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FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
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SUPREME COURT OF THE STATE OF NEW YORK
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COWW OF NEW YOH
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VINCENT SETTECASI and xxxxxxxx Index No: 154038/2018
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xxxx, individually and on behalf of others
11 similarly situated, Hon.Debra A. James
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- against - CLASS ACTION
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ARK RESTAURANTS CORP.; ARK BRYANT AFFIDAVIT OF EVELIN REYES
PARK LLC; ARK BRYANT PARK REGARDING NOTICE AND
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SOUTHWEST, LLC; MICHAEL WEINSTEIN; SETTLEMENT ADMINISTRATION
and any other related entities,
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Defendants.
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AFF1DAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADM11'1STRATION
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
AFFIDAVIT OF EVELIN REYES
I, Evelin Reyes, hereby declare:
1. I am employed as a Case Manager by Simpluris, Inc. ("Simpluris"), the claims
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administrator in the above-entitled action. Our Corporate Office address is 3194-C Airport Loop Drive,
Costa Mesa, CA 92626. My telephone number is (714) 640-5654. I am over twenty-one years of age
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and authorized to make this declaration on behalf of Simpluris and myself.
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2. Simpluris is a Class Action Settlement Administration company located in Costa Mesa,
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California. It was founded by individuals who have each managed hundreds of settlements, along with
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professionals in the areas of Software Development, Third-Party Claims Administration, Mail-House
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10 Operations, and Call Center Support Management.
11 3. Simpluris was approved by Counsel for Vincent Settecasi and xxxxxxxx xxxx
12 ("Plaintiffs"), and Counsel for Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant
13 Park Southwest, LLC, and Michael Weinstein (collectively"Defendants"), (Plaintiffs and Defendants
14 the to provide settlement administration services in the Settecasi, et al v. Ark
collectively "Parties"),
15 Restaurants et al. case ("Settlement"). In this Simpluris was charged with
Corp, capacity, (a)
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establishing and maintaining a related settlement fund account; (b) establishing and maintaining a
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calendar of administrative deadlines and responsibilities; (c) processing and mailing payments to the
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Plaintiffs, Class Counsel, and Claimants; (d) printing and mailing the Notice of Proposed Class Action
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Settlement and the Claim Form to Class Members; (e) receiving and validating Claim Forms submitted
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by Class Members (f) receiving and validating Requests for Exclusion, Objections or Disputes of
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Wages Earned, Events Worked, and Allocated Points submitted by Class Members; (g) calculating
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Employer Payroll Taxes and providing appropriate forms and calculations; (h) mailing settlement
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checks, and (i) other tasks as the Parties mutually agree or the Court orders Simpluris to perform.
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TOLL FREE TELEPHONE
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4. A toll-free telephone number was included in the Class Notice for the purpose of
allowing the Class Members to call Simpluris and to make inquiries regarding the Settlement. The
system is accessible 24 hours a day, 7 days a week, and will remain in operation throughout the
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AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRR110N
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
1 settlement process. Callers have the option to speak with a live call center representative during normal
2 business hours or to leave a message and receive a return call non-business hours. The toll-free
during
3 telephone number included in the Notice of Proposed Class Action Settlement is 406-0860 and
(888)
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was live on May 28, 2021.
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NOTIFICATION TO THE CLASS
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5, On April 15, 2021, Simpluris received the Court-approved Notice of Proposed Class
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Action Settlement and the Claim Form (hereafter "Notice Packet") from Class Counsel. The Notice
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Packet advised Class Members of their right to submit a claim, request exclusion from the Settlement,
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object to the Settlement, do nothing, and the implications of each such action. The Notice Packet
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advised Class Members of applicable deadlines and other events, including the Final Approval Hearing,
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and how Class Members could obtain additional information.
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6. On May 14, 2021, Counsel for Defendants provided Simpluris with a mailing list
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Members'
("Class List") containing Class names, most recent mailing address and telephone numbers,
social security numbers, email addresses, and pertinent information related to Ark Restaurants Corp.
catering events for Class Members during the Class Period. The Class List contained contact
information and other pertinent information for one thousand two hundred twenty seven (1,227) Class
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Members.
