Secretary of Labor v. Wal-Mart Stores, Inc. 

OSHRC Docket No. 09-1013 

Respondent’s Opening Brief 

Exhibit B 

Non-Prosecution Settlement Agreement Between Wal-Mart Stores and 

Nassau County District Attorney 

Filed on June 20, 2011
KATHLEEN M. RICE 

DISTRICT ATTORNEY 

OFFICE OF THE DISTRICT ATTORNEY 

NASSAU COUNTY 

NON-PROSECUTION SETTLEMENT AGREEMENT 

WHEREAS, the Office of the District Attorney of Nassau County ("NCDA") is 

conducting a criminal investigation of the events that occurred at Wal-Mart Store #5293 

in the Green Acres MaJl in Valley Stream, Nassau County, New York, on November 28, 

2008 (hereinafter referred to as "Blitz Day 2008") and that resulted in a death and 

injuries; and, 

WHEREAS, Wal-Mart Stores, Inc. ("Wal-Mart," together with NCDA, the 

"Parties"), without admitting any criminal liability by it or by any of its agents or 

employees, enters into this Agreement to obtain forbearance by NCDA of any criminal 

prosecution by NCDA against it arising from the events of Blitz Day 2008; and, 

WHEREAS, NCDA has agreed to the terms of a settlement with Wal-Mart that 

would achieve a greater benefit to the People of Nassau County and New York State than 

could be achieved through a successful criminal prosecution alone. 

THEREFORE, the Parties agree, in consideration of such forbearance, and for 

other mutual consideration reflected herein and recognized by the Parties as adequate, as 

follows: 

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CROWD MANAGEMENT PLAN REVIEW PROCESS 

(I) Wal-Mart has undertaken a review of crowd management in relation to the first 

shopping day after Thanksgiving (hereinafter referred to as the "Yearly Event") for all 

ninety-two (92) Wal-Mart stores in New York State (hereinafter "Subject Stores"). 

(2) Wal-Mart has hired an expert team (the "Experts"), who are familiar with the 

National Fire Protection Association's Life Safety Code, and in particular Chapter 37 --

Existing Mercantile Occupancies (hereinafter, the "Life Safety Code"). 

(3) Wal-Mart and NCDA have selected jointly a second expert (hereinafter the 

"Safety Expert") who has a subject-matter expert on his team who is familiar with the 

written codes and other guidelines or protocols for safety relating to special events. The 

codes, protocols, or guidelines may include the Life Safety Code and the Occupational 

Safety and Health Administration's laws and regulations and other relevant and 

reasonable crowd and employee safety guidelines, procedures, and protocols in use 

witilln the retail industry. The Safety Expert shall be given reasonable access to and 

consultation with Wal-Mart. 

(4) The Safety Expert and Experts will meet and confer as necessary. Counsel for the 

Parties shall not participate in such meetings without notice to, and consent of, the other 

Party. 

(5) For the fITst year during the term of tills Agreement, the Parties will participate in 

monthly conferences by telephone with the Safety Expert on the last non-holiday 

business day of every month to discuss the status of planning for or review of the Yearly 

Event under the terms of this Agreement. Unless the Parties agree otherwise, for the 

eight (8) weeks prior 10 each Yearly Event during the term of tills Agreement, the Safety 

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Expert may participate in weekly conferences with the Parties to provide updates as to the 

review, implementation, and execution of the Operations Plans (as defined in paragraph 

6). 

(6) The Overall Crowd Management Plan. As a result of this Agreement, WalMart and the Experts have developed a Crowd Management Plan, dated May 6, 2009 (the 

"Plan"), which provides the general principles and specific crowd management strategies 

to be used in developing individualized crowd management plans ("Operations Plans") 

for each of the Subject Stores. The Plan includes a methodology for assigning each of 

the Subject Stores to a tier-based category based on several risk factors (the "Assignment 

Methodology"). The Parties and Safety Expert have reviewed, and approved, the 

contents of the Plan and the Assignment Methodology, and agree that the Operations 

Plans will derive from elements contained in the Plan and Assignment Methodology. 

(7) Operations Plans. Based on the terms of the Plan, Wal-Mart shall prepare an 

Operations Plan for each of the Subject Stores. NCDA and the Safety Expert will inspect 

the Operations Plans. In reviewing the Operations Plans, the Safety Expert will have 

reasonable access to other relevant documents related to the Operations Plans, such as 

floor plans, claims data for the Subject Store, and access to relevant Store Managers, 

store-level Asset Protection personnel, the store's Event Coordinator (as defined by the 

Plan), the Market Manager, and Market Asset Protection Manager. The Safety Expert 

shall have access to the Market Manager and Market Asset Protection Manager only if 

either has made changes to, or provided input that affects the content of, an Operations 

Plan. During review of the Operations Plans and their implementation, the Parties will 

defer to the experience and judgment of the Safety Expert concerning the existence of 

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unsafe conditions. The Safety Expert, however, will not request changes or 

modifications to a particular Operations Plan unless, in the exercise of the Safety Expert's 

good faith and reasonable judgment, the Operations Plan, taken as a whole, fails to 

address a foreseeable risk of physical injury, as defmed in Section 10(9) of the New York 

Penal Law ("Physical Injury"), during the Yearly Event.! In identifying potential safety 

risks, the Safety Expert may rely on all available information. The Safety Expert will 

work in good faith with NCDA and Wal-Mart on the evaluation of the Operations Plans 

so that the Operations Plans are fully reviewed and approved at least four (4) weeks in 

advance of the Yearly Event. In the event the Safety Expert or NCDA have had an 

Operations Plan for at least four (4) weeks but have not approved the Operations Plan at 

least four (4) weeks in advance of the Yearly Event, any failure to implement the 

Operations Plan because of the added delay shall not be used by NCDA in paragraph 41 

below concerning potential breach of this Agreement, unless the delay is attributable to 

Wal-Mart's failure to change the Operations Plan according to the Safety Expert's 

request as permitted under this paragraph. 

