Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 1 of 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`Case No. 1:19-CV-20592-MARTINEZ/OTAZO-REYES
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`
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`Plaintiff,
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`
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`v.
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`VASSILIOS KUKORINIS, on behalf of
`himself and those similarly situated,
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`
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`WALMART, INC., a Delaware
`corporation
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`
`
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`Defendant.
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`PLAINTIFF’S UNOPPOSED MOTION TO DIRECT CLASS NOTICE AND GRANT
`PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND
`INCORPORATED MEMORANDUM OF LAW1
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`Plaintiff Vassilios Kukorinis (“Plaintiff”), respectfully moves for an order directing class
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`notice and granting preliminary approval of the proposed class action settlement with Defendant
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`Walmart, Inc. (“Walmart” or “Defendant”) (together, the Plaintiff and Walmart are referred to as
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`the “Parties”), the terms of which are set forth in the “Settlement Agreement and Release”
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`(“Settlement Agreement”), attached hereto as Exhibit 1. In so moving, Plaintiff respectfully
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`requests the Court: 1) enter the Proposed Order directing dissemination of the Class Notice,
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`attached as Exhibit D to the Settlement Agreement; 2) appoint Epiq Class Action and Claims
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`Solutions, Inc., as the Claims Administrator; 3) certify the Settlement Class as defined herein; 4)
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`appoint Plaintiff as Class Representative for the Settlement Class; 5) appoint Plaintiff’s Counsel
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`
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`1 Walmart does not concede the Plaintiff’s allegations, nor does it concede all of the factual
`statements set forth herein. For purposes of this Settlement, however, Walmart does not oppose
`the filing of this Motion for Preliminary Approval.
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`

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`Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 2 of 33
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`as Settlement Class Counsel; 6) approve the establishment of the Qualified Settlement Fund; and
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`7) set a hearing for the purpose of deciding whether to grant final approval of the Settlement.
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`Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 3 of 33
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION .............................................................................................................. 1
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`SUMMARY OF LITIGATION .......................................................................................... 3
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`A.
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`B.
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`Procedural History .................................................................................................. 3
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`Information About the Settlement .......................................................................... 4
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`III.
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`THE TERMS OF THE SETTLEMENT AGREEMENT ................................................... 5
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`The Settlement Class............................................................................................... 5
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`The Settlement Benefits .......................................................................................... 6
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`Business Practice Commitments ............................................................................. 7
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`Proposed Notice Program ....................................................................................... 7
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`Service Awards and Attorneys’ Fees, Costs, and Expenses ................................... 8
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`Release of Claims ................................................................................................... 9
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`IV.
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`ARGUMENT ...................................................................................................................... 9
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`A.
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`B.
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`C.
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`Legal Standards ....................................................................................................... 9
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`The Proposed Nationwide Settlement is Permissible ........................................... 10
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`The Proposed Settlement is Fair, Reasonable, and Adequate ............................... 11
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`The Settlement Class was Adequately Represented ................................. 11
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`The Proposed Settlement was Negotiated at Arm’s-Length ..................... 12
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`Plaintiff had Sufficient Information to Weigh the Benefits of Settlement 12
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`The Settlement Relief is Fair, Reasonable, and Adequate ........................ 13
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`Agreements Required to be Identified by Rule 23(e)(3) .......................... 18
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`Class Members are Treated Equitably Relative to Each Other ................. 18
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`D.
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`Certification of the Settlement Class is Appropriate ............................................ 18
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`1.
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`The Settlement Class Meets the Requirements of Rules 23(a) and (b)(3) 19
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`a.
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`Numerosity .....................................................................................19
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`i
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`b.
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`c.
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`d.
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`e.
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`f.
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`Commonality..................................................................................20
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`Typicality .......................................................................................21
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`Adequacy .......................................................................................21
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`Predominance .................................................................................22
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`Superiority......................................................................................23
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`E.
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`F.
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`The Proposed Class Notice Satisfies Rule 23 ....................................................... 24
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`The Court Should Approve the Establishment of a Qualified Settlement Fund ... 25
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`G.
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`The Court Should Schedule a Final Approval Hearing and Pertinent Deadlines . 25
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`VI.
