NOTICE OF CLASS ACTION Settlement and final approval hearing
In the case of:
Berger v. Perry’s Steakhouse of Illinois, LLC
U.S. Federal District Court for the Northern District of Illinois
Docket No. 14-cv-08543
BECAUSE YOU ARE A CURRENT OR FORMER EMPLOYEE OF PERRY’S STEAKHOUSE YOU ARE ENTITLED TO RECEIVE A PAYMENT FROM THIS SETTLEMENT
If the Settlement is approved by the Court, you will receive a payment. If you wish to receive this settlement money or object to the settlement, it is very important that you read this Notice carefully.
THE AMOUNT TO BE AWARDED TO EACH INDIVIDUAL CLASS MEMBER CAN BE FOUND
ON CLASS COUNSEL’S WEBSITE, www.cmmclaw.com.
About the Lawsuit: This lawsuit was filed in October 2014 by Jessica Berger and Timothy Rendak on behalf of themselves and all other individuals who worked as “servers” at Perry’s Steakhouse of Illinois (“Perry’s) located in Oak Brook, Illinois. The lawsuit alleges that Perry’s violated both federal and state law relating to tipped employees. Primarily the claims related to alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and the Illinois Minimum Wage Law, 820 ILCS § 105/1 et seq. (“IMWL”). Class certification was granted on March 12, 2018 and Notice of this Lawsuit and an opportunity to Opt-In to the federal FLSA claims was sent to all know class members at that time.
The claims made in this lawsuit have been vigorously litigated by both Parties. Perry’s denies all liability or wrongdoing associated with the claims of the Lawsuit. But, in order to avoid the costs, the uncertainties and risks of further litigation, including but not limited to the risk that the Class or portions thereof will not remain certified, and to assure that the benefits reflected herein are obtained for the Settlement Class, the Parties reached what Class Counsel believes to be a fair, reasonable and equitable settlement which resolves all claims made against Perry’s from November 2013 through March 15, 2018. Judge Thomas Durkin of the Federal District Court for the Northern District of Illinois has preliminarily approved this Settlement Agreement and that is why you, as a Final Settlement Recipient, are now receiving this Notice.
SUMMARY OF TERMS OF SETTLEMENT: Perry’s will pay a total of FOUR HUNDRED FORTY-FIVE THOUSAND DOLLARS ($445,000.00) (“Settlement Proceeds”) and an additional amount payable to Class Counsel for attorneys’ fees, to be negotiated by the Parties or determined by the Court as set forth in the Agreement. The Settlement Proceeds will be administered by Class Counsel.
The Settlement Amount will be distributed as set forth below. The amounts distributed to each sub-class set forth below, with the exception of base wages paid for the Credit Card Offset Fee Claim, represent a compromise of highly disputed claims for settlement purposes.
- The Credit Card Offset Fee (“CCOF”) Sub-Class. This sub-class is actually two sub-classes. All individuals who worked as servers at PSI at any time from November 12, 2013 to October 12, 2014 and were subject to PSI’s practice of deducting a credit card offset fee to convert server’s credit card tips into cash on a nightly basis are members of this sub-class. Each member of this sub-class will receive $3.30 for each hour they worked at PSI during this sub-class time period. $3.30 is the difference between Illinois minimum wage of $8.25 (the rate at which Plaintiffs claim they should have been paid) and the Illinois Tip Credit Rate of $4.95 (which is the amount the class members were actually paid). The sum total of base wages to be paid on this claim is ONE HUNDRED TWENTY-ONE THOUSAND, FOUR HUNDRED TWENTY-FIVE DOLLAS AND FIFTY-EIGHT CENTS ($121,425.58). There are 64 class members in the CCOF sub-class and the base backpay each member will receive ranges from a low of $18.15 to a high of $6,357.45, depending on how many hours each member worked during this time period.
- Interest payment for state law claim. In addition, each CCOF sub-class member will receive 2% of their outstanding base wage total for each month these wages remained owing through April 30, 2020, the approximate date agreement between the Parties was reached on this claim. The total of IMWL interest payments is ONE HUNDRED SEVENTY-FIVE THOUSAND, FOUR HUNDRED ELEVEN DOLLARS AND NINETY-EIGHT CENTS ($175,411.98). This additional interest more than doubles the base wage recovery for each member of this CCOF sub-class and makes the total recovery on the state CCOF claim $296,837.56.
