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Exhibit B
Proposed & Agreed Upon Notice
of Class Action Settlement
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
VINCENT SETTECASI and xxxxxxxx xxxx,
individually and on behalf of others similarly situated,
Index No.: 154038/2018
Plaintiffs,
- against -
NOTICE OF PROPOSED CLASS
ARK RESTAURANTS CORP.; ARK BRYANT PARK,
ACTION SETTLEMENT
LLC; ARK BRYANT PARK SOUTHWEST, LLC;
MICHAEL WEINSTEIN; and any other related entities,
Defendants.
TO: All individuals employed, used or engaged by Ark Restaurants Corp., from
May 1, 2012 through [the date the Class List is provided to the Settlement
Claims Administrator], who performed work at Ark Restaurants Corp.’s
New York catered events held on or off Ark Restaurants Corp.’s premises,
in such trades, classifications, positions, jobs, and professions that
customarily receive gratuities, including but not limited to wait staff,
waiters, servers, captains, bussers, bartenders, bathroom attendants, and
coat check attendants. Individuals who performed work on behalf of Ark
Restaurants Corp. in these or similar positions but were supplied and/or paid
by third-party staffing agencies shall be considered Class Members,
provided certain criteria are met.
DATED: [DATE], 2021
PLEASE READ THIS NOTICE CAREFULLY
This Notice relates to a proposed settlement of this class action litigation. This Notice has
been authorized by a New York State Court. This Notice contains important information
about this lawsuit including your right to participate in the settlement, make a claim for
payment, or elect not to be included in the class. The following pages detail your options,
your rights, and common questions or issues that Class Members ask about class action
settlements.
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INTRODUCTION
Vincent Settecasi and xxxxxxxx xxxx filed a lawsuit against Defendants alleging claims for
unpaid gratuities. The Court in charge of this case is the New York State Supreme Court, New
York County. The lawsuit is captioned Settecasi, et al. v. Ark Restaurants Corp., et al. bearing
index number 154038/2018 (“Action”). Vincent Settecasi and xxxxxxxx xxxx are the Named
Plaintiffs. The Defendants are Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant Park
Southwest LLC, Michael Weinstein, and “any other related entities” sued in the action to the extent
the same relate in any way to Ark Restaurants Corp. Named Plaintiffs allege in the lawsuit that,
among other things, that Defendants failed to pay them and other similarly situated service workers
gratuities in violation of the New York State Labor Law.
Defendants have defended and vigorously contested the claims in the Action. Defendants
deny all material allegations in the Action, have asserted numerous defenses, and deny any and all
liability. Defendants deny that they have violated the law or that they owe any money to Plaintiffs
or the Class Members. Defendants, without admitting any wrongdoing or liability, nevertheless
have agreed to enter into this Agreement to avoid further expense, inconvenience and the
distraction of burdensome and protracted litigation, and to be completely free of any further
controversy with respect to the claims that were asserted or could have been asserted in, or relate
in any way whatsoever to, the Action.
The parties have agreed to settle this Action subject to the approval of the Court. The Court
has not decided who is right and who is wrong or whether this case could, in the absence of
settlement, proceed as a class action or whether Plaintiffs and/or the class would ultimately prevail.
Ark Restaurants Corp. has agreed to pay up to Nine Hundred Thousand Dollars ($900,000.00),
subject to (i) Defendants’ right to terminate the settlement for the reasons set forth in the Settlement
Agreement, and/or (ii) Class Counsel’s right to proportionately reduce the settlement amount
down.
The Settlement Class includes all individuals employed, used or engaged by Ark
Restaurants Corp., from May 1, 2012 [the date the Class List is provided to the Settlement Claims
Administrator], who performed work at Ark Restaurants Corp.’s New York catered events held on
or off Ark Restaurants Corp.’s premises, in such trades, classifications, positions, jobs, and
professions that customarily receive gratuities, including but not limited to wait staff, waiters,
servers, captains, bussers, bartenders, bathroom attendants, and coat check attendants. Individuals
who performed work on behalf of Ark Restaurants Corp. in these or similar positions but were
supplied and/or paid by third-party staffing agencies shall be considered Class Members, provided
certain criteria are met. The Settlement Class does not include maintenance workers, corporate
officers, salespersons, cooks, food preparers, chefs, dishwashers, directors, clerical staff, office
workers, event coordinators, or any other person whose trade, work, duties, classification or
profession does not customarily have direct contact with guests during catering events.
The parties have reached this Agreement through arm’s length negotiations and then
presented it to the Court. As determined through that process, you are entitled to participate in the
settlement, and your legal rights may be affected. These rights and options are summarized below
and explained in detail throughout this Notice.
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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
As described more fully below, to participate in the settlement and receive a
share of the settlement fund, you must (1) fully and timely complete and sign
the Claim Form and Release, and (2) timely mail, email or fax (i) the properly
completed Claim Form and Release, and (ii)all necessary IRS forms and
PARTICIPATE
related tax information, to the Settlement Claims Administrator that must be
postmarked by [BAR DATE], 2021. If you fail to submit a timely Claim Form
and Release and related documents, you will receive no monetary distribution
from the settlement and your claims will be released.
If you wish to exclude yourself (“opt-out”) from the lawsuit and not receive
EXCLUDE
a payment, then you must follow the directions outlined in response to
YOURSELF
Question 7 below.
