). WHEREAS, a putative class action is pending before the Court entitled Cote v. Wal-Mart Stores, Inc., No. 15-cv-12945-WGY (United States District Court for the District of Massachusetts) (the "Litigation"); and WHEREAS, the Court has received and reviewed the Settlement Agreement entered into between the Settlement Class Representative and the Settlement Class Members on the one hand, and the Defendant Wal-Mart Stores, Inc. ("Walmart") on the other hand (the "Agreement"), and has considered the tenns ofthe proposed settlement set forth therein (the "Settlement"); and

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 47 of 69

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

unless otherwise defined herein; and

WHEREAS, on _ _ __ __ _ __J 2016, the Court entered its order preliminarily

approving the Settlement, approving the form and method of notice, appointing a claims administrator,

and setting a date and time for a final fairness hearing to consider whether the Settlement should be

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

adequate, and reasonable (the "Preliminary Approval Order"); and

WHEREAS, the Preliminary Approval Order further directed that all Settlement Class

Members be given notice ofthe Settlement and ofthe date for the final fairness hearing; and

WHEREAS, the Court has received declarations of _ _ _ _ __ __ attesting to the

provision ofnotice in substantial accordance with the Preliminary Approval Order; and

WHEREAS, as part ofthe Preliminary Approval Order, the Court certified the Settlement Class

for settlement purposes only in accordance with the terms of the Agreement and pursuant to Rules

23(a) and (b)(3) of the Federal Rules of Civil Procedure, appointed Jacqueline Cote as the Class

Representative, and appointed GLBTQ Legal Advocates & Defenders (GLAD), Outten & Golden

LLP, the Washington Lawyers' Committee for Civil Rights & Urban Affairs, and Arnold &

Porter LLP as Class Counsel, and appointed

as the Claims Administrator; and

WHEREAS, the Court having considered all timely filed objections to the Settlement [or, if

applicable, no timely objections to the Settlement were filed]; and

WHEREAS, the Court having conducted a Final Fairness Hearing on

_ _ _ _ _ __ _ _ _, 2017 (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:

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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 48 of 69

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

Settlement Class Members, and Defendant.

2. In accordance with Rule 23(c) and (e) ofthe 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, the 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 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 ofthe pendency ofthe litigation, their right to object to the Settlement, and their right to appear at

the Final Fairness Hearing; (c) were reasonable and constituted due, adequate and sufficient notice to all

persons who are entitled to notice; and (d) met all applicable requirements ofthe Federal Rules of Civil

Procedure and any other applicable law.

3.

The Settlement 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 complexity, expense, and likely duration ofthe litigation;

(2) the reaction ofthe class to the settlement;

(3) the stage ofthe proceedings and the amount of discovery completed;

(4) the risks of establishing liability;

(5) the risks of establishing damages;

(6) the risks ofmaintaining the class action through the trial;

3

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 49 of 69
(7) the ability ofthe defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks oflitigation. Bezdek v. Vibram USA Inc. 79 F. Supp. 3d 324, 343-44 (D. Mass. 2015), ajf'd, 809 F.3d 78 (1st Cir. 20 15) (internal citations and quotations omitted). Settlements that follow sufficient discovery and genuine arms-length negotiation are presumed to be fair and "within the range of reasonableness." Id at 343. 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, and for the exclusive benefit of the Settlement Class Members. The Parties are directed to consummate the Agreement in accordance with its terms. 5. The Court APPROVES payment of the Class Settlement Amount in accordance with the terms ofthe Agreement. 6. The Motion for a Service Award is GRANTED, and the Court APPROVES payment of a Service Payment to the Settlement Class Representative, Jacqueline Cote, in the amount of $25,000, to be paid from the Class Settlement Amount in accordance with the terms ofthe Agreement. The requested Service Payment, in recognition of the services she rendered on behalf of the Class Members, is reasonable. 7. The Motion for Fees and Expenses is GRANTED, and the Court APPROVES payment of Attorneys' Fees and Reimbursement of Litigation Expenses to Class Counsel in the amount of
4

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 50 of 69
[$_ _ _ _ _ _ ____. for Attorney's Fees and [$_ _ _ _ _ _ __ ] in Litigation Expenses, to be paid from the Class Settlement Amount in accordance with the terms of the Agreement and to be divided by Class Counsel in accordance with the agreement of Class Counsel. The Attorneys' Fees requested by Class Counsel based on the percentage of the fund method are reasonable based upon the following factors:
(1) the size of the fund and the number of persons benefitted; (2) the skill, experience, and efficiency ofthe attorneys involved; (3) the complexity and duration of the litigation; (4) the risks of the litigation; (5) the amount of time devoted to the case by counsel; (6) awards in similar cases; and (7) public policy considerations, if any. Hill v. State St. Corp., No. 09 Civ. 12146, 2015 WL 127728, at *17 (D. Mass. Jan. 8, 2015). 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 ofthe Agreement. 9. The Litigation is hereby DISMISSED WITH PREJUDICE and without costs to any Party, other than as specified in the Agreement and this Order, including in Section 12 of this Order below. 10. In consideration of the Programmatic Relief and Class Settlement Amount provided for under the Agreement, and for other good and valuable consideration, each of the Releasing Settlement Class Members and each of their Releasing Legal Same-Sex Spouses shall, by operation of
5

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 51 of 69
this Order, have fully, finally, and forever released, relinquished, and discharged all Released Claims against the Releasees in accordance with Section 13 of the Agreement, the terms of which section are incorporated herein by reference, shall have covenanted not to sue the Releasees with respect to all such Released Claims, and shall be permanently barred and enjoined from instituting, commencing, prosecuting or asserting any such Released Claims against the Releasees.
11. 1bis Order shall constitute the Final Judgment in the action as to all Settlement Class Members' Released Claims.
12. Without affecting the finality of this Order in any way, this Court retains jurisdiction over: (a) the interpretation, implementation, and enforcement of the Settlement and the terms of the Agreement; (b) the distribution of the Class Settlement Amount, the Service Payment to the Settlement Class Representative and, the Payment of the Attorneys' Fees and Litigation Expenses, and any cy pres distribution; and (c) all other proceedings related to the implementation, interpretation, administration, consummation, and enforcement of the terms of the Agreement and the Settlement, and the administration of Claims submitted by Settlement Class Members. 1bis Court shall retain jurisdiction over this action (a) for a period of six months after the Settlement Effective Date, or (b) for a period of one month after all Settlement Class Members have received their final payments under the Settlement and any remaining funds from the Class Settlement Amount have been distributed as cy pres, whichever is greater.
12. The parties shall abide by all terms of the Settlement Agreement. In the event that the Settlement Effective Date does not occur, this Order 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 Plaintiff, the Settlement Class Members, and Walmart.
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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 52 of 69

IT IS SO ORDERED.

Dated: _ _ _ _ __ __

The Honorable William G. Young United States District Court District of Massachusetts

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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 53 of 69
EXHIBIT C

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 54 of 69

COURT AUTHORIZED NOTICE

If you worked at a Walmart or Sam's Club and had a same-sex spouse at some point between January 1, 2011 and December 31, 2013, then a proposed class action settlement could affect your rights.
A federal court has authorized this Notice.
If you take no action, you will be bound by the settlement. Your rights will be impacted.
• Please read this Notice carefully and fully. This Notice explains the lawsuit known as Cote v. Wal-Mart Stores, Inc., No. 15-cv-12945-WGY, the Settlement, and your legal rights in this lawsuit.
• This Notice describes a proposed class action settlement under which-if approved by the Court-Walmart would pay $7.5 million to settle the claims of Plaintiff Jacqueline Cote (the "Named Plaintiff') and other similarly situated Walmart associates who were legally married to a same-sex spouse between January 1, 2011 and December 31, 2013 ("the Settlement Class Period") and were not permitted to enroll that same-sex spouse in a Walmart sponsored health insurance plan during the Settlement Class Period ("Settlement Class Members").
• The proposed settlement resolves the claims ofthe Named Plaintiff and the Settlement Class Members who claim that, prior to January 1, 2014, Walmart and Sam's Club discriminated against associates with same-sex spouses by failing to provide their same-sex spouses with the same spousal health insurance benefits provided to opposite-sex spouses. As of January 1, 2014, Walmart began making available the same health insurance benefits to same-sex spouses of its associates that it offers to opposite sex-spouses.
• The court has not decided that Walmart did anything wrong. But your legal rights may be affected, and you have a choice to make now.

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Submit a Claim Form to receive a payment
Do Nothing.

If you are a Class Member and would like to receive a payment from the settlement, you must submit a either a Short Form Claim or a Long Form Claim no later than [60 days after notice mailing]. If you file a Long Form Claim, you have an additional 30 days to submit documentation to support your Long Claim Form and must provide that documentation by [90 days after notice mailing]. You will give up any right to sue Walmart separately about the claims covered by the
settlement. By doing nothing, you will not receive a payment from the settlement, but you will still give up any right to pursue claims against Walmart separately about the claims covered by the Settlement.

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 55 of 69

Exclude Yourself. Object.

You can exclude yourself, or "opt out" from this lawsuit and the proposed Settlement. This means you will not participate in the Settlement and will keep any rights you may have to pursue claims against Walmart separately. Any claims you may have are subject to the applicable statute of limitations, so you should consult an attorney about them promptly if you choose to opt out.
If you are not satisfied with the terms of the proposed Settlement, then you may inform the Court about your views by filing a written objection with the Claims Administrator and/or the Court in accordance with the procedures set forth in this Notice. You may also appear in Court to explain why you do not like the proposed Settlement. Unless you opt out, you may object to the proposed Settlement. You are allowed to file a Long Form Claim or a Short Form Claim and object to the proposed Settlement. You cannot both opt out and object to the proposed Settlement.

• These rights and options - and the deadlines to exercise them- are explained in this Notice.

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 56 of 69

Contents

Page

BASIC INFORMATION .................................................................................................1

1. Why Did I Get This Notice? ................................................................................. 1

2. What Is This Lawsuit About?..............................................................................1

3. What Is a Class Action? .......................................................................................1

4. Who is in the Settlement Class in this Class Action? ........................................2

5. Why Is There a Settlement?.................................................................................2

6. How Do I Know If I Am Part of the Settlement?...............................................2

THE PROPOSED SETTLEMENT- ESSENTIAL TERMS .......................................3

7. What are the Terms of the Proposed Settlement? .............................................3

8. What Steps Will Walmart Take to Ensure that the Same-Sex Spouses of Associates With Receive Health Insurance Benefits in the Future? ............3

9. How Can I Receive Compensation Under the Settlement and How Much Compensation Can I Receive? ..................................................................3

10. Can I challenge determinations as to my employment at Walmart and/or eligibility to have received spousal Health Insurance Benefits from Walmart but for the limitation on providing Health Insurance Benefits to legal same sex spouses? ....................................................................6

11. What Claims Are Released by the Settlement? .................................................6

THE LAWYERS REPRESENTING YOU AND THE CLASS ...................................6

12. Do I Have a Lawyer in this Case? .......................................................................6

13. How Will The Lawyers Be Paid? ........................................................................7

NAMED PLAINTIFF.......................................................................................................8

14. What May the Named Plaintiff Receive Under the Settlement? ......................8

HOW TO PROCEED .......................................................................................................8

15. What Are My Options? ........................................................................................8

16. How Do I Remain in the Settlement Class?........................................................8

15. Who Should Opt Out of the Class? .....................................................................9

16. How Do I Opt Out of the Class? ..........................................................................9

17. How Do I Tell the Court That I Don't Like the Settlement? ............................9

THE COURT'S FAIRNESS HEARING ......................................................................10

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Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 57 of 69
18. When and Where Will the Court Decide Whether to Approve the Settlement? ................................................................................................................ 10
19. Do I Have To Come To The Fairness Hearing?............................................... ll 20. May I Speak at the Hearing? ............................................................................. 11 GETTING MORE INFORMATION ...........................................................................11 21. Where Can I Get More Information? ...............................................................11

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 58 of 69

BASIC INFORMATION

If you worked for Walmart between January 1, 2011 and December 31, 2013, were legally married to a same-sex spouse during that same period, and would have been eligible for spousal Health Insurance Benefits from Walmart or Sam's Club but for the limitation on providing spousal Health Insurance Benefits to same-sex spouses during that time period, you are a member of the Settlement Class in this lawsuit, which is known as Cote v. Wal-Mart Stores, Inc., Case No. 15-cv-12945-WGY (D. Mass.).

The purpose of this Notice is to inform you about (a) this litigation, (b) the certification of a Settlement Class, (c) the terms of the proposed Settlement, and (d) your rights in connection with the proposed Settlement and a hearing to be held before the Court on [DATE] to consider the fairness, reasonableness, and adequacy of the proposed Settlement and related matters. This Notice also describes the steps necessary to submit a Claim Form to be eligible to receive a payment from the proposed Settlement should the Court approve the proposed Settlement, as well as those steps that must be taken by any Settlement Class Members who wish to be excluded from the Settlement Class.

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This lawsuit claims that Walmart discriminated against associates with same-sex spouses based on sex by failing to provide spousal health insurance benefits to the same-sex spouses of associates before January 1, 2014. The Named P1aintiffis seeking damages for herself and other Settlement Class Members who were denied the opportunity to enroll their same-sex spouses in a Walmart sponsored health insurance plan from January 1, 2011 to December 31, 2013 ("the Settlement Class Period"). The Court has not decided the merits of the case. Walmart denies that it did anything wrong and no court has found that Walmart did anything wrong or violated any federal or state law.