(8) On-Site Observations. 

a. In General. As set forth in paragraphs 8.b and 8.c below, the 

Safety Expert or his representatives (together with the Safety Expert, the 

"Observers") will have access during the Yearly Event to (i) public areas inside 

and outside the Subject Stores and (ii) certain non-public areas within the Subject 

Stores that are reasonably requested by the Observers and are directly relevant to 

The Parties agree that, in determining whether a risk of Physical Injury exists, the Safety Expert 

shall exclude injuries that, viewed objectively, would be de minimis. 

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crowd management, including, but not limited to, access to Subject Stores before 

they are open to the public, provided that: 

1. The Observers make their presence known to the Store 

Manager or Subject Store's Yearly Event Coordinator; 

2. The Observers will not supervise or interfere with store 

operations in any way; and 

3. The Safety Expert will have only one Observer where 

possible and in no event more tban two Observers in any Subject Store. 

b. Year One. During the first Yearly Event immediately 

following the effective date of this Agreement, the Observers may be present at 

no more than 20% of the Subject Stores. 

c. Subsequent Years. For all subsequent Yearly Events during 

the tenn of this Agreement, the Observers may be present at between 10% and 

30% of the Subject Stores, in tbe discretion of the Safety Expert based on his 

conclusions and findings from the prior Yearly Event. 

(9) Yearly Review. 

a. In General. The following general provisions apply to the Yearly Review, as 

defined in this Agreement: 

1. After eacb Yearly Event during the tenn of this Agreement, the 

Safety Expert will review Wal-Mart's perfonnance under the 

Operations Plans (the "Yearly Review"), based on a combination 

of Self-Reports (as defined in paragraph 9.b.2.b) from Wal-Mart, 

observations by the Observers directly pursuant to paragraph 8 

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("On-Site Observations"), and review of a sampling of stores 

pursuant to paragraph 9.b.4 ("Sampling Review") (all of which are 

discussed below, and are collectively referred to herein as tbe 

"Yearly Review Components"), as well as information supplied by 

NCDA. Subject to guidelines set forth below, tbe Safety Expert 

may use various Yearly Review Components to acquire 

information about the execution of Operations Plans at as many as, 

but not more tban, 50% of the Subject Stores for any Yearly 

Review. 

2. In all matters concerning tbe Yearly Review, tbe Safety Expert 

shall meet and confer as necessary witb, and provide meaningful 

input and information to, the Parties. The Parties may make 

requests concerning tbe scope of review and bring additional 

information to the attention of tbe Safety Expert and otber Party. 

The Safety Expert shall provide an oral, joint summary report of its 

findings from the Yearly Review within 120 days after the Yearly 

Event. 

3. All work by tbe Safety Expert shall be covered by tbe 

confidentiality provisions of tbis Agreement as stated in 

paragraphs 33-34 below. 

4. The Safety Expert will provide in-person or telephonic status 

updates to tbe Parties at tbe critical intervals in tbe planning, 

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implementation, and execution of the Operations Plans and the 

Yearly Review. 

b. Terms ofthe Yearly Review. 

I. In General. 

a. The Safety Expert shall conduct a Yearly Review, consisting of 

the Yearly Review Components, regarding the effectiveness of 

the Plan and the Operations Plans for the Yearly Event at the 

Subject Stores for any Yearly Event occurring during the term 

of this Agreement. 

b. For any Yearly Review, in any year during the term of this 

Agreement, the Safety Expert may request information, subject 

to the limitations below, from as many as, but not more than, 

50% of the Subject Stores. As noted above, the Yearly Review 

Components consist of Self Reports (as defined in paragraph 

9.b.2.b), On-Site Observation, and Sampling Review. 

c. In the first Yearly Review under this Agreement, if the 

Observers perform On Site Observation at 20% of the Subject 

Stores, the Safety Expert may have access to the information 

through Self Reports and Sampling Review for as many as 

30% of the Subject Stores. 

d. In subsequent Yearly Reviews under this Agreement, the 

Safety Expert has sole discretion concerning which Yearly 

Review Components to use to gather information during the 

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Yearly Review under the provIsIOns herein, so long as 

gathering information via the Yearly Review Components is 

requested for 50% or less of the Subject Stores in the 

aggregate. 

2. Self Reports by Wal-Mart. 

a. Within five (5) days after the Yearly Event, Wal-Mart will 

provide the Safety Expert with a list (the "Incident List") 

containing the location and store number of any of the Subject 

Stores that experienced any crowd-related Physical Injury, 

crowd-related property damage, or crowd-related police 

response ("Incidents"). 

b. Within forty-five (45) days after the Yearly Event, Wal-Mart 

will provide to NCDA and the Safety Expert self-reports (the 

"Self-Reports") completed by the Store Managers regarding 

Incidents from the Yearly Event for all of the Subject Stores on 

the Incident List (the "Self-Report"). 

c. For any Subject Store on the incident List, Wal-Mart will 

preserve relevant surveillance videos (non-forensically 

captured by Wal-Mart employees). 

d. Following the Self-Reports, the Safety Expert shall have the 

right to (i) access surveillance videos (non-forensically 

captured by Wal-Mart employees) that show the areas which 

are related to the Incidents and that are from stores that 

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provided Self-Reports, (ii) claims data from the stores that 

provided Self-Reports, and (iii) access by telephone to the 

Store Manager, store-level Asset Protection personnel, Event 

Coordinator, and all associates whom the Safety Expert 

believes to possess relevant information regarding any 

Incidents (hereinafter "Relevant Employees"). If any Incidents 

reflected on the Incident List involve serious physical injury, as 

defined in New York Penal Law § 1O( 10), or death to any 

person as a result of the Yearly Event, the Safety Expert will 

have in-person access to Relevant Employees. 