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`CONCLUSION ................................................................................................................. 26
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`ii
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`TABLE OF AUTHORITIES
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`Cases
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`Agan v. Katzman & Korr, P.A., 222 F.R.D. 692 (S.D. Fla. 2004) ................................................ 23
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`Allen v. Alabama State Bd. of Ed., 190 F.R.D. 602 (M.D. Ala. 2000) ......................................... 16
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`Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). ..................................................... 19, 22
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`Bennett v. Behring Corp., 737 F.2d 982 (11th Cir.1984) ....................................................... 10, 15
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`Cooper v. S. Co., 390 F.3d 695, 714 (11th Cir. 2004) .................................................................. 21
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`Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ...........................................................................15
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`David v. Am. Suzuki Motor Corp., 2010 WL 1628362 (S.D. Fla. April 15, 2010) .......................23
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`Deas v. Russell Stover Candies, Inc., 2005 WL 8158201 (N.D. Ala. Dec. 22, 2005) ...................23
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`Fabricant v. Sears Roebuck, 202 F.R.D. 310, 313 (S.D. Fla. 2001 .............................................. 19
`
`Figueroa v. Sharper Image Corp., 517 F.Supp.2d 1292 (S.D. Fla. 2007) ................................... 21
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`Francisco v. Numismatic Guaranty Corp. of Am., 2008 WL 649124 (S.D. Fla. Jan. 31, 2008) .. 11
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`Fresco v. Auto Data Direct, Inc., 2007 WL 2330895 (S.D. Fla. May 14, 2007) ..................... 9, 12
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`Gonzalez v. TCR Sports Brd. Holding, LLP, 2019 WL 2249941 (S.D. Fla. May 24, 2019) .. 13, 18
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`Hines v. Widnall, 334 F.3d 1253 (11th Cir. 2003) ........................................................................ 21
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`Ibrahim v. Acosta, 326 F.R.D. 696 (S.D. Fla. 2018) .................................................................... 11
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`In re Checking Account Overdraft Litig., 275 F.R.D. 654 (S.D. Fla. 2011) ............... 10, 12, 20, 23
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`In re Sunbeam Sec. Litig., 176 F.Supp.2d 1323 (S.D. Fla. 2001) ................................................. 15
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`In re U.S. Oil & Gas Litig., 967 F.2d 489 (11th Cir. 1992) .............................................. 10, 15, 16
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`Kennedy v. Tallant, 710 F.2d 711 (11th Cir. 1983). ..................................................................... 21
`
`Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) ................................................................ 22
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`Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984) .................................. 21
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`iii
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`Leszczynski v. Allianz Ins., 176 F.R.D. 659 (S.D. Fla. 1997). ...................................................... 20
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`Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005).......................... 12, 13, 19, 21
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`Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674 (S.D. Fla. 2013) ............... 20
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`Morgan v. Public Storage, 301 F.Supp.3d 1237 (S.D. Fla. 2016) ................................................ 11
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`Nelson v. Mead Johnson & Johnson Co., 484 F. App’x 429 (11th Cir. 2012) ............................. 14
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`Perez v. Asurion Corp., 501 F. Supp. 2d 1360 (S.D. Fla. 2007) ...................................... 12, 15, 16
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`Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014) .................... 13
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`Sikes v. Teleline, Inc., 281 F.3d 1350, 1359 (11th Cir. 2002) ...................................................... 23
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`Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) .............................................. 10–11
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`Turner v. Gen. Elec. Co., 2006 WL 2620275 (M.D. Fla. Sept. 13, 2006) .................. 10, 11, 15, 16
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`Walco Investments, Inc. v. Thenen, 168 F.R.D. 315, 323 (S.D. Fla. 1996). ................................. 19
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`Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551–57 (2011) .............................................. 22
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`Williams v. Mohawk Industries, Inc., 568 F.3d 1350, 1355 (11th Cir. 2009)............................... 20
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`Wolff v. Cash 4 Titles, 2012 WL 5290155 .................................................................................... 18
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`Other Authorities
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`Attorneys’ Fees in Class Actions: 2009-2013 .............................................................................. 18
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`Manual for Complex Litig. at § 30.42 .......................................................................................... 12
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`Newberg on Class Actions § 13:10 ................................................................................................. 9
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`Rules
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`Fed. R. Civ. P 23 .................................................................................................................... passim
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`Fed. R. Evid. 408 .........................................................................................................................1, 4
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`iv
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`Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 7 of 33
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`I. INTRODUCTION2
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`On February 13, 2019, Plaintiff filed this proposed class action against Walmart
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`concerning the alleged systematic overcharging for beef, pork, poultry, fish, and other types of
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`packaged foods marked with unit pricing and sold accordingly thereto (the “Weighted Goods”).
