Preview
FILED: NEW YORK COUNTY CLERK 06/16/2020 09:11 AM INDEX NO. 154853/2018
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/15/2020
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART IAS MOTION 56EFM
Justice
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INDEX NO. 154853/2018
LESLIE CORTES, individually and on behalf of others
similarly situated,
Plaintiff,
-v-
PACIFIC LANGHAM NEW YORK CORPORATION, doing FINAL ORDER AND JUDGMENT
business as LANGHAM PLACE FIFTH AVENUE, and any APPROVING CLASS
other related entities, SETTLEMENT
Defendants.
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By order dated March 9, 2020, the court preliminarily approved a proposed class action
settlement in this action as fair, adequate, and reasonable, and provided for notice of the
proposed class action settlement to members of the proposed settlement class (hereinafter the
class). A copy of the Notice and Claim Form is annexed hereto.
The parties have now made application, pursuant to CPLR 907, for the issuance of a
final order and judgment approving the class action settlement in the above-captioned action, in
accordance with the Settlement Agreement and Release (hereinafter the Settlement
Agreement), annexed hereto, which sets forth the terms and conditions for the settlement of the
action with the defendants, and for dismissal of the complaint against the defendants, with
prejudice.
Pursuant to CPLR 907(2), the court scheduled a fairness hearing for June 9, 2020 to
determine whether the proposed settlement of this class action should be finally approved.
Inasmuch as the court remained closed on that date due to the ongoing COVID-19 viral
pandemic, and class counsel represents to the court that no member of the class has provided
written or other objections to the proposed class action settlement, the court will rule on the
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fairness of the Settlement Agreement on papers alone, and will deem all applications for fees,
costs, and service awards to have been made on those papers as well.
The proposed class action settlement, as set forth in the Settlement Agreement, is finally
approved. The Settlement Agreement be, and hereby is, incorporated into this Final Order and
Judgment.
This court is satisfied that the settlement of this action is both procedurally and
substantively fair. Further, the court finds that the notice given to members of the class
accurately informed the members of the class of the proposed settlement, was the best notice
practicable under the circumstances, and constituted valid, due, and sufficient notice to all
members of the class.
The court further finds that the class administration process was fair and reasonable,
and provided each member of the class with a fair and reasonable opportunity to submit a claim
for the payment of benefits made available under the proposed Settlement Agreement.
For purposes of this Order and Judgment, all terms not otherwise defined herein shall
have the same meanings as set forth in the Settlement Agreement.
Accordingly, it is hereby,
ORDERED that the court finally approves the terms of the settlement set forth in the
Settlement Agreement, and finds that the settlement is, in all respects, fair, reasonable,
adequate, and binding upon and in the best interests of the plaintiff and the members of the
class, in accordance with CPLR article 9 and the terms of the Settlement Agreement, and the
parties are directed to implement its terms and provisions; and it is further,
ORDERED that the defendants are directed to effectuate the distribution of the funds,
professional fees and costs, and service awards, as delineated in the Settlement Agreement, for
distribution to the participating members of the class in accordance with the terms of the
Settlement Agreement and this Order and Judgment; and it is further,
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ORDERED and ADJUDGED that the plaintiff and all members of the class are (i)
conclusively deemed to have released and discharged the defendants from any and all claims,
causes of action, or demands of any kind that are to be released in accordance with the terms
of Settlement Agreement, and as set forth more fully in the Settlement Agreement, and (ii)
permanently enjoined and barred from asserting against the defendants, either directly or
indirectly, any and all claims, causes of action, or demands of any kind related to the released
claims; and it is further,
ORDERED that the application by counsel for the class for an award of attorneys’ fees in
the amount of $225,000.00 and litigation costs in the amount of $7,500.00, for a service award
to the named plaintiff, Leslie Cortes, in the amount of $7,500.00, for a service award to the class
representative, Cigdem Metin, in the amount of $7,500.00, and for an award of fees and costs to
the claims administrator in the amount of $5,000.00, as set forth in the Settlement Agreement
and the prior order of this court dated March 9, 2020, is granted, and those amounts shall be
paid from the gross settlement amount; and it is further,
ADJUDGED that the complaint is dismissed, with prejudice; and it is further,
ORDERED that the Clerk of the court shall enter judgment accordingly; and it is further,
ORDERED that, without affecting the finality of this Order and Judgment in any way, this
court hereby retains jurisdiction over the consummation and performance of the Settlement
Agreement.
This constitutes the Decision, Order, and Judgment of the court.
6/9/2020 $SIG$
DATE JOHN J. KELLEY, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Exhibit A
Settlement Agreement & Release
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LESLIE CORTES, individually and on behalf of others
similarly situated,
Index No.: 154853/2018
Plaintiffs,
- against -
PACIFIC LANGHAM NEW YORK CORPORATION
d/b/a LANGHAM PLACE FIFTH AVENUE; and any other
related entities,
Defendants.
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is cñtered into by and between, on
the one hand, Proposed Class Representative Cigdem Metin on behalf of Plaintiff Leslie Cortes
("Named Plaintiff") and a putative class of individuals she seeks to reprcscñt (the "Settlement
Class,"
as hereinafter defined) and, on the other, Defendant Pacific Langham New York
Corporation d/b/a Lañgham Place Fifth Avenue ("Defendant") (together with Named Plaintiff,
"Party,"
individually each is a collectively the "Parties").
RECITALS AND BACKGROUND
A. WHEREAS, Named Plaintiff filed a Class Action Complaint on May 23, 2018,
which is now pending in the Supreme Court of the State of New York, County of New York,
designated as Index No. 154853/2018 (the "Action").