3. On-Site Observation Review. 

a. For those stores where Observers are present for the Yearly 

Event in any year, the information from those On-Site 

Observations will be assessed during the Yearly Review, and 

the Safety Expert shall not request any further information 

concerning Incidents or compliance with the store's Operations 

Plan, unless an Observer observes a deviation from the store's 

Operations Plan that places someone at risk of Physical Injury. 

b. In the event an Observer believes he has observed a deviation 

from a store's Operations Plan that placed someone at risk of 

Physical Injury, the Safety Expert will notify NCDA and WalMart concerning the Observer's observation within seven (7) 

days after the Yearly Event and then meet and confer with 

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NCDA and Wal-Mart regarding whether the observation was a 

significant and material deviation from the store's Operations 

Plan that placed someone at risk of Physical Injury. The Safety 

Expert will in good faith consider the views of NCDA and 

Wal-Mart concerning the alleged deviation. 

c. If the Safety Expert concludes that a significant and material 

deviation from the Operations Plan occurred, the Safety Expert 

shall have the right to (i) access surveillance videos (nonforensically captured by Wal-Mart employees) relevant to the 

deviation, (ii) claims data from the relevant store, and (iii) 

access by telephone to the associates who are relevant to the 

deviation. 

4. Sampling Review. 

a. Subject to the limitations in paragraph 9.b.! above, 

including its subparagraphs, for some number of the Subject 

Stores where there were no Self-Reports and no On-Site 

Observations, the Safety Expert shall have the right to access 

surveillance videos (non-forensically captured by Wal-Mart 

employees) relevant to the outside entrance and any "Hot Item" 

sale and access by telephone to the Store Manager and Event 

Coordinator. 

b. The Safety Expert will select Subject Stores for Sampling 

Review within five (5) days after receiving the Incident List 

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(the Incident List will identify the Subject Stores that will 

provide Self Reports pursuant to paragraph 9.b.2 and are 

therefore excluded from the pool of Subject Stores eligible for 

Sampling Review). The Safety Expert will provide Wal-Mart 

with immediate notice of which surveillance videos to 

preserve. Wal-Mart will have no obligation under this 

agreement to preserve surveillance videos (other than for stores 

subject to a Self-Report) without a timely request from the 

Safety Expert. 

5. Evidence of Incidents. For all Subject Stores where there were no 

Self-Reports but credible evidence2 of any Incidents, the Safety 

Expert shall have access to the following data: (i) surveillance 

videos (non-forensically captured by Wal-Mart employees) 

relevant to the outside entrance, any "Hot Item" sale, and the area 

relevant to any Incidents, (ii) claims data from the store, and (iii) 

access by telephone to Relevant Employees in the relevant Subject 

Store. If the Safety Expert elects to demand non-forensically 

captured surveillance videos during the Yearly Review based on 

credible evidence of any Incidents, the Safety Expert shall do so 

within seven (7) days of the Yearly Event. To the extent the Safety 

Expert becomes aware of credible evidence of any Incidents within 

the timeframe of that Yearly Review, the Safety Expert may 

2 In determining whether credible evidence exists, NCDA and the Safety Expert shaH not rely on 

web-posted video without providing Wal-Mart an opportunity to authenticate such web-posted video. 

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request non-forensically captured surveillance videos from such 

Subject Store, but the Parties acknowledge and understand that 

such surveillance videos may no longer be available and that such 

unavailability shall not be the basis of any breach alleged under 

paragraph 41. 

6. If, after the term of this Agreement, the Safety Expert determines 

that (a) several significant and material lapses in execution of the 

Operations Plans have occurred during the term of the Agreement, 

and (b) those lapses placed Wal-Mart customers or employees at 

risk of Physical Injury, the Safety Expert has discretion to 

determine that the provisions of paragraph 9 apply after the Yearly 

Event in 2012 until March 31, 2013. 

RECOVERY FUND 

(10) Wal-Mart will fund certain compensation for bona fide claimants who suffered 

injuries and/or losses as a result of the events of Blitz Day 2008 (hereinafter 

"Claimants,,).3 This Agreement provides an alternative to the significant risk, expense, 

and delay inherent in civil litigation by offering Claimants an opportunity to receive 

swift, inexpensive, and predictable resolution of un-reimbursed actual "out-of-pocket" 

losses as defined by New York Penal Law § 60.27 and applicable New York State case 

law (hereinafter "Remuneration")" as well as resolution of civil claims for injuries and 

other non-"out-of-pocket" damages (hereinafter "Compensation"). 

For the purposes of this Agreement, "Claimant" does not include any Wal-Mart employees or any 

public servant on duty on November 28, 2008. 

For example; "out-of-pocket losses" shall mean nOD-reimbursed expenditures and economic losses 

actually incurred as a result of the events of Blitz Day 2008, including medical expenses, lost wages and 

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(11) As described in detail below, the payment of Remuneration and/or Compensation 

to any Claimant under this Agreement will be a bifurcated process. Remuneration 

payments will be determined and awarded to Claimants by NCDA with monies provided 

by Wal-Mart pursuant to paragraph 14 below. Compensation payments will be 

determined and awarded to Claimants by Wal-Mart based on a capped-reserve described 

in paragraph 15 below. Wal-Mart will provide all of the funds for Remuneration and 

Compensation under the terms of this Agreement to bona fide Claimants related to the 

events of Blitz Day 2008 without admitting fault or liability. However, prior to being 

awarded any Remuneration and/or Compensation, all Claimants must sign a release from 

civil liability for Wal-Mart ("opt-in"). If a Claimant chooses not to opt-in, Claimant may 

pursue claims for Remuneration and/or Compensation civilly. 