- The FLSA CCOF Sub-Class. The FLSA CCOF sub-class consists only of those members of the larger CCOF sub-class who also timely “opted-in” to the federal FLSA claims. In addition to the base wages and interest recovered under the larger CCOF claim explained above, these 16 Final Settlement Recipients who opted into this Lawsuit will also receive a pro rata share of TWENTY-TWO THOUSAND, SIX HUNDRED FORTY-SIX DOLLARS AND NINETY-THREE CENTS ($22,646.93) as liquidated damages. This total sum represents 50% of the total number of hours each of the16 FLSA CCOF sub-class members worked as a server during the eligible time period of November 12, 2013 to October 14, 2014, multiplied by $3.30.
- The Notice Sub-Class. Only federal law (FLSA) provides directives on proper notice of wages to tipped employees. Therefore, this sub-class consists only of those 12 Final Settlement Recipients who timely opted into this Lawsuit and worked as servers at any time between October 14, 2014 (the end of the CCOF class period) and December 31, 2016 (the date on which the Parties agree Perry’s was in full compliance with the FLSA Notice requirements). Each member of the Notice sub-class will receive a pro rata share of TWENTY-THREE THOUSAND, SEVEN HUNDRED TWENTY-SEVEN DOLLARS AND THIRTY-ONE CENTS ($26,727.31). This total sum represents 44.29% of the total number of hours each sub-class member worked as a server during the applicable time-period.
- The Side Work Sub-Class. This sub-class is defined as all persons employed by Perry’s as servers from October 14, 2014 through March 15, 2018 who were paid at the sub-minimum wage, tip credit rate, and performed what PSI assigned as “side-work.” Each member of this Side-work sub-class will receive a pro rata share of FIFTY-SEVEN THOUSAND, ONE HUNDRED TWO DOLLARS AND FOUR CENTS ($57,102.04). This total sum represents 19.225% of all hours worked by each server during this time period multiplied by $3.30.
Additional Allocations of the Settlement Proceeds. In addition to the allocations to the Settlement Class, Class Representatives Jessica Berger and Timothy Rendack will each receive $5,000 for their services in connection with the prosecution and settlement of the Lawsuit. Class Counsel will receive a payment of $34,686.17 as reimbursement of costs and expenses. You will not be required to separately pay Class Counsel for their representation of you in this lawsuit. As previously stated, the amount of Attorneys’ Fees payable to Class Counsel will be determined separately.
SUMMARY OF ADDITIONAL TERMS OF SETTLEMENT:
RELEASE: Once the Court enters its Final Approval Order, you will be deemed by Court order to have released and forever discharged Perry’s, its respective predecessors, successors, assigns, officers, directors, agents, employees, attorneys, from any and all wage claims arising under state or federal law from September 2013 to March 15, 2018, regardless of whether you have cashed your Settlement Award check. The release specifically does not include any claim covered by Workers’ Compensation law, or any claim alleging discrimination, personal injury, harassment, fraud, negligence, theft, or conversion, except insofar as such claim is based on the failure to pay wages, or any claims that arise after the Court’s approval of the Settlement Agreement. The complete statement of the release of claims is contained in the Settlement Agreement and is binding on all Final Settlement Class Members. In addition, the Class Representatives and the federal Opt-In Settlement Recipients are required to sign a general release of all claims and to comply with various non-disclosure/non-disparagement provisions set forth in the Settlement Agreement in order to receive the additional compensation awarded to them under the federal FLSA claims.
TAX TREATMENT OF SETTLEMENT AWARDS: Perry’s is responsible for withholding and payment of all payroll taxes. The sums designated as base back-wages in each sub-class category will be payable as W-2 earnings and shall be subject to applicable tax withholdings based on and using each respective Settlement Recipient’s current or last used W-2 allocations. Each Back-Wage payment will be accompanied by a payment summary or pay stub prepared by Perry’s setting forth the gross amount of the Back Wage payment and an itemization of all withholdings. Payments for all other damages and payment to the Class Representatives and Class Counsel will be paid in the gross amount of the allocation as 1099 income. Perry’s will issue directly to the Settlement Recipients the applicable W-2 and 1099 tax forms for payment of Settlement Proceeds in the normal course of business in the month of January 2022.
