Romatka Settlement Agreement - Signed 092614

SETTLEMENT AGREEMF,NT
I.
Inhoduction. This Settlement Agreement("Agreement")is hereby entered by and
between Defendants Brinker International Payroll Company, L.P. (`BIPC") and Maggiano's
Holding Corporation ("MHC") (collectively, "Brinker") and the Named Plaintiffs, Johannes
Romatka, Zachariah Shugart, and Thomas Busch, who are acting both individually and in their
capacities as the putative class representatives for the Settlement Classes defined herein
(collectively "Plaintiffs") in the putative class action entitled Ron7atka, et al. v. Brinker
In1e~•national Payroll Compa~~~, L.P., et al., King County Superior Court Civil Case No. 13-214937-1 (the "Case"). The term "Defendants," as used herein, and as released tluough the
Settlement (as defined in Section l.b.,below), includes Brinker International Payroll Company,
L.P. (also referred to as `BIPC") and Maggiano's Holding Corporation (also referred to as
"MHC"), plus each of BIPC's and MHC's present and former parent companies, subsidiaries,
related or affiliated companies, shareholders, owners, officers, directors, employees, agents,
attorneys, insurers, successors and assigns, together with any other individual or entity who
could be jointly or severally liable with any of the aforementioned BII'C-related or MHC-related
persons or entities for any of the claims released by this Agreement.
II.
Class Certification. Solely for the purposes of this Settlement, Plaintiffs and
Defendants (hereafter, the "Parties") agree that this Case should be certified and finally
adjudicated as a class action on behalf of the Settlement Classes defined in Sectionsl.e.-l.h.,
below.
III.
Investigations and Due Diligence. The Parties have conducted infoi~rnal and
formal discovery and investigation of the facts and the law during their respective prosecution
and defense of this Case. As part of this review and investigation, the Parties and their counsel
have: (A) interviewed witnesses and deposed a foi7ner Brinker employee; (B)collected and
analyzed extensive electronic and paper time records, payroll data, and other information
concerning the composition of the Settlement Classes and the merits and possible extent of
Plaintiffs' claims and Defendants' defenses; and(C)amply considered and analyzed their respective
clauns and defenses.
IV.
Mediated Settlement Negotiations. The Panties engaged in settlement negotiations
during a mediation conference held before Teresa Wakeen (the "Mediator")on July 23,2014, and in
connection therewith the Parties executed a document outlining conceptual teirns of the Settlement
entitled "Conceptual Settlement Terms Sheet." All of the Parties' settlement negotiations have
been conducted in good faith and at aim's length. Through the Pa~~ies' mediation conference and
their subsequent communications,the Parties have reached a class action settlement ofthis Case that
they believe to be fair, adequate and reasonable, and that Plaintiffs believe is in the best interests of
the Plaintiffs and the proposed Settlement Classes. This Agreement memorializes the teams of the
final Settlement agreed to by the Parties as the result ofthe negotiations just descixbed.
V.
Defendants' Denials of Wrongdoing and Non-admission of Alle ate.
Defendants have denied and continue to deny each of the claims and contentions alleged by the
Named Plaintiffs on their own behalf, and on behalf of any members of the putative classes
alleged by Plaintiffs in the Case. Defendants have repeatedly asserted and continue to assert
defenses and objections to the proposed maintenance of this Case as a class action if it were to
proceed through litigation instead of settlement. Further, Defendants have expressly denied, and
continue to deny, any wrongdoing or legal liability arising out of any of the facts or conduct
alleged in this Case. Neither the Settlement, this Agreement, any document refei7ed to or
contemplated herein, nor any action taken to cat7y nut this Agreement is, may be construed as, or
may be used as an admission, concession or indication by or against Defendants of any fault,
wrongdoing or liability whatsoever. Defendants expressly deny any such fault, wrongdoing or
liability. If the Parties had not reached the Settlement, then Defendants would have continued to
vigorously defend against Plaintiffs' claims, including seeking denial of full or partial class
certification and a full defense verdict at trial. Defendants agree to this Settlement solely to
avoid the burden and expense offurther litigation.
NOW, THEREFORE, IT IS HEREBY STIPULATED by the Parties, subject to the
approval of the Superior Court, that this Case is hereby being compromised and settled on a class
action basis pursuant to the terms and conditions outlined in this Agreement and that, if the
Panties' Settlement is approved by the Superior Court, then this Case shall be fully dismissed on
the merits and with prejudice, subject to the following terms and conditions:
1.