(12) Requirement of General Release. No Claimant will be asked to sign a general 

release until being given notice of the dollar amount assigned by NCDA to the 

Claimant's Remuneration and/or the dollar amount assigned by Wal-Mart to the 

Claimant's Compensation. No monies will be paid by NCDA for Remuneration or by 

Wal-Mart for Compensation unless and until the Claimant executes a general release of 

any and all claims, whether existing, known, or potential, against Wal-Mart, all of its 

associates, affiliates, shareholders, directors, employees, agents, and any third-parties 

related in any way to the events of Blitz Day 2008 (the "General Release"). The General 

Release shall also include an agreement that any payment of Remuneration and/or 

Compensation shall not be deemed to constitute an admission of liability or evidence that 

Wal-Mart knew, or should have known, of the existence of conditions which led to or 

costs of repair or replacement of damaged property. Out-of-pocket losses shall in no event include any 

attorneys' fees, legal costs andlor legal expenses. 

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were factors in the events of Blitz Day 2008, or a concession or admission by Wal-Mart 

that any of the above-mentioned Claimants have valid causes of action arising from Blitz 

Day 2008. 

(13) General Procedures for Claimants. The following is the process for the 

evaluation and/or payment of claims for Remuneration, Compensation, or both 

(hereinafter "Claims"/ under the terms of this Agreement: 

a. NCDA will provide to Wal-Mart the name and contact information of the 

NCDA representative who will handle the Remuneration process (the 

"Claims Representative") for potential Claimants to contact; 

b. The Claims Representative's name and contact information will be 

included in the advertisements described in paragraph 14.b below; 

c. For each Claimant who contacts the Claims Representative, the Claims 

Representative will be responsible for maintaining records and 

documentation, including requiring Claimants to provide evidence to 

support Claims for Remuneration and/or Compensation, including a sworn 

affidavit from each Claimant attesting to and verifyjng the following: (i) 

that the Claimant was present at Wal-Mart's Valley Stream store on Blitz 

Day 2008 between 2:30 a.m. and 6:00 a.m.; (ii) the nature and extent of 

any out-of-pocket losses suffered as a result of events at Blitz Day 2008; 

(iii) the nature and extent of any injury suffered as a result of events at 

The term nClaims" is used in paragraph 14 of this Agreement to refer to Claims that include a 

request for Remuneration. The tenn "Claims" is used in paragraph 15 of this Agreement to refer to Claims 

that include a request for Compensation. 

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Blitz Day 2008; and (iv) that the facts set forth by Claimant and all proof 

submitted in support of the Claim are true and accurate (the "Affidavit,,);6 

d. For any Claimant making a Claim for Compensation, the Claims 

Representative will provide relevant information, including a copy of 

Claimant's Affidavit, to a designated Wal-Mart representative; 

e. If NCDA detennines that any Claimant has filed insufficient or fraudulent 

Claims, such Claims shall be denied. If NCDA detennines that a Claimant 

has filed sufficient evidence in support of Claimant's Claim, NCDA will 

determine any Remuneration award and Wal-Mart will separately 

detennine any Compensation award; 

f. NCDA will notify each Claimant of the determined Remuneration award 

and Wal-Mart will notify each Claimant of the determined Compensation 

award; and 

g. As noted above, every Claimant will provide a General Release to WalMart before any Remuneration and/or Compensation payments are made. 

(14) Remuneration awards and payments will be detennined and distributed as 

follows: 

a. Wal-Mart will fund $100,000 for Remuneration which will be distributed 

by NCDA among Claimants who were present at Blitz Day 2008 between the 

hours of 2:30 a.m. and 6:00 a.m. and who suffered out-of-pocket losses, within 

the meaning of New York Penal Law § 60.27 and applicable New York State case 

law, as a result of the crowd-related events which occurred at such time. The 

6 The Parties understand and agree that Wal-Mart will collect and retain all additional infonnation 

and evidence from any Claimant who files a Claim for Compensation under the terms of this Agreement. 

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money will be provided to NCDA by Wal-Mart on the effective date of this 

Agreement. NCDA will maintain the money in an interest-bearing escrow 

account pending the disbursement procedures described below. 

b. NCDA will use several different outreacb vehicles to publicize the Fund to 

Blitz Day 2008 Claimants, including: 

• Helpline: NCDA will establish a helpline to assist potential Claimants 

that will be activated by the effective date of this Agreement; 

• Claims Assistance Site: NCDA will provide assistance during specific 

office hours on weekdays, weeknights, and weekends for the duration of 

the filing period; 

• Internet: NCDA will establish a link on its website on whicb the 

requisite filing documents will be posted as well as the other relevant 

information to support Claims submission and processing. The website 

will include an email link for individuals to email questions or comments 

to NCDA regarding Claims; 

• Notice: Notice of the availability of Remuneration and/or 

Compensation will be publisbed in Newsday, the Daily News, and El 

Diario/La Prensa for five (5) consecutive days from the effective date of 

this Agreement as well as for three (3) consecutive weeks in the weekly 

papers in Valley Stream and surrounding neighborhoods including 

Elmont, Inwood, Springfield Gardens, St. Albans, and Laurelton. Cost of 

publication is to be paid for by Wal-Mart. 

c. NCDA will conduct an examination of eacb Claim, including a review of 

all documentation available, and make a determination as to the validity and 

extent of the Claim. All potential Claimants will be given 45 days from the date 

on which notice of the availability of Remuneration and/or Compensation is given 

pursuant to paragrapb 14.b to file a Claim with NCDA. Any Claim not timely 

filed will be barred. Eacb Claim will be evaluated by NCDA, and no Claim will 

be approved for payment unless credible proof, including the Affidavit, has been 

provided by tbe Claimant or Claimant's representative demonstrating (i) that 

Claimant was present at Wal-Mart's Valley Stream store on Blitz Day 2008 

between 2:30 a.m. and 6:00 a.m., and (ii) tbat Claimant suffered out-of-pocket 

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losses that were directly caused by the crowd-related events that took place at 

Wal-Mart's Valley Stream store on Blitz Day 2008. 