You may write to the Court about why you believe the settlement is unfair
or unreasonable. If the Court rejects your objection, you will still be bound
OBJECT by the terms of the settlement and release unless you submit a valid and
timely request for exclusion. If you object you may request to appear at the
Fairness Hearing to speak to the Court about the fairness of the settlement.
If you fail to submit a timely Claim Form and Release, you will receive no
monetary distribution from the settlement. Additionally, you will not be
DO NOTHING allowed to pursue claims (as described herein) against Defendants,
separately or as part of this lawsuit, and will be bound by the release as
described herein.
FREQUENTLY ASKED QUESTIONS
Question 1. Why did I receive this notice?
You received this notice because relevant records show that you performed work as a wait staff,
waiter, server, captain, busser, bartender, bathroom attendant, coat check attendant or similar
service position that customarily receives gratuities at Ark Restaurants Corp.’s New York catered
events during the period May 1, 2012 through [DATE CLASS LIST IS PROVIDED TO CLAIMS
ADMINISTRATOR].
Question 2. What is a class action?
A class action is a lawsuit where one or more persons sue not only for themselves, but also for
other people who have similar claims. These other people are known as Class Members. In a class
action, one court resolves the issues for all Class Members who do not opt out and thereby exclude
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themselves. The Honorable Debra A. James, J.S.C., New York State Supreme Court, New York
County, is the Judge who is presiding over this class action.
Question 3. Why is there a settlement?
Named Plaintiffs, on behalf of themselves and the Settlement Class, and Class Counsel analyzed
and evaluated the merits of the claims made against Defendants in the litigation. Such work
included court appearances, motion practice, client intakes, witness interviews, formal and
confirmatory discovery including the exchange of thousands of pages of documents. In addition,
counsel for the parties also participated in numerous settlement negotiation sessions. Based upon
Class Counsel’s due diligence, and the substantial risks of a continued litigation, including the
possibility that the litigation, if not settled now, might not result in any recovery whatsoever, or
might result in a recovery that is less favorable and that would not occur for several years,
Plaintiffs, Class Counsel, and Defendants entered into this proposed settlement. Class Counsel and
the Named Plaintiffs are satisfied that the terms and conditions of this Agreement are fair,
reasonable and adequate, and that this Agreement is in the best interest of Plaintiffs and Class
Members such as yourself – especially in light of recent economic developments related to the
Coronavirus pandemic and its economic consequences.
Defendants deny the allegations in the lawsuit, and deny that they owe Plaintiffs or any Class
Members any wages or other compensation. To avoid the burden, expense, inconvenience, and
uncertainty of continued litigation, however, Defendants have concluded that it is in their best
interests to resolve and settle the lawsuit, without admitting any wrongdoing or liability.
Question 4. How much will I get paid if I join the Settlement?
Recovery in the settlement will vary from worker to worker – and will be subject to a number of
factors based on the amount of work you performed at Ark Restaurants Corp. New York catered
events or the number of Ark Restaurants Corp. New York catered events at which you worked.
As detailed below, workers will be allocated points based on the number of Ark Restaurants Corp.
catered events they worked or wages earned while working at Ark Restaurants Corp. catered
events and the points will be added up for all workers to determine a money value for each point.
First, Class Members will be classified into two subsets of workers: (i) workers that received
payment directly from Ark Restaurants Corp. shall be known as “Direct Workers”; and (ii) all
other individual Class Members shall be known as “Temporary Workers.”
Second, the Settlement allocations to Class Members who are Direct Workers are based on the
total wages earned for working at Ark Restaurants Corp. catered events and the settlement
allocations for Class Members who are Temporary Workers are based on the total number of Ark
Restaurants Corp. catered events worked, in accordance with the following schedule:
Tier Direct Workers Temp,.Workers Points
Wage Totals for Ark Event Totals for
Catered Events Ark Catered
Events
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Tier 1 Less than $600 Less than 5 events 1 point
Tier 2 $601 to $2,000 6-15 events 2 pts
Tier 3 $2,001 to $3,000 16-30 events 3 pts
Tier 4 $3,001 to $6,000 31-50 events 6 pts
Tier 5 $6,001 to $10,000 51-99 events 9 pts
Tier 6 $10,001 to $20,000 100-125 events 10 pts
Tier 7 $20,001 to $30,000 126-175 events 15 pts
Tier 8 $30,001 to $50,000 176-225 event 20 pts
Tier 9 Over $50,000 226 or more events 25 pts
“Temp. Workers Total Events Worked for Ark Catered Events” were calculated by Class Counsel
and counsel for Defendants using their best efforts, the documents and information available to
them, reasonable estimates and good faith adherence to the parameters described above. To the
extent that any Temporary Worker’s information is incomplete, they will be allocated 1 point for
each year records indicate they worked at Ark Restaurants Corp. catered events up to a maximum
of 4 points. For purposes of calculating points in the allocation formula, the wage totals of Class
Members who signed arbitration agreements with Ark Restaurants Corp. or its affiliates or
subsidiaries will be reduced by 33%.
All Class Members will be given such information on their individualized Claim Form and Release
provided to that Class Member. Class Members wishing to challenge or dispute such figures must
do so in writing to Class Counsel or the Settlement Claims Administrator. Challenges will be
processed based on specific facts and supporting evidence that is available. Please note, an
individual who challenges a Class Member’s wages earned, total events worked or points
allocated has not objected to the Settlement nor has he/she opted-out of the Settlement.