Definitions.
a.
"Effective Date" means the date when both: (1) the Settlement has been
finally approved by the Superior Cotu~t, and (2)the Superior Count's anticipated order approving
the Settlement and dismissing this Case with prejudice (the "Final Judgment') becomes final.
For purposes of this subsection, the Superior Court's Final Judgment "becomes final" upon the
later of either: (a) the expiration of the time for filing an appeal from the Final Judgment or for
otherwise seeking appellate review; or (b) if an appeal is timely filed or other appellate review is
sought, the date the Mandate or other final affirmance is issued by the appellate court affii~ning
the Final Judgment.
b.
"Settlement" means the settlement reached by the Panties through the
mediation process described in Paragraph IV above, as embodied in the document entitled
"Conceptual Settlement Terms Sheet' that was signed by counsel for the Panties pursuant to
Civil Rule 2A on July 23,2014, and as further embodied in this Agreement.
c.
"Settlement Administrator" means Terrell Marshall Daudt & Willie
PLLC, with the assistance of Dahl Adminishation, LLC (for payment processing and tax
reporting), subject to the Superior Court's approval.
d.
"Settlement Class Period" nneans the period from March 28, 2010, tluough
the date this Agreement is executed by all Parties.
e.
"Settlement Classes" means the Settlement Class, the Automatic Fee SubClass, and the Kitchen Employee Sub-Class.
f.
"Settlement Class" or "Settlement Class Members" means all current and
former hourly-paid, non-managerial and non-supervisory employees who worked for Defendants
at the Maggiano's Little Italy Restaurant in Bellevue, Washington, during the Settlement Class
Period. Notwithstanding the foregoing, the Settlement Class will not include any person who
Defendants identify and can demonstrate previously settled or released the claims covered by
this Settlement or any person who timely opts out of the Settlement Class pursuant to the
procedures set forth below. All persons who timely opt out from the Case in conformity with
this Settlement Agreement shall not be bound by the tei~rns of this Settlement Agreement or any
Final Judgment entered by the Superior Count, and shall retain the right to pursue any alleged
individual claims)against Defendants.
g.
"Automatic Fee Sub-Class" or "Automatic Fee Sub-Class Members"
means all Settlement Class Members who worked as banquet, catei7ng andlor delivery service
employees at the Maggiano's Little Italy Restaurant in Bellevue, Washington, during the
Settlement Class Peziod, including, but not limited to, banquet servers, banquet captains, banquet
bussers, banquet bartenders, and delivery drivers,
h.
"Kitchen Employee Sub-Class" or "Kitchen Ennplovee Sub-Class
Members" means all Settlement Class Members who worked as kitchen employees at the
Maggiano's Little Italy Restaurant in Bellevue, Washington during the Settlement Class Period,
including, but not limited to, all pastry, pantry, saute, saucier, broil and line cooks and assistants,
and dishwashers.
i.
"Eligible Settlement Class Members" refers to those Settlement Class
Members who timely submit Claim Forms to participate in the Settlement Award in conformity
with the procedures below. The Claim Forms shall include an individual release signed by the
Eligible Settlement Class Member consistent with Section 2, below.
j.
The "Initial Marlin Date" is the date that Class Counsel first mails Notice
of Settlement approved by the Superior Count to all Settlement Class Members.
k.
The "Notice Deadline" is sixty(60)days after the Initial Mailing Date.
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1.
"Class Counsel" means Terrell Marshall Daudt &Willie PLLC, subject to
the Superior Court's approval.
m.
"Claim Foam" means the form attached hereto as Exhibit A.
Release. As of the Effective Date, the Settlement and this Agreement will
2.