d. NCDA will notify any Claimant whose Claim for Remuneration under this 

Agreement has been rejected. Such ineligible Remuneration Claims include (i) 

those for which insufficient proof is submitted; (ii) those deemed by NCDA not to 

have been proximately caused by the crowd-related events; (iii) those in which 

Claimant would not grant a General Release; (iv) those that do not fall within the 

meaning of "out-of-pocket losses" as that term is defined in New York Penal Law 

§ 60.27 and applicable New York State case law; or (v) Claims not timely filed as 

required by paragraph 14.c above. 

e. Upon determining the validity and extent of a Claim, and prior to 

distributing any money to a Claimant, NCDA will provide Wal-Mart with a 

schedule of all approved Claims for Remuneration, containing the name and 

address of each Claimant, the amount which NCDA proposes to pay to Claimant, 

and the nature of the loss and basis for the Claim. Wal-Mart will have 30 days 

from the receipt of the schedule to examine any proposed payout and to present 

any materials to NCDA that disprove or mitigate a Claim, which NCDA may 

accept at its discretion. As part of any Claim examination, NCDA will give to 

Wal-Mart an opportunity to inspect any proof which was used by NCDA to verify 

the Claim. Wal-Mart understands that NCDA may redact or limit the proof to 

only the portion thereof that NCDA determined to have supported the award. 

f. NCDA will be responsible for disbursing Remuneration money to each of 

such Claimants in the full amount awarded. Any disbursement of Remuneration 

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by NCDA will be made in accordance with the conditions set forth in paragraph 

12. Should the total of all Remuneration Claims which are approved exceed 

$100,000, Remuneration will be made to the Claimants in pro rata shares. Should 

the total of all Claims which are approved be less than $100,000, the remainder of 

the $100,000 will be returned to Wal-Mart. 

g. A determination by NCDA that a Claim is without merit shall not 

prejudice the ability of any Claimant or other individual who has a Claim to 

pursue any and all civil remedies that may be available to him or her under the 

law. 

h. Nothing in this Agreement shall be deemed to constitute an admission of 

guilt or evidence that Wal-Mart knew, or should have known, of the existence of 

conditions which led to or were factors in the events of Blitz Day 2008 or a 

concession that any of the above-mentioned Claimants have valid causes of action 

against Wal-Mart arising out of the events. 

(15) Compensation awards and payments will be determined and distributed as 

follows: 

a. Pursuant to this Agreement, Wal-Mart shall administer all Claims for 

Compensation. Other than enforcing the terms of this Agreement, NCDA has no 

role in Wal-Mart's distribution of Compensation money. 

b. Wal-Mart shall administer all Claims for Compensation as follows: 

I. Wal-Mart will pay Compensation Claims based on a cappedreserve of $300,000. Nothing in this Agreement requires Wal-Mart to 

provide any Compensation to any Claimants other than through the 

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administration of this single capped-reserve of $300,000. If Claimant 

decides to seek Compensation, the Claimant must execute the General 

Release to be eligible for payment of any Compensation. 

2. NCDA will notify Wal-Mart of any bona fide Claimants who 

assert a Claim for Compensation, regardless of whether or not their Claims 

also include a request for Remuneration. Except for notification of such 

Claimants, NCDA has no role whatsoever in the process of valuing or 

distributing Compensation. 

3. After receipt of the Claimant's information, Wal-Mart will have 

sole discretion in determining the validity and valuation of the Claim for 

Compensation provided by Claimant. After Wal-Mart determines the award 

of Compensation for any bona fide Claimant, it will advise the Claimant of 

its determination. 

(16) Inapplicable Claimant. Any claims by family members of Jdimytai Damour 

andlor Jdimytai Damour's estate are not included as part of the Remuneration and 

Compensation process set forth herein. 

(17) Confidentiality of Remuneration and Compensation Process. The 

Remuneration and Compensation process, and all documents and information submitted 

or collected, shall be treated as confidential and only for settlement purposes, and the 

documents are inadmissible for any other purpose in any court proceeding except to 

impeach the credibility of any Claimant who gives sworn testimony inconsistent with any I 

information or document previously submitted by the Claimant in connection with the 

Claim. 

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COMMUNITY GRANT 

(18) Wal-Mart will fund a Nassau County Community Grant (the "Grant") for 

$1,500,000 to help build strong, healthy neighborhoods by supporting innovative 

programs designed to serve local community needs through local grants that address 

pressing social, economic, and cultural needs of communities in Nassau County. Funded 

programs will provide opportunities to youth in career development, employment, and 

social/academic skills that serve to reduce risk behaviors. 

(19) Upon funding of the $1,500,000, Wal-Mart shall have no further responsibility 

with respect to the allocation or use of such funds. 

(20) NCDA has determined that the Grant will be disbursed as follows: 

a. $300,000 will go to the United Way Long Island, specifically earmarked 

for Youth Build Hempstead Project/Family and Children's Association. This sum 

should be divided into two tranches and distributed over two (2) years as follows: 

$150,000 dollars in 2009 and $150,000 dollars in 2010. 

b. The remaining $1,200,000 will go to the Nassau County Youth Board to 

be distributed over three years as follows: $500,000 in 2009, $500,000 in 2010 

and $200,000 in 2011. The Nassau County Youth Board will distribute these 

funds to providers based on a series of funding criteria including service needs 

and program effectiveness. A contract entered into by the Youth Board to expend 

Grant funds requires Legislative approval in accordance with the rules that govern 

that specific type of contract. 

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c. The Grant money given to the Nassau County Youth Board will be 

deposited into the General Fund of the County, and the Legislature will be asked 

to appropriate those funds to the desired programs. 

d. The Nassau County Youth Board portion of the Grant is subject to audit 

by the Nassau County Comptroller's Office. 

STUDENT JOB PROGRAM 

(21) Wal-Mart will provide employment opportumties in its five (5) Nassau County 

stores to eligible high school students. These opportutllties shall provide students with 

work experience in Wal-Mart stores while emphasizing academic achievement, career 

and personal development, as well as providing financial compensation to the students. 