B. WHEREAS, Defendant has defended and intends to vigorously contest each and
every claim in the Action and deny all material allegations of the Action, as to which Defendant
alleges numerous meritorious defehses. Defendant, without admitting any wrongdoing or liability
on its behalf, nevertheless has 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 against Defendant.
C. WHEREAS, Class Counsel (as hereinafter defñêd) has âñâ1yzed and evaluated the
merits of the claims made against Dêfeñdant and the impact of this Agreement on Named Plaintiff
and the Settlement Class. Based upon their analysis and evaluation of a number of factors, Named
Plaintiff and Class Counsel recognize the substantial risks of continued litigation, including the
possibility that the Action, ifnot settled now, mightnot result in any recovery whatsoever, or might
result in a recovery that is less favorable and that would not occur for several years. Named
Plaintiff and Class Counsel are satisfied that the terms and conditions of this Agreement are fair,
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reasonable, and edeqüste and that this Agreement isin the best interest of Named Plaintiff and the
Settlement Class.
D. WHEREAS, Named Plaintiff and Defendant, by and through their respective
counsel, have engaged in significant and lengthy settlement diauussions in connection with the
resolution of the Action, including at a full-day mediation session with Mediator Martin F.
Esq. Named Plaintiff and Defendant - subject to the approval of the Court - have
Scheinman,
elected to settle the Action pursuañt to the terms set forth in this Agreement, which shall be
submitted to the Court for approval through the mechanisms set forth below.
E. WHEREAS, strictlyfor the purpose of settling the Action, and without admitting
any wreñgdoing or liability, Defendant agrees to class certification under §§ 901 and 902 of the
New York Civil Practice Law and Rules ("CPLR") of the Settlement Class as deEned in Section
1.31, subject to Paragraph F, below.
F. WHEREAS, the Parties agree that if this Agreement is terminated pursuant to
Section 2.9 (B), the Action will procced as if thisAgreement had not been executed, specifically
including, and without limitation, revocation of the agreement to class certification of the
Settlement Class.
NOW THEREFORE, in consideration of the mutual covenants and promises set forth in
this Agreement, as well as the good and valuable consideration provided for herein, the receipt and
sufficiency of which ishereby acknowledged, the Parties, having been represented by counsel and
to be bound, agree to a full and complete settlement of the Action.
intending legally
"whereas"
(The foregoing clauses are true and correct and incorporated by reference as
part of this Agreement.)
1. DEFINITIONS
The defined terms set forth in this Agreement have the meanings ascribed to them below.
1.1 Acceptance Period means the sixty (60)-day period beginning from the date of the first
mailing of the Notice and Claim Form, during which a Class Member isrequired to execute
and return a Claim Form and Release to participate in this settlement and Action and
receive a Settlement Check.
1.2 Approval Motion means a Motion for Settlement Approval seeking court approval of this
Agreemmt and itsattachments, including (1) the proposed Notice, (2) the proposed Claim
Form, (3) the proposed Approval Order, (4) an executed version of this Agreement, and
(5) the necessary decuments, memoranda, affidavits, and exhibits for the purposes of
certifying a Class for settlement purposes under CPLR §§ 901 and 902, and approving the
settlement.
1.3 Authorized Claimant means each Class Member, or the authorized legal representative
of such Class Member, who timely files a Claim Form in accordance with the terms of this
Agreement and who does not opt out of the Agreement in accordance with Section 2.6, and
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who is therefore entitled to receive a Settlement Check. Metin is deemed an Authorized
Claimant upon execution of this Agreement and need not return a Claim Form.
Release"
1.4 Claim Form and "Claim Form both mean the form, a copy of which is eMached
to the Notice of Settlement of Class Action Lawsuit as Form 1, that a Class Member must
sign and return during the Acceptance Period along with an IRS 2019 W9 or substitute of
same, in order to become an Authorized Claimant and receive a Setdement Check.
1.5 Class Counsel means Jeffrey K. Brown, Esq. and Brett R. Cohen, Esq. of Leeds Brown
Law, P.C., One Old Country Road, Suite 347, Carle Place, New York 11514.
1.6 Class List means a listin electronic format, preferably Excel, that includes (to the extent
known to Defendant) the names, last known physical mailing address, social security
numbers, and dates of events worked for Defendant, whether employed directly by
Defendant or through a staffing agency, of each respective Class Member, contained in a
confidential document that Defendant shall provide to the Claims Admini-t.âtor to
effectuate settlement and which may not be copied, disseminated, or used, in partor whole,
for any purpose other than to effectuate this settlement.
1.7 Costs and Fees means, collectively, Class Counsel's attorney's fees, costs, and expenses;
the costs and fees associated with the Settlement Claims Administrator; and, the Service
Award.
1.8 Court means the Supreme Court of the State New York, County of New York.
1.9 Days means business days ifthe specified number is fewer than ten (10), and calendar days
if the specified number is ten (10) or greater.
1.10 Defendant means Defendant Pacific LañghãñiNew York Corporation d/b/a The Langham,
New York, Fifth Avenue and all of itsformer, current and respective officers, directors,
agents, employees, as well as its parents, predecessors (including but not limited to
Langham Place, New York), successors, subsidiaries, and related and affiliated entities,
including each of their respective former and current officers, directors, agents, and
employees.
1.11 Defendant's Counsel means the law firm of Baker & Hostetler, LLP, 45 Rockefeller
Plaza, New York, New York 10111.
1.12 Employment Taxes means (1) alltaxes an employer is required to pay arising out of or
based upon the payment of employment incin and SUTA
compcñsation, Æng FICA, FUTA,
obligations, and (2) all ordinary and regular taxes required to be withheld from an
employee's compensation or other income.