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`Specifically, from February 13, 2015, to present (the “Class Period”), Plaintiff alleged that
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`Walmart advertised deceptive unit prices for Weighted Goods placed on sale close to their
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`respective expiration dates. It is further alleged that Walmart advertised those Weighted Goods
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`at specific unit sales prices, but upon closer inspection, the final sale prices did not coincide with
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`the unit sales prices based on the weight of the products as represented on the original labels (the
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`“Pricing Practice”). As a result, Walmart consumers did not receive the promised value for the
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`Weighted Goods they purchased.
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`By way of example, on November 18, 2018, Walmart sold a package of chicken tenders
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`that weighed 1.18 pounds, at a unit price of $5.78 per pound, that originally retailed for $6.82.
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`(Doc. No. 1-1). Walmart provided this information on the original label of the chicken tenders.
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`As the product’s expiration date approached, Walmart reduced the unit sale price to $3.77 per
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`pound, which should have resulted in a reduced sale price of $4.45 based on the information on
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`the original label (i.e., 1.18 pounds at $3.77 per pound). (Doc. No. 1-1). Instead, however, the
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`price for those chicken tenders Walmart charged at checkout was $5.93, which resulted in an
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`overcharge of $1.48 more than was justified by the sales label. (Doc. No. 1-1). Through
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`investigation and information exchanged pursuant to Rule 408, Plaintiff and Class Counsel
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`identified numerous examples of the Pricing Practice impacting the final sales price of Weighted
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`
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`2 Unless otherwise noted, all capitalized terms are defined in the Settlement.
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`1
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`Goods in Florida, as well as California, Illinois, Louisiana, and other states nationwide. (Doc.
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`No. 32, ¶ 37, 38). Based on a rigorous analysis of that evidence and information, Class Counsel
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`has determined the average overcharge for the Pricing Practices on the Weighted Goods
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`nationwide was approximately $1.67 for each purchase of the Weighted Goods.
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`Now, following significant investigation and lengthy arms’-length settlement negotiations
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`spanning months, the Parties have agreed on a classwide nationwide settlement to resolve the
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`claims described above (the “Settlement”). The pertinent terms of the Settlement are as follows:
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`Walmart will fund a non-reversionary Qualified Settlement Fund of a Floor of at least
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`$4,500,000.00 and, should the Settlement exceed $4,500,000.00, Walmart will fund that Qualified
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`Settlement Fund up to a Ceiling of $9,500,000.00. The Qualified Settlement Fund will be used to
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`pay for: (1) reimbursement of Settlement Class Members’ overcharges, including up to $10.00 for
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`sworn attestation of purchases of Weighted Goods, $40.00 for documented purchases of Weighted
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`Goods with receipts or proofs of purchase, but without the packaging to demonstrate the actual
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`amount overcharged, and non-capped amounts for all documented purchases of Weighted Goods
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`with receipts, proofs of purchase, and packaging demonstrating the actual amount of the
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`overcharge, as more fully described in sections 6.3.1.1 through 6.3.1.3 of the Settlement
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`Agreement; (2) notice and claims administration costs; (3) the Service Award; (4) Attorneys’ Fees,
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`Costs, and Expenses; and (5) Litigation Expenses. As part of the Settlement, Walmart has also
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`agreed to maintain certain business practice commitments relating to remediation of the pricing
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`and marking of Weighted Goods, which has been provided to Plaintiff’s Counsel.