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In a class action, one or more people called Named Plaintiffs bring a lawsuit on behalf of people who the court finds have similar claims. These people, considered members of the same Class, are called Class Members. In a class action, one court resolves the case for all Class Members, except for those individuals who exclude themselves from the Class.

Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1 000
walmartLGBTcase@outtengolden.com [-1-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 59 of 69
On [date], the court overseeing this lawsuit certified for settlement purposes a Settlement Class of current and former Walmart and Sam's Club associates who: (1) worked at Walmart or Sam's Club in the 50 United States, the District of Columbia or Puerto Rico between January 1, 2011 and December 31, 2013; (2) were legally married to a same-sex spouse during that same period; and (3) would have been eligible for spousal Health Insurance Benefits from Walmart or Sam's Club but for the limitation on providing spousal Health Insurance Benefits to same-sex spouses during that same period. To be a Settlement Class Member, there is no requirement that you tried to enroll your same-sex spouse in a Walmart sponsored health insurance plan before January 1, 2014. There is also no requirement that you worked in a state that recognized your same-sex marriage before January 1, 20 14-it is sufficient that the state or jurisdiction in which you were married performed or recognized marriages between same-sex couples prior to January 1, 2014.
The Court did not decide in favor of Plaintiff or in favor of Walmart. Instead, both sides agreed to the proposed Settlement to avoid a court trial and to provide compensation to the Settlement Class Members. The Named Plaintiff and the attorneys appointed to represent the Settlement Class believe that the proposed Settlement is in the best interests of the Settlement Class Members and is fair, reasonable, and adequate.
If you are a member of the Settlement Class described in Section 4, above, you are part of the proposed Settlement. If you did not receive a copy of this Notice directly, you may still qualify as a Class Member if you meet the Class definition, and you may still file a Claim Form like other potential Class Members. If you aren't sure about your status, then you can contact the Claims Administrator at the address identified in Section 17. You can also contact Class Counsel, whose contact information is listed below.
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-2-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 60 of 69
THE PROPOSED SETTLEMENT- ESSENTIAL TERMS
The proposed Settlement requires Walmart to pay $7.5 million to compensate Settlement Class Members, as well as to pay the attorneys' fees and expenses of Class Counsel, a service award to the Named Plaintiff, and the cost of having the Claims Administrator provide notice to the Class Members and undertake other duties to administer the Settlement. In addition, under the proposed Settlement Walmart will commit to continuing to treat same-sex and opposite-sex spouses or couples equally in the provision of health insurance benefits so long as to do so is consistent with applicable law. As of January 1, 2014, Walmart began making available the same health insurance benefits to same-sex spouses of its associates that it offered to opposite sex-spouses.
PROGRAMMATIC RELIEF
Since January 1, 2014, Walmart has offered the same spousal health insurance benefits to associates in the 50 United States, the District of Columbia, and Puerto Rico with same-sex spouses as it does to associates in the 50 United States, the District of Columbia, and Puerto Rico with opposite-sex spouses. Under the proposed Settlement, Walmart commits to continuing to treat same-sex and opposite-sex spouses equally in the provision of health insurance benefits, so long as to do so is consistent with applicable law. Provided, however, that nothing in the proposed Settlement prevents Walmart from changing the terms of its health insurance benefits so long as such benefits are provided to same-sex and opposite spouses on the same terms.
COMPENSATION FOR CLASS MEMBERS
To receive compensation under the proposed Settlement, you must file a Claim Form no later than [60 days from notice mailing]. You must file either:
(A) a Long Form Claim to establish or demonstrate (i) out-of-pocket health care costs that your same-sex spouse incurred during the Class Period when your spouse did not have health insurance, and/or (ii) the cost of purchasing a health insurance policy for your same-sex spouse during the Class Period; or
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-3-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 61 of 69
(B) a Short Form Claim, through which you will receive a proportionate share of the Settlement Fund (based on the number of months you would have been eligible for spousal health insurance benefits during the Class Period) based on the amounts remaining after determination of the payments to be made to Settlement Class Members who file Long Form Claims and the amounts to be paid for attorneys' fees and costs, a service award for the Named Plaintiff, and the costs of administering the Settlement.
You must choose whether to file a Long Form Claim or a Short Form Claim, and may not file both types of Claims. In order for your Long Form Claim to be approved, you will have to provide information and documents to demonstrate the out-of-pocket costs your same-sex spouse incurred or the cost of purchasing a health insurance policy for your same-sex spouse. If, however, the payment you would be entitled to receive for an approved Long Form Claim would be less than the payment for filing a Short Form Claim, your Long Form Claim will be automatically converted into a Short Form Claim. The Class Members who file Long Form Claims may not collectively receive more than $3.5 million of the $7.5 million Settlement Fund. This cap on the Long Form Claim payments will ensure that Class Members who file Short Form Claims will receive meaningful monetary relief under the proposed Settlement.
Long Form Claims:
If you file a Long Form Claim, you must file the Long Form Claim by [60 days from the notice mailing] but you may provide any documentation to support your Long Form Claim by [90 days from the notice mailing].
The Parties have agreed to allocate up to $3.5 million of the Class Settlement Amount to payment of Long Form Claims. If you file a Long Form Claim, you will be eligible to receive a payment that is 1.0 times the amount of (i) the out-of-pocket health care costs that your same-sex spouse incurred during the class period when she or he did not have health insurance, and/or (ii) the cost of purchasing a health insurance policy for your same-sex spouse during the class period. If the total amount of approved Long Form Claims exceeds $3.5 million, the amount of each payment to Settlement Class Members who submitted approved Long Form Claims will be reduced proportional to their requested share of the overall eligible costs of approved Long Form Claims. You cannot receive payments for out-of-pocket health care costs and the cost of purchasing a health insurance policy in the same month during the Class Period, but you may receive payments for these different types of costs in different months during the Class Period. If the out-of-pocket health care costs that you identify are $60,000 or greater during the Class Period when your spouse did not have health insurance, you will be eligible to receive a payment that is 2.5 times the amount of the out-of-pocket costs that you identify through your Long Form Claim and supporting documentation.
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [ -4-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 62 of 69
If you file a Long Form Claim and identify out-of-pocket health care costs, you must (1) demonstrate to the Claims Administrator that your same-sex spouse was charged out-of-pocket health care costs during the Class Period when she or he did not have health insurance, including by submitting documents, declaration(s) from you and/or another person with knowledge of those charges, or statements about the charges; and (2) affirm that the out-of-pocket health care costs you have identified were not forgiven by the medical provider.
If you file a Long Form Claim and identify the cost of purchasing a health insurance policy for your same-sex spouse, you must demonstrate to the Claims Administrator that you or your samesex spouse actually paid for the cost of purchasing a health insurance policy for your same-sex spouse, including by submitting documents, declarations or statements about such payments.
For all Long Form Claims, you must also identify basic information about yourself that will establish your membership in the Class. That basic information includes: (1) your dates and locations of employment at Walmart or Sam's Club during the Settlement Class Period; and (2) the dates that you were legally married to a same-sex spouse during the Class Period.
Short Form Claims:
If you file a Short Form Claim, you must file the Short Form Claim by [60 days from the notice mailing].
If you file a Short Form Claim, you will receive a pro rata share of the Settlement Funds (based on the number of months you would have been eligible for spousal health insurance benefits) remaining after payments are made to Class Members who file Long Form Claims, as well as payments for attorneys' fees and costs, a service award for the Named Plaintiff, and the costs of administering the Settlement. The maximum payment that you can receive by submitting a Short Form Claim is $5,000 per year of the Settlement Class Period or $15,000 overall for the threeyear Class Period.
If you file a Short Form Claim, you do not need to provide any documents, declarations, or statements about out-of-pocket health care costs or the costs of purchasing a health insurance policy for your same-sex spouse. Instead, in the Short Form Claim you will identify basic information about yourself that will establish your membership in the Class and that will entitle you to receive a pro rata share of a portion of the Settlement Funds. That basic information includes: (1) your dates and locations of employment at Walmart or Sam's Club during the Settlement Class Period; and (2) the dates that you were legally married to a same-sex spouse during the Class Period.
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [ -5-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 63 of 69
Yes. If you disagree with the determination as to your employment dates or eligibility to have received spousal Health Insurance Benefits from Walmart during the Settlement Class Period. you can challenge that determination by writing to the Claims Administrator and describing how the determination is inaccurate and what the correct information is. If you have documents to support your challenge, you should provide the Claims Administrator with copies of those documents to support your challenge. If the Claims Administrator or Walmart disagrees with your challenge, a neutral third party agreed upon by the parties will review and decide your challenge. Any challenge that you file must be submitted to the Claims Administrator no later than [90 days after Notice date or XX days after the information is provided to you by the Claims Administrator]. The neutral's decision to reject in whole or in part your challenge to Walmart's personnel information shall be final and not subject to appeal or any other review.
RELEASE
If the Court grants final approval of the Settlement, then all Settlement Class Members who do not opt out of the settlement, as well as each of their legally married same-sex spouses, will give up (or "release") their right to sue Walmart regarding its failure to provide health insurance benefits to same-sex spouses of associates prior to January 1, 2014. This release includes, but is not limited to, claims for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and the Massachusetts Fair Employment Practices Law, Mass. Gen. Laws ch. 151B § 4. Settlement Class Members and their legally married same-sex spouses give up these rights whether or not they choose to file a Claim. Unless you opt out of the lawsuit, you and your same-sex spouse will be covered by the Release, even if you do not submit a Long Form Claim or a Short Form Claim. The full details of the Release are contained in the Settlement Agreement between the parties.
THE LAWYERS REPRESENTING YOU AND THE CLASS
The Court has appointed the law firms ofGLBTQ Legal Advocates & Defenders (GLAD), Outten & Golden LLP, the Washington Lawyers' Committee for Civil Rights & Urban Affairs, and Arnold & Porter LLP to represent you and the other Class Members. Together, the lawyers are called Class Counsel. Unless you elect to exclude yourself from the Settlement, you will
Questions? Contact Peter Ramer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1 000
walmartLGBT case@outtengolden.com [-6-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 64 of 69

continue to be represented by Class Counsel in connection with the implementation of the Settlement throughout the duration of the terms of the Settlement at no cost to you. Although it is not necessary, you may, if you wish to do so, retain your own attorney at your own expense.

You may find out more information about Class Counsel by visiting their websites: http://www. glad.org/ http://www.outtengolden.com/ http://www. washlaw.org.com/ http://www.amoldporter.com/en/

If you have questions about the proposed Settlement you can get free legal help by contacting Class Counsel:

Peter Romer-Friedman Juno Turner Outten & Golden LLP 685 Third Avenue, 25th Floor New York, NY 10017 (XXX)XXX-XXXX walmartLGBTcase@outtengolden.com

GaryBuseck Allison Wright GLBTQ Legal Advocates &Defenders 30 Winter Street, STE 800 Boston, MA 02108 (617) 426-1350

Class Counsel will ask the Court for an award of attorneys' fees and costs, to be paid from the $7.5 million Class Settlement Amount. Class Counsel will request that the Court approve attorneys' fees that will be no greater than 25% of the Class Settlement Amount. The fees will pay Class Counsel for investigating the facts, litigating the case, and negotiating and implementing the settlement. Class Counsel will also ask the Court to approve the reimbursement of their out-of-pocket costs. The Court may award less than these requested amounts to Class Counsel. The Court will examine the request of Class Counsel at the Fairness
Hearing, as well as any objections to that request, and determine the amount of fees to award.

Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-7-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 65 of 69

NAMED PLAINTIFF

The Named Plaintiff may receive a payment like any other Settlement Class Member by filing a Long Form Claim or a Short Form Claim. In addition, Class Counsel will ask the Court to award a service payment of $25,000 to be paid from the Class Settlement Amount to the Named Plaintiff. The proposed Service Award would recognize the service the Named Plaintiff provided here, including her participation in the prosecution and settlement of this case.
HOW TO PROCEED

After reviewing the terms of the proposed Settlement set forth in this Notice, you have three options. You must decide at this stage whether you want to: (1) remain a Settlement Class Member and retain an opportunity to participate in the Settlement by filing a Long Form Claim or a Short Form Claim; (2) opt-out and exclude yourself from participating in the settlement; or (3)
object to the proposed Settlement.

REMAIN A SETTLEMENT CLASS MEMBER

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If you do not request to be excluded, you will remain a part of the Settlement Class. The Court will hold the Final Approval Hearing (called a Fairness Hearing) and you, as a Settlement Class Member, will be represented by Class Counsel at no cost to you. To be eligible to receive a payment under the Settlement, you must complete a Long Form Claim or a Short Form Claim attached to this Notice and return it to the Claims Administrator postmarked or filed on-line by no
later than [DATE] [60 days after the mailing of the Notice].

Whether or not you submit a Claim Form, unless you opt out, all Released Claims (described above and defined in the Settlement) that you may have will be barred by this Settlement. Unless
you opt out, you remain eligible to object, whether or not you submit a Claim Form.