1.13 Fairness Hearing means any hearing scheduled at the Court's discretion in connection
with the Approval Motion.
1.14 Final Effective Date means, the later of: (i)45 days following the expiration of the Notice
Response Deadline; or (ii)if an appeal of the Approval Order is timely filed, thirty (30)
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days after the date of any of the following occurrences: (1) any appeal from the Approval
Order has been fully and finally dismissed; (2) the Approval Order has been affirmed on
appeal in a form substantially identical to the form of the Approval Order entered by the
Court; (3) the deadline to petition for review with respect to any appellate decision
affirming the Approval Order has expired; and (4) if a petition for review of an appellate
decision is filed,the petitioñ has been denied or fully dismissed, or, ifgranted, has resulted
in affix1ss-we of the Approval Order in a form substantially identical to the form of the
Approval Order entered by the Court,
1.15 Final Settlement Amount means the sum of the Net Settlement Amount, which shall be
inclusive of any and allEmployment Taxes to be assessed on payments to Class Members,
plus allCourt-approved Costs and Fees.
1.16 Gross Potential Settlement Amount means the potential maximum aggregate sum that
can be paid by Defendant pursuant to this Agrccmcñt, subject, inter alia, to Defendant's
right to terminate this Agreement as set forth in Section 2.9(A)(1), which sum includes
Service Awards, Claims Administrator fees and expenses, employer-side Employment
attorneys'
Taxes, fees, expenses, and costs, and other professional fees, expenses, and
costs. Under no circumstances shall the Gross Potential Settlement Amount ever exceed
Six Hundred Seventy-Five Thousand Dollars ($675,000.00), regardless of, among other
things, the number of Class Members or any other Section in the Agreement.
1.17 Individual Gross Amount means the ament allocated to each Authorized Claimant
pursuant to Section 3.5(C) prior to any deduction for taxes required to be withheld from
employee compensation or other income.
1.18 Individual Net Amount means the amount paid to each Authorized Claimant after
deduction for taxes required to be withheld from employee compensation or other income,
pursuant to Section 3.1(C)(2).
1.19 Net Settlement Amount means the aggregate balance to be allocated to all Authorized
Claimants from the Gross Potential Settlement Amount after the deduction of Court-
approved Costs and Fees and Employment Taxes and Court-approved Service Awards.
1.20 Notice(s) means the Court-approved Notice of Settlement of Class Action Lawsuit as
authorized in the Approval Order.
1.21 Notice Response Deadline means the last day of the Acceptance Period in which Class
Members can timely complete and submit their Claim Form or opt-out of the settlement,
1.22 Objector means an individual Authorized Claimant who timely and properly files an
objection to thisAgreement in the time and mamer set forth in Section 2.7.
1.23 Opt-out Statement means the written, signed statemcñt submitted in the time and manner
set forth in Section 2.6 that an individual Class Member submits indicating he or she has
elected to exclude him or herself ("opt-out") from, and thus not be included in, the
settlement.
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1.24 Order Granting Approval ("Approval Order") means the Order entered by the Court:
(i) certifying the Settlement Class; (ii) approving the terms and conditicñs of this
Agicemcñt; (iii)appointing Leeds Brown Law, P.C. as Class Counsel; (iv) directing the
manner and timing of providing Notice to the Settlement Class; and (v) setting the dates
and deedliñês for effectuating the settlement, including date of the mahs of Notice, the
Notice Response Deadline, and the date of the Fairness Hearing if one is to be scheduled;
among other things.
1.25 Pestmark means the date stamped or otherwise indicated on an envelope by the United
States Postal Service or other mail carrier.
1.26 Qualified Settlement Account ("QSA") means the account established by the Settlement
Claims Administrator and funded on the Effective Date by Defendant for the purpose of
distributing allapproved amounts in accordance with this Agreement. The QSF will be
controlled by the Settlement Claims Administrator subject to the terms of thisAgreement
and the Approval Order. Interest, if any, earned in the QSF will become part of the Net
Settlement Fund to be distributed to the Authorized Claimanh
1.27 Release shall mean the releases of claims, as specified herein, to which the Parties bind
themselves.
1.28 Released Class Claims means any and allNew York state and local claims, including any
wage and hour claims, obligations, demands, actions, rights, causes of action, and liabilities
against Defendant, of whatever kind and nature, character and description, whether known
or unknown, and whether anticipated or unanticipated, including unknown claims that
accrued or accrue on any date up through the Effective Date, for any type of relief under
New York state or local law that arose from or are in any way related to any Defendant,
including, without limitation, claims under any legal theory for failure to pay minimum
wage, failure to pay overtime, failure to pay for all hours worked, failure to provide meal
and rest periods, failure to timely pay final wages, failure to reimburse for business
expenses, and/or failure to furnish accurate wage statements, wage notices or other notices,
and any and claims for recovery of compensation, overtime pay, minimum wage, premium
pay, interest, and/or penalties, and any related or derivative claims, other penalties, related
tort and punitive damages, including, butnot limited to, allclaims alleged in the Complaint,
claims based on, or under, New York State law, the Hospitality Wage Order, and/or
common law, and statutory, constitutional, contractual, or common law claims for unpaid
gratuities, service charges, administrative charges, tips, interest on such claims, penalties,
damages, liquidated damages, attorney's fees, expenses, disbursements, litigation costs and
fees, restitution, or equitable relief.
1.29 Represented Retained Mendetery Charges means the aggregate total of allmandatory
service or administrative charges billed, assessed, or collected on executed catering
contracts and that were retained by Defendant from approximately July 2013 through May
23, 2018.