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`Pursuant to Rule 23(e)(1)(B), an order directing notice to the class is justified where the
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`Court concludes it will likely be able to: (1) approve the Settlement as fair, reasonable, and
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`adequate; and (2) certify the class for purposes of judgment on the Settlement. Accordingly,
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`2
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`Plaintiff requests that the Court permit the issuance of Notice to the Settlement Class of the
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`proposed Settlement, approve the form and manner of Notice to the class, appoint Epiq Class
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`Action and Claims Solutions, Inc., to administer the class notice plan and to fulfill the duties of
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`the Claims Administrator as outlined in the Settlement Agreement, appoint Plaintiff as Settlement
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`Class Representative, appoint Plaintiff’s Counsel as Settlement Class Counsel, approve the
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`establishment of the Qualified Settlement Fund and schedule a final approval hearing to determine
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`whether the Settlement should be finally approved.
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`II. SUMMARY OF LITIGATION
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`A. Procedural History
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`Plaintiff filed this proposed class action against Walmart for the Pricing Practices related
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`to the Weighted Goods, seeking to recover the overpayments for the proposed Florida class
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`during the Class Period. (Doc. No. 1). In pursuit of the proposed Florida class, Plaintiff brought
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`two causes of action: 1) violation of Florida’s Deceptive and Unfair Trade Practices Act
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`(“FDUTPA”); and 2) unjust enrichment. (Doc. No. 1).
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`On April 8, 2019, Walmart moved to dismiss Plaintiff’s Class Action Complaint, which
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`focused on the alleged lack of details concerning the purchases and harm, and also challenged
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`the legal bases of Plaintiff’s claims. (Doc. No. 14). Following Walmart’s first Motion to Dismiss,
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`Plaintiff amended his complaint on April 22, 2019, to supplement his allegations and detail
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`additional examples of the Pricing Practices for the Weighted Goods, as well as detailing the
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`locations at which the Pricing Practices for the Weighted Goods were observed throughout twelve
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`stores in Florida’s Middle and Southern Districts. (Doc. No. 15, ¶¶ 33–36(l)).
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`On May 17, 2019, Walmart moved to dismiss Plaintiff’s Amended Complaint, (Doc. No.
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`24), to which Plaintiff responded in opposition on May 31, 2019, (Doc. No. 25), and Walmart
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`replied on June 7, 2019. (Doc. No. 26). After fully briefing the dispositive motion, the Parties
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`3
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`began exploring potential resolution of the case, and in September 2019, the Parties formally
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`selected a nationally known and extremely experienced mediator, Michelle Yoshida of Phillips
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`ADR, to mediate the case. (Doc. No. 29). Following two mediations under the guidance of Ms.
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`Yoshida, the Parties were substantially close to settlement of this matter on a nationwide basis,
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`and on May 28, 2020, jointly requested a stay of deadlines to permit the Parties to focus efforts
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`toward resolution. (Doc. No. 29).
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`On June 1, 2020, the Court denied Walmart’s Motion to Dismiss. (Doc. No. 30). On June
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`8, 2020, anticipating the Settlement presented in this Motion, the Parties stipulated to the
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`amendment of Plaintiff’s Amended Complaint to include nationwide allegations pursuant to
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`Federal Rule of Civil Procedure 15(a)(2). (Doc. No. 31). Plaintiff, unopposed by Walmart, now
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`respectfully moves this Court for preliminary approval of the Settlement for the benefit of the
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`nationwide Settlement Class and to disseminate Notice of same.
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`B. Information About the Settlement
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`To help facilitate settlement negotiations, the Parties agreed on and retained Michelle
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`Yoshida of Phillips ADR to conduct a mediation. JAY Decl., ¶ 13. As a condition of mediation,
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`Plaintiff’s Counsel sought pertinent information from Walmart regarding the Pricing Practices and
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`Weighted Goods, including sales data for the Weighted Goods during the Class Period. Walmart
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`agreed to provide this information pursuant to Federal Rule of Evidence 408. JAY Decl., ¶ 14.