The program will be in effect for three years, begintting September 2009 and ending 

August 31, 2012, providing 50 positions each year ("Annual Jobs") to eligible Nassau 

County high school students (hereinafter "the Program"). 

(22) For the purposes of this Agreement, an Annual Job consists of part-time 

employment during the school-year months ("School Segment") and full-time 

employment for the summer months ("Summer Segment''). In its discretion, Wal-Mart 

may provide each candidate with an Annual Job, or, for each Annual Job, may allow one 

candidate to take the School Segment and another candidate to take the Summer 

Segment. 

(23) Wal-Mart will allocate the Annual Jobs as follows: 10 jobs in each Wal-Mart 

store located in Nassau County during the Program. 

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(24) No student shall participate for more than a single year in the Program. 

Participation in this Program does not obligate Wal-Mart in any way to offer a Program 

participant employment once the participant has completed the Program. 

(25) NCDA will identify a pool of 100 eligible students each year, of which 20 

students shall be designated for each Nassau County store based on geographical 

convenience and feasibility. Wal-Mart shall then have the opportunity to interview each 

candidate and select candidates for the Program. Should Wal-Mart wish, after the 

interviews, to reject an otherwise-eligible student, Wal-Mart will provide NCDA with a 

reason for such rejection. Unless NCDA is given a valid reason why the candidate is not 

acceptable, any non-selected candidate will remain as an alternate for participation in the 

Program. In the event that a student who was selected for the Program fails to maintain 

any of the criteria listed below, that student shall be removed from the Program and 

replaced by an alternate. 

(26) Wal-Mart shall have sole discretion concerning continued employment of any 

student, and may continue or terminate each student's job under the same terms, 

conditions, and standards as its other at-will employees. · In the event Wal-Mart 

terminates any student from the Program, the student shall be replaced by an alternate. 

(27) To select the pool of students, NCDA intends to use the following criteria, which 

it selected based on its goals for the Program: 

a. High School Enrollment. Students must be enrolled full-time in a Nassau 

County public high school or any other equivalent school in Nassau County 

chartered by the State of New York or one of the school districts in Nassau 

County and remain in such school for the duration of their participation in the 

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Program. Students may be selected from any such school, provided that the school 

agrees to notify NCDA in the event that the student is expelled or otherwise 

withdraws from the school. Students from each of the school districts where the 

five (5) Wal-Mart stores are located will be given a priority to participate in the 

Program over students from other Nassau County school districts. 

b. Satisfactory Academic Standing. Students must have a passing average for the 

prior marking period and maintain a passing average for the duration of their 

participation in the Program. Students shall be responsible for providing NCDA 

an official report card at the end of each final marking period. 

c. Minimum School Attendance. Students must have an attendance record of no 

less than 80% of the school days in the prior semester, and maintain such 

attendance for the duration of their participation in the Program and provide proof 

of attendance to NCDA. 

d. Valid Work Papers. Students must have valid work papers issued by New York 

State and be at least 16 years of age. 

e. Permission. Students under 18 years of age must have written permission from a 

parent or guardian. 

f. Medical Clearance. Students must have medical clearance. 

g. No Criminal Record. Students must have no prior criminal record. 

h. School Recommendation. Students must submit a favorable recommendation 

from a guidance counselor, principal, or other school official who has sufficient 

personal experience with the student and knowledge of the student's character. 

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i. Residence. Students must be residents of Nassau County and must maintain such 

residence for the duration of their participation in the Program. 

J. Transportation. Students must be able to obtain their own transportation to and 

from Wal-Mart during scheduled work hours. 

k. Work Performance and Conduct. While participating in the Program, students 

must maintain satisfactory work performance and proper work conduct in 

accordance with what is expected by Wal-Mart of its employees engaged m 

similar job duties. 

(28) Wal-Mart will provide NCDA quarterly reports detailing the names of the 

students, job descriptions, and the stores in which they are employed. 

OTHER PROVISIONS OF THIS AGREEMENT 

(29) Non-prosecution. NCDA shall suspend its on-going criminal investigation of the 

events of Blitz Day 2008 and shall not bring any action against, or prosecute, Wal-Mart, 

its officers, directors, agents, and/or employees in connection with the events of Blitz 

Day 2008. This Agreement does not relate to or cover any conduct other than those 

related to Blitz Day 2008. 

(30) As a condition of this Agreement, Wal-Mart has agreed that the Statute of 

Limitations for commencing a criminal prosecution against Wal-Mart, its officers, 

directors, agents, and/or employees for any misdemeanor offenses in connection with the 

events related to Blitz Day 2008 at Valley Stream shall be extended for two years beyond 

the period provided by New York State Criminal Procedure Law § 30.1 O. The Parties 

will execute simultaneously with this Agreement a separate tolling agreement (the 

"Tolling Agreement") to evidence this extension. 

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(34) The Plan, Operations Plans, and all reports, memoranda, correspondence, work 

papers, and other documents generated in relation to the implementation, modification, 

enhancement, and compliance with the Plan and Operations Plans (collectively, the 

"Implementing Documents") will be created and shared under a common-interest 

privilege and shall be treated by the Parties as privileged, confidential, and proprietary to 

the extent permitted by law. If any subpoena is issued in any pending or future litigation 

for any or all of the Implementing Documents, including but not limited to all underlying 

analyses, findings, and communication by any of, or between, the Parties, the Expert, or 

the Safety Expert, the entity to whom the subpoena is issued will immediately notify the 

Parties if legally permissible. Either of the Parties may move to quash the subpoena. 

Nothing in this paragraph is deemed to apply to any subpoena issued by a government 

entity or grand jury. The Parties will not seek to use or introduce any information or 

documents provided by any Party, the Expert, or the Safety Expert in any subsequent 

litigation or proceeding. 

(35) Notwithstanding the above-mentioned confidentiality, this Agreement shall be 

disclosed to the public. 