1.30 Reserve Fund means the fund whereby an amount is set aside within the QSA in case of
error or omission to be paid and corrected via the mechanisms outlined in Section 3.1(B).
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1.31 Service Award means the portion of the Gross Potential Settlement Amount, if any,
requested by Named Plaintiff and approved by the Court as a reasonable incentive award
to Named Plaintiff for representing the interests of the Senlemmit Class.
1.32 Settlement Class (individually, Class Member) means: individuals who, according to
Defendant's reasonably accessible records and those of itsthird-party service provider,
performed service work at catered events held at Langham Place Fifth Avenue from July
2013 through May 23, 2018, in such trades, classifications, and professions that
customarily receive gratuities, iñcluding but not limited to servers, waiters, banquet
servers, bussers, bartenders, captains, and runners, and whose names appear on the Class
List. The Settlement Class does not include maintenance workers, corporate officers,
salespersûns, cooks, food preparers, chefs, dishwashers, directors, clerical staff,office
workers, or any other person whose trade, classificãtion, or profession does not customarily
receive gratuities.
1.33 Settlement Checks means checks issued to Authorized Claimants for their Individual Net
Amount.
1.34 Settlemcñ‡ Period means s July 1, 2013 through the date the Approval Order is signed.
2. APPROVAL AND PROCEDURE
2.1 Settlement Class. Strictly for purposes of settling the Action, and without admitting any
wrongdoing or liability, Defcñdânt agrees to class certification pursümit to CPLR §§ 901
and 902 to include all Class Members as defined in Section 1.32.
2.2 Settlement Claims Administrator.
(A) Retention. Within fifteen (15) days after the filing of an Approval Motion as set
forth in Section 2.3, Class Counsel shall engage a qualified Settlement Claims
Administrator, subject to approval by Defendant's Counsel.
(B) Funding Settlement Claims Administrator. The Settlement Claims
Administrator shall be paid out of the QSA.
(C) Responsibilities of Settlement Claims Administrator. The Settlement Claims
Administrator shall be responsible for: (i) printing and disseminating to the
Settlement Class the Notice and Claim Forms, both by hard copy and electronically,
where possible; (ii)performing a skip trace and resendiñg, within one (1) day of
receipt, any Notice and Claim Form returned without a forwarding address, or
resending to those with anew forwarding address; (iii)responding to inquiries from
the Parties; (iv) monitoring and maintaining a telephone number with telephone
answerers until the Final Effective Date or the termination of this Agreement,
whichever comes first; (v) receiving, retaining, and reviewing each Claim Form
submitted by any Class Member; (vi) keeping track of requests for exclusion or
objection, including maintaining the original envelope in which the request or
objection was mailed; (vii)promptly furnishing to counsel for the Parties copies of
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any requests for exclusion, objections, or other written or electronic
communications from each Class Member that the Settlement Claims
Administrator receives; (viii) mailing Service Award Settlement Checks in
accordance with this Agreement and the Approval Order; (ix) preparing, sending
and/or wire-transferring Class Counsel's attorney's fees, expenses, and costs; (x)
paying allEmployment Taxes, including issuing the W-2 and 1099 Forms for all
amounts paid from the Final Settlement Amount; (xi) responding to inquiries of
Class Members regarding procedures for filing objections, Opt-out Statements, and
Claim Forms; (xii)referring to Class Counsel all inquiries by Class Members or
Authorized Claimants regarding matters not within the Settlement Claim
Administrator's duties specified herein; (xiii)responding to inquiries of counsel for
the Parties relating to the Settlement Claims Administrator's duties specified
herein; (xiv) promptly apprising counsel for the Parties of the activities of the
Settlement Claims Administrator; (xv) maintaining adequate records of its
activities, including the dates of the mailing of Notices and mailing and receipt of
Claim Forms, returned mail, and any and all other actual or attempted written or
electronic communications with the Settlement Class; (xvi) in
confinning writing
to counsel for the Parties and the Court itscompletion of the admird:'-ation of the
settlement; (xvii) timely responding to communications from the Parties and their
counsel; (xviii) providing allinformation, documents, and calculations necessary
to confirm the Final Settlement Amount; and (xix) such other tasks as the Parties
mutually agree.
(D) Access to the Settlement Claims Administrator. The Parties will have equal
access to the Settlement Claims Administrator. Class Counsel and Defendant's
Counsel agree to use their best efforts to cooperate with the Settlement Claims
Administrator and provide reasonable essiste ce in administering the settlement.
2.3 Approval Motion.
(A) Within fifteen (15) days of complete execution of this Agreement, Class Counsel
shall provide Defendant's Counsel with a draft Approval Motion. Defendant's
Counsel will have ten (10) days to review and provide comments to Class Counsel
on the Approval Motion, or else Class Counsel's drafts will be deemed acceptable.
Class Counsel will file the Appmval Motion within five (5) days of reaching
agreement with Defendant's Counsel as to its form and contents or of it being
deemed acceptable. In connection with the Approval Motion, Class Counsel will
submit to the Court the agreed upon: (1) the proposed Notice, (2) the proposed
Claim Form, (3) the proposed Approval Order, (4) an executed version of this
Agreement, and (5) the necessary documents, memorandum, affidavits, and
exhibits for the purposes of certifying a Class for settlement purposes under CPLR
§§ 901 and 902, and approving the settlement. The Approval Motion also will seek
the setting of a date for individuals to submit Claim Forms, Opt-out Statements
and/or object to this Agreement.