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7. The mailing addresses contained in the Class List were processed and updated utilizing
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the National Change of Address Database ("NCOA") maintained by the U.S. Postal Service. The
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NCOA contains requested changes of address filed with the U.S. Postal Service. In the event that any
22 individual had filed a U.S. Postal Service change of address request, the address listed with the NCOA
23 would be utilized in connection with the mailing of the Notice Packets.
24 8. On May 28, 2021, Notice Packets were mailed and/or emailed to the one thousand two
25 hundred twenty-seven (1,227) Class Members using addresses and/or email addresses contained in the
26 Class List via email and/or First Class mail or updated via the NCOA search. A copy of the Notice
27 Packet is attached hereto as Exhibit A.
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AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
1 9. If a Class Member's Notice Packet was returned by the USPS as undeliverable and
2 without a forwarding address, Simpluris performed an advanced address search (i.e. trace) on all of
skip
3 these addresses a reputable research tool owned Lexis-Nexis. Simpluris used the
by using Accurint, by
4 and previous address to locate a current address. Through this advanced address
Class Member's name
5 Simpluris
search, Simpluris was able to locate one hundred thirty one (131) updated addresses and
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promptly mailed the Notice Packets to those updated addresses. In addition, Simpluris received
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seventeen returned Notice Packets with forwarding addresses and promptly mailed the Notice
(17)
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Packets to those updated addresses. Ultimately, there were twenty two (22) Notice Packets that were
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undeliverable.
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10. Subsequent to the mailing on May 28, 2021, the class size expanded when Plaintiffs
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received information from a third-party staffing vendor in response to a subpoena. This additional
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information provided the names and contact information for forty-two individuals, including ten (10)
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individuals that received notice as part of the May 28, 2021 mailing. Thus, the class size expanded to
the 28 + 32 identified individuals =
1,259 service workers (1,227 individuals from May mailing newly
1,259).
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On August 13, 2021, Noüce Packets were mm to Se fo o 2) Gass Members
for which information was provided in response to the subpoena. This mailing included sending Notice
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Packets to thirty-two (32) newly identified individuals and ten (10) individuals that received notice by
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email only as part of the May 28, 2021 mailing. The August 13, 2021 mailing was sent via First Class
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mail using the information obtained in response to the subpoena. A copy of the Notice Packet is
22 attached hereto as Exhibit B. With this additional mailing, the total number of Class Members is 1,259
23 service workers
24 12. Accurint, Simpluris was able to locate six (6) updated addresses related to the
Using
25 August 13, 2021 mailing and Simpluris promptly mailed the Notice Packets to those updated addresses.
26 Ultimately, there was one Notice Packet that was undeliverable as part of the August 13, 2021
(1)
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28 WEBSITE
AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
1 13. Simpluris also established and is maintaining a website dedicated to this project
2 to provide additional information to the Class Members. The
(www.arkrestaurantsettlement.com)
3 Settlement Class and Claim Form are available for
Preliminary Approval, Agreement, Notice,
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download from the website. The website was operational as of May 28, 2021, and is accessible 24
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hours a day, 7 days a week.
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REQUESTS FOR EXCLUSION, OBJECTIONS, DISPUTES AND LATE CLAIMS
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14. As of this date, Simpluris has received four (4) Requests for Exclusion from Class
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Members.
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15. As of this date, Simpluris has not received any Objections to the Settlement from Class
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Members.
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16. As of this date, Simpluris has received some Disputes regarding total catering events
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worked or the amount earned from Ark Restaurants Corp. catering events from Class Members, all of
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which have been resolved.
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17. As of this date, Simpluris has received eleven (11) late claims. Simpluris is working with
the parties on this matter.
CLAIMS AND CLAIMANT AWARDS
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18. As of this date, there are three hundred fourteen (314) Class Members who submitted a
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Claim Form, for a response rate of 24.94%. This includes the eleven (11) late claims Simpluris
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received.
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19. The estimated Net Settlement Fund of $523,084.30 available to pay Claimants was
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22 determined by subtracting Class Counsel's Fees and Costs ($300,000.00), the Enhancement Awards
23 ($15,000.00), Reserve Fund ($5,000.00), the Employer Taxes ($34,915.70), and the Administration
24 Costs ($22,000.00) from the Maximum Settlement Amount ($900,000.00).
25 20. As of this date, including payments to approved late claims from the reserve fund, a total
26 of $291,620.83 will be disbursed to the Claimants. The average estimated payment is $928.73 and the
27 highest estimated payment is $2,428.55.