constitute a full and final settlement and release of all claims against Defendants by the Named
Plaintiffs and all members of the Settlement Classes (including all membet•s of the Settlement
Class, the Automatic Fee Sub-Class and the Kitchen Employee Sub-Class) that were brought or
that could have been brought based on any facts alleged in the Third Amended Complaint. `This
Release specifically includes any claims for wages, overtime, penalties, interest, fees, costs,
attorneys' fees and all other foirns of relief that were sought or that could have been sought
based on the facts alleged in the Third Amended Complaint relating to missed, intei~•upted or
non-conforming rest periods or any assertions of rights relating thereto. For the Automatic Fee
Sub-Class, this Release also specifically includes any claims for tips, gratuities, service charges,
event fees, delivery fees, wages, penalties, interest, fees, costs, attorneys' fees, and all other
forms of relief that were sought or that could have been sought based on the facts alleged in the
Third Amended Complaint relating to any automatic fees imposed by Defendants on their
customers relating to food, beverage, entertainment, delivery andJor porterage services or any
disclosures, corrununications, or assertions of rights relating thereto. For the Kitchen Employee
Sub-Class, this Release also specifically includes any claims for wages, overtime, penalties,
interest, fees, costs, attorneys' fees and all other foirns of relief that were sought or that could
have been sought based on the facts alleged in the Third Amended Complaint relating to any
unpaid work time, unpaid overtime, or "off the clock" work arising out of or relating to any
meetings involving kitchen staff, or assertions of rights relating thereto. In addition to the
foregoing, as part of this Settlement, each of the Named Plaintiffs agrees, to the fullest extent
pei~rnissible by law, to enter a full and final settlement and release of all claims arising out of or
relating to the individual Plaintiff's employment at the Maggiano's Little Italy restaurant in
Bellevue, Washington.
3.
Settlement Awards. Subject to approval of the Settlement by the Superior Court,
Brinker agrees to pay Nine Hundred Thousand Dollars ($900,000.00) into a common fund in
settlement of this Case (the "Gross Settlement Amount"). The Gross Settlement Amount shall be
paid by Defendants as detailed below in Section 8.k., below, and shall be used to satisfy all of the
following:(a)the settlement awards to be paid to Eligible Settlement Class Members (hereafter, the
"Settlement Awards"), (b)the service awards to be paid to the Named Plaintiffs (hereafter, the
"Service Awards"),(c)the award of attorneys' fees, expenses and costs to Class Counsel (herea$er,
the "Attorneys' Fees/Costs Award"), and (d) an award of settlement administration expenses
(hereafter, the "Settlement Administration Expenses Award") to be paid to the Settlement
0
Administrator, all as approved by the Superior Court. After payment of the Service Awards, the
Attorneys' Fees/Cost Award, and the Settlement Administration Expenses Award, the remainder of
the Gross Settlement Amount (hereafter, the `met Settlement Amount") will be distributed to
Eligible Settlement Class Members as Settlement Awards as provided below. Brinker will not be
responsible for making any payments except as expressly set forth below, whether to the Settlement
Class Members, to the Named Plaintiffs, to Class Counsel, or otherwise. By funding the QSF as
required by Section 8.1c., below, Btinlcer will fully dischat•ge its financial obligations under this
Agreement, and it shall have no further financial obligations under this Agreement, whether to
the Settlement Class Members,to the Named Plaintiffs, to Class Counsel, or otherwise.
4.
Calculation of Settlement Awards.
Subject to approval by the Superior Court, the calculations of gross (prea.
tax) Settlement Awards for Settlement Class Members will he made by Class Counsel based on
records to be submitted to Class Counsel by Defendants, which records are presumed to be
accurate. Defendants will provide all data reasonably necessary for the calculation of the
Settlement Awards in the form of an Excel spreadsheet. Defendants shall provide the Excel
spreadsheet within twenty one (21) days after this Agreement is executed and the Excel
spreadsheet must, at a minimum, specify (1) the aggregate hours worked by each Settlement
Class Member during the Settlement Class Period in any hourly-paid, non-managerial, nonsupervisory capacity as indicated by job code(s),(2) the aggregate hours worked by Automatic
Fee Sub-Class Members in banquet, catering and/or delivery service positions during the
Settlement Class Period, and (3) the aggregate hours worked by Kitchen Employee Sub-Class
Members in kitchen positions during the Settlement Class Period. Defendants shall also provide
Class Counsel with an Excel spreadsheet containing the dates and hours worked by each
Settlement Class Member during the Settlement Class Period in any howly-paid, nonmanagerial, non-supervisory capacity (including the dates and hours worked by each Settlement
Class Member in a banquet, catering, delivery and/or kitchen position) as indicated by job
code(s). Any data provided to Class Counsel, as the Settlement Administrator, pursuant to this
Agreement shall be used solely for the purposes of administering this Settlement and not for any
other• purpose. The Settlement Administrator (including Dahl Administration, LLC) shall
maintain any data provided pursuant to this Agreement as private and confidential and shall not
use or disclose such data to any persons or entities except as required by law or Court order.