(B) In the Approval Motion, Class Counsel shall inform the Court of the intended
process to effectuate the settlement as contemplated herein, such that the Court
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may, among
Preview
FILED: NEW YORK COUNTY CLERK 06/16/2020 09:11 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/15/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART IAS MOTION 56EFM Justice --------------------------------------------------------------------------------X INDEX NO. 154853/2018 LESLIE CORTES, individually and on behalf of others similarly situated, Plaintiff, -v- PACIFIC LANGHAM NEW YORK CORPORATION, doing FINAL ORDER AND JUDGMENT business as LANGHAM PLACE FIFTH AVENUE, and any APPROVING CLASS other related entities, SETTLEMENT Defendants. ---------------------------------------------------------------------------------X By order dated March 9, 2020, the court preliminarily approved a proposed class action settlement in this action as fair, adequate, and reasonable, and provided for notice of the proposed class action settlement to members of the proposed settlement class (hereinafter the class). A copy of the Notice and Claim Form is annexed hereto. The parties have now made application, pursuant to CPLR 907, for the issuance of a final order and judgment approving the class action settlement in the above-captioned action, in accordance with the Settlement Agreement and Release (hereinafter the Settlement Agreement), annexed hereto, which sets forth the terms and conditions for the settlement of the action with the defendants, and for dismissal of the complaint against the defendants, with prejudice. Pursuant to CPLR 907(2), the court scheduled a fairness hearing for June 9, 2020 to determine whether the proposed settlement of this class action should be finally approved. Inasmuch as the court remained closed on that date due to the ongoing COVID-19 viral pandemic, and class counsel represents to the court that no member of the class has provided written or other objections to the proposed class action settlement, the court will rule on the 1 1 of 23 FILED: NEW YORK COUNTY CLERK 06/16/2020 09:11 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/15/2020 fairness of the Settlement Agreement on papers alone, and will deem all applications for fees, costs, and service awards to have been made on those papers as well. The proposed class action settlement, as set forth in the Settlement Agreement, is finally approved. The Settlement Agreement be, and hereby is, incorporated into this Final Order and Judgment. This court is satisfied that the settlement of this action is both procedurally and substantively fair. Further, the court finds that the notice given to members of the class accurately informed the members of the class of the proposed settlement, was the best notice practicable under the circumstances, and constituted valid, due, and sufficient notice to all members of the class. The court further finds that the class administration process was fair and reasonable, and provided each member of the class with a fair and reasonable opportunity to submit a claim for the payment of benefits made available under the proposed Settlement Agreement. For purposes of this Order and Judgment, all terms not otherwise defined herein shall have the same meanings as set forth in the Settlement Agreement. Accordingly, it is hereby, ORDERED that the court finally approves the terms of the settlement set forth in the Settlement Agreement, and finds that the settlement is, in all respects, fair, reasonable, adequate, and binding upon and in the best interests of the plaintiff and the members of the class, in accordance with CPLR article 9 and the terms of the Settlement Agreement, and the parties are directed to implement its terms and provisions; and it is further, ORDERED that the defendants are directed to effectuate the distribution of the funds, professional fees and costs, and service awards, as delineated in the Settlement Agreement, for distribution to the participating members of the class in accordance with the terms of the Settlement Agreement and this Order and Judgment; and it is further, 2 2 of 23 FILED: NEW YORK COUNTY CLERK 06/16/2020 09:11 AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/15/2020 ORDERED and ADJUDGED that the plaintiff and all members of the class are (i) conclusively deemed to have released and discharged the defendants from any and all claims, causes of action, or demands of any kind that are to be released in accordance with the terms of Settlement Agreement, and as set forth more fully in the Settlement Agreement, and (ii) permanently enjoined and barred from asserting against the defendants, either directly or indirectly, any and all claims, causes of action, or demands of any kind related to the released claims; and it is further, ORDERED that the application by counsel for the class for an award of attorneys’ fees in the amount of $225,000.00 and litigation costs in the amount of $7,500.00, for a service award to the named plaintiff, Leslie Cortes, in the amount of $7,500.00, for a service award to the class representative, Cigdem Metin, in the amount of $7,500.00, and for an award of fees and costs to the claims administrator in the amount of $5,000.00, as set forth in the Settlement Agreement and the prior order of this court dated March 9, 2020, is granted, and those amounts shall be paid from the gross settlement amount; and it is further, ADJUDGED that the complaint is dismissed, with prejudice; and it is further, ORDERED that the Clerk of the court shall enter judgment accordingly; and it is further, ORDERED that, without affecting the finality of this Order and Judgment in any way, this court hereby retains jurisdiction over the consummation and performance of the Settlement Agreement. This constitutes the Decision, Order, and Judgment of the court. 