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AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
Simpluris'
1 21. total costs for services in connection with the administration of this
2 fees incurred and anticipated future costs for completion of the administration, are
Settlement, including
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$22,000.00. work in connection with this matter will continue with the calculation of the
4 settlement checks, issuance, and mailing of those settlement checks, etc., and to do the necessary tax
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reporting on such payments.
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I affirm under penalty of perjury under the laws of the State of California that the foregoing is
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true and correct. Executed this 24th day of March, 2022, in Costa Mesa, California.
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SWORN TO ME ON
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of March 2022
Notary: 7
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Evelin Reyes
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Notary Public - Canfornia
OrangeCounty
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My Comm. ExpiresMay5, 202)
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AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
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 ACTION
ARK RESTAURANTS CORP.; ARK BRYANT PARK, LLC; ARK
SETTLEMENT
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 May 14,
2021, 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: May 28, 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.
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 through
May 14, 2021, 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
Page 1 of 6
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
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.
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
PARTICIPATE necessary IRS Form and related tax information, to the Settlement Claims Administrator that
must be postmarked by July 27, 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.
EXCLUDE If you wish to exclude yourself (“opt-out”) from the lawsuit and not receive a payment, then you
YOURSELF must follow the directions outlined in response to 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 by the terms of the settlement and release
OBJECT
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 allowed to pursue claims (as described herein)
DO NOTHING
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 May 14, 2021.
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 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.
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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022
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 Wage Totals for Temp,.Workers Points
Ark Catered Events Event Totals for Ark
Catered Events
Tier 1 $600 and less 5 events and less 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 Clas
Preview
FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 1 2 3 4 5 6 SUPREME COURT OF THE STATE OF NEW YORK 7 COWW OF NEW YOH 8 9 VINCENT SETTECASI and xxxxxxxx Index No: 154038/2018 10 xxxx, individually and on behalf of others 11 similarly situated, Hon.Debra A. James 12 - against - CLASS ACTION 13 ARK RESTAURANTS CORP.; ARK BRYANT AFFIDAVIT OF EVELIN REYES PARK LLC; ARK BRYANT PARK REGARDING NOTICE AND 14 SOUTHWEST, LLC; MICHAEL WEINSTEIN; SETTLEMENT ADMINISTRATION and any other related entities, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 AFF1DAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADM11'1STRATION FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 AFFIDAVIT OF EVELIN REYES I, Evelin Reyes, hereby declare: 1. I am employed as a Case Manager by Simpluris, Inc. ("Simpluris"), the claims 3 administrator in the above-entitled action. Our Corporate Office address is 3194-C Airport Loop Drive, Costa Mesa, CA 92626. My telephone number is (714) 640-5654. I am over twenty-one years of age 5 and authorized to make this declaration on behalf of Simpluris and myself. 6 2. Simpluris is a Class Action Settlement Administration company located in Costa Mesa, 7 California. It was founded by individuals who have each managed hundreds of settlements, along with g professionals in the areas of Software Development, Third-Party Claims Administration, Mail-House 9 10 Operations, and Call Center Support Management. 