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`In advance of the mediation, the Parties briefed their respective positions on the facts,
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`claims, defenses, and assessments of the continued risks of litigation before Ms. Yoshida. JAY
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`Decl., ¶¶ 15, 16. On November 19, 2019, the Parties participated in their first full-day mediation
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`session with Ms. Yoshida that included attorneys and representatives for both Parties on behalf of
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`the proposed Florida class. Following those negotiations, the Parties agreed to exchange additional
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`information and engage in additional discovery to pursue a second mediation on behalf of a
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`4
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`nationwide settlement class. On March 18, 2020, the Parties then engaged in the second mediation
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`on behalf of a nationwide class, and participated in additional sessions in the following weeks
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`culminating in the Settlement Agreement currently before this Court for approval. The negotiations
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`were hard-fought throughout and the settlement process was conducted at arm’s length. Following
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`these multiple day-long negotiations, the Parties were able to reach an agreement on the
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`substantive terms of the Settlement. JAY Decl., ¶¶ 17–20. As a condition of Settlement, Walmart
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`produced certain documents responsive to Plaintiff’s first discovery requests and provided detailed
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`sales data for Weighted Goods Walmart sold in Florida and nationwide during the Class Period.
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`JAY Decl., ¶¶ 14, 18, 26.
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`Based on Plaintiff Counsel’s independent investigation of the relevant facts and applicable
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`law, experience with other fraudulent, deceptive, and unfair trade practices cases, and the
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`information provided by Walmart, as well as work with an expert in this field, Plaintiff’s Counsel
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`has determined that the Settlement is fair, reasonable, adequate, and in the best interest of the
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`Settlement Class. JAY Decl., ¶¶ 26–33, 39. Accordingly, the Parties worked together to prepare a
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`comprehensive set of settlement documents, which are embodied in the Settlement Agreement and
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`the exhibits attached thereto. Ibid.
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`III. THE TERMS OF THE SETTLEMENT AGREEMENT
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`A. The Settlement Class
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`The proposed Settlement Class is defined as all persons who purchased Weighted Goods
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`from Walmart in the United States from February 13, 2015, to the date of publication of notice of
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`settlement (i.e., Court approved settlement) whose Weighted Goods’ unit sale price was not
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`5
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`Case 1:19-cv-20592-JEM Document 41 Entered on FLSD Docket 08/07/2020 Page 12 of 33
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`accurately reflected in the final sale price.3 SA, § 2.29.
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`B. The Settlement Benefits
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`Walmart has agreed to fund a non-reversionary Qualified Settlement Fund with a minimum
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`of $4,500,000.00 (the “Floor”) and a maximum of $9,500,000.00 (the “Ceiling”). SA, §§ 6.1,
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`6.2.1–6.2.4.3; JAY Decl., ¶ 27. The Qualified Settlement Fund will be used to pay for the
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`reimbursement of purchases of Weighted Goods that were purchased during the Class Period and
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`the reduced sale price was inaccurate based on the Pricing Practices (the “Overpayments”). See
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`SA, § 6.3.1–6.3.1.3. Examples of Overpayments that are eligible for reimbursement through the
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`Settlement include:
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`• Undocumented Overpayments, capped at six (6) purchases with an
`average Overpayment of $1.67 per purchase, summed to $10.00;
`• Overpayments where the Settlement Class Member has receipts or other
`proof of purchases to substantiate the number of Weighted Goods
`purchased, but lacks proof to substantiate the actual amount overcharged,
`capped at ten (24) purchases with an average Overpayment of $1.67 per
`purchase, summed to $40.00; and
`• Overpayments where the Settlement Class Member has receipts or other
`proof of purchases to substantiate the number of Weighted Goods
`purchased, and the Settlement Class Member has the packaging to
`demonstrate the actual amount overcharged, the Settlement Class Member
`will recover the actual amount of Overpayments, without any cap.
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`The documentation necessary to establish Overpayments is not overly burdensome and can
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`consist of documents such as receipts, product packaging, among other relevant documentation.
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`See SA, § 6.3.1–6.3.1.3; JAY Decl., ¶¶ 28–31. If the claim is rejected for any reason, there is also
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`a consumer-friendly process whereby claimants will have the opportunity to cure any deficiencies
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`
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`3 Excluded from the Settlement Class are: (1) the judges presiding over this Action, and members
`of their direct families; (2) the Defendant, its subsidiaries, parent companies, successors,
`predecessors, and any entity in which the Defendant or its parents have a controlling interest and
`their current or former officers, directors, and employees; (3) Settlement Class Members who
`submit a valid Request for Exclusion prior to the Opt-Out Deadline. SA, § 2.29.