OPTING OUT OF THE SETTLEMENT

Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-8-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 66 of 69

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If (1) you want to keep the right to sue or continue to sue Walmart regarding the non-provision of health insurance benefits to same-sex spouses of associates prior to January 1, 2014, or (2) you do not want to be bound by the Settlement of this lawsuit, then you should take steps to exclude yourself from the Settlement. This is called "opting out" of the Settlement. Walmart will retain the right to assert any and all defenses to the claims of persons who opt out of this Settlement.

To opt out of the Settlement, you must mail a written, signed statement that you are opting out of the Settlement to the Claims Administrator at the address below:

To be effective, the opt-out statement must (1) contain the words "I wish to be excluded from the Settlement Class in the Walmart LGBT Health Benefits Settlement"; (2) contain the your name, address, location at which you worked at Walmart, the period of time in which you worked at Walmart, the date of your legal marriage to a same-sex spouse, and the last four digits of your social security number, and (3) be signed and dated. To be effective, this opt-out statement must be mailed via First Class United States Mail, postage prepaid, to the Claims Administrator, and must be postmarked on or before [DATE] [60 days after the mailing of the Notice].
Please note that if you submit a timely and valid request for exclusion you will have no right to object to the Settlement in Court and will no longer be represented by Class Counsel.
OBJECTING TO THE SETTLEMENT
The Court must assess the overall fairness and reasonableness of the Settlement to the Class. If you are a Class Member, then you can object to the Settlement if you don't like any part of it, and the Court will consider your views. However, to speak at the hearing or have your objection to the Settlement considered by the Court, you must submit a written objection to the Settlement prior to the Final Approval Hearing that includes a detailed description of the basis of the objection. To be considered, the objection statement must be postmarked or otherwise
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBT case@outtengolden.com [ -9-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 67 of 69
submitted to the Claims Administrator and/or to the Court, with copies to counsel for the parties on or before [DATE] [60 days after the mailing of Notice]. The written objection document must include all reasons for the objection and any reasons not included in the written objection will not be considered. The written objection must also include your name, street address, email address, and telephone number(s) and also must (1) contain the words "I object to the Walmart LGBT Health Benefits Settlement," (2) include the date of marriage to a same-sex spouse, the period of time in which you worked at Walmart, at what location(s) you worked at Walmart, and the last four digits of your Social Security Number, and (4) be signed and dated. If you wish to appear at the Fairness Hearing, your objection must contain the words "I intend to speak at the Fairness Hearing." If you submit an Opt-Out Statement, you may not also submit objections to the Settlement. The address of the Claims Administrator is:
ADD IN OTHER ADDRESS INFORMATION FOR CLASS COUNSEL AND FOR DEFENDANT'S COUNSEL HERE.
THE COURT'S FAIRNESS HEARING
The Court will hold a Final Approval Hearing (called a Fairness Hearing) at_ _ a.m./p.m. on [DATE], in the courtroom of the Honorable William Young in John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210. At this hearing, the Court will determine whether the proposed Settlement is fair, reasonable, and adequate. If there are any objections, then the Court will consider them. The Court will also consider whether the motion of Class Counsel for an award of attorneys' fees and costs should be approved, and whether, in accordance with the Settlement, a final order and judgment should be entered bringing the litigation to a conclusion.
Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLG BTcase@outtengolden.com [-10-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 68 of 69

1 • o I a:ve o Come To The Fairness Hearing?
No. Class Counsel and Walmart's counsel will answer questions that the Judge may have. If you send an objection, then you don't have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it.

You may speak at the Fairness Hearing only if you have filed an objection, as outlined in Section 17, and if your objection includes the words "I intend to appear at the Fairness Hearing." You may appear either in person or through a lawyer hired at your own expense. You may withdraw your objections at any time. You may not present an objection at the Fairness Hearing based on a reason not stated in your written objections.
GETTING MORE INFORMATION

This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement.

You can get a copy of the Settlement Agreement by visiting the case web site,

www.

.com, or contacting the Claims Administrator. If you have further

questions or are still not sure whether you are included, you can get free help at

www.

.com, by calling the Claims Administrator at L_) _-__, or by

calling or writing to Class Counsel in this case at the contact numbers/address listed in Section

17.

Again, the important deadlines are:

Last Day To Submit A Long Form Claim or a Short Form Claim: [DATE] [60 days after mailing Notice.]

Last Day To Submit Documentation to Support a Long Form Claim: [DATE] [90 days after mailing Notice.]

Last Day To "Opt-Out" Of The Settlement Class: DATE [60 days after mailing Notice.]

Last Day To Object To The Settlement: DATE [60 days after mailing Notice.]

Final Approval Hearing: [DATE].

Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-11-]

Case 1:15-cv-12945-WGY Document 54-1 Filed 12/02/16 Page 69 of 69

PLEASE DO NOT CALL OR CONTACT THE COURT, THE OFFICE OF THE CLERK OF COURT, OR DEFENDANT WITH QUESTIONS REGARDING THIS NOTICE.

Dated: _ __ __;} 2016

The Honorable William Young United States District Judge

Questions? Contact Peter Romer-Friedman or Juno Turner
Outten & Golden LLP 685 Third Avenue, 25th Floor
New York, NY 10017 (212) 245-1000
walmartLGBTcase@outtengolden.com [-12-]

 
 Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JACQUELINE A. COTE, on behalf of herself and others similarly situated,
Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 15 Civ. 12945 (WGY)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 2 of 26
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2 SUMMARY OF THE SETTLEMENT TERMS ............................................................................ 6 ARGUMENT ................................................................................................................................ 10 I. The Court Should Grant Preliminary Approval of the Settlement ................................... 10
A. The Parties Engaged in Arm’s Length Negotiations. ................................................ 13 B. The Parties Exchanged Sufficient Discovery to Recommend Settlement.............. 13 C. The Proponents of the Settlement Are Experienced in Similar Litigation ............. 14 D. There Are No Objections to the Settlement...........................................................15 II. The Court Should Approve the Proposed Class Settlement Notice and Plan for Providing Notice to the Class...................................................................................... 15 III. The Court Should Appoint KCC as the Claims Administrator ........................................ 19 IV. The Court Should Approve the Establishment of a Qualified Settlement Fund............... 19 V. The Court Should Establish Dates for the Fairness Hearing and Other Dates ................. 20 CONCLUSION............................................................................................................................. 20
ii

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 3 of 26

TABLE OF AUTHORITIES

CASES

PAGE(S)

Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015) ...............................11, 12

Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ......................................................................................12

The Civil Rights Educ. & Enforcement Ctr. v. RLJ Lodging Trust, No. 15 Civ. 0224, 2016 WL 314400 (N.D. Cal. Jan. 25, 2016) ..............................................17

In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197 (D. Me. 2003) .................................................................................................16

Durrett v. Hous. Auth. of City of Providence, 896 F.2d 600 (1st Cir. 1990) ....................................................................................................10

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ....................................................................................................2

Hall v. BNSF Ry. Co., No. 13 Civ. 2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ......................................12

Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) ........................................................................................12

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) ....................................................................................................12

Hill v. State St. Corp., No. 09 Civ. 12146, 2015 WL 127728 (D. Mass. Jan. 8, 2015) ...............................................16

Hively v. Ivy Tech Cmty. Coll., South Bend, 830 F.3d 698 (7th Cir. 2016) ...................................................................................................12

Hochstadt v. Bos. Sci. Corp., 708 F. Supp. 2d 95 (D. Mass. 2010) ................................................................................ passim

Kiefer v. Moran Foods, LLC, No. 12 Civ. 756, 2014 WL 3882504 (D. Conn. Aug. 5, 2014)................................................12

In re Levenson, 587 F.3d 925 (9th Cir. 2009) ...................................................................................................12

In re Lupron Mktg. & Sales Practices Litig., 345 F. Supp. 2d 135 (D. Mass. 2004) ................................................................................11, 14

iii

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 4 of 26
In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21 (1st Cir. 2012) ......................................................................................................10
In re M3 Power Razor Sys. Mktg. & Sales Practice Litig., 270 F.R.D. 45 (D. Mass. 2010)....................................................................................10, 11, 15
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998)...................................................................................................................12
In re Puerto Rican Cabotage Antitrust Litig., 269 F.R.D. 125 (D.P.R. 2010) .................................................................................................11
In re Relafen Antitrust Litig., 231 F.R.D. 52 (D. Mass. 2005)................................................................................................10
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004).....................................................................................................10
OTHER AUTHORITIES Fed. R. Civ. P. 23 ................................................................................................................... passim Treasury Regulation § 1.468B-1, 26 C.F.R. § 1.468B-1 .........................................................19, 20 Manual for Complex Litigation, § 21.661 (4th ed. 2004)..............................................................19 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 11.41 ................................................10
iv

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 5 of 26

INTRODUCTION Plaintiff Jacqueline Cote (“Plaintiff” or “Cote”) respectfully submits this Memorandum in Support of her Motion for Preliminary Approval and Approval of the Proposed Notice of Settlement (“Preliminary Approval Motion”). Walmart does not oppose the Court granting preliminary approval of the proposed Settlement or the proposed Notice of Settlement. In this putative class action filed in July 2015, Cote challenges the policy of Defendant Wal-Mart Stores, Inc. (“Defendant” or “Walmart”) of not offering health insurance benefits to the same-sex spouses of employees prior to January 1, 2014. See ECF No. 1 (Compl.) ¶¶ 1-3. On December 2, 2016, Cote and Walmart entered into a Settlement Agreement (“Settlement”) under which Walmart will pay $7.5 million to cover the claims by Settlement Class Members for the time period of January 1, 2011 to December 31, 2013 (“the Settlement Class Period”), as well as to make payments for attorneys’ fees and costs, a service award to the proposed Settlement Class Representative, and the cost of having the proposed Claims Administrator, KCC Class Action Services, LLC (“KCC”), provide notice to Settlement Class Members and undertake other duties to administer the Settlement. See Declaration of Peter Romer-Friedman in Support of Plaintiff’s Motion for Preliminary Approval and Approval of the Proposed Notice of Settlement and Plaintiff’s Motion for Certification of a Settlement Class1 (“Romer-Friedman Decl.”), Ex. 1 (Settlement Agreement) §§ 5.1-5.6.2 To obtain Court approval of the Settlement Agreement, Cote is taking this necessary, first step of requesting that the Court grant preliminary approval of the Settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure; authorize notice to be provided to the proposed

1

In a separate motion filed concurrently, Plaintiff asks the Court to certify a proposed

Settlement Class for the purpose of settlement.

2

Unless otherwise noted, all exhibits are to the Declaration of Peter Romer-Friedman.

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 6 of 26

Settlement Class Members under Rule 23(c) and (e) so that they can understand their rights under the Settlement and as Settlement Class Members, submit their claims to receive payments, and, if they so choose, comment on the Settlement or opt out of it; appoint a claims administrator to oversee administration of the Settlement; and approve the establishment of a Qualified Settlement Fund to facilitate the transfer of the settlement funds from Walmart, as required by the Settlement Agreement. The parties believe the Settlement is fair, reasonable, and adequate, and estimate as many as several thousand Settlement Class Members may be eligible to submit a claim for payment under the Settlement.
FACTUAL AND PROCEDURAL BACKGROUND Before January 1, 2014, although Walmart offered health insurance benefits to the opposite-sex spouses of its employees, Walmart has an official, nationwide policy of not offering the same health insurance benefits to the same-sex spouses of its employees (“Walmart’s Prior Policy”). ECF No. 16 (Answer) ¶ 37. 3 Jacqueline Cote began working for Walmart in 1999. ECF No. 1 ¶ 16. In 2004, Cote married Diana Smithson shortly after marriage for same-sex couples became legal in Massachusetts. Id. ¶ 23; see Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Smithson also worked at Walmart from 1999 until 2008, when she left her job to be the primary caregiver of Cote’s ailing mother. ECF No. 1 ¶ 27. In 2008, Cote tried to enroll Smithson in Walmart’s health insurance plan. Id. ¶ 31. Although Cote was qualified to receive spousal health benefits, her wife was denied benefits because at that time Walmart limited spousal coverage to the opposite-sex spouses of its employees. Id. ¶¶ 31-33.

3

As confirmed in discovery, in 2011, 2012, and 2013, Walmart’s health insurance plan

documents stated that “Eligible dependents are limited to . . . Your legal spouse of the opposite

gender,” thereby excluding same-sex spouses from receiving health insurance benefits from

Walmart; but in 2014 and thereafter, Walmart’s health insurance plan documents have stated that

a “spouse” may receive health insurance coverage without any language limiting eligibility to a

legal spouse of the opposite gender. Romer-Friedman Decl. ¶ 26.