Third, each Class Member’s percentage is calculated by (1) taking the individual Class Member’s
points as the numerator, and (2) dividing it by the sum of gross points of all Class Members as the
denominator. The denominator for each Class Member will be the same number. As a result of
this calculation, the total of all Class Members’ numerators must equal the denominator. Thus, the
Class Member’s adjusted individual points divided by the sum of all adjusted points for all Class
Members, equals his/her individual percentage allocation.
Fourth, the Gross Settlement Fund, less Costs and Fees, shall be multiplied by each Authorized
Claimant’s percentage allocation as calculated in Section 3.5(D) of the Settlement Agreement.
This represents the individual amount allocated to each Authorized Claimant – or Individual Gross
Amount – prior to any taxes being withheld.
If after all the calculations are made and all Authorized Claimants allocations are calculated,
Defendants have the discretionary authority to terminate the Settlement Agreement if the total
expected payout exceeds $525,000. In which case and to avoid termination of the Settlement
Agreement, these calculations and individual payments may be proportionately reduced to avoid
Defendants terminating the Agreement. If reductions are made, then Class Counsel’s attorney’s
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fees will also be reduced in the same proportion. If you have questions about the calculations,
allocation formulas, or the potential termination provision of this agreement, contact Class
Counsel for a more detailed explanation of these provisions.
Question 5. Who brought this lawsuit and are they being compensated?
This lawsuit was brought by Named Plaintiffs Vincent Settecasi and xxxxxxxx xxxx. Plaintiffs
Settecasi and xxxx took a lead role in this litigation and assisted in its resolution. In addition to
their allocated share as described in Question 4, they will receive a cumulative total of $15,000.00
which shall be divided equally among the Named Plaintiffs for their efforts on behalf of
themselves and Class Members in reaching this Settlement.
Question 6. What do I have to do to be included in the Settlement and to receive a
distribution payment?
To receive a distribution from the settlement fund, you must timely complete and return the
enclosed Claim Form and Release and IRS Forms according to the instructions provided on the
form by [BAR DATE] (the “Bar Date”).
Step 1: The Claim Form and Release and IRS Forms must be personally filled out and signed by
the Class Member who seeks to participate in the Settlement or someone with a legal right to act
on his or her behalf.
Step 2: The properly completed and signed Claim Form and Release and IRS Forms must be
mailed, emailed, or faxed to the Settlement Claims Administrator by the Bar Date. There are three
ways in which these documents can be returned:
Mail: __[ADDRESS]
Email: [Email Address]
Fax: [Fax]
If you do not properly complete and timely submit the Claim Form and Release, and IRS Forms,
you will not be eligible to receive any monetary distribution but you will still be bound by the
Release of all claims as described below.
You should keep in mind that if you do not opt-out, and if you do not properly and timely complete
and return the Claim Form and Release and IRS Forms by the Bar Date, you will not receive a
distribution from the settlement fund, but you will still be bound by the Release of all claims as
described below.
If you timely return the enclosed Claim Form and Release and IRS Forms to the Settlement Claims
Administrator so that they are received by email, fax, or postmarked by [BAR DATE], the
Settlement Claims Administrator will make your payment after a Fairness Hearing, if one is
scheduled, and the Settlement is approved by the Court.
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You will need to deposit or cash your settlement check within 365 days after it is mailed to you.
After the 365-day period (as determined by the postmark on the envelope the check was mailed
in) has expired, the settlement check will be void.
If the Court grants final approval of the Settlement, this action will be dismissed with prejudice
and Class Members who do not opt-out will fully release and discharge Defendants in their
corporate and individual capacities from all claims as set forth below. This means that you cannot
sue, continue to sue, or be party of any other lawsuit against Defendants regarding the claims
released. It also means that all of the Court’s orders will apply to you and legally bind you.
The Release in the Settlement Agreement provides, in summary, that:
Each individual Class Member who does not timely opt-out pursuant to the
Settlement Agreement and any Authorized Claimant forever and fully releases and
discharges Defendants and Robert J. Stewart from any and all claims alleged in the
Complaint, including those based on or under New York Labor Law § 196-d, the
Hospitality Wage Order, and/or common law claims related to unpaid gratuities,
tips, service charges, administrative charges, or other related charges, whether
known or unknown, that were or could have been asserted in the Action. The
Released Class Claims include statutory, constitutional, contractual or common
law claims for unpaid gratuities, service charges, administrative fees or charges,
tips, interest on such claims, penalties, damages, liquidated damages, attorneys’
fees, expenses, disbursements, litigation costs and fees related to such claims,
restitution, or equitable relief related to such claims.
Question 7. How do I exclude myself from the Settlement? (Opting Out)
If you do not wish to participate in the Settlement, but you want to keep the right to sue or continue
to sue Defendants on your own about the legal issues in this case or which could have been brought
in this case, then you must take steps to exclude yourself, or “opt-out” from this Action.
If you intend to exclude yourself, you must mail a written, signed statement (“Opt-out Statement”)
to the Settlement Claims Administrator stating, “I opt-out of the Ark Restaurants Corp. wage and
hour settlement” or a similar statement which clearly express your desire to exclude yourself from
this settlement. You must include your name, address, and telephone number in the statement. To
be effective, the Opt-out Statement must be postmarked by the Bar Date of ______and mailed to
the Settlement Claims Administrator at:
_CLAIMS ADMIN_
__ADDRESS__
_ PHONE__
If you exclude yourself from the lawsuit and the Action and Settlement, you will NOT be allowed
to object to the Settlement as described in Question 12.