11 3. Simpluris was approved by Counsel for Vincent Settecasi and xxxxxxxx xxxx 12 ("Plaintiffs"), and Counsel for Defendants Ark Restaurants Corp., Ark Bryant Park LLC, Ark Bryant 13 Park Southwest, LLC, and Michael Weinstein (collectively"Defendants"), (Plaintiffs and Defendants 14 the to provide settlement administration services in the Settecasi, et al v. Ark collectively "Parties"), 15 Restaurants et al. case ("Settlement"). In this Simpluris was charged with Corp, capacity, (a) 16 establishing and maintaining a related settlement fund account; (b) establishing and maintaining a 17 calendar of administrative deadlines and responsibilities; (c) processing and mailing payments to the 18 Plaintiffs, Class Counsel, and Claimants; (d) printing and mailing the Notice of Proposed Class Action 19 Settlement and the Claim Form to Class Members; (e) receiving and validating Claim Forms submitted 20 by Class Members (f) receiving and validating Requests for Exclusion, Objections or Disputes of 21 Wages Earned, Events Worked, and Allocated Points submitted by Class Members; (g) calculating 22 Employer Payroll Taxes and providing appropriate forms and calculations; (h) mailing settlement 23 checks, and (i) other tasks as the Parties mutually agree or the Court orders Simpluris to perform. 24 TOLL FREE TELEPHONE 25 4. A toll-free telephone number was included in the Class Notice for the purpose of allowing the Class Members to call Simpluris and to make inquiries regarding the Settlement. The system is accessible 24 hours a day, 7 days a week, and will remain in operation throughout the 1 AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRR110N FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 1 settlement process. Callers have the option to speak with a live call center representative during normal 2 business hours or to leave a message and receive a return call non-business hours. The toll-free during 3 telephone number included in the Notice of Proposed Class Action Settlement is 406-0860 and (888) 4 was live on May 28, 2021. 5 NOTIFICATION TO THE CLASS 6 5, On April 15, 2021, Simpluris received the Court-approved Notice of Proposed Class 7 Action Settlement and the Claim Form (hereafter "Notice Packet") from Class Counsel. The Notice 8 Packet advised Class Members of their right to submit a claim, request exclusion from the Settlement, 9 object to the Settlement, do nothing, and the implications of each such action. The Notice Packet 10 advised Class Members of applicable deadlines and other events, including the Final Approval Hearing, 11 and how Class Members could obtain additional information. 12 6. On May 14, 2021, Counsel for Defendants provided Simpluris with a mailing list 13 Members' ("Class List") containing Class names, most recent mailing address and telephone numbers, social security numbers, email addresses, and pertinent information related to Ark Restaurants Corp. catering events for Class Members during the Class Period. The Class List contained contact information and other pertinent information for one thousand two hundred twenty seven (1,227) Class 17 Members. 18 7. The mailing addresses contained in the Class List were processed and updated utilizing 19 the National Change of Address Database ("NCOA") maintained by the U.S. Postal Service. The 20 21 NCOA contains requested changes of address filed with the U.S. Postal Service. In the event that any 22 individual had filed a U.S. Postal Service change of address request, the address listed with the NCOA 23 would be utilized in connection with the mailing of the Notice Packets. 24 8. On May 28, 2021, Notice Packets were mailed and/or emailed to the one thousand two 25 hundred twenty-seven (1,227) Class Members using addresses and/or email addresses contained in the 26 Class List via email and/or First Class mail or updated via the NCOA search. A copy of the Notice 27 Packet is attached hereto as Exhibit A. 28 2 AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 1 9. If a Class Member's Notice Packet was returned by the USPS as undeliverable and 2 without a forwarding address, Simpluris performed an advanced address search (i.e. trace) on all of skip 3 these addresses a reputable research tool owned Lexis-Nexis. Simpluris used the by using Accurint, by 4 and previous address to locate a current address. Through this advanced address Class Member's name 5 Simpluris search, Simpluris was able to locate one hundred thirty one (131) updated addresses and 6 promptly mailed the Notice Packets to those updated addresses. In addition, Simpluris received 7 seventeen returned Notice Packets with forwarding addresses and promptly mailed the Notice (17) 8 Packets to those updated addresses. Ultimately, there were twenty two (22) Notice Packets that were 9 undeliverable. 10 10. Subsequent to the mailing on May 28, 2021, the class size expanded when Plaintiffs 11 received information from a third-party staffing vendor in response to a subpoena. This additional 12 information provided the names and contact information for forty-two individuals, including ten (10) 13 individuals that received notice as part of the May 28, 2021 mailing. Thus, the class size expanded to the 28 + 32 identified individuals = 1,259 service workers (1,227 individuals from May mailing newly 1,259). 17 On August 13, 2021, Noüce Packets were mm to Se fo o 2) Gass Members for which information was provided in response to the subpoena. This mailing included sending Notice 18 Packets to thirty-two (32) newly identified individuals and ten (10) individuals that received notice by 19 email only as part of the May 28, 2021 mailing. The August 13, 2021 mailing was sent via First Class 20 21 mail using the information obtained in response to the subpoena. A copy of the Notice Packet is 22 attached hereto as Exhibit B. With this additional mailing, the total number of Class Members is 1,259 23 service workers 24 12. Accurint, Simpluris was able to locate six (6) updated addresses related to the Using 25 August 13, 2021 mailing and Simpluris promptly mailed the Notice Packets to those updated addresses. 