2

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 7 of 26
In 2012, Smithson lost her health insurance coverage from Mid-West Life Insurance Company of Tennessee and was unable to obtain other health insurance. ECF No. 1 ¶¶ 28, 36. In 2012 – while still lacking health insurance – Smithson was diagnosed with ovarian cancer and thereafter received a range of medical care to treat her cancer, side effects from chemotherapy, and other related health complications. Id. ¶¶ 34-36. Smithson and Cote ultimately incurred more than $150,000 of uninsured medical expenses to treat Smithson’s cancer in 2012 and 2013. Id. ¶ 46; Ex. 2 (Pl.’s Resp. to Def.’s First Set of Interrogs.), Nos. 11 & 14.
On January 1, 2014, Walmart changed its policy and began providing same-sex spouses of employees the same health insurance benefits that Walmart provided to opposite-sex spouses of employees. See ECF No. 16 ¶ 37; Romer-Friedman Decl. ¶ 26. On September 19, 2014, Cote filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on behalf of herself and similarly situated Walmart employees who were married to same-sex spouses and were denied health benefits. ECF No. 1, Ex. 1. On January 29, 2015, the EEOC issued a determination on the merits of the charge that was favorable to Cote, id., Ex. 2, and on May 5, 2015, Cote received a right to sue letter from the EEOC. Id., Ex. 3.
On July 14, 2015, Cote filed this putative class action alleging that Walmart violated Title VII of the Civil Rights Act, the Equal Pay Act, and the Massachusetts Fair Employment Practices Law because Walmart did not offer health insurance benefits to the same-sex spouses of employees prior to January 1, 2014. Id. ¶¶ 1-3, 74-92. The Complaint alleged that Walmart violated these federal and state laws because Walmart’s Prior Policy constituted a sex-based classification, sex-based stereotyping, and sex-based associational discrimination. Id. ¶¶ 2, 4143, 63, 76-78, 88-90. The Complaint stated that Plaintiff would seek to represent a nationwide class of current and former Walmart employees who had lawful marriages to persons of the same
3

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 8 of 26
sex before 2014 but did not receive spousal health insurance benefits under Walmart’s Prior Policy. Id. ¶ 54. Plaintiff sought damages for herself and other Class Members. Id. at 21-22.
On September 14, 2015, Walmart filed its Answer to the Complaint. See ECF No. 16. In its Answer, Walmart acknowledged that “prior to January 1, 2014, other than in some states where coverage may have been available through HMOs, Walmart did not provide same-sex spousal health insurance benefits to its U.S. associates.” Id. ¶ 37. Walmart denied it was liable under federal or state law, id. ¶¶ 74-92, and raised a host of affirmative defenses, including failure to state a claim, preemption, statute of limitations, laches, waiver, release, estoppel, failure to exhaust administrative remedies, good faith actions, the lack of willfulness, lack of standing, the inability to certify a class, and due process, among others. Id. at 14-17.
On November 5, 2015, the Court approved the Parties’ Amended Joint Statement Pursuant to Federal Rule of Civil Procedure 26(f) and Local Rule 16.1. ECF No. 24 (Order dated Nov. 5, 2015). Discovery commenced on November 1, 2015, and the trial was scheduled for November 2016. On October 28, 2015, the parties exchanged their initial disclosures. Romer-Friedman Decl. ¶ 23. In November 2015, the parties served written discovery on each other, including interrogatories, document requests, and requests for admission, id. ¶ 24, and in January 2016 the parties responded to those discovery requests. Id. ¶ 25.
In responding to Plaintiff’s discovery requests, Walmart produced thousands of pages of documents about its health insurance plan from 2011 through 2016; hundreds of pages of personnel records regarding Cote; documents and information about prior charges that had been filed concerning the challenged policy; and personnel information on approximately 1,200 Walmart employees who enrolled their same-sex spouses in a Walmart medical, dental, or vision plan on or after January 1, 2014, the date that Walmart began providing spousal health insurance
4

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 9 of 26
to employees’ same-sex spouses (“1,200 potential Class Members”). Id. ¶ 26; see also ECF No. 36-1 (Memorandum in Support of Pl.’s Unopposed Mot. for an Order Approving Notice of Request to Authorize Disclosure of Contact Information at 3-6 (“Notice Motion”)). Walmart later supplemented its production, including by producing information on certain costs related to providing health insurance benefits to the spouses of Walmart associates. Romer-Friedman Decl. ¶ 27.
In January 2016, to resolve a discovery dispute over the production of Class Members’ contact and personnel information and whether that information was protected by the Health Insurance Portability and Accountability Act, the parties agreed on a process to notify the 1,200 potential Class Members about the lawsuit and to obtain their consent to provide their contact information to Plaintiff’s Counsel, and Plaintiff filed a motion to have the Court approve Notice that would be sent to the 1,200 potential Class Members. Notice Motion at 5-8.
On January 26, 2016, this Court approved the Notice, ECF No. 40 (Minute Order dated Jan. 26, 2016), and shortly thereafter a notice administrator mailed the notice to those 1,200 individuals. Romer-Friedman Decl. ¶¶ 28-29. More than 80 of the individuals returned consent forms indicating their consent to have information about their health insurance benefits and their contact information disclosed to Plaintiff’s counsel. Id. ¶ 30. In February and March 2016, Plaintiff’s counsel attempted to speak to or otherwise communicate with these individuals. Plaintiff’s counsel connected with most of these individuals to document how they were impacted by Walmart’s Prior Policy and estimate the Class’ potential damages. Id. ¶ 31.
On February 22, 2016, the parties engaged in private mediation with an experienced labor and employment mediator, Mark Irvings, and shortly thereafter the parties sought a stay of all deadlines in the case for six weeks so that they could further explore settlement. ECF No. 44
5

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 10 of 26
(Joint Mot. for Stay). On April 6 and April 28, 2016, the parties engaged in two further full-day mediation sessions with Irvings, and shortly thereafter reached an agreement in principle. Romer-Friedman Decl. ¶ 32. On April 20, 2016, the Court administratively closed this action without entry of judgment, and directed that the case could “be reopened upon motion by any party.” ECF No. 46 (Order dated April 20, 2016). Between May 2016 and November 2016, the parties’ counsel exchanged numerous drafts of the Settlement Agreement; developed a claims process, claim forms, and a proposed Class Notice; and issued a Request for Proposal to five experienced claims administrators to jointly recommend a claims administrator to the Court. Romer-Friedman ¶ 34. On December 2, 2016, the parties executed a Settlement Agreement. Ex. 1. Today, the parties jointly moved to restore the case to the docket to allow the Court to consider and grant preliminary approval to the proposed Settlement.
SUMMARY OF THE SETTLEMENT TERMS The proposed Settlement Agreement provides both monetary and programmatic relief to the Settlement Class Members. With respect to programmatic relief, Walmart has agreed that in the future it will continue to treat same-sex and opposite-sex spouses equally in the provision of health insurance benefits (as it has done since January 1, 2014). Id. § 6.1. With respect to monetary relief, Walmart will pay $7.5 million to cover the claims of Settlement Class Members during the January 1, 2011 to December 31, 2013 Settlement Class Period, as well as to pay attorneys’ fees and costs, a service award to the Class Representative, and the cost of having KCC, the Claims Administrator, provide notice to Settlement Class Members and undertake other Settlement administration duties. Id. §§ 5.1-5.6. The parties have agreed to define the Settlement Class as follows:
6

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 11 of 26
(A) all current and former associates (as that term is used by Walmart to encompass all Walmart employees) who work or worked for Walmart in the 50 United States, the District of Columbia or Puerto Rico (whether at a retail Store, Supercenter, Neighborhood Market, Sam’s Club, Distribution Center, Home Office, dotcom, or any other Walmart facility) during the Settlement Class Period [January 1, 2011 to December 31, 2013], who (B) (i) were legally married to a Legal Same-Sex Spouse during the Settlement Class Period; and (ii) would have been eligible to receive spousal Health Insurance Benefits from Walmart for that Legal Same-Sex Spouse during the Settlement Class Period but for the limitation during the Settlement Class Period on providing spousal Health Insurance Benefits to Legal Same-Sex Spouses; and (iii) did not receive same-sex spousal Health Insurance Benefits from Walmart (such as through an HMO Plan) during some or all of the Settlement Class Period during which they worked at Walmart. Excluded from the Settlement Class are any individuals who previously obtained a judgment regarding or entered into a settlement regarding Walmart’s limitation during the Settlement Class Period on providing spousal Health Insurance Benefits to Legal Same-Sex Spouses.
Id. § 2.34. Settlement Class Members may opt out of the Settlement Class if they so desire. Id.
§ 9.1.
The parties already have identified more than 1,000 potential Settlement Class Members,
and it is possible that there could be hundreds of additional potential Settlement Class Members
who have not yet been identified. Romer-Friedman Decl. ¶¶ 49, 51. Among the approximately
1,200 Walmart workers who enrolled their same-sex spouses in a Walmart health insurance plan
in 2014 or 2015, there are about 1,100 individuals who worked during the 2011-2013 Class
Period and would have been subjected to Walmart’s Prior Policy (if they were married to same-
sex spouses during that period). Id. ¶ 49. As the list of potential Settlement Class Members that
Walmart produced does not include (i) associates who ended their employment before January 1,
2014, or (ii) associates who did not enroll a same-sex spouse in Walmart’s health insurance plan
on or after January 1, 2014, there could be hundreds of Settlement Class Members who identify
themselves through the notice and claims process that are proposed in the Settlement Agreement.
Id. ¶¶ 49, 51.
7

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 12 of 26

Settlement Class Members who wish to remain in the Settlement Class will have two options to receive compensation under the Settlement—filing a Long Form Claim or a Short Form Claim that will be reviewed and adjudicated by the Claims Administrator. Ex. 1 § 5.3.3.
Settlement Class Members may file a Long Form Claim to seek to establish (a) out-ofpocket health care costs their same-sex spouses incurred during the Settlement Class Period when their spouses did not have health insurance (provided the costs would have been covered under the applicable Walmart health plan), and/or (b) the cost of purchasing health insurance policies for their same-sex spouses during the Settlement Class Period. Id. §§ 5.3.3.1, 5.3.3.2. Settlement Class Members who filed approved Long Form Claims will be eligible to receive a Settlement payment that is 1.0 times the qualifying costs they show to the satisfaction of the neutral Claims Administrator, and Settlement Class Members who had catastrophic out-ofpocket health care costs—$60,000 or more in the Class Period—will be eligible to receive a Settlement payment that is 2.5 times their qualifying costs. Id. §§ 5.3.3.1, 5.3.3.2. To file an approved Long Form Claim, documentation of costs must be submitted, such as statements of charges and declarations. Id. § 5.3.3.5.4
Alternatively, Settlement Class Members may choose to file a Short Form Claim and be eligible to receive a pro rata share of the Settlement Funds that are available after deduction of the amounts for approved Long Form Claims, Attorneys’ Fees and Costs, the Service Award to the Settlement Class Representative, and the Notice and Administration Costs. Id. §§ 5.3.3.3, 5.3.3.7. Settlement Class Members who file Short Form Claims will not be required to submit

4

The total amount of Long Form Claims that will be paid under the Settlement will not

exceed $3.5 million—if the aggregate amount of Long Form Claimants’ qualifying out-of-pocket

health care costs and cost of purchasing health insurance policies exceeds $3.5 million, Class

Members who filed Long Form Claims will have their payments reduced on a pro rata basis so

that they collectively receive final payments that are equal to $3.5 million. Id. § 5.3.3.7.

8

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 13 of 26
documentation, but instead will provide basic personal information to confirm their membership in the Class and the months in the Class Period for which they may be eligible to receive a pro rata share. Id. § 5.3.3.3. The pro rata share for each Short Form Claim will be based on the number of months the Settlement Class Member would have been eligible for spousal health insurance benefits for a same-sex spouse during the Class Period but for Walmart’s Prior Policy. Id. The maximum pro rata payment a Class Member can receive for a Short Form Claim is $5,000 per year, or $15,000 for the 36-month Class Period. Id. This $5,000 figure is slightly higher than the average annual amount that Plaintiff contends Walmart spent to provide health insurance benefits to spouses of Walmart associates during the Class Period. Romer-Friedman Decl. ¶¶ 42, 44.
Any successful Long Form Claim that would result in a payment that is less than the pro rata share for Short Form Claims will automatically be converted into a Short Form Claim so that Settlement Class Members are not penalized for attempting to seek a higher payment by filing a Long Form Claim. Ex. 1 § 5.3.3.6. Copies of the Long Form and Short Form Claims are included as an exhibit to the Settlement Agreement. Id., Ex. A.
The Settlement Agreement provides that Class Counsel will receive attorneys’ fees and costs. Id. § 5.4.1. The attorneys’ fees and costs will be subject to approval by the Court, and will be paid from the $7.5 million Class Settlement Amount. Id. Class Counsel’s request for attorneys’ fees will not exceed 25 percent of the $7.5 million Class Settlement Amount. Id. Class Counsel also will request reimbursement of the reasonable expenses they have incurred in this litigation on behalf of the Class. Id. In addition to the relief Plaintiff Cote will receive as a member of the Settlement Class, the Settlement provides that, subject to approval by the Court, Cote will receive a $25,000 Service Payment to compensate her for her service as the sole Class
9