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Question 8. If I don’t exclude myself from the Settlement, can I sue Defendants for the
same thing later?
No. Unless you exclude yourself, you give up any rights to sue Defendants for claims brought in
this case or which could have been brought in this case. If you have a pending lawsuit, speak to
your lawyer in that case immediately to see if this Settlement will affect your other case.
Remember, the exclusion deadline is ________. If you exclude yourself from the Settlement, you
may sue, continue to sue, or be part of a different lawsuit against Defendants regarding these same
claims.
Question 9. If I exclude myself, can I get money from the Settlement?
No. If you exclude yourself, you will not receive any money from this lawsuit.
Question 10. Do I have a lawyer in this case?
The law firm of Leeds Brown Law, P.C., One Old Country Road, Suite 347, Carle Place, New
York 11514, (516) 873-9550 has been designated as legal counsel to represent you and other Class
Members. These lawyers are called Class Counsel. You will not be charged separately for these
lawyers. You will not be charged for calling, emailing or speaking confidentially to Class Counsel.
You are permitted to call Class Counsel with any questions and such communications will be
confidential and protected. Class Counsel’s fees are being paid from the total settlement fund as
part of the Settlement and are subject to the approval of the Court. If you want to be represented
by your own lawyer, you may hire one at your own expense.
Question 11. How will the lawyers be paid?
Class Counsel will ask the Court to approve payment of up to Three Hundred Thousand Dollars
($300,000.00) for attorneys’ fees and certain litigation expenses and costs to be paid from the
settlement fund. The fees and costs would pay Class Counsel for all work that they have performed
and expenses they have incurred in this action including filing briefs, investigating the facts, filing
fees, engaging in discovery, attending court conferences, participating in settlement discussions,
and negotiating and overseeing the settlement.
Question 12. How do I tell the Court that I don’t like the Settlement?
If you do not opt out of the settlement, you can object to the settlement. You can give reasons why
you think the Court should not approve it. The Court will consider your views. However, if the
Court rejects your objection, you will still be bound by the terms of the Settlement – unless you
submitted a valid and timely request for exclusion. You cannot ask the Court to order a larger
settlement; the Court can only approve or deny the settlement as presented to it by the parties. If
the Court denies approval, no settlement payments will be made and the lawsuit will continue. If
that is what you want to happen, you must object.
To object, you must submit a valid Claim Form and Release and send a letter saying that you
object to the Settlement. Your statement must include all reasons for your objection and any
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supporting documentation in your possession. Your statement must also include your name,
address, and telephone number.
If you wish to present your objection to the Court at the Fairness Hearing described below, you
must specifically state your intention to do so in your written objection. Your statement must
include all reasons for your objection and any supporting documentation in your possession and
be as detailed as possible. Otherwise, the Court may not allow you to present reasons for your
objection that you did not describe in your written objection. Your objection will not be heard
unless it is received by the ___ Bar Date or postmarked by the ____ Bar Date and mailed to the
Settlement Claims Administrator via First Class United States Mail at:
_CLAIMS ADMIN_
__ADDRESS__
_ PHONE__
The Settlement Claims Administrator will share your objection with Class Counsel and
Defendants’ counsel and file your objection statement with the Court.
You may not object to the Settlement if you submit a letter requesting to exclude yourself or opt-
out of the Settlement.
Question 13. What’s the difference between objecting and excluding?
Objecting is simply telling the Court that you do not like something about the settlement. You can
object only if you stay in the Settlement Class. Excluding yourself from the settlement (“opting
out”) is telling the Court that you do not want to be part of the Settlement Class. If you exclude
yourself, you have no basis to object because the case no longer affects you.
If you send an objection, it is not necessary for you to come to Court to talk about it, but you may
do so at your own expense or pay your own lawyer to attend. As long as you mailed your written
objection on time, the Court will consider it. If you do attend the Fairness Hearing, it is possible
that you will not be permitted to speak unless you timely object in writing as described above and
notify the Court of your intention to appear at the Fairness Hearing.
Question 14. Has the Court approved the Settlement?
Yes. The Court has already granted conditional approval of the proposed settlement and
determined that the terms of the settlement and the proposed distribution of the settlement are fair,
reasonable, and adequate – after reviewing a submission by the parties that is publicly available
via NYSCEF and the electronic filing system in New York State. However, if you wish to raise a
valid concern, you should alert the attorneys and they can request a conference with the Court if
your issue is not resolved to your satisfaction. If there are objections, the Court will consider them.
The Judge will decide whether to listen to any issues that are properly raised.
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After Notice is distributed and all Class Members are given the ability to participate, object, or opt
out, the Court will make a final determination as to the reasonableness and fairness of the proposed
Settlement at a Fairness Hearing. The Court has scheduled a Final Fairness Hearing on
_______________ at :00 .m. in Courtroom of the Supreme Court of the State of New York,
County of New York, which is located at , regarding whether final
approval should be given to the proposed settlement. The Court also may decide how much to
pay Class Counsel. The Court may continue the time and date of the hearing without further
notice. Note that the Fairness Hearing may be conducted by remote means including but not
limited to a video conference, telephone conference or other virtual means (e.g., Zoom or another
virtual platform)
Question 15. Are there more details about the Settlement?