26 Ultimately, there was one Notice Packet that was undeliverable as part of the August 13, 2021 (1) 27 mailing. 28 WEBSITE AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 1 13. Simpluris also established and is maintaining a website dedicated to this project 2 to provide additional information to the Class Members. The (www.arkrestaurantsettlement.com) 3 Settlement Class and Claim Form are available for Preliminary Approval, Agreement, Notice, 4 download from the website. The website was operational as of May 28, 2021, and is accessible 24 5 hours a day, 7 days a week. 6 REQUESTS FOR EXCLUSION, OBJECTIONS, DISPUTES AND LATE CLAIMS 7 14. As of this date, Simpluris has received four (4) Requests for Exclusion from Class 8 Members. 9 15. As of this date, Simpluris has not received any Objections to the Settlement from Class 10 Members. 11 16. As of this date, Simpluris has received some Disputes regarding total catering events 12 worked or the amount earned from Ark Restaurants Corp. catering events from Class Members, all of 13 which have been resolved. 14 17. As of this date, Simpluris has received eleven (11) late claims. Simpluris is working with the parties on this matter. CLAIMS AND CLAIMANT AWARDS 17 18. As of this date, there are three hundred fourteen (314) Class Members who submitted a 18 Claim Form, for a response rate of 24.94%. This includes the eleven (11) late claims Simpluris 19 received. 20 19. The estimated Net Settlement Fund of $523,084.30 available to pay Claimants was 21 22 determined by subtracting Class Counsel's Fees and Costs ($300,000.00), the Enhancement Awards 23 ($15,000.00), Reserve Fund ($5,000.00), the Employer Taxes ($34,915.70), and the Administration 24 Costs ($22,000.00) from the Maximum Settlement Amount ($900,000.00). 25 20. As of this date, including payments to approved late claims from the reserve fund, a total 26 of $291,620.83 will be disbursed to the Claimants. The average estimated payment is $928.73 and the 27 highest estimated payment is $2,428.55. 28 ADMINISTRATION COSTS AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 Simpluris' 1 21. total costs for services in connection with the administration of this 2 fees incurred and anticipated future costs for completion of the administration, are Settlement, including 3 Simpluris' $22,000.00. work in connection with this matter will continue with the calculation of the 4 settlement checks, issuance, and mailing of those settlement checks, etc., and to do the necessary tax 5 reporting on such payments. 6 7 I affirm under penalty of perjury under the laws of the State of California that the foregoing is 8 true and correct. Executed this 24th day of March, 2022, in Costa Mesa, California. 9 10 11 SWORN TO ME ON 12 of March 2022 Notary: 7 14 Evelin Reyes 16 17 AMANDABETHISLAS Notary Public - Canfornia OrangeCounty 18 commission# 22mo2 My Comm. ExpiresMay5, 202) 19 20 21 22 23 24 25 26 27 28 5 AFFIDAVIT OF EVELIN REYES REGARDING NOTICE AND SETTLEMENT ADMINISTRATION FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 EXHIBIT A FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 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 ACTION ARK RESTAURANTS CORP.; ARK BRYANT PARK, LLC; ARK SETTLEMENT 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 May 14, 2021, 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: May 28, 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. 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 through May 14, 2021, 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 Page 1 of 6 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 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. 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 PARTICIPATE necessary IRS Form and related tax information, to the Settlement Claims Administrator that must be postmarked by July 27, 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. EXCLUDE If you wish to exclude yourself (“opt-out”) from the lawsuit and not receive a payment, then you YOURSELF must follow the directions outlined in response to 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 by the terms of the settlement and release OBJECT 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 allowed to pursue claims (as described herein) DO NOTHING 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 May 14, 2021. 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 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. Page 2 of 6 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT FILED: NEW YORK COUNTY CLERK 03/25/2022 02:14 PM INDEX NO. 154038/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/25/2022 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 Wage Totals for Temp,.Workers Points Ark Catered Events Event Totals for Ark Catered Events Tier 1 $600 and less 5 events and less 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 Clas