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 14 of 26
representative, and such payment will be made from the Class Settlement Amount. Id. § 5.5.1. Walmart takes no position on the amounts requested for Attorneys’ Fees and Costs or the Service Award, but does not object to a reasonable award by the Court to be paid from the Class Settlement Amount.
ARGUMENT I. The Court Should Grant Preliminary Approval of the Settlement.
The law favors compromise and settlement of class action suits. See Durrett v. Hous. Auth. of City of Providence, 896 F.2d 600, 604 (1st Cir. 1990) (noting “the clear policy in favor of encouraging settlements” (internal quotation marks omitted)); accord In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004) (“[T]here is an overriding public interest in settling class action litigation, and it should therefore be encouraged.”); William B. Rubenstein, Newberg on Class Actions § 11.41 (“The compromise of complex litigation is encouraged by the courts and favored by public policy.”).
When parties have settled a class action, Rule 23(e) requires the Court to approve the settlement “only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). Courts make this finding through a “‘two-stage procedure,’” where “‘[f]irst, the judge reviews the proposal preliminarily to determine whether it is sufficient to warrant public notice and a hearing,’” and second “‘the final decision on approval is made after the hearing.’” Hochstadt v. Bos. Sci. Corp., 708 F. Supp. 2d 95, 106-07 (D. Mass. 2010) (quoting Manual for Complex Litigation (4th ed.) § 13.14 (2004)); accord In re Relafen Antitrust Litig., 231 F.R.D. 52, 57 (D. Mass. 2005) (same); see also In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 25 (1st Cir. 2012) (affirming class settlement where court applied the two stage procedure).
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Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 15 of 26
“At the preliminary approval stage, the Court need not make a final determination regarding the fairness, reasonableness and adequateness of a proposed settlement; rather, the Court need only determine whether it falls within the range of possible approval.” In re Puerto Rican Cabotage Antitrust Litig., 269 F.R.D. 125, 140 (D.P.R. 2010) (collecting cases). As part of this inquiry, courts “examine the proposed settlement for obvious deficiencies before determining whether it is in the range of fair, reasonable, and adequate.” In re M3 Power Razor Sys. Mktg. & Sales Practice Litig., 270 F.R.D. 45, 62 (D. Mass. 2010) (“In re MP3 Litig.”) (citing Manual for Complex Litigation (4th ed.) § 21.632)).
“Courts and commentators . . . have developed a presumption that the settlement is within the range of reasonableness when certain procedural guidelines have been followed.” In re MP3 Litig., 270 F.R.D. at 62-63. Those procedural guidelines are whether “(1) the negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.” In re Lupron Mktg. & Sales Practices Litig., 345 F. Supp. 2d 135, 137 (D. Mass. 2004) (internal quotation marks omitted); accord In re M3 Litig., 270 F.R.D. at 62-63; Hochstadt, 708 F. Supp. 2d at 107. When the Court makes these “four findings . . . preliminary approval is appropriate.” In re Puerto Rican Cabotage Antitrust Litig., 269 F.R.D. at 140.
The proposed Settlement Agreement falls within the range of possible approval. Although the precise amounts Settlement Class Members will recover under the Settlement will be determined by the number and types of claims that are filed, Plaintiff’s counsel estimate that Settlement Class Members filing Long Form Claims will receive payments for a significant portion, and perhaps 100 percent, of the losses they claim to have suffered due to Walmart’s challenged policy, even after attorneys’ fees and costs, the service award, and the costs of notice
11

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 16 of 26

and claims administration are paid. Romer-Friedman Decl. ¶ 45. Plaintiff’s counsel also estimate that Settlement Class Members who file Short Forms will receive payments that represent a significant portion of the alleged value of the benefits they were denied due to Walmart’s Prior Policy. Id.
This substantial recovery is particularly meaningful given that the dispositive legal question in this case—did Walmart engage in unlawful sex discrimination by implementing a policy that constitutes a sex-based classification, sex-based stereotyping, or sex-based associational discrimination—is unsettled.5 Furthermore, as described herein, all four factors that courts look to in order to evaluate the Settlement’s fairness strongly weigh in favor of granting preliminary approval. The negotiations were undertaken at arm’s length by counsel on both sides who are experienced in employment class action litigation, there was robust discovery before the parties negotiated the Settlement, and there are no objections to the Settlement to date.

5

Compare Hively v. Ivy Tech Cmty. Coll., South Bend, 830 F.3d 698, 718 (7th Cir. 2016)

(holding Title VII does not necessarily bar discrimination aimed at an employee’s sexual

orientation, even though the court “undoubtedly does not condone it” and “[t]he agency tasked

with enforcing Title VII does not condone it”), reh’g en banc granted and opinion vacated, No.

15 Civ. 1720, 2016 WL 6768628 (7th Cir. Oct. 11, 2016), with Baldwin v. Foxx, EEOC Appeal

No. 0120133080, 2015 WL 4397641, at *5, 10 (July 16, 2015) (holding that it is a violation of

Title VII to treat gay and lesbian workers differently based on their sex or the sex of their spouse

or partners, as such treatment constitutes a sex-based classification, sex-based stereotyping, and

sex-based associational discrimination); In re Levenson, 587 F.3d 925, 929 (9th Cir. 2009)

(holding the denial of benefits to same-sex spouses of public defender constitutes “sex

discrimination,” and stating that if the plaintiff’s spouse “were female, or if [the plaintiff] himself

were female, [the plaintiff] would be able to add [his male spouse] as a beneficiary”); Hall v.

BNSF Ry. Co., No. 13 Civ. 2160, 2014 WL 4719007, at *2-5 (W.D. Wash. Sept. 22, 2014)

(holding railroad company that denied plaintiff’s same-sex spouse benefits unlawfully

discriminated against plaintiff under Title VII and Equal Pay Act based on sex, as the employer’s

policy relied on a sex-based classification); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D.

Mass. 2002) (holding policies that “enforce heterosexually defined gender norms” can constitute

illegal sex-based stereotyping”). While the First Circuit has not yet decided these issues,

Plaintiff believes it has made clear that lesbian, gay, bisexual, and transgender (“LGBT”)

individuals are not precluded from asserting sex discrimination claims under federal law. See

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (discussing

Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998)).

12

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 17 of 26
A. The Parties Engaged in Arm’s Length Negotiations. Where the parties exchanged “multiple settlement proposals” and engaged in settlement discussions over a number of months, a settlement is “the result of negotiations conducted at arms’ length.” Hochstadt, 708 F. Supp. 2d at 107. In this case, the settlement negotiations spanned nine months, involved multiple proposals, and were facilitated by an experienced labor and employment mediator. Romer-Friedman Decl. ¶¶ 32-35. After obtaining substantial discovery about Walmart’s policies and the putative Class Members, the parties engaged in three day-long mediation sessions on February 22, April 6, and April 28, 2016. Id. ¶¶ 24-32. Prior to, during, and between the three mediation sessions, the parties exchanged detailed written settlement proposals, and in May 2016 they reached an agreement in principle to settle the case. Id. ¶ 33. Each of the day-long mediation sessions was overseen by Mark Irvings, a mediator and arbitrator with decades of experience in the field of labor and employment law. Id. ¶ 32. After the parties reached an agreement in principle, the parties’ lawyers spent six months exchanging drafts of the settlement and developing procedures and forms for a claims process. Id. ¶¶ 34, 36. B. The Parties Exchanged Sufficient Discovery to Recommend Settlement. Here, there was more than sufficient discovery for the parties and their counsel to make sound judgments about how to settle the case on reasonable terms. In this context, there is no “require[ment] that discovery be completed, but rather that sufficient discovery be conducted to make an intelligent judgment about settlement.” Hochstadt, 708 F. Supp. 2d at 107. As described above, before commencing the negotiations Walmart produced information to Plaintiff’s counsel on a range of important subjects, including documents and information about Walmart’s Prior Policy, prior complaints and charges by other employees, personnel information on Plaintiff Cote, and certain health insurance cost information. Walmart also
13

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 18 of 26
produced databases that contain detailed personnel information on nearly 1,200 potential Class Members. Romer-Friedman Decl. ¶¶ 26-27. Also, after nearly 1,200 potential Class Members received Court-authorized notice and more than 80 individuals responded to the Notice, Plaintiff’s counsel communicated with dozens of these and other potential Class Members to understand how they were impacted by Walmart’s Prior Policy and to evaluate the losses they could reasonably claim. Id. ¶¶ 28-31.
In developing Plaintiff’s settlement proposals, Plaintiff’s counsel consulted with labor and health care economists, analyzed studies that shed light on the number of Class Members who may have incurred significant health care costs during the Class Period and the average health care costs of American workers, and analyzed information Walmart produced on potential Class Members and information dozens of potential Class Members provided to Plaintiff’s counsel. Id. ¶ 35. Given the substantial discovery that occurred and the detailed information the parties used to negotiate the Settlement, the parties clearly had “sufficient discovery . . . to make an intelligent judgment about settlement.” Hochstadt, 708 F. Supp. 2d at 107.
C. The Proponents of the Settlement Are Experienced in Similar Litigation. The third factor, that “the proponents of the settlement are experienced in similar litigation,” In re Lupron Mktg. & Sales Practices Litig., 345 F. Supp. 2d at 137, is easily satisfied, as both parties are represented by lawyers who have substantial experience litigating employment class actions and other types of complex litigation. Plaintiff is represented by lawyers who are recognized as national leaders in LGBT rights, Declaration of Gary Buseck ¶¶ 1-7; class action employment lawyers who have been appointed as class counsel and successfully prosecuted numerous class actions, Romer-Friedman Decl. ¶¶ 7-20; Declaration of Matthew
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Handley ¶¶ 3-5; and attorneys who have represented major corporations in complex litigation. Declaration of Peter Grossi ¶¶ 1-6.
Also, Defendant is represented by a number of accomplished litigators at Greenberg Traurig, an international law firm that has significant experience defending employment class actions. See Ex. 3 (Greenberg Traurig Background Information). These highly experienced litigators have endorsed the Settlement and believe that it is a fair, adequate, and reasonable resolution of the instant action. Ex. 1 § 3.4. As such, “[t]here is no doubt that proposing counsel teams have extensive experience in the field,” and that the Settlement should be presumed to be reasonable. Hochstadt, 708 F. Supp. 2d at 108 (internal quotation marks omitted).
D. There Are No Objections to the Settlement. Although Class Members will have an opportunity to comment on and object to the Settlement prior to final approval, currently there are no objections to the Settlement and the sole named Plaintiff strongly supports it. Romer-Friedman Decl. ¶ 46. Thus, “[t]he only practical way to ascertain the overall level of objection to the proposed settlement is for notice to go forward, and to see how many potential class members choose to opt out of the settlement class or object to its terms at the Final Fairness Hearing.” In re M3 Litig., 270 F.R.D. at 63. II. The Court Should Approve the Proposed Class Settlement Notice and Plan for Providing Notice to the Class. Under Rule 23(e), when parties have settled a class action lawsuit “[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P 23(e)(1). In addition, when a court has certified a Rule 23(b)(3) class, “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must “clearly and concisely” inform class members of the following
15

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 20 of 26
information: “(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).” Id.
“To satisfy due process, the notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Hill v. State St. Corp., No. 09 Civ. 12146, 2015 WL 127728, at *14 (D. Mass. Jan. 8, 2015) (quoting In re Prudential Sec. Inc. Ltd. P’Ships Litig., 164 F.R.D. 362, 368 (S.D.N.Y.), aff’d sub nom. In re Prudential Sec. Inc. Ltd. P’ship Litig., 107 F.3d 3 (2d Cir. 1996)). While these Rule 23 and Due Process Clause standards “do not require that actual notice must be received by all class members,” “the method of providing notice must be reasonably calculated to reach interested parties.” Id. (internal quotation marks omitted).
It is well established that “individualized notice by first-class mail ordinarily satisfies the requirement that class members receive the best notice practicable under the circumstances.” In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 218 (D. Me. 2003) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974) (“individual notice must be provided to those class members who are identifiable through reasonable effort,” and “[f]or these class members” whose addresses are “easily ascertainable” “individual notice is clearly the ‘best notice practicable’ within the meaning of Rule 23(c)(2)”), and Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992)); see, e.g., Hill, 2015 WL 127728, at *15 (notice provided was “reasonable” where first-class mail was sent to potential class members, settlement information was published on a web site, and summary notice was published in a newspaper).
16

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Where the parties cannot reasonably identify a portion of the class members—as it is impossible to locate them or would require significant time or expense—it is appropriate to use publication notice to inform unidentified class members of the settlement, and “individual notice is not required.” The Civil Rights Educ. & Enforcement Ctr. v. RLJ Lodging Trust, No. 15 Civ. 0224, 2016 WL 314400, at *12 (N.D. Cal. Jan. 25, 2016) (citing Lucas v. Kmart Corp., 234 F.R.D. 688, 696 (D. Colo. 2006) (citing Sollenbarger v. Mountain States Tel. & Tel. Co., 121 F.R.D. 417, 437 (D.N.M. 1988) (publication notice sufficient to subgroup of class when efforts required for creating list of individuals would be excessive under the circumstances))).
The Notice the parties have proposed contains the information mandated by Rule 23(c) and (e). Ex. 1, Ex. C. In concise and plain language, the proposed Notice describes the nature of this action, how the class is defined, the types of federal and state claims Cote alleged on behalf of the Settlement Class, the Settlement’s monetary and programmatic terms, how Settlement Class Members may file Long and Short Form Claims to obtain payments under the Settlement, how and when Settlement Class Members may opt out, how Settlement Class Members may enter an appearance by an attorney, the claims Settlement Class Members will release, and how Class Members will be bound if they do not opt out. See id.
Furthermore, the process that the parties propose to notify the Settlement Class Members of the Settlement is consistent with the well-established procedures for complying with Rule 23 and the Due Process Clause. Under that process, the approximately 1,100 known potential Settlement Class Members will receive direct notice via first-class mail at their last known addresses on file with the U.S. Postal Service. Ex. 4 (Declaration of Bernella Osterlund (“Osterlund Decl.”)). In addition, the Settlement Class Members whom the parties cannot identify—either by name or by address—will receive publication notice through various
17