This notice summarizes the proposed settlement. More details are in the Settlement Agreement. If
there is any discrepancy between this notice and the Settlement Agreement, the terms of the
Settlement Agreement will be controlling. You can review the Settlement Agreement by asking
for a copy of the Settlement Agreement by writing or calling Jeffrey K. Brown, Esq., Michael A.
Tompkins, Esq., or other attorneys at (516) 873-9550, Leeds Brown Law, P.C., One Old Country
Road, Carle Place, New York 11514, www.leedsbrownlaw.com.
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Preview
FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 Exhibit B Proposed & Agreed Upon Notice of Class Action Settlement FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VINCENT SETTECASI and xxxxxxxx xxxx, individually and on behalf of others similarly situated, Index No.: 154038/2018 Plaintiffs, - against - NOTICE OF PROPOSED CLASS ARK RESTAURANTS CORP.; ARK BRYANT PARK, ACTION SETTLEMENT LLC; ARK BRYANT PARK SOUTHWEST, LLC; MICHAEL WEINSTEIN; and any other related entities, Defendants. TO: All individuals employed, used or engaged by Ark Restaurants Corp., from May 1, 2012 through [the date the Class List is provided to the Settlement Claims Administrator], who performed work at Ark Restaurants Corp.’s New York catered events held on or off Ark Restaurants Corp.’s premises, in such trades, classifications, positions, jobs, and professions that customarily receive gratuities, including but not limited to wait staff, waiters, servers, captains, bussers, bartenders, bathroom attendants, and coat check attendants. Individuals who performed work on behalf of Ark Restaurants Corp. in these or similar positions but were supplied and/or paid by third-party staffing agencies shall be considered Class Members, provided certain criteria are met. DATED: [DATE], 2021 PLEASE READ THIS NOTICE CAREFULLY This Notice relates to a proposed settlement of this class action litigation. This Notice has been authorized by a New York State Court. This Notice contains important information about this lawsuit including your right to participate in the settlement, make a claim for payment, or elect not to be included in the class. The following pages detail your options, your rights, and common questions or issues that Class Members ask about class action settlements. 1 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 INTRODUCTION Vincent Settecasi and xxxxxxxx xxxx filed a lawsuit against Defendants alleging claims for unpaid gratuities. The Court in charge of this case is the New York State Supreme Court, New York County. The lawsuit is captioned Settecasi, et al. v. Ark Restaurants Corp., et al. bearing index number 154038/2018 (“Action”). Vincent Settecasi and xxxxxxxx xxxx are the Named Plaintiffs. The Defendants are Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant Park Southwest LLC, Michael Weinstein, and “any other related entities” sued in the action to the extent the same relate in any way to Ark Restaurants Corp. Named Plaintiffs allege in the lawsuit that, among other things, that Defendants failed to pay them and other similarly situated service workers gratuities in violation of the New York State Labor Law. Defendants have defended and vigorously contested the claims in the Action. Defendants deny all material allegations in the Action, have asserted numerous defenses, and deny any and all liability. Defendants deny that they have violated the law or that they owe any money to Plaintiffs or the Class Members. Defendants, without admitting any wrongdoing or liability, nevertheless have agreed to enter into this Agreement to avoid further expense, inconvenience and the distraction of burdensome and protracted litigation, and to be completely free of any further controversy with respect to the claims that were asserted or could have been asserted in, or relate in any way whatsoever to, the Action. The parties have agreed to settle this Action subject to the approval of the Court. The Court has not decided who is right and who is wrong or whether this case could, in the absence of settlement, proceed as a class action or whether Plaintiffs and/or the class would ultimately prevail. Ark Restaurants Corp. has agreed to pay up to Nine Hundred Thousand Dollars ($900,000.00), subject to (i) Defendants’ right to terminate the settlement for the reasons set forth in the Settlement Agreement, and/or (ii) Class Counsel’s right to proportionately reduce the settlement amount down. The Settlement Class includes all individuals employed, used or engaged by Ark Restaurants Corp., from May 1, 2012 [the date the Class List is provided to the Settlement Claims Administrator], who performed work at Ark Restaurants Corp.’s New York catered events held on or off Ark Restaurants Corp.’s premises, in such trades, classifications, positions, jobs, and professions that customarily receive gratuities, including but not limited to wait staff, waiters, servers, captains, bussers, bartenders, bathroom attendants, and coat check attendants. Individuals who performed work on behalf of Ark Restaurants Corp. in these or similar positions but were supplied and/or paid by third-party staffing agencies shall be considered Class Members, provided certain criteria are met. The Settlement Class does not include maintenance workers, corporate officers, salespersons, cooks, food preparers, chefs, dishwashers, directors, clerical staff, office workers, event coordinators, or any other person whose trade, work, duties, classification or profession does not customarily have direct contact with guests during catering events. The parties have reached this Agreement through arm’s length negotiations and then presented it to the Court. As determined through that process, you are entitled to participate in the settlement, and your legal rights may be affected. These rights and options are summarized below and explained in detail throughout this Notice. 