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`6
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`in their submission if the Claims Administrator determines a claim for Overpayments is deficient
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`in whole or part. SA, § 6.3.9; JAY Decl., ¶ 42.
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`C. Business Practice Commitments
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`In addition to the monetary compensation provided to class members by the Settlement,
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`Walmart has reviewed the examples of the Pricing Practices identified in Plaintiff’s Second
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`Amended Complaint and provided during mediation, and committed to the remediation of the
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`Pricing Practices. These commitments will be paid for by Walmart separate and apart from the
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`Qualified Settlement Fund. JAY Decl., ¶ 33.
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`D. Proposed Notice Program
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`The Parties propose that Epiq Class Action and Claims Solutions, Inc. (“Epiq”) be
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`appointed as the Claims Administrator tasked with providing Notice and processing claims. Epiq
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`is a nationally recognized class action notice and administration firm that has designed a class
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`notice program for this case, which Plaintiff’s Counsel and Epiq believe is an effective program.
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`See Declaration of Cameron Azari of Epiq Class Action and Claims Solutions, Inc., In Support of
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`Class Notice and Claims Administration (“Azari Decl.”), ¶¶ 2–8, attached as Exhibit 3; JAY Decl.,
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`¶ 34.
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`Subject to Court approval, this Notice program involves utilizes national consumer print
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`publications, internet banner advertising, social media, sponsored search, and a national
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`informational release. Azari Decl., ¶¶ 9–26; JAY Decl., ¶ 34. The approximate cost of notice and
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`administration is $560,000.00, which will be paid from the Qualified Settlement Fund. Azari Decl.,
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`¶ 30; JAY Decl., ¶ 34; SA, § 6.2.3.
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`Epiq will also establish a Settlement Website in the form agreed to by the Parties and the
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`Court. Azari Decl., ¶ 27; JAY Decl., ¶ 35. In addition to the Notice, the Settlement Website will
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`include information about the Settlement, related case documents, and the Settlement Agreement.
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`7
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`Class members can submit claims electronically on the Settlement Website or by mail. SA, § 2.37;
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`JAY Decl., ¶ 35. The documentation necessary to establish overcharges can be uploaded through
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`the Settlement Website or mailed in paper form. JAY Decl., ¶¶ 28–32, 35. The Claim Form
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`provides examples of documentation that can establish various types of losses. See Claim Form,
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`Exhibit C to SA.
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`The proposed Notice meets the standards of Rule 23(c)(2)(B). See Summary Notice,
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`Exhibit A to SA. The Notice uses plain English in an easy-to-read format that concisely explains
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`to Settlement Class Members the nature of the Litigation and their options under the Settlement.
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`It includes information such as the case caption, a description of the Settlement Class, a description
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`of the claims and the history of the Litigation, a description of the Settlement and the claims being
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`released, the names of counsel proposed to be appointed to represent the Settlement Class, a
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`statement of the maximum amount of attorneys’ fees, costs, and expenses that Plaintiff’s Counsel
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`will seek, the maximum amount Plaintiff will seek for a Service Award at the final approval
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`hearing, a description of the procedures and deadlines for requesting exclusion and objecting to
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`the Settlement, the URL to access the Settlement Website containing relevant case documents, and
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`how to obtain further information. See Summary Notice, Exhibit A; JAY Decl., ¶ 35.
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`E. Service Awards and Attorneys’ Fees, Costs, and Expenses
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`The Qualified Settlement Fund will be used to pay for an award of Attorneys’ Fees, Costs,
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`and Expenses and a Service Award payment as approved by the Court. Plaintiff’s Counsel will
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`move for an attorneys’ fee award not to exceed twenty five percent (25%) of the Qualified
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`Settlement Fund Ceiling and for reimbursement of Litigation Costs not to exceed $100,000. SA,
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`§ 6.2.1; JAY Decl., ¶ 37. Plaintiff’s Counsel will also move for a Service Award payment for the
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`Plaintiff not to exceed $25,000.00 for his time and effort in pursing this Litigation on behalf of
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`the Settlement Class. SA, § 6.2.2; JAY Decl., ¶ 37. Plaintiff’s approval of the Settlement is not
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`conditioned in any manner on his receiving a Service Award or its amount. JAY Decl., ¶ 37.