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mediums, including: (1) paid advertisements in online and hard-copy publications that focus on LGBT issues or LGBT readers; (2) unpaid, earned media on the Settlement through issuance of press releases at the time of this Motion and when notice is provided to the Settlement Class Members; (3) Facebook advertisements that target members of the LGBT community who have worked for or have an interest in Walmart; (4) distribution through e-mail and social media to members of Walmart’s LGBT affinity group; and (5) a web site on the Settlement that the Claims Administrator will establish. Id., Ex. B. A full description of the proposed publication notice is located in the Osterlund Declaration. See id., Ex. B.
In this case, publication notice is necessary as it would be difficult, if not impossible, to identify the Settlement Class Members whom Walmart has not already identified. During the Settlement Class Period (2011-2013), Walmart did not create or keep records on which of its employees were married to a spouse of the same sex. Romer-Friedman Decl. ¶ 48. Walmart has been able to identify 1,100 potential Class Members who worked during the Class Period because in 2014 and 2015 those individuals worked at Walmart and obtained spousal health insurance coverage in a Walmart health insurance plan for a same-sex spouse. These 1,100 individuals, however, do not include any Settlement Class Member who worked during the Settlement Class Period but did not work in 2014 or 2015, and they do not include any Settlement Class Member who worked at Walmart on or after January 1, 2014 but decided not to enroll his or her same-sex spouse in the Walmart health insurance plan in 2014 or 2015. Id. ¶ 49. Nor does this information identify which of the 1,100 potential Class Members were married to a same-sex spouse for some or all of the Settlement Class Period. Under the Notice Plan proposed by the parties, these potential Class Members who have not been identified will receive notice of
18

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 23 of 26
the Settlement via publication notice, and will have the opportunity to participate in, comment on, or opt out of the Settlement. III. The Court Should Appoint KCC as the Claims Administrator.
Courts “often appoint a claims administrator or special master” to handle the administration of a class action settlement. Manual for Complex Litigation, § 21.661 (4th ed. 2004); see, e.g., Kiefer v. Moran Foods, LLC, No. 12 Civ. 756, 2014 WL 3882504, at *1, *7 (D. Conn. Aug. 5, 2014). In this case, Plaintiff’s counsel sent requests for proposals to five professional settlement administrators that had previously done business with Plaintiff’s counsel or were recommended by counsel who are trusted by Plaintiff’s counsel. Romer-Friedman Decl. ¶ 36. The proposals estimated the total amount of costs that would likely be incurred to provide notice to the Settlement Class, process and adjudicate the Claim Forms of Settlement Class Members who submit Claims, and undertake other duties called for by the Settlement. Id. Based on the proposals and further communications with some of the administrators, Plaintiff’s counsel and Walmart jointly recommend that the Court appoint KCC as the Claims Administrator. KCC is a professional settlement firm with extensive experience administering class action settlements, including in employment class actions. See Osterlund Decl. ¶¶ 2-3. IV. The Court Should Approve the Establishment of a Qualified Settlement Fund.
Under the Settlement, Walmart has agreed to transfer the required portions of the Class Settlement Amount into a Qualified Settlement Fund as described in Treasury Regulation § 1.468B-1, 26 C.F.R. § 1.468B-1, in full settlement and discharge of the Settlement Class Members’ claims against Walmart that are included under the Settlement. Ex. 1 § 12.1. The Parties determined that establishing a Qualified Settlement Fund to receive and hold the settlement funds, and to distribute the funds according to the terms of the Settlement Agreement
19

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and under the administration of the Claims Administrator would serve the Parties’ best interests, and request that the Court approve the establishment of a Qualified Settlement Fund.6
Court approval of the establishment of the Qualified Settlement Fund serves the Settlement Class Members’ interests by assuring that the Class Settlement Amount is transferred by Walmart following approval of this Motion, and benefits Walmart by assuring finality to the claims against it in this case that are the subject of the Settlement.7 V. The Court Should Establish Dates for the Fairness Hearing and Other Dates.
In Plaintiff’s Motion, she proposes deadlines for a schedule of events, including a date for the Final Approval Hearing that provides for a sufficient amount of time for mailing of the Notice, for Settlement Class Members to file any objections to the Settlement or opt out, for Class Counsel to file a motion for attorneys’ fees and costs, and for Plaintiff to move for a service award and for final approval. Plaintiff requests that the Court establish the dates set forth in the Motion.
CONCLUSION For the reasons set forth above, Plaintiff’s Motion should be granted.

6

The Qualified Settlement Fund will be administered by the Claims Administrator, who,

along with the Qualified Settlement Fund, will remain subject to the continuing jurisdiction of

this Court. The Qualified Settlement Fund will be a segregated bank account opened at a

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

receive the Class Settlement Amount from Walmart and will hold that sum, and the earnings

thereon, until the Claims Administrator has completed all administration of such funds and

income thereon, as well as disbursements to Settlement Class Members and Class Counsel, and

payment of taxes and administrative costs, as more fully set forth in Section 12 of the Settlement

Agreement and subject to further approval of this Court, if required.

7

With the Court’s approval, the parties intend for the establishment of a Qualified

Settlement Fund to satisfy the requirements of Treasury Regulation § 1.468B-1(c), C.F.R. §

1.468B-1(c), by (a) being established under this Court’s approval, (b) resolving and satisfying

claims against Walmart for alleged violations of law, and (c) constituting a segregated account,

as required by those regulations.

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DATED: December 2, 2016
/s/ Peter Romer-Friedman Peter Romer-Friedman (pro hac vice) prf@outtengolden.com OUTTEN & GOLDEN LLP 718 7th Street NW Washington, DC 20001 (202) 770-7886
Juno Turner (pro hac vice) jturner@outtengolden.com Sally Abrahamson (pro hac vice) sabrahamson@outtengolden.com OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 (212) 245-1000
John A. Freedman (Bar No. 629778) John.Freedman@aporter.com Peter Grossi (pro hac vice) Peter.Grossi@aporter.com Sarah Warlick (pro hac vice) Sarah.Warlick@aporter.com ARNOLD & PORTER LLP 601 Massachusetts Ave., NW Washington, DC 20001

Respectfully submitted,
JACQUELINE COTE
By her attorneys,
Gary Buseck (Bar No. 067540) gbuseck@glad.org Allison W. Wright (Bar No. 684753) awright@glad.org GAY AND LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350
Matthew K. Handley (pro hac vice) Matthew_Handley@washlaw.org WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 (202) 319-1000

21

Case 1:15-cv-12945-WGY Document 51 Filed 12/02/16 Page 26 of 26 CERTIFICATE OF SERVICE
I hereby certify that on the 2nd of December, 2016, this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing.
/s/ Peter Romer-Friedman Peter Romer-Friedman (pro hac vice) prf@outtengolden.com OUTTEN & GOLDEN LLP 718 7th Street NW Washington, DC 20001
22

 
 Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

JACQUELINE A. COTE, on behalf of herself and others similarly situated,
Plaintiff,
V.
WAL-MART STORES, INC.,
Defendant.

No. 15 Civ. 12945 (WGY)

FHUUPUyUit FINAL ORDER APPROVING SETTLEMENT
This matter came before the Court on Plaintiffs Motion for Final Approval of Settlement
("Final Approval Motion"), Plaintiffs Motion for anAward ofAttomeys' Fees and Reimbursement of Expenses ("Motion for Fees and Expenses"), and Plaintiffs Motion for a Service Payment for the Class
Representative ("Motion for a Service Payment**). WHEREAS, a putative class action is pending before the Court entitled Cote v. Wal-Mart
Stores, Inc., No. 15-CV-12945-WGY (United States District Courtfor the District of Massachusetts) (the "Litigation'*); and
WHEREAS, the Court has received and reviewed the Settlement Agreement, as amended on
April 26, 2017, entered into between the Settlement Class Representative and the Settlement Class
Members on the one hand, andtheDefendant Wal-Mart Stores, Inc. ("Walmart") on the other hand (the
"Agreement"), and has considered the terms of the proposed settlement set forth therein (the
"Settlement"); and WHEREAS, all terms usedherein shall havethe samemeanings as set forth in the Agreement,
unless otherwise defined herein; and

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 2 of 7
WHEREAS, on December 22, 2016, the Court entered its order preliminarily approving the Settlement, approving the form and method of notice, appointing a claims administrator, and setting a date and time fora final faimess hearing to consider whether the Settlement should be finally approved
by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure as fair, adequate, and
reasonable (the"Preliminaiy Approval OrdeP'); and WHEREAS, the Preliminaiy Approval Order fiirther directed that all Settlement Class
Members begiven notice oftheSettlement and ofthe date forthefinal faimess hearing; and WHEREAS, the Court has received declarations of Peter Romer-Priedman andJenny Shawver
attesting to the provision ofnotice in substantial accordance with the Preliminary Approval Order; and WHEREAS, aspart ofthe Preliminary Approval Order, the Court certified the Settlement Class
for settlement purposes only in accordance with the terms of the Agreement and pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, appointed Jacqueline Cote as the Class Representative, and appointed GLBTQ Legal Advocates & Defenders (GLAD), Outten & Golden LLP, the Washington Lawyers' Committee for Civil Rights & Urban Affairs, and Arnold & Porter Kaye Scholer LLP as Class Counsel, and appointed KCC Class Action Services, LLC as the
Claims Administrator; and
WHEREAS, the Court having considered all timely filed objections to the Settlement [or, if applicable, notimely objections tothe Settlement were filed]; and
WHEREAS, the Court having conducted a Final Faimess Hearing on May 11, 2017 (the "Settlement Approval Hearing"), and having considered the arguments presented, all papers filed, and
all proceedings had therein.

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 3 of 7
IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. The Court has jurisdiction over the subject matter of this action, this Settlement, the
Settlement Class Members, and Defendant.
2. In accordance with Rule 23(c) and (e) of the Federal Rules of Civil Procedure and the requirements of dueprocess, all members of the Settlement Class havebeengiven proper andadequate notice of the Settlement Based upon the evidence submitted by the parties, the 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 Agreement and the Court's Preliminaiy 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 thependency ofthe litigation, their right to object to the Settlement, andtheir right to appear at theFinal Faimess Hearing; (c)were reasonable and constituted due, adequate andsufficient notice to all
persons who are entitled to notice; and (d) met all applicable requirements ofthe Federal Rules ofCivil
Procedure and any other applicable law.
3. The Settlement 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 it is fair, adequate, and reasonable to those itaffects, considering thefollowing factors:
(1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the classto the settlement; (3) thestage of theproceedings andthe amount of discovery completed; (4) the risks ofestablishing liability;
(5) the risks ofestablishing damages;

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 4 of 7

(6) the risks ofmaintaining the class actionthrough the trial;

(7) the ability of the defendants to withstand a greaterjudgment;

(8) the range of reasonableness of the settlement fund in light of the best possible

recoveiy; and
(9) the range of reasonableness of the settlement fund to a possible recoveiy in light of

all the attendant risks of litigation.

Bezdek v. Vibram USA Inc. 79 F. Supp. 3d 324, 343-44 (D. Mass. 2015), off'd, 809 F.3d 78 (1st Cir.

2015) (internal citations and quotations omitted). Settlements that follow sufficient discovery and

genuine arms-length negotiation are presumed to be fairand "within the range of reasonableness." Id.

at 343.
4.

The Final Approval Motion is hereby GRANTED, andthe Settlement as setforth inthe

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, and for the

exclusive benefit of the Settlement Class Members. The Parties are directed to consummate the

Agreement in accordance with its terms.
5. The Court APPROVES payment of the Class Settlement Amount in accordance with

the terms of the Agreement.

6. The Motion for a Service Payment is GRANTED, and the CourtAPPROVES payment of a Service Payment to the Settlement Class Representative, Jacqueline Cote, in the amount of

$25,000, to be paid from the Class Settlement Amount inaccordance withthe terms of the Agreement The requested Service Payment, in recognition of the services she rendered on behalf of the Class

Members, is reasonable.

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 5 of 7
7. The Motionfor Feesand Expenses is GRANTED, and the CourtAPPROVES payment of Attomeys' Fees and Reimbursement of Litigation Expenses to Class Counsel in the amount of $1.875 million for Attomey's Fees and $25,285.04 inLitigation Expenses, to bepaid from theClass Settlement Amount in accordance with the terms of the Agreement and to be divided by Class Counsel in accordance with dieagreement of Class Counsel. TheAttorneys' Fees requested by Class Counsel based onthepercentage ofthefund method arereasonable based upon thefollowing factors:
(1) the size of the fund and the number ofpersons benefitted; (2) the skill, experience, and efficiency of the attorneys involved; (3) the complexity and duration of the litigation; (4) the risks of the litigation; (5) the amount of time devoted to the case by counsel; (6) awards in similar cases; and (7) public policy considerations, if any.
HillV. State St. Corp., No. 09 Civ. 12146,2015 WL 127728, at *17 (D. Mass. Jan. 8,2015). 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 Agreement.
9. The Litigation is hereby DISMISSED WITH PREJUDICE and without costs to any
Party, other than as specified in the Agreement and this Order, including in Section 12 ofthis Order
below.