BREACH 

(36) The Parties will enforce this Agreement only in good faith and will not declare or 

seek a judicial declaration that the Agreement is void except as provided in the following 

paragraphs. 

(37) Should NCDA believe Wal-Mart has committed a willful and material breach of 

any provision of the Agreement, NCDA will provide written notice of same to Wal-Mart. 

Wal-Mart shall have thirty (30) days to make a presentation to NCDA that (a) no breach 

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(31) No Admission. By entering into this Agreement, Wal-Mart does not admit any 

criminal culpability with respect to any criminal charges that could be filed as a result of 

Blitz Day 2008. Nothing in this Agreement constitutes an admission or evidence that 

Wal-Mart knew or should have known prior to November 28, 2008, of the existence of 

hazards related to crowd movement or life safety matters related to any of its facilities. 

In addition, nothing in this Agreement constitutes an admission or evidence regarding the 

feasibility of any efforts or suggestions with regard to reducing or eliminating hazards 

associated with crowds. 

(32) Term. The promises and obligations under this Agreement shall terminate on 

December 31, 2011, except that (a) the promises and obligations of paragraph 9, Yearly 

Review, shall continue until the Yearly Review for the Yearly Event in 20 II is 

completed, but in no event later than March 31, 2012; however, at the good faith election 

of the Safety Expert, under the provision of paragraph 9.b.6 above, paragraph 9 of this 

Agreement may continue until March 31 , 2013; and (b) the promises and obligations of 

paragraphs 21 through 28, Student Job Program, shall continue through and including 

August 31 , 2012. 

CONFIDENTIALITY OF DOCUMENTATION 

(33) In order to implement the provisions of this Agreement, the Parties, at various 

times during the term of this Agreement, may share information and documents that are 

privileged under law and confidential between each other. By sharing such information 

or documents, no Party intends to, and does not, waive any applicable privilege and such 

sharing of information or documents is done under an express reservation of right to 

assert any applicable privilege with respect to third parties. 

25 
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has occurred or (b) to the extent applicable, (i) the breach was cured, or (ii) the breach 

was not willful or material. In making this presentation, Wal-Mart will be truthful and 

complete in explaining the nature and circumstances of any alleged breach. 

(38) If an alleged breach concerns Wal-Mart's contractual agreement in paragraph 37 

above to be truthful and complete in any presentation made to NCDA, upon a fmding that 

Wal-Mart's breach in this regard was intentional and deliberate, NCDA may file any 

criminal charges against Wal-Mart it deems appropriate notwithstanding the promise of 

non-prosecution stated in this Agreement. 

(39) If Wal-Mart fails to make a presentation to NCDA within the 30-day period set 

forth in paragraph 37 after receiving written notice of an alleged breach, it shall be 

conclusively presumed that Wal-Mart is in breach of this Agreement, and NCDA can 

resume its criminal investigation of Blitz Day 2008 and file any related criminal charges 

NCDA deems appropriate notwithstanding the promise of non-prosecution in this 

Agreement. 

(40) If the alleged breach concerns any of Wal-Mart's contractual agreements under 

this Agreement other than those in paragraphs 1 through 9 (which are addressed in 

paragraph 41 below), and NCDA does not concur with Wal-Mart's presentation as to any 

alleged breach, then NCDA may file an action in New York State Supreme Court to 

claim a breach of the Agreement and to enforce the terms of this Agreement. The Parties 

shall consent to the briefing and hearing of such motion on an emergency and expedited 

basis. If a Court declares Wal-Mart to be in material and willful breach of this 

Agreement, Wal-Mart shall have ten (10) days from the Court's order to cure the breach. 

If Wal-Mart fails to cure the breach within ten (10) days from the Court's order, NCDA 

27 
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may declare this Agreement null and void. Upon declaring the Agreement null and void, 

NCDA may file any criminal charges against Wal-Mart that NCDA deems appropriate 

notwithstanding the promise of non-prosecution stated in this Agreement. 

(41) If the alleged breach concerns any of Wal-Mart's contractual agreements under 

paragraphs 1 through 9 of this Agreement and NCDA does not concur with Wal-Mart's 

presentation as to any alleged breach, NCDA may declare this Agreement null and void 

and may seek to present criminal charges against Wal-Mart. However, in exercising that 

discretion, NCDA will not declare the Agreement null and void unless (i) the breach was 

serious in nature, (ii) Wal-Mart's market-level managers were aware of the condition 

constituting the breach and failed to act appropriately to cure it in a timely manner, and 

(iii) Wal-Mart's customers or employees were placed at risk of Physical Injury as a result 

of the breach. Otherwise, NCDA will follow the procedures outlined in paragraph 40 

above to remediate other, non-serious breaches of paragraphs 1 through 9 of this 

Agreement. NCDA shall exercise its discretion under this paragraph 41 in good faith and 

shall consult with the Safety Expert concerning the existence of the conditions set forth 

herein. 

(42) Payment for Expenses Associated With This Agreement. Wal-Mart shall be 

exclusively responsible for prompt payment of the reasonable and necessary costs 

associated with the implementation of the provisions of paragraphs 1 through 9 ("Crowd 

Management Plan Review"), including the expenses and fees for the Experts and the 

Safety Expert engaged hereunder, as well as the notice described in paragraph 14.b herein 

("Recovery Fund") and the costs associated with the Program described in paragraphs 21 

through 28 ("Student Job Program"). 

28 

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(43) Parties. This Agreement is binding on NCDA and Wal-Mart but the Agreement 

does not bind any federal agencies or any other state or local authorities, although NCDA 

will bring the cooperation of Wal-Mart and its compliance with its other obligations 

under this Agreement to the attention of federal, state, or local prosecution offices or 

regulatory agencies, if requested by Wal-Mart or its attorneys. 