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`Plaintiff’s Counsel will file the motion for Attorneys’ Fees, Costs, and Expenses, and a Service
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`Award payment no later than 21 days before the Opt-Out and Objection Deadlines. Walmart takes
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`no position on the amounts to be sought for Attorneys’ Fees, Costs, and Expenses or for a Service
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`Award, but does not object to reasonable awards by the Court. SA, §§ 6.2.1–6.2.2; JAY Decl., ¶
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`37.
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`F. Release of Claims
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`In exchange for the benefits provided under the Settlement, Settlement Class Members will
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`release any legal claims that may arise from or relate to the facts alleged in the Second Amended
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`Complaint, as specified in Section 13 of the Settlement Agreement. SA, §§ 2.31, 13.1–13.5; JAY
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`Decl., ¶ 38.
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`IV. ARGUMENT
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`A. Legal Standards
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`Approval of a proposed settlement is a two-step process. First, the court decides whether
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`the proposed settlement is “within the range of possible approval,” Fresco v. Auto Data Direct,
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`Inc., 2007 WL 2330895, at *4 (S.D. Fla. May 14, 2007), to decide “whether to direct notice …
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`to the class, invite the class’s reaction, and schedule a final fairness hearing.” 4 Newberg on Class
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`Actions § 13:10 (5th ed. 2015). Second, at the final approval hearing, the court decides if the
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`settlement is fair, reasonable, and adequate. Id.
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`Under Rule 23(e)(1), as amended December 1, 2018, the Court must direct notice to the
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`class of a class action settlement upon determining that notice is justified because the Court
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`concludes it is “more likely than not” to finally approve the settlement and certify a settlement
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`class. See Fed. R. Civ. P. 23(e)(1)(B). The amendments specify that before finally approving a
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`settlement, a court should consider whether: (1) the class was adequately represented; (2) the
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`settlement was negotiated at arm’s length; (3) the relief is adequate, taking into account the costs,
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`risks, and delay of trial and appeal; how the relief will be distributed; the terms governing
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`attorneys’ fees; and any side agreements; and (4) whether class members are treated equitably
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`relative to each other. Id. In assessing whether a settlement is fair, reasonable, and adequate,
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`courts in this Circuit may also consider the so-called Bennett factors, which include: (1) the
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`likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the
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`range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the
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`complexity, expense and duration of the litigation; (5) the substance and amount of opposition to
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`the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett v.
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`Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). In weighing these factors, the court’s
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`“judgment is informed by the strong judicial policy favoring settlement as well as by the
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`realization that compromise is the essence of settlement.” Id. (citations omitted).
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`Settlement “has special importance in class actions with their notable uncertainty,
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`difficulties of proof, and length. Settlements of complex cases contribute greatly to the efficient
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`use of judicial resources, and achieve the speedy resolution of justice[.]” Turner v. Gen. Elec.
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`Co., 2006 WL 2620275, at *2 (M.D. Fla. Sept. 13, 2006). For these reasons, “[p]ublic policy
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`strongly favors the pretrial settlement of class action lawsuits.” In re U.S. Oil & Gas Litig., 967
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`F.2d 489, 493 (11th Cir. 1992).
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`B. The Proposed Nationwide Settlement is Permissible
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`On June 9, 2020, this Court inquired whether a tort-based claim with a Florida-based
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`plaintiff is certifiable for settlement purposes on a nationwide basis. (Doc. No. 35). This Court is
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`well within its discretion to do so. See, e.g., In re Checking Account Overdraft Litig., 830
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`F.Supp.2d 1330, 1331 (S.D. Fla. 2011) (King, J.) (certifying nationwide class action settlement
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`based on common law and state-based consumer protection laws). Sullivan v. DB Investments,
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`Inc., 667 F.3d 273, at 310 (3d Cir. 2011) (noting that “were [courts] to mandate that a class include
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`only those alleging ‘colorable’ claims, [courts] would effectively rule out the ability of a defendant
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`to achieve ‘global peace’ by obtaining releases from all those who might wish to assert claims,
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`meritorious or not. We need not take judicial notice of the fact that plain