Notwithstanding the foregoing, Class Counsel, as Settlement Administrator, and Dahl
Administration, may disclose individual Settlement Class Member data to the individual
Settlement Class Member to whom the data applies. For example, Class Counsel may inform a
Settlement Class Member that the data provided by Defendants shows that the Settlement Class
Mennber worked 450 hours during the class period, and that that Settlement Class Member's
5
Settlement Award will be based on that number of hours worked, under the fozmulas described
below.
b.
Class Counsel shall be responsible for calculating the gross amounts of the
Settlement Awards for Settlement Class Members in conformity with this Agreement. Class
Counsel shall provide Defendants and the Settlement Adminishator with an electronic report setting
forth the results of these calculations. Defendants shall have 20 days after receiving this electronic
report to review Class Counsel's gross Settlement Awards calculations for compliance with the
teirns of this Agreement and to submit any concerns in writing to Class Counsel. Thereafter, the
Panties shall confer within five (5) days in an attempt to resolve any disputes relating to the
calculations of the gross amounts of Settlement Awards. If the Parties are unable to resolve any
disputes about calculating the gross Settlennent Awards pursuant to this Agreement, they shall
submit their respective positions in writing to the Superior Count, which shall make the final
decision regarding any disputed calculations of any Settlement Awards for any Settlement Class
Members.
c.
Thit~ty Percent (30%)of the Net Settlement Amount will be allocated for
distribution to Eligible Settlement Class Members as all or pant of each of their Settlement
Awards. Sixty-Seven Percent (67%) of the Net Settlement Amount will be allocated for
distribution to eligible Automatic Fee Sub-Class Members as an additional element of each of
their Settlement Awards. Tluee Percent(3%)of the Net Settlement Amount will be allocated for
distribution to eligible Kitchen Employee Sub-Class Members as an additional element of each
oftheir Settlement Awards.
d.
Settlement Awards to All Eligible Settlement Class Members. The
calculation of Settlement Awards for Eligible Settlement Class Members shall be based on the
percentage relationship between the number of hours worked by each Eligible Settlement Class
Member in an hourly-paid, non-managerial and non-supervisory capacity during the Settlement
Class Period (the "Eligible Settlement Class Member Hours") and the total of all Eligible
Settlement Class Member Hours worked during the Settlement Class Period. The method for
calculating the Settlement Awards for Eligible Settlement Class Members shall be as follows: the
total number of Eligible Settlement Class Member• Hours for all Eligible Settlement Class
Members will be the denominator, and each Eligible Settlement Class Member's individual
number of Eligible Settlement Class Member Hours will be the numerator. The resulting
percentage will be multiplied by Thirty Percent(30%)of the Net Settlement Amount to arrive at
the rest break component ofeach Settlement Class Member's Settlement Award.
e.
Settlement Awards to Eligible Automatic Fee Sub-Class Members. The
calculation ofthe additional amounts for the Settlement Awards for eligible Automatic Fee SubClass Members shall be based on the percentage relationship between the number of hours
worked by each eligible Automatic Fee Sub-Class Member in an hourly-paid, non-managerial
and non-supervisory capacity in banquet, catering and/or delivery positions relating to the
provision of food, beverage, entertainment, delivery and/or porterage services during the
Settlement Class Period, as indicated by job codes) (the "Eligible Automatic Fee Sub-Class
Member Hours"). The method for calculating the additional amounts for the Settlement Awards
for eligible Automatic Fee Sub-Class Members shall be as follows: the total number of Eligible
Automatic Fee Sub-Class Member Hours for all eligible Automatic Fee Sub-Class Members will
be the denominator, and each eligible Automatic Fee Sub-Class Member's individual nunnber of
Eligible Automatic Fee Sub-Class Member Hours will be the numerator. The resulting
percentage will be multiplied by Sixty-Seven Percent (67%)of the Net Settlement Amount to
arrive at each eligible Automatic Fee Sub-Class Member's additional Settlement Award amount.
£
Settlement Awards to Eligible Kitchen Employee Sub-Class Members.