(44) No Tbird-Party Beneficiaries. The Agreement carries no explicit or implicit 

rights or benefits in favor of any third party and is not intended to be enforceable other 

than by the Parties. 

(45) Scope. This Agreement does not relate to or cover any conduct by Wal-Mart 

other than Wal-Mart's actions as they relate to the events of Blitz Day 2008. 

(46) Merger/Acquisition. If Wal-Mart sells or merges all or substantially all of its 

New York State operations (stores) or assets as they exist as of the date of this Agreement 

to a single purchaser or group of affiliated purchasers during the term of this Agreement, 

it shall include in any contract for sale or merger a provision binding the 

purchaser/successor to the obligations described in this Agreement. Any such provision 

in a contract of sale or merger shall not alter the obligations ofWal-Mart or any successor 

entity contained in this Agreement. 

(47) New Stores. IfWal-Mart opens new stores in New York State during the life of 

this Agreement, these new stores will be subject to the terms and conditions of this 

Agreement. 

(48) Replacement of the Safety Expert. If the Safety Expert resigns or becomes 

unable to serve the balance of his term, a successor shall be selected by the Parties within 

29 
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forty-five (45) calendar days after the notice. All provisions in this Agreement apply to 

any successor Safety Expert. 

(49) Continuity of the Safety Expert. If the Safety Expert changes employment 

during the life of the Agreement and is still in a position to serve the balance of his term, 

the responsibilities of this Agreement will stay with the Safety Expert and not with his 

prior outside employer. 

(50) Notices. Any notice provided for in this Agreement shall be valid if delivered to 

the person listed below (unless a Party designates another notice recipient in writing): 

For Wal-Mart: 

David Blackorby, Esq. 

General Counsel 

Jim Walden, Esq. 

Gibson, Dunn & Crutcher LLP 

Wal-Mart Stores, Inc. GSAT 200 Park Avenue 

702 Southwest 8th Street 

Bentonville, AR 72716-0185 

Fax: (479) 277-5991 

New York, NY 10166 

Fax: (212) 351-5300 

For NCDA: 

Meg Reiss, Esq. 

Executive Assistant District Attorney 

Investigations Division 

Nassau County District Attorney's Office 

262 Old Country Road 

Mineola, NY 11501 

Fax: (516) 571-2266 

(51) Entirety of Agreement. This Agreement and the Tolling Agreement constitute 

the entire agreement between NCDA and Wal-Mart. There are no promises, agreements, 

or conditions, express or implied, other than those set forth in this Agreement. No 

modification, deletion, or addition to this Agreement will be valid or binding on any 

Party unless put into writing and signed by all Parties. 

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(52) Survival. Paragraphs 30, 31, 33, and 34 shall survive the termination or 

expiration of this Agreement even if a Party is declared in breach of this Agreement. 

(53) Effective Date. This Agreement will become effective as of May 6, 2009. 

31 
Acknowledgment 

I, Hank Mullany, am an officer of Wal-Mart Stores, Inc. ("Wal-Mart"), to wit, Senior 

Vice President and Northeast Divisional President of Wal-Mart, and I am authorized by 

Wal-Mart to sign this instrument on behalf ofWal-Mart and thereby to so bind Wal-Mart. 

I hereby expressly acknowledge the following: (1) that I have read this entire Agreement; 

(2) that I have had an opportunity to discuss this Agreement fully and freely with WalMart's attorneys; (3) that Wal-Mart fully and completely understands each and every one 

of its tenns; (4) that Wal-Mart is fully satisfied with the advice and representation 

provided to it by its attorneys; and (5) that I signed this Agreement voluntarily. 

Wal-Mart Stores, Inc. 

Hank Mullany 

Senior Vice President 

Counsel for Wal-Mart: 

I, Jim Walden of Gibson, Dunn & Crutcher, attorneys for Wal-Mart Stores, Inc., hereby 

expressly acknowledge the following: (1) that we have discussed this Agreement with our 

client; (2) that we have fully explained each one of its terms to our client; (3) that we 

have fully answered each and every question put to us by our client regarding the 

Agreement; and (4) we believe our client completely understands all of the Agreement's 

32 
4 

OOlANTY DISTRICT ATTORNEY'S OFFICE 

Meg Reiss 

Executive A 

Margaret M Lenlstan 

Notary PUblic, state Of New YOrk: 

No. 011.E6OO2121 

Comml.llon EXplresZ-2-ZQ/o 

~~:JJt~7n... 

33 

Datj)t/ 
washoshrccommission 

Attachments can contain viruses that may harm your computer. Attachments may not display correctly.

Attached please find Exhibit B to the Opening Brief for Respondent in the above‐captioned matter.

Daniel P. Rathbun 

GIBSON DUNN

Gibson, Dunn & Crutcher LLP 

1050 Connecticut Avenue, N.W., Washington, DC 20036-5306 

Tel +1 202.887.3714 • Fax +1 202.530.9584 

DRathbun@gibsondunn.com • www.gibsondunn.com

This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the 

sender of the error and then immediately delete this message. 

From: Rathbun, Daniel Patrick [DRathbun@gibsondunn.com] Sent: Mon 6/20/2011 4:23 PM

To: washoshrccommission

Cc: Darling, Jr.., Ray H.; gottlieb.ronald@dol.gov; phillips.heather@dol.gov; james.charles@dol.gov; Willis Goldsmith 

(wgoldsmith@jonesday.com); Jacqueline Holmes (jholmes@JonesDay.com); Fellner,Baruch A.; Schwartz, Jason 

C.; Martin, Scott P.; Rathbun, Daniel Patrick

Subject: OSHRC Docket No. 09-1013: Exhibit B to Filing by RespondentWal-Mart Stores, Inc.

Attachments: 09-1013 Respondent's Exhibit B to Respondent's Opening Brief.pdf(4MB)

Page 1 of 1

https://mail.oshrc.gov/exchange/washoshrccommission/Inbox/OSHRC%20Docket%20No.... 6/20/2011