6/9/2020 $SIG$ DATE JOHN J. KELLEY, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 3 3 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 Exhibit A Settlement Agreement & Release 4 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LESLIE CORTES, individually and on behalf of others similarly situated, Index No.: 154853/2018 Plaintiffs, - against - PACIFIC LANGHAM NEW YORK CORPORATION d/b/a LANGHAM PLACE FIFTH AVENUE; and any other related entities, Defendants. SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is cñtered into by and between, on the one hand, Proposed Class Representative Cigdem Metin on behalf of Plaintiff Leslie Cortes ("Named Plaintiff") and a putative class of individuals she seeks to reprcscñt (the "Settlement Class," as hereinafter defined) and, on the other, Defendant Pacific Langham New York Corporation d/b/a Lañgham Place Fifth Avenue ("Defendant") (together with Named Plaintiff, "Party," individually each is a collectively the "Parties"). RECITALS AND BACKGROUND A. WHEREAS, Named Plaintiff filed a Class Action Complaint on May 23, 2018, which is now pending in the Supreme Court of the State of New York, County of New York, designated as Index No. 154853/2018 (the "Action"). B. WHEREAS, Defendant has defended and intends to vigorously contest each and every claim in the Action and deny all material allegations of the Action, as to which Defendant alleges numerous meritorious defehses. Defendant, without admitting any wrongdoing or liability on its behalf, nevertheless has 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 against Defendant. C. WHEREAS, Class Counsel (as hereinafter defñêd) has âñâ1yzed and evaluated the merits of the claims made against Dêfeñdant and the impact of this Agreement on Named Plaintiff and the Settlement Class. Based upon their analysis and evaluation of a number of factors, Named Plaintiff and Class Counsel recognize the substantial risks of continued litigation, including the possibility that the Action, ifnot settled now, mightnot result in any recovery whatsoever, or might result in a recovery that is less favorable and that would not occur for several years. Named Plaintiff and Class Counsel are satisfied that the terms and conditions of this Agreement are fair, 5 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 reasonable, and edeqüste and that this Agreement isin the best interest of Named Plaintiff and the Settlement Class. D. WHEREAS, Named Plaintiff and Defendant, by and through their respective counsel, have engaged in significant and lengthy settlement diauussions in connection with the resolution of the Action, including at a full-day mediation session with Mediator Martin F. Esq. Named Plaintiff and Defendant - subject to the approval of the Court - have Scheinman, elected to settle the Action pursuañt to the terms set forth in this Agreement, which shall be submitted to the Court for approval through the mechanisms set forth below. E. WHEREAS, strictlyfor the purpose of settling the Action, and without admitting any wreñgdoing or liability, Defendant agrees to class certification under §§ 901 and 902 of the New York Civil Practice Law and Rules ("CPLR") of the Settlement Class as deEned in Section 1.31, subject to Paragraph F, below. F. WHEREAS, the Parties agree that if this Agreement is terminated pursuant to Section 2.9 (B), the Action will procced as if thisAgreement had not been executed, specifically including, and without limitation, revocation of the agreement to class certification of the Settlement Class. NOW THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, as well as the good and valuable consideration provided for herein, the receipt and sufficiency of which ishereby acknowledged, the Parties, having been represented by counsel and to be bound, agree to a full and complete settlement of the Action. intending legally "whereas" (The foregoing clauses are true and correct and incorporated by reference as part of this Agreement.) 1. DEFINITIONS The defined terms set forth in this Agreement have the meanings ascribed to them below. 1.1 Acceptance Period means the sixty (60)-day period beginning from the date of the first mailing of the Notice and Claim Form, during which a Class Member isrequired to execute and return a Claim Form and Release to participate in this settlement and Action and receive a Settlement Check. 1.2 Approval Motion means a Motion for Settlement Approval seeking court approval of this Agreemmt and itsattachments, including (1) the proposed Notice, (2) the proposed Claim Form, (3) the proposed Approval Order, (4) an executed version of this Agreement, and (5) the necessary decuments, memoranda, affidavits, and exhibits for the purposes of certifying a Class for settlement purposes under CPLR §§ 901 and 902, and approving the settlement. 1.3 Authorized Claimant means each Class Member, or the authorized legal representative of such Class Member, who timely files a Claim Form in accordance with the terms of this Agreement and who does not opt out of the Agreement in accordance with Section 2.6, and 2 6 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 who is therefore entitled to receive a Settlement Check. Metin is deemed an Authorized Claimant upon execution of this Agreement and need not return a Claim Form. Release" 1.4 Claim Form and "Claim Form both mean the form, a copy of which is eMached to the Notice of Settlement of Class Action Lawsuit as Form 1, that a Class Member must sign and return during the Acceptance Period along with an IRS 2019 W9 or substitute of same, in order to become an Authorized Claimant and receive a Setdement Check. 1.5 Class Counsel means Jeffrey K. Brown, Esq. and Brett R. Cohen, Esq. of Leeds Brown Law, P.C., One Old Country Road, Suite 347, Carle Place, New York 11514. 1.6 Class List means a listin electronic format, preferably Excel, that includes (to the extent known to Defendant) the names, last known physical mailing address, social security numbers, and dates of events worked for Defendant, whether employed directly by Defendant or through a staffing agency, of each respective Class Member, contained in a confidential document that Defendant shall provide to the Claims Admini-t.âtor to effectuate settlement and which may not be copied, disseminated, or used, in partor whole, for any purpose other than to effectuate this settlement. 1.7 Costs and Fees means, collectively, Class Counsel's attorney's fees, costs, and expenses; the costs and fees associated with the Settlement Claims Administrator; and, the Service Award. 1.8 Court means the Supreme Court of the State New York, County of New York. 1.9 Days means business days ifthe specified number is fewer than ten (10), and calendar days if the specified number is ten (10) or greater. 1.10 Defendant means Defendant Pacific LañghãñiNew York Corporation d/b/a The Langham, New York, Fifth Avenue and all of itsformer, current and respective officers, directors, agents, employees, as well as its parents, predecessors (including but not limited to Langham Place, New York), successors, subsidiaries, and related and affiliated entities, including each of their respective former and current officers, directors, agents, and employees. 1.11 Defendant's Counsel means the law firm of Baker & Hostetler, LLP, 45 Rockefeller Plaza, New York, New York 10111. 