2 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT As described more fully below, to participate in the settlement and receive a share of the settlement fund, you must (1) fully and timely complete and sign the Claim Form and Release, and (2) timely mail, email or fax (i) the properly completed Claim Form and Release, and (ii)all necessary IRS forms and PARTICIPATE related tax information, to the Settlement Claims Administrator that must be postmarked by [BAR DATE], 2021. If you fail to submit a timely Claim Form and Release and related documents, you will receive no monetary distribution from the settlement and your claims will be released. If you wish to exclude yourself (“opt-out”) from the lawsuit and not receive EXCLUDE a payment, then you must follow the directions outlined in response to YOURSELF Question 7 below. You may write to the Court about why you believe the settlement is unfair or unreasonable. If the Court rejects your objection, you will still be bound OBJECT by the terms of the settlement and release unless you submit a valid and timely request for exclusion. If you object you may request to appear at the Fairness Hearing to speak to the Court about the fairness of the settlement. If you fail to submit a timely Claim Form and Release, you will receive no monetary distribution from the settlement. Additionally, you will not be DO NOTHING allowed to pursue claims (as described herein) against Defendants, separately or as part of this lawsuit, and will be bound by the release as described herein. FREQUENTLY ASKED QUESTIONS Question 1. Why did I receive this notice? You received this notice because relevant records show that you performed work as a wait staff, waiter, server, captain, busser, bartender, bathroom attendant, coat check attendant or similar service position that customarily receives gratuities at Ark Restaurants Corp.’s New York catered events during the period May 1, 2012 through [DATE CLASS LIST IS PROVIDED TO CLAIMS ADMINISTRATOR]. Question 2. What is a class action? A class action is a lawsuit where one or more persons sue not only for themselves, but also for other people who have similar claims. These other people are known as Class Members. In a class action, one court resolves the issues for all Class Members who do not opt out and thereby exclude 3 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 themselves. The Honorable Debra A. James, J.S.C., New York State Supreme Court, New York County, is the Judge who is presiding over this class action. Question 3. Why is there a settlement? Named Plaintiffs, on behalf of themselves and the Settlement Class, and Class Counsel analyzed and evaluated the merits of the claims made against Defendants in the litigation. Such work included court appearances, motion practice, client intakes, witness interviews, formal and confirmatory discovery including the exchange of thousands of pages of documents. In addition, counsel for the parties also participated in numerous settlement negotiation sessions. Based upon Class Counsel’s due diligence, and the substantial risks of a continued litigation, including the possibility that the litigation, if not settled now, might not result in any recovery whatsoever, or might result in a recovery that is less favorable and that would not occur for several years, Plaintiffs, Class Counsel, and Defendants entered into this proposed settlement. Class Counsel and the Named Plaintiffs are satisfied that the terms and conditions of this Agreement are fair, reasonable and adequate, and that this Agreement is in the best interest of Plaintiffs and Class Members such as yourself – especially in light of recent economic developments related to the Coronavirus pandemic and its economic consequences. Defendants deny the allegations in the lawsuit, and deny that they owe Plaintiffs or any Class Members any wages or other compensation. To avoid the burden, expense, inconvenience, and uncertainty of continued litigation, however, Defendants have concluded that it is in their best interests to resolve and settle the lawsuit, without admitting any wrongdoing or liability. Question 4. How much will I get paid if I join the Settlement? Recovery in the settlement will vary from worker to worker – and will be subject to a number of factors based on the amount of work you performed at Ark Restaurants Corp. New York catered events or the number of Ark Restaurants Corp. New York catered events at which you worked. As detailed below, workers will be allocated points based on the number of Ark Restaurants Corp. catered events they worked or wages earned while working at Ark Restaurants Corp. catered events and the points will be added up for all workers to determine a money value for each point. First, Class Members will be classified into two subsets of workers: (i) workers that received payment directly from Ark Restaurants Corp. shall be known as “Direct Workers”; and (ii) all other individual Class Members shall be known as “Temporary Workers.” Second, the Settlement allocations to Class Members who are Direct Workers are based on the total wages earned for working at Ark Restaurants Corp. catered events and the settlement allocations for Class Members who are Temporary Workers are based on the total number of Ark Restaurants Corp. catered events worked, in accordance with the following schedule: Tier Direct Workers Temp,.Workers Points Wage Totals for Ark Event Totals for Catered Events Ark Catered Events 4 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 Tier 1 Less than $600 Less than 5 events 1 point Tier 2 $601 to $2,000 6-15 events 2 pts Tier 3 $2,001 to $3,000 16-30 events 3 pts Tier 4 $3,001 to $6,000 31-50 events 6 pts Tier 5 $6,001 to $10,000 51-99 events 9 pts Tier 6 $10,001 to $20,000 100-125 events 10 pts Tier 7 $20,001 to $30,000 126-175 events 15 pts Tier 8 $30,001 to $50,000 176-225 event 20 pts Tier 9 Over $50,000 226 or more events 25 pts “Temp. Workers Total Events Worked for Ark Catered Events” were calculated by Class Counsel and counsel for Defendants using their best efforts, the documents and information available to them, reasonable estimates and good faith adherence to the parameters described above. To the extent that any Temporary Worker’s information is incomplete, they will be allocated 1 point for each year records indicate they worked at Ark Restaurants Corp. catered events up to a maximum of 4 points. For purposes of calculating points in the allocation formula, the wage totals of Class Members who signed arbitration agreements with Ark Restaurants Corp. or its affiliates or subsidiaries will be reduced by 33%. All Class Members will be given such information on their individualized Claim Form and Release provided to that Class Member. Class Members wishing to challenge or dispute such figures must do so in writing to Class Counsel or the Settlement Claims Administrator. Challenges will be processed based on specific facts and supporting evidence that is available. Please note, an individual who challenges a Class Member’s wages earned, total events worked or points allocated has not objected to the Settlement nor has he/she opted-out of the Settlement. Third, each Class Member’s percentage is calculated by (1) taking the individual Class Member’s points as the numerator, and (2) dividing it by the sum of gross points of all Class Members as the denominator. The denominator for each Class Member will be the same number. As a result of this calculation, the total of all Class