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 6 of 7
10. In consideration of the Programmatic Reliefand Class Settlement Amount provided for under the Agreement, and for other good and valuable consideration, each of the Releasing Settlement Class Members and eachof theirReleasing Legal Same-Sex Spouses shall, by operation of this Order, have fully, finally, and forever released, relinquished, and discharged all Released Claims against the Releasees in accordance with Section 13 of the Agreement, theterms of which section are incorporated herein by reference, shall have covenanted not tosue the Releasees with respect to all such Released Claims, and shall be permanently barred and enjoined from instituting, commencing, prosecuting or asserting any such Released Claims against the Releasees.
11. This Order shall constitute the Final Judgment in the action as to all Settlement Class
Members' Released Claims.
12. Without affecting the finality of this Order in any way, this Court retains jurisdiction over: (a) the interpretation, implementation, and enforcement of the Settlement and the terms of the Agreement; (b) the distribution ofthe Class Settlement Amount, the Service Payment tothe Settlement Class Representative and, the Payment ofthe Attomeys' Fees and Litigation Expenses, and my cypres distribution; and (c) all other proceedings related to the implementation, interpretation, administration, consummation, and enforcement of the terms of the Agreement and the Settlement, and the administration of Claims submitted by Settlement Class Members. This Court shall retain jurisdiction over this action (a) for a period of six months after the Settlement Effective Date, or (b) for a period of one month after all Settlement Class Members have received their final payments under the Settlement and any remaining funds from the Class Settlement Amount have been distributed
as cy pres, whichever is greater.
12. The parties shall abide by all terms of the Settlement Agreement. In the event that
the Settlement Effective Date does not occur, this Order shall be rendered null and void and shall be

Case 1:15-cv-12945-WGY Document 83 Filed 05/16/17 Page 7 of 7

vacated, nunc pro tune, except insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights of Plaintiff, the Settlement Class
Members, and Walmart.
IT IS SO ORDERED.

DatedI::

The Honorable Will United States Distrj^
District of Massachusetts

3ung

 
 Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 1 of 10
ADR,CLOSED,STAYED
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:15−cv−12945−WGY

Cote v. Wal−Mart Stores Inc. Assigned to: Judge William G. Young Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 07/14/2015 Date Terminated: 05/16/2017 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Ms. Jacqueline A. Cote On behalf of herself and all others similarly situated

represented by Gary D. Buseck GLBTQ Legal Advocates & Defenders Suite 800 30 Winter Street Boston, MA 02108 617−426−1350 Fax: 617−426−3594 Email: gbuseck@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juno E. Turner Outten & Golden LLP 25th Floor 685 Third Avenue New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: jturner@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Handley Washington Lawyers Committee for Civil Rights/Urban Affairs 11 Dupont Circle NW Suite 400 Washington, DC 20036 202−319−1000 Email: matthew_handley@washlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Grossi Arnold & Porter LLP 601 Massachusetts Avenue, N.W. Washington, DC 20001 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Romer−Friedman Outten & Golden LLP 601 Massachusetts Avenue NW Second Floor West Suite Washington, DC 20001 202−847−4400 Email: prf@outtengolden.com LEAD ATTORNEY

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 2 of 10
PRO HAC VICE ATTORNEY TO BE NOTICED
Sally J. Abrahamson Outten & Golden LLP Second Floor West Suite 601 Massachusetts Avenue NW Washington, DC 20001 202−847−4400 Email: sabrahamson@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Warlick Arnold & Porter LLP 601 Massachusetts Avenue, N.W. Washington, DC 20001 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Whitney Wright GLBTQ Legal Advocates & Defenders 18 Tremont Street Boston, MA 02108 617−426−1350 Email: awright@glad.org ATTORNEY TO BE NOTICED
John A. Freedman Arnold & Porter LLP 601 Massachusetts Ave., NW Washington, DC 20001 202−942−5316 Fax: 202−942−5999 Email: John.Freedman@aporter.com ATTORNEY TO BE NOTICED

V. Defendant Wal−Mart Stores Inc.

represented by Eric Serron Steptoe & Johnson 1330 Connecticut Ave. N.W. Washington, DC 20036 202−429−3000 Email: eserron@steptoe.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R. Richards Greenberg Traurig, LLP 2101 L Street, N.W. Suite 1000 Washington, DC 20037 202−331−3100 Email: richardsjr@gtlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi G. Beer

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 3 of 10
Greenberg Traurig LLP 1200 17th Street Suite 2400 Denver, CO 80202 303−572−6500 Fax: 303−572−6540 Email: beern@gtlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul J. Ondrasik , Jr. Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 202−429−8088 Fax: 202−429−3902 Email: pondrasik@steptoe.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paula J. DeGiacomo Greenberg Traurig, LLP One International Place Third Floor Boston, MA 02110 617−310−6092 Fax: 617−310−6001 Email: degiacomop@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence P. McCourt Greenberg Traurig LLP One International Place Boston, MA 02110 617−310−6246 Email: mccourtt@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mediator
Judge Jennifer C. Boal

Date Filed 07/14/2015
07/14/2015 07/14/2015

# Docket Text
1 COMPLAINT against Wal−Mart Stores Inc. Filing fee: $ 400, receipt number 0101−5657253 (Fee Status: Filing Fee paid), filed by Jacqueline A. Cote. (Attachments: # 1 Civil Cover Sheet, # 2 Category Sheet)(Buseck, Gary) (Main Document 1 replaced on 7/14/2015) (Coppola, Katelyn). (Additional attachment(s) added on 7/14/2015: # 3 Exhibit 1) (Coppola, Katelyn). (Attachment 1 replaced on 7/14/2015) (Coppola, Katelyn). (Attachment 2 replaced on 7/15/2015) (Paine, Matthew). (Entered: 07/14/2015)
2 Civil Cover Sheet & Category Sheet Attachment by Jacqueline A. Cote. (Buseck, Gary) (Entered: 07/14/2015)
3 ELECTRONIC NOTICE of Case Assignment. Judge William G. Young assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Abaid, Kimberly) (Entered: 07/14/2015)

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 4 of 10

07/14/2015 07/17/2015 07/20/2015
08/10/2015 08/25/2015 08/25/2015 08/25/2015 09/01/2015
09/09/2015 09/09/2015 09/10/2015
09/14/2015 09/14/2015 09/23/2015

4 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Coppola, Katelyn) (Entered: 07/14/2015)
5 MOTION for Leave to Appear Pro Hac Vice for admission of Peter Romer−Friedman Filing fee: $ 100, receipt number 0101−5663348 by Jacqueline A. Cote. (Attachments: # 1 Exhibit Certificate for Pro Hac Motion)(Buseck, Gary) (Entered: 07/17/2015)
6 Judge William G. Young: ELECTRONIC ORDER entered granting 5 Motion for Leave to Appear Pro Hac Vice Added Peter Romer−Friedman. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 07/20/2015)
7 WAIVER OF SERVICE Returned Executed by Jacqueline A. Cote. Wal−Mart Stores Inc. waiver sent on 7/16/2015, answer due 9/14/2015. (Buseck, Gary) (Entered: 08/10/2015)
8 NOTICE of Appearance by Terence P. McCourt on behalf of Wal−Mart Stores Inc. (McCourt, Terence) (Entered: 08/25/2015)
9 NOTICE of Appearance by Paula J. DeGiacomo on behalf of Wal−Mart Stores Inc. (DeGiacomo, Paula) (Entered: 08/25/2015)
10 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of John R. Richards Filing fee: $ 100, receipt number 0101−5716617 by Wal−Mart Stores Inc.. (Attachments: # 1 Exhibit A Certificate for Admission)(McCourt, Terence) (Entered: 08/25/2015)
11 Judge William G. Young: ELECTRONIC ORDER entered granting 10 Assented to Motion for Leave to Appear Pro Hac Vice. Added John R. Richards. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Gaudet, Jennifer) (Entered: 09/01/2015)
12 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Eric G. Serron Filing fee: $ 100, receipt number 0101−5736120 by Wal−Mart Stores Inc.. (Attachments: # 1 Exhibit A Certificate for Admission Pro Hac Vice of Eric G. Serron)(McCourt, Terence) (Entered: 09/09/2015)
13 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Paul J. Ondrasik, Jr. Filing fee: $ 100, receipt number 0101−5736125 by Wal−Mart Stores Inc.. (Attachments: # 1 Exhibit A Certificate for Admission Pro Hac Vice of Paul J. Ondrasik, Jr.)(McCourt, Terence) (Entered: 09/09/2015)
14 Judge William G. Young: ELECTRONIC ORDER entered granting 12 Motion for Leave to Appear Pro Hac Vice; granting 13 Motion for Leave to Appear Pro Hac Vice. Added Eric G. Serron and Paul J. Ondrasik, Jr.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 09/10/2015)
15 CORPORATE DISCLOSURE STATEMENT by Wal−Mart Stores Inc.. (McCourt, Terence) (Entered: 09/14/2015)
16 Defendant's ANSWER to 1 Complaint, with Jury Demand by Wal−Mart Stores Inc..(McCourt, Terence) (Entered: 09/14/2015)
17 NOTICE of Scheduling Conference. Scheduling Conference set for 10/21/2015 02:30 PM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered:

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 5 of 10

10/05/2015 10/14/2015 10/14/2015 10/14/2015 10/20/2015 10/21/2015
11/04/2015 11/05/2015 11/06/2015 11/10/2015 11/10/2015
12/29/2015 12/30/2015

09/23/2015)
18 NOTICE of Appearance by Allison Whitney Wright on behalf of Jacqueline A. Cote (Wright, Allison) (Entered: 10/05/2015)
19 JOINT STATEMENT of counsel Pursuant to Fed. R. Civ. P. 26(f) and LOC. R. 16.1. (McCourt, Terence) (Entered: 10/14/2015)
20 CERTIFICATION pursuant to Local Rule 16.1 (d)(3). (McCourt, Terence) (Entered: 10/14/2015)
21 CERTIFICATION pursuant to Local Rule 16.1 . (Wright, Allison) (Entered: 10/14/2015)
22 Judge William G. Young: ELECTRONIC ORDER entered: The joint statement is returned to the parties as too long a time line. The parties are to resubmit the joint statement. re 19 Joint statement of counsel (Paine, Matthew) (Entered: 10/20/2015)
25 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Scheduling Conference held on 10/21/2015. The Court explains the requirements of the session. The parties do not wish to proceed before a magistrate judge. The case is to go to ADR during the month of February 2016. Case is placed on the running trial list as of November 2016. A final pretrial conference will be set for the month of October 2016. A joint pretrial memo is due the first Monday of the month preceding trial month. Any motions for summary judgment shall be filed atleast three (3) months prior to trial month. Counsel shall file a joint proposed case management schedule within two weeks. (Ready for Trial on 11/7/2016 09:00 AM in Courtroom 18 before Judge William G. Young.) (Court Reporter: No Court Reporter Used.) (Gaudet, Jennifer) (Entered: 11/06/2015)
23 Amended JOINT STATEMENT of counsel Pursuant to Fed. R. Civ. P. 26(f) and LOC. R. 16.1. (McCourt, Terence) (Entered: 11/04/2015)
24 Judge William G. Young: ORDER entered re 23 Amended JOINT STATEMENT is so ordered as the case management scheduling order. DISCOVERY DUE July 8, 2016 and DISPOSITIVE MOTIONS DUE May 26, 2016. (Paine, Matthew) (Entered: 11/06/2015)
26 REFERRING CASE to Alternative Dispute Resolution as of February 2016.(Paine, Matthew) (Entered: 11/06/2015)
27 Notice of assignment to ADR Provider. Judge Jennifer C. Boal appointed.(Garvin, Brendan) (Entered: 11/10/2015)
28 ELECTRONIC NOTICE of Hearing. The Alternative Dispute Resolution Hearing is set for 2/12/2016 at 10:00 a.m. in Courtroom 14 before Magistrate Judge Jennifer C. Boal. Counsel and principals are directed to be present and have full settlement authority. Each party must submit a brief (no more than 5 pages) mediation memorandum that includes a discussion of (1) the merits of the case (both strengths and weaknesses); (2) damages or other relief sought by the parties; (3) the status of discovery; and (4) the status of the parties' settlement discussions. The memoranda should be submitted BY HAND, E−MAIL to (steve_york@mad.uscourts.gov), OR MAIL WITH THE COURT no later than five (5) business days prior to the mediation and marked "Confidential − Not for Docketing." In the event that any party believes that the case is not ripe for mediation, or the date poses a serious conflict, counsel are to notify opposing counsel and call the deputy clerk at 617−748−9238 as soon as possible. Prior to the mediation, there will be a Telephone Conference set for 2/9/2016 at 11:30 a.m. in Courtroom 14 before Magistrate Judge Jennifer C. Boal. The clerk will provide the call in information to all parties by email, one day prior to the upcoming telephone conference. (York, Steve) (Entered: 11/10/2015)
29 NOTICE of Appearance by John A. Freedman on behalf of Jacqueline A. Cote (Freedman, John) (Entered: 12/29/2015)
30 MOTION for Leave to Appear Pro Hac Vice for admission of Peter Grossi & Sarah Warlick Filing fee: $ 200, receipt number 0101−5908190 by Jacqueline A. Cote.(Freedman, John) (Entered: 12/30/2015)