1.12 Employment Taxes means (1) alltaxes an employer is required to pay arising out of or based upon the payment of employment incin and SUTA compcñsation, Æng FICA, FUTA, obligations, and (2) all ordinary and regular taxes required to be withheld from an employee's compensation or other income. 1.13 Fairness Hearing means any hearing scheduled at the Court's discretion in connection with the Approval Motion. 1.14 Final Effective Date means, the later of: (i)45 days following the expiration of the Notice Response Deadline; or (ii)if an appeal of the Approval Order is timely filed, thirty (30) 3 7 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 days after the date of any of the following occurrences: (1) any appeal from the Approval Order has been fully and finally dismissed; (2) the Approval Order has been affirmed on appeal in a form substantially identical to the form of the Approval Order entered by the Court; (3) the deadline to petition for review with respect to any appellate decision affirming the Approval Order has expired; and (4) if a petition for review of an appellate decision is filed,the petitioñ has been denied or fully dismissed, or, ifgranted, has resulted in affix1ss-we of the Approval Order in a form substantially identical to the form of the Approval Order entered by the Court, 1.15 Final Settlement Amount means the sum of the Net Settlement Amount, which shall be inclusive of any and allEmployment Taxes to be assessed on payments to Class Members, plus allCourt-approved Costs and Fees. 1.16 Gross Potential Settlement Amount means the potential maximum aggregate sum that can be paid by Defendant pursuant to this Agrccmcñt, subject, inter alia, to Defendant's right to terminate this Agreement as set forth in Section 2.9(A)(1), which sum includes Service Awards, Claims Administrator fees and expenses, employer-side Employment attorneys' Taxes, fees, expenses, and costs, and other professional fees, expenses, and costs. Under no circumstances shall the Gross Potential Settlement Amount ever exceed Six Hundred Seventy-Five Thousand Dollars ($675,000.00), regardless of, among other things, the number of Class Members or any other Section in the Agreement. 1.17 Individual Gross Amount means the ament allocated to each Authorized Claimant pursuant to Section 3.5(C) prior to any deduction for taxes required to be withheld from employee compensation or other income. 1.18 Individual Net Amount means the amount paid to each Authorized Claimant after deduction for taxes required to be withheld from employee compensation or other income, pursuant to Section 3.1(C)(2). 1.19 Net Settlement Amount means the aggregate balance to be allocated to all Authorized Claimants from the Gross Potential Settlement Amount after the deduction of Court- approved Costs and Fees and Employment Taxes and Court-approved Service Awards. 1.20 Notice(s) means the Court-approved Notice of Settlement of Class Action Lawsuit as authorized in the Approval Order. 1.21 Notice Response Deadline means the last day of the Acceptance Period in which Class Members can timely complete and submit their Claim Form or opt-out of the settlement, 1.22 Objector means an individual Authorized Claimant who timely and properly files an objection to thisAgreement in the time and mamer set forth in Section 2.7. 1.23 Opt-out Statement means the written, signed statemcñt submitted in the time and manner set forth in Section 2.6 that an individual Class Member submits indicating he or she has elected to exclude him or herself ("opt-out") from, and thus not be included in, the settlement. 4 8 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 1.24 Order Granting Approval ("Approval Order") means the Order entered by the Court: (i) certifying the Settlement Class; (ii) approving the terms and conditicñs of this Agicemcñt; (iii)appointing Leeds Brown Law, P.C. as Class Counsel; (iv) directing the manner and timing of providing Notice to the Settlement Class; and (v) setting the dates and deedliñês for effectuating the settlement, including date of the mahs of Notice, the Notice Response Deadline, and the date of the Fairness Hearing if one is to be scheduled; among other things. 1.25 Pestmark means the date stamped or otherwise indicated on an envelope by the United States Postal Service or other mail carrier. 1.26 Qualified Settlement Account ("QSA") means the account established by the Settlement Claims Administrator and funded on the Effective Date by Defendant for the purpose of distributing allapproved amounts in accordance with this Agreement. The QSF will be controlled by the Settlement Claims Administrator subject to the terms of thisAgreement and the Approval Order. Interest, if any, earned in the QSF will become part of the Net Settlement Fund to be distributed to the Authorized Claimanh 1.27 Release shall mean the releases of claims, as specified herein, to which the Parties bind themselves. 1.28 Released Class Claims means any and allNew York state and local claims, including any wage and hour claims, obligations, demands, actions, rights, causes of action, and liabilities against Defendant, of whatever kind and nature, character and description, whether known or unknown, and whether anticipated or unanticipated, including unknown claims that accrued or accrue on any date up through the Effective Date, for any type of relief under New York state or local law that arose from or are in any way related to any Defendant, including, without limitation, claims under any legal theory for failure to pay minimum wage, failure to pay overtime, failure to pay for all hours worked, failure to provide meal and rest periods, failure to timely pay final wages, failure to reimburse for business expenses, and/or failure to furnish accurate wage statements, wage notices or other notices, and any and claims for recovery of compensation, overtime pay, minimum wage, premium pay, interest, and/or penalties, and any related or derivative claims, other penalties, related tort and punitive damages, including, butnot limited to, allclaims alleged in the Complaint, claims based on, or under, New York State law, the Hospitality Wage Order, and/or common law, and statutory, constitutional, contractual, or common law claims for unpaid gratuities, service charges, administrative charges, tips, interest on such claims, penalties, damages, liquidated damages, attorney's fees, expenses, disbursements, litigation costs and fees, restitution, or equitable relief. 1.29 Represented Retained Mendetery Charges means the aggregate total of allmandatory service or administrative charges billed, assessed, or collected on executed catering contracts and that were retained by Defendant from approximately July 2013 through May 23, 2018. 