Members’ numerators must equal the denominator. Thus, the Class Member’s adjusted individual points divided by the sum of all adjusted points for all Class Members, equals his/her individual percentage allocation. Fourth, the Gross Settlement Fund, less Costs and Fees, shall be multiplied by each Authorized Claimant’s percentage allocation as calculated in Section 3.5(D) of the Settlement Agreement. This represents the individual amount allocated to each Authorized Claimant – or Individual Gross Amount – prior to any taxes being withheld. If after all the calculations are made and all Authorized Claimants allocations are calculated, Defendants have the discretionary authority to terminate the Settlement Agreement if the total expected payout exceeds $525,000. In which case and to avoid termination of the Settlement Agreement, these calculations and individual payments may be proportionately reduced to avoid Defendants terminating the Agreement. If reductions are made, then Class Counsel’s attorney’s 5 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 fees will also be reduced in the same proportion. If you have questions about the calculations, allocation formulas, or the potential termination provision of this agreement, contact Class Counsel for a more detailed explanation of these provisions. Question 5. Who brought this lawsuit and are they being compensated? This lawsuit was brought by Named Plaintiffs Vincent Settecasi and xxxxxxxx xxxx. Plaintiffs Settecasi and xxxx took a lead role in this litigation and assisted in its resolution. In addition to their allocated share as described in Question 4, they will receive a cumulative total of $15,000.00 which shall be divided equally among the Named Plaintiffs for their efforts on behalf of themselves and Class Members in reaching this Settlement. Question 6. What do I have to do to be included in the Settlement and to receive a distribution payment? To receive a distribution from the settlement fund, you must timely complete and return the enclosed Claim Form and Release and IRS Forms according to the instructions provided on the form by [BAR DATE] (the “Bar Date”). Step 1: The Claim Form and Release and IRS Forms must be personally filled out and signed by the Class Member who seeks to participate in the Settlement or someone with a legal right to act on his or her behalf. Step 2: The properly completed and signed Claim Form and Release and IRS Forms must be mailed, emailed, or faxed to the Settlement Claims Administrator by the Bar Date. There are three ways in which these documents can be returned: Mail: __[ADDRESS] Email: [Email Address] Fax: [Fax] If you do not properly complete and timely submit the Claim Form and Release, and IRS Forms, you will not be eligible to receive any monetary distribution but you will still be bound by the Release of all claims as described below. You should keep in mind that if you do not opt-out, and if you do not properly and timely complete and return the Claim Form and Release and IRS Forms by the Bar Date, you will not receive a distribution from the settlement fund, but you will still be bound by the Release of all claims as described below. If you timely return the enclosed Claim Form and Release and IRS Forms to the Settlement Claims Administrator so that they are received by email, fax, or postmarked by [BAR DATE], the Settlement Claims Administrator will make your payment after a Fairness Hearing, if one is scheduled, and the Settlement is approved by the Court. 6 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 You will need to deposit or cash your settlement check within 365 days after it is mailed to you. After the 365-day period (as determined by the postmark on the envelope the check was mailed in) has expired, the settlement check will be void. If the Court grants final approval of the Settlement, this action will be dismissed with prejudice and Class Members who do not opt-out will fully release and discharge Defendants in their corporate and individual capacities from all claims as set forth below. This means that you cannot sue, continue to sue, or be party of any other lawsuit against Defendants regarding the claims released. It also means that all of the Court’s orders will apply to you and legally bind you. The Release in the Settlement Agreement provides, in summary, that: Each individual Class Member who does not timely opt-out pursuant to the Settlement Agreement and any Authorized Claimant forever and fully releases and discharges Defendants and Robert J. Stewart from any and all claims alleged in the Complaint, including those based on or under New York Labor Law § 196-d, the Hospitality Wage Order, and/or common law claims related to unpaid gratuities, tips, service charges, administrative charges, or other related charges, whether known or unknown, that were or could have been asserted in the Action. The Released Class Claims include statutory, constitutional, contractual or common law claims for unpaid gratuities, service charges, administrative fees or charges, tips, interest on such claims, penalties, damages, liquidated damages, attorneys’ fees, expenses, disbursements, litigation costs and fees related to such claims, restitution, or equitable relief related to such claims. Question 7. How do I exclude myself from the Settlement? (Opting Out) If you do not wish to participate in the Settlement, but you want to keep the right to sue or continue to sue Defendants on your own about the legal issues in this case or which could have been brought in this case, then you must take steps to exclude yourself, or “opt-out” from this Action. If you intend to exclude yourself, you must mail a written, signed statement (“Opt-out Statement”) to the Settlement Claims Administrator stating, “I opt-out of the Ark Restaurants Corp. wage and hour settlement” or a similar statement which clearly express your desire to exclude yourself from this settlement. You must include your name, address, and telephone number in the statement. To be effective, the Opt-out Statement must be postmarked by the Bar Date of ______and mailed to the Settlement Claims Administrator at: _CLAIMS ADMIN_ __ADDRESS__ _ PHONE__ If you exclude yourself from the lawsuit and the Action and Settlement, you will NOT be allowed to object to the Settlement as described in Question 12. 