Nothing contained in this Notice or in the Settlement Agreement is intended to be or should be interpreted as providing tax advice. Settlement Class Members should consult with their tax advisors concerning the tax consequences of any payment they receive.
DISTRIBUTION PROCEDURE: The Agreement also provides terms and conditions for the distribution of the Settlement awards, locating missing plaintiffs, distributing awards initially granted to class members who cannot be located or otherwise have lost entitlement to the award, and dealing with newly discovered class members. Because many former employees have relocated and we are contacting many of you via email addresses, to ensure that the Settlement Award checks and W-2 forms reach you, if you have not already done so, please be sure to contact Class Counsel with any change of address since you stopped working at Perry’s.
YOUR RIGHT TO OBJECT: This Settlement is conditioned upon the Court entering a Final Approval Order. Before entering the Final Approval Order, a hearing is held so that the Court can determine if the Settlement is fair, reasonable, and adequate and in the best interests of the Settlement Class. You need not appear at the Final Approval Hearing. You are automatically considered a Final Settlement Class Member, so if the Court approves the Settlement, and your address has been verified, you will receive your Settlement Award check. However, you may object to or comment on all or part of the proposed Settlement by following the procedure below.
If you choose to object to or comment on the Settlement, you must do so in writing to Class Counsel. Your objections or comments must be received by Class Counsel no later than April 1, 2021 and must include:
- a prominent reference to the case name and number;
- Your full name, address, and telephone number;
- The approximate dates you were employed by Perry’s;
- Your signature; and
- Any supporting papers on which your objections or comments are based.
If you wish to speak at the Final Approval Hearing, you must also state in your objections or comments that you intend to appear and speak at the hearing. If you do not include this statement, you will not be entitled to speak at the Hearing. You can enter an appearance in the lawsuit through your own legal counsel. If you do, you will be responsible for your own attorneys’ fees and costs. If you submit an objection and wish to preserve your appellate rights, you must either appear in person, through your counsel or as otherwise permitted by the Court, at the Final Approval Hearing. If you do not raise your objections according to the above procedure, you will waive all objections and have no right to appeal any aspect of the proposed Settlement. If you object and the proposed Settlement is approved, you will still be bound by the final judgment and your claims will be released.
FAIRNESS HEARING ON PROPOSED SETTLEMENT: The Final Approval Hearing on the fairness and adequacy of the proposed Settlement and the plan of distribution will be held on April 6, 2021 at 9:30 a.m. in the federal District Court of the Northern District of Illinois, before the Honorable Thomas Durkin, Courtroom 1441, Dirksen Federal Courthouse, 219 S. Dearborn St., Chicago, IL 60604. The Final Approval Hearing may be continued to another date without further notice. At this time the hearing is scheduled to be conducted remotely. To join the telephone conference, dial 877-402-9757, Access Code 4410831. Members of the public and media will be able to call in to listen to this hearing. Please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings.
If you plan to attend the Final Approval Hearing, you may contact Class Counsel to confirm the date and time. If the Settlement is not approved, the Lawsuit will continue to be prepared for trial or other judicial resolution
ADDITIONAL INFORMATION: This Notice only summarizes the Lawsuit, the Settlement and related matters. For more information, you may inspect the Court files at the Office of the Clerk of the Court, Dirksen Federal Court House, 219 S. Dearborn, 20th floor, Chicago, Illinois from 9:00 a.m. to 4:30 p.m., Monday through Friday. A copy of the Settlement Agreement and Joint Motion for Approval of Settlement Agreement can be found for review on Class Counsel’s website, www.cmmclaw.com. Any questions regarding this Notice or lawsuit may be directed to Class Counsel at the below address and telephone number.
PLEASE NOTE THAT PERRY’S MAY NOT TAKE ANY ACTION AGAINST YOU FOR BEING PART OF THIS CLASS Action Settlement
Attorneys for the Settlement Class (“Class Counsel”) in the Lawsuit are:
PLEASE DO NOT CALL OR WRITE THE COURT ABOUT THIS NOTICE.
Dated: February 22, 2021