1.30 Reserve Fund means the fund whereby an amount is set aside within the QSA in case of error or omission to be paid and corrected via the mechanisms outlined in Section 3.1(B). 5 9 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 1.31 Service Award means the portion of the Gross Potential Settlement Amount, if any, requested by Named Plaintiff and approved by the Court as a reasonable incentive award to Named Plaintiff for representing the interests of the Senlemmit Class. 1.32 Settlement Class (individually, Class Member) means: individuals who, according to Defendant's reasonably accessible records and those of itsthird-party service provider, performed service work at catered events held at Langham Place Fifth Avenue from July 2013 through May 23, 2018, in such trades, classifications, and professions that customarily receive gratuities, iñcluding but not limited to servers, waiters, banquet servers, bussers, bartenders, captains, and runners, and whose names appear on the Class List. The Settlement Class does not include maintenance workers, corporate officers, salespersûns, cooks, food preparers, chefs, dishwashers, directors, clerical staff,office workers, or any other person whose trade, classificãtion, or profession does not customarily receive gratuities. 1.33 Settlement Checks means checks issued to Authorized Claimants for their Individual Net Amount. 1.34 Settlemcñ‡ Period means s July 1, 2013 through the date the Approval Order is signed. 2. APPROVAL AND PROCEDURE 2.1 Settlement Class. Strictly for purposes of settling the Action, and without admitting any wrongdoing or liability, Defcñdânt agrees to class certification pursümit to CPLR §§ 901 and 902 to include all Class Members as defined in Section 1.32. 2.2 Settlement Claims Administrator. (A) Retention. Within fifteen (15) days after the filing of an Approval Motion as set forth in Section 2.3, Class Counsel shall engage a qualified Settlement Claims Administrator, subject to approval by Defendant's Counsel. (B) Funding Settlement Claims Administrator. The Settlement Claims Administrator shall be paid out of the QSA. (C) Responsibilities of Settlement Claims Administrator. The Settlement Claims Administrator shall be responsible for: (i) printing and disseminating to the Settlement Class the Notice and Claim Forms, both by hard copy and electronically, where possible; (ii)performing a skip trace and resendiñg, within one (1) day of receipt, any Notice and Claim Form returned without a forwarding address, or resending to those with anew forwarding address; (iii)responding to inquiries from the Parties; (iv) monitoring and maintaining a telephone number with telephone answerers until the Final Effective Date or the termination of this Agreement, whichever comes first; (v) receiving, retaining, and reviewing each Claim Form submitted by any Class Member; (vi) keeping track of requests for exclusion or objection, including maintaining the original envelope in which the request or objection was mailed; (vii)promptly furnishing to counsel for the Parties copies of 6 10 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 any requests for exclusion, objections, or other written or electronic communications from each Class Member that the Settlement Claims Administrator receives; (viii) mailing Service Award Settlement Checks in accordance with this Agreement and the Approval Order; (ix) preparing, sending and/or wire-transferring Class Counsel's attorney's fees, expenses, and costs; (x) paying allEmployment Taxes, including issuing the W-2 and 1099 Forms for all amounts paid from the Final Settlement Amount; (xi) responding to inquiries of Class Members regarding procedures for filing objections, Opt-out Statements, and Claim Forms; (xii)referring to Class Counsel all inquiries by Class Members or Authorized Claimants regarding matters not within the Settlement Claim Administrator's duties specified herein; (xiii)responding to inquiries of counsel for the Parties relating to the Settlement Claims Administrator's duties specified herein; (xiv) promptly apprising counsel for the Parties of the activities of the Settlement Claims Administrator; (xv) maintaining adequate records of its activities, including the dates of the mailing of Notices and mailing and receipt of Claim Forms, returned mail, and any and all other actual or attempted written or electronic communications with the Settlement Class; (xvi) in confinning writing to counsel for the Parties and the Court itscompletion of the admird:'-ation of the settlement; (xvii) timely responding to communications from the Parties and their counsel; (xviii) providing allinformation, documents, and calculations necessary to confirm the Final Settlement Amount; and (xix) such other tasks as the Parties mutually agree. (D) Access to the Settlement Claims Administrator. The Parties will have equal access to the Settlement Claims Administrator. Class Counsel and Defendant's Counsel agree to use their best efforts to cooperate with the Settlement Claims Administrator and provide reasonable essiste ce in administering the settlement. 2.3 Approval Motion. (A) Within fifteen (15) days of complete execution of this Agreement, Class Counsel shall provide Defendant's Counsel with a draft Approval Motion. Defendant's Counsel will have ten (10) days to review and provide comments to Class Counsel on the Approval Motion, or else Class Counsel's drafts will be deemed acceptable. Class Counsel will file the Appmval Motion within five (5) days of reaching agreement with Defendant's Counsel as to its form and contents or of it being deemed acceptable. In connection with the Approval Motion, Class Counsel will submit to the Court the agreed upon: (1) the proposed Notice, (2) the proposed Claim Form, (3) the proposed Approval Order, (4) an executed version of this Agreement, and (5) the necessary documents, memorandum, affidavits, and exhibits for the purposes of certifying a Class for settlement purposes under CPLR §§ 901 and 902, and approving the settlement. The Approval Motion also will seek the setting of a date for individuals to submit Claim Forms, Opt-out Statements and/or object to this Agreement. (B) In the Approval Motion, Class Counsel shall inform the Court of the intended process to effectuate the settlement as contemplated herein, such that the Court 7 11 of 23 FILED: NEW YORK COUNTY CLERK 02/21/2020 06/16/2020 06:28 09:11 PM AM INDEX NO. 154853/2018 NYSCEF DOC. NO. 16 27 RECEIVED NYSCEF: 02/21/2020 06/15/2020 may, among