7 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 Question 8. If I don’t exclude myself from the Settlement, can I sue Defendants for the same thing later? No. Unless you exclude yourself, you give up any rights to sue Defendants for claims brought in this case or which could have been brought in this case. If you have a pending lawsuit, speak to your lawyer in that case immediately to see if this Settlement will affect your other case. Remember, the exclusion deadline is ________. If you exclude yourself from the Settlement, you may sue, continue to sue, or be part of a different lawsuit against Defendants regarding these same claims. Question 9. If I exclude myself, can I get money from the Settlement? No. If you exclude yourself, you will not receive any money from this lawsuit. Question 10. Do I have a lawyer in this case? The law firm of Leeds Brown Law, P.C., One Old Country Road, Suite 347, Carle Place, New York 11514, (516) 873-9550 has been designated as legal counsel to represent you and other Class Members. These lawyers are called Class Counsel. You will not be charged separately for these lawyers. You will not be charged for calling, emailing or speaking confidentially to Class Counsel. You are permitted to call Class Counsel with any questions and such communications will be confidential and protected. Class Counsel’s fees are being paid from the total settlement fund as part of the Settlement and are subject to the approval of the Court. If you want to be represented by your own lawyer, you may hire one at your own expense. Question 11. How will the lawyers be paid? Class Counsel will ask the Court to approve payment of up to Three Hundred Thousand Dollars ($300,000.00) for attorneys’ fees and certain litigation expenses and costs to be paid from the settlement fund. The fees and costs would pay Class Counsel for all work that they have performed and expenses they have incurred in this action including filing briefs, investigating the facts, filing fees, engaging in discovery, attending court conferences, participating in settlement discussions, and negotiating and overseeing the settlement. Question 12. How do I tell the Court that I don’t like the Settlement? If you do not opt out of the settlement, you can object to the settlement. You can give reasons why you think the Court should not approve it. The Court will consider your views. However, if the Court rejects your objection, you will still be bound by the terms of the Settlement – unless you submitted a valid and timely request for exclusion. You cannot ask the Court to order a larger settlement; the Court can only approve or deny the settlement as presented to it by the parties. If the Court denies approval, no settlement payments will be made and the lawsuit will continue. If that is what you want to happen, you must object. To object, you must submit a valid Claim Form and Release and send a letter saying that you object to the Settlement. Your statement must include all reasons for your objection and any 8 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 supporting documentation in your possession. Your statement must also include your name, address, and telephone number. If you wish to present your objection to the Court at the Fairness Hearing described below, you must specifically state your intention to do so in your written objection. Your statement must include all reasons for your objection and any supporting documentation in your possession and be as detailed as possible. Otherwise, the Court may not allow you to present reasons for your objection that you did not describe in your written objection. Your objection will not be heard unless it is received by the ___ Bar Date or postmarked by the ____ Bar Date and mailed to the Settlement Claims Administrator via First Class United States Mail at: _CLAIMS ADMIN_ __ADDRESS__ _ PHONE__ The Settlement Claims Administrator will share your objection with Class Counsel and Defendants’ counsel and file your objection statement with the Court. You may not object to the Settlement if you submit a letter requesting to exclude yourself or opt- out of the Settlement. Question 13. What’s the difference between objecting and excluding? Objecting is simply telling the Court that you do not like something about the settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the settlement (“opting out”) is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you. If you send an objection, it is not necessary for you to come to Court to talk about it, but you may do so at your own expense or pay your own lawyer to attend. As long as you mailed your written objection on time, the Court will consider it. If you do attend the Fairness Hearing, it is possible that you will not be permitted to speak unless you timely object in writing as described above and notify the Court of your intention to appear at the Fairness Hearing. Question 14. Has the Court approved the Settlement? Yes. The Court has already granted conditional approval of the proposed settlement and determined that the terms of the settlement and the proposed distribution of the settlement are fair, reasonable, and adequate – after reviewing a submission by the parties that is publicly available via NYSCEF and the electronic filing system in New York State. However, if you wish to raise a valid concern, you should alert the attorneys and they can request a conference with the Court if your issue is not resolved to your satisfaction. If there are objections, the Court will consider them. The Judge will decide whether to listen to any issues that are properly raised. 9 FILED: NEW YORK COUNTY CLERK 03/17/2021 05:58 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/17/2021 After Notice is distributed and all Class Members are given the ability to participate, object, or opt out, the Court will make a final determination as to the reasonableness and fairness of the proposed Settlement at a Fairness Hearing. The Court has scheduled a Final Fairness Hearing on _______________ at :00 .m. in Courtroom of the Supreme Court of the State of New York, County of New York, which is located at , regarding whether final approval should be given to the proposed settlement. The Court also may decide how much to pay Class Counsel. The Court may continue the time and date of the hearing without further notice. Note that the Fairness Hearing may be conducted by remote means including but not limited to a video conference, telephone conference or other virtual means (e.g., Zoom or another virtual platform) Question 15. Are there more details about the Settlement? This notice summarizes the proposed settlement. More details are in the Settlement Agreement. If there is any discrepancy between this notice and the Settlement Agreement, the terms of the Settlement Agreement will be controlling. You can review the Settlement Agreement by asking for a copy of the Settlement Agreement by writing or calling Jeffrey K. Brown, Esq., Michael A. Tompkins, Esq., or other attorneys at (516) 873-9550, Leeds Brown Law, P.C., One Old Country Road, Carle Place, New York 11514, www.leedsbrownlaw.com. 10