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 6 of 10

01/04/2016
01/19/2016 01/19/2016 01/20/2016
01/22/2016 01/22/2016 01/22/2016 01/22/2016 01/25/2016 01/26/2016 02/08/2016 02/09/2016 02/09/2016

31 Judge William G. Young: ELECTRONIC ORDER entered granting 30 Motion for Leave to Appear Pro Hac Vice. Added Peter Grossiand Sarah Warlick. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 01/04/2016)
32 MOTION for Leave to Appear Pro Hac Vice for admission of Juno Turner Filing fee: $ 100, receipt number 0101−5933471 by Jacqueline A. Cote. (Attachments: # 1 Pro Hac Vice Certification of Juno Turner)(Wright, Allison) (Entered: 01/19/2016)
33 MOTION for Leave to Appear Pro Hac Vice for admission of Sally Abrahamson Filing fee: $ 100, receipt number 0101−5933523 by Jacqueline A. Cote. (Attachments: # 1 Pro Hac Vice Certification of Sally Abrahamson)(Wright, Allison) (Entered: 01/19/2016)
34 Judge William G. Young: ELECTRONIC ORDER entered granting 32 Motion for Leave to Appear; granting 33 Motion for Leave to Appear Pro Hac Vice. Added Juno Turner and Sally Abrahamson. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 01/20/2016)
35 Joint MOTION to Continue Mediation Before Judge Boal to A date to be determined Joint Motion Regarding Alternative Dispute Resolution Before Magistrate Judge Boal by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 01/22/2016)
36 Consent MOTION for Order Approving Notice of Request to Authorize Disclosure of Contact Information and Other Health Benefits Information by Jacqueline A. Cote. (Romer−Friedman, Peter) (Modified on 1/26/2016 to Correct Docket Text) (Paine, Matthew). (Entered: 01/22/2016)
37 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting 35 Joint Motion to Continue Mediation Before Judge Boal to A date to be determined Joint Motion Regarding Alternative Dispute Resolution Before Magistrate Judge Boal. (York, Steve) (Entered: 01/22/2016)
38 ELECTRONIC NOTICE Canceling Hearing. Please note that the Telephone Conference set for 2/9/2016 at 11:30 a.m. and the Alternative Dispute Resolution Hearing set for 2/12/2016 at 10:00 a.m. before Magistrate Judge Jennifer C. Boal is now Canceled. (York, Steve) (Entered: 01/22/2016)
39 MEMORANDUM in Support re 36 Consent MOTION for Order Approving Notice of Request to Authorize Disclosure of Contact Information and Other Health Benefits Information filed by Jacqueline A. Cote. (Attachments: # 1 Exhibit A − Notice, # 2Exhibit B − Authorization Form)(Romer−Friedman, Peter) Modified on 1/26/2016 (Paine, Matthew). (Entered: 01/25/2016)
40 Judge William G. Young: ELECTRONIC ORDER entered granting 36 Consent MOTION for Order Approving Notice of Request to Authorize Disclosure of Contact Information and Other Health Benefits Information. (Paine, Matthew) (Entered: 01/26/2016)
41 Joint MOTION for Protective Order by Wal−Mart Stores Inc.. (Attachments: # 1 Exhibit A to Joint Motion for Entry of a Protective Order − Stipulated Protective Order, # 2 Exhibit 1 to Stipulated Protective Order − Confidentiality Agreement)(McCourt, Terence) (Entered: 02/08/2016)
42 Judge William G. Young: ELECTRONIC ORDER entered: Motion allowed as modified re 41 Joint MOTION for Protective Order. (Paine, Matthew) (Entered: 02/10/2016)
43 Judge William G. Young: ORDER entered. STIPULATED PROTECTIVE ORDER as modified (Attachments: # 1 Exhibit 1)(Paine, Matthew) (Entered: 02/10/2016)

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 7 of 10

03/02/2016 03/04/2016 04/20/2016 08/24/2016 09/06/2016
12/02/2016 12/02/2016 12/02/2016 12/02/2016 12/02/2016 12/02/2016
12/02/2016
12/02/2016
12/02/2016
12/06/2016 12/06/2016

44 Joint MOTION to Stay by Wal−Mart Stores Inc..(McCourt, Terence) (Entered: 03/02/2016)
45 Judge William G. Young: ELECTRONIC ORDER entered: Motion allowed. In no event will the November 2016 trial date be continued re 44 Joint MOTION to Stay by Wal−Mart Stores Inc. (Paine, Matthew) (Entered: 03/04/2016)
46 Judge William G. Young: ORDER FOR ADMINISTRATIVE CLOSURE: This case is hereby ORDERED administratively closed. (Paine, Matthew) (Entered: 04/20/2016)
47 MOTION for Leave to Appear Pro Hac Vice for admission of Matthew Handley Filing fee: $ 100, receipt number 0101−6261648 by Jacqueline A. Cote.(Freedman, John) (Entered: 08/24/2016)
48 Judge William G. Young: ELECTRONIC ORDER entered granting 47 Motion for Leave to Appear Pro Hac Vice. Added Matthew Handley. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 09/06/2016)
49 Consent MOTION to Reopen Case by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 12/02/2016)
50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 12/02/2016)
51 MEMORANDUM in Support re 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 12/02/2016)
52 MOTION to Certify Class by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 12/02/2016)
53 MEMORANDUM in Support re 52 MOTION to Certify Class filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 12/02/2016)
54 DECLARATION re 51 Memorandum in Support of Motion, 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement, 53 Memorandum in Support of Motion, 52 MOTION to Certify Class by Jacqueline A. Cote. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Romer−Friedman, Peter) (Modified on 12/5/2016 to Correct Docket Text) (Paine, Matthew). (Entered: 12/02/2016)
55 DECLARATION re 51 Memorandum in Support of Motion, 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement, 53 Memorandum in Support of Motion, 52 MOTION to Certify Class by Jacqueline A. Cote. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Romer−Friedman, Peter) (Modified on 12/5/2016 to Correct Docket Text) (Paine, Matthew). (Entered: 12/02/2016)
56 DECLARATION re 51 Memorandum in Support of Motion, 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement, 53 Memorandum in Support of Motion, 52 MOTION to Certify Class by Jacqueline A. Cote. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Romer−Friedman, Peter) (Modified on 12/5/2016 to Correct Docket Text) (Paine, Matthew). (Entered: 12/02/2016)
57 DECLARATION re 51 Memorandum in Support of Motion, 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement, 53 Memorandum in Support of Motion, 52 MOTION to Certify Class by Jacqueline A. Cote. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Romer−Friedman, Peter) (Modified on 12/5/2016 to Correct Docket Text) (Paine, Matthew). (Entered: 12/02/2016)
58 Judge William G. Young: ELECTRONIC ORDER entered granting 49 Motion to Reopen Case (Paine, Matthew) (Entered: 12/06/2016)
Case reopened. (Nicewicz, Craig) (Entered: 12/06/2016)

Case: 1:15-cv-12945-WGY As of: 03/26/2019 10:53 AM EDT 8 of 10

12/07/2016 12/09/2016 12/12/2016
12/16/2016
12/22/2016
12/22/2016 12/22/2016 12/22/2016 04/27/2017 04/27/2017 04/27/2017 04/27/2017

59 ELECTRONIC NOTICE Setting Hearing on Motion 52 MOTION to Certify Class , 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement : Motion Hearing set for 12/16/2016 10:00 AM in Courtroom 8 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 12/07/2016)
60 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Naomi Beer Filing fee: $ 100, receipt number 0101−6409292 by Wal−Mart Stores Inc.. (Attachments: # 1 Appendix Certificate of Admission)(McCourt, Terence) (Entered: 12/09/2016)
61 Judge William G. Young: ELECTRONIC ORDER entered granting 60 Motion for Leave to Appear Pro Hac Vice Added Naomi G. Beer. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 12/12/2016)
66 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/16/2016 re 50 MOTION for Settlement Plaintiff's Motion for Preliminary Approval of Class Action Settlement filed by Jacqueline A. Cote. The Court enters an Order granting Plaintiff's Motion for Preliminary Approval of Class Action Settlement and Approval of the Proposed Notice of Settlement. A Fairness Hearing is set for May 11, 2017 at 2:00 PM. Any briefing re: attorney's fees is welcomed. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Wright and Freeman for the plaintiff, Beer and McCourt) (Gaudet, Jennifer) (Entered: 12/23/2016)
62 Transcript of Preliminary Approval of Class Action Settlement held on December 16, 2016, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 1/12/2017. Redacted Transcript Deadline set for 1/23/2017. Release of Transcript Restriction set for 3/22/2017. (Scalfani, Deborah) (Entered: 12/22/2016)
63 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/22/2016)
64 Judge William G. Young: ELECTRONIC ORDER entered granting 50 Plaintiff's Motion for Preliminary Approval of Class Action Settlement and Approval of the Proposed Notice of Settlement (Paine, Matthew) (Entered: 12/22/2016)
65 ELECTRONIC NOTICE of Hearing re FAIRNESS HEARING : Hearing set for 5/11/2017 02:00 PM in Courtroom 18 before Judge William G. Young. (Paine, Matthew) (Entered: 12/22/2016)
67 MOTION for Settlement Plaintiff's Motion for Final Approval of Class Action Settlement, Final Approval of Settlement Class, and Approval of Distribution of Settlement Funds by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 04/27/2017)
68 (SEE ECF NO. 73 − CORRECTED MEMORANDUM FILED) MEMORANDUM in Support re 67 MOTION for Settlement Plaintiff's Motion for Final Approval of Class Action Settlement, Final Approval of Settlement Class, and Approval of Distribution of Settlement Funds filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Modified on 4/28/2017 TO UPDATE DOCKET TEXT) (Paine, Matthew). (Entered: 04/27/2017)
69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 04/27/2017)
70 MEMORANDUM in Support re 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Main Document 70 replaced on 5/1/2017) (Paine,

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Matthew). (Entered: 04/27/2017)
71 MOTION for Settlement Plaintiff's Motion for Approval of Service Payment by Jacqueline A. Cote.(Romer−Friedman, Peter) (Entered: 04/27/2017)
72 MEMORANDUM in Support re 71 MOTION for Settlement Plaintiff's Motion for Approval of Service Payment filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 04/27/2017)
73 CORRECTED MEMORANDUM in Support re 67 MOTION for Settlement Plaintiff's Motion for Final Approval of Class Action Settlement, Final Approval of Settlement Class, and Approval of Distribution of Settlement Funds filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Modified on 4/28/2017 to Update Docket Text) (Paine, Matthew). (Entered: 04/27/2017)
74 AFFIDAVIT in Support re 71 MOTION for Settlement Plaintiff's Motion for Approval of Service Payment, 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses, 67 MOTION for Settlement Plaintiff's Motion for Final Approval of Class Action Settlement, Final Approval of Settlement Class, and Approval of Distribution of Settlement Funds filed by Jacqueline A. Cote. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Romer−Friedman, Peter) (Main Document 74 replaced on 5/1/2017) (Paine, Matthew). (Attachment 5 replaced on 5/1/2017) (Paine, Matthew). (Entered: 04/27/2017)
75 AFFIDAVIT of Gary D. Buseck in Support re 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 04/27/2017)
76 AFFIDAVIT of Peter Grossi in Support re 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 04/27/2017)
77 AFFIDAVIT of Matthew K. Handley in Support re 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 04/27/2017)
78 ELECTRONIC NOTICE issued requesting courtesy copy for 70 Memorandum in Support of Motion, 75 Affidavit in Support of Motion, 74 Affidavit in Support of Motion,, 71 MOTION for Settlement Plaintiff's Motion for Approval of Service Payment, 69 MOTION for Attorney Fees Plaintiff's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses, 77 Affidavit in Support of Motion, 76 Affidavit in Support of Motion, 73 Memorandum in Support of Motion, 67 MOTION for Settlement Plaintiff's Motion for Final Approval of Class Action Settlement, Final Approval of Settlement Class, and Approval of Distribution of Settlement Funds, 72 Memorandum in Support of Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office attention Matthew Paine Docket Clerk Judge Young. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Paine, Matthew) (Entered: 04/28/2017)
79 ELECTRONIC NOTICE OF RESCHEDULING.Fairness Hearing reset for 5/15/2017 02:00 PM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 04/28/2017)
80 NOTICE by Jacqueline A. Cote Notice of Plaintiff's Update with Respect to Class Members' Claim Forms (Romer−Friedman, Peter) (Entered: 05/12/2017)
81 AFFIDAVIT re 80 Notice (Other) Declaration of Bernella Osterlund re Claims Filed by Jacqueline A. Cote. (Romer−Friedman, Peter) (Entered: 05/12/2017)
82 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Fairness Hearing held on 5/15/2017. The Court inquires in open court whether there are any objectors or parties for comment − no affirmative responses. The Court enters an Order granting 67 Motion for Final Approval of Settlement; granting 69 Motion for Attorney Fees; granting 71 Motion for Approval of Service Payment. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Romer−Friedman and Turner for the plaintiff, Attorneys McCourt and Beer for the

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defendant) (Gaudet, Jennifer) (Entered: 05/16/2017)
83 Judge William G. Young: ORDER entered. FINAL ORDER APPROVING SETTLEMENT (Paine, Matthew) (Entered: 05/16/2017)