The calculation of the additional amount for the Settlement Awards for eligible Kitchen
Employee Sub-Class Members shall be based on the percentage relationship between the number
of hours worked by each eligible Kitchen Employee Sub-Class Member in an hourly-paid, nonmanagerial and non-supervisory capacity in a Kitchen position during the Settlement Class
Period, as indicated by job codes)(the "Eligible Kitchen Employee Sub-Class Member Hours").
The method for calculating additional amount for Settlement Awaxds for eligible Kitchen
Employee Sub-Class Members shall be as follows: the total number of Eligible Kitchen
Employee Sub-Class Member Hours for all eligible Kitchen Employee Sub-Class Members will
be the denominator, and each eligible Kitchen Employee Sub-Class Member's individual number
of Eligible Kitchen Employee Sub-Class Member Hours will be the numerator. The resulting
percentage will be multiplied by Three Percent (3%)of the Net Settlement Amount to arrive at
each eligible Kitchen Employee Sub-Class Member's additional Settlement Award amount.
g.
Allocation of Settlement Awards Between Wages and Interest. Seventy
Percent (70%) of each Eligible Settlement Class Member's total Settlement Award will be
treated as wages and subject to noi7nal payroll tax withholdings and payments, and these
amounts shall be reported to the taxing authorities and the Eligible Settlement Class Members on
IRS Forms W-2. Thirty Percent (30%) of each Eligible Settlement Class Member's total
Settlement Award will be treated as prejudgment interest on which there will be no tax
withholding and for which IRS Foi~rns 1099 (marked "Other Income") shall be issued to the
taxing authorities and Eligible Settlement Class Members.
h.
In addition to the Gross Settlement Amount, Brinker will fund the
payment of the required employer share of the payroll taxes associated with the W-2 payments
made to Eligible Settlement Class Members (including but not limited to employer's share of
FICA, Medicare, FUTA (if applicable), and any other employer-paid, federal, Washington state,
or local requirements). Defendants' payment of the required employer-paid payroll taxes shall
not be subtracted from and shall not reduce either the Gross or the Net Settlement Amounts.
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5.
Attorneys' Fees and Costs Award. As pant of seeking the Superior Court's final
approval of this Settlement, Class Counsel will apply to the Superior Court for an Attorneys'
Fees/Costs Award of no more than Twenty-Five Percent(25%)ofthe Gross Settlement Amount.
6.
Service Awards. In addition to a Settlement Award computed as described above,
each Named Plaintiff shall receive a separate Service Award, on which there will be no payroll
t~ withholdings and for which an IRS Form 1099 (marked "Other Income") shall be issued to
the taxing authorities and the Named Plaintiff Subject to approval by the Superior Court, the
two original Named Plaintiffs, Johannes Romatka and Zachariah Shugart, shall each receive a
Service Award in the amount of Four Thousand Dollars ($4,000.00). The later added Named
Plaintiff, Thomas Busch, shall receive a Service Award in the amount of One Thousand Dollars
($1,000.00).
7.
Settlement Administration.
a.
The Settlement Administrator shall be responsible for notice, claim form,
and exclusion form mailings to the Settlement Classes, tracing undeliverable mailings, recording
and tacking responses to the mailings to the Settlement Classes (including recording the
identities of any Settlement Class Members who submit Claim Forms), tracl~ing and responding
to any inquiries made by Settlement Class Members, calculating Settlement Awards, and any
other related tasks mutually agreed to by the Parties. Dahl Administration, LLC shall be
responsible for establishing a Qualified Settlement Fund("QSF")pursuant to Section 468B(g) of
the Internal Revenue Code, and regulations promulgated thereunder, for purposes of
administering this Settlement as well as issuing the necessary checks for all Settlement Awards,
Service Awards, the Attorneys' Fees/Costs Award, and issuing all required tax documents(such
as Foi~rns W-2s and 1099s), as well as performing all related tax reporting to taxing authorities
and to Brinker.
b.
The Settlement Adminishator will perform the foregoing duties based on
data provided by Defendants, which data shall be presumed to be cot~rect. Defendants shall,
within twenty one (21) days after this Agreement is executed, provide Class Counsel with an
Excel spreadsheet containing the following information for.each Settlement Class Member (with
all information included in one row, but each specific item in its own column): name,last known
address, social security number, and the aggregate hours information described in Section 4,a.
above. Other data will be provided, upon request from Class Counsel, as reasonably necessary to
complete their settlement adminishation duties under this Agreement. All such data shall be
treated as private and confidential and the Settlement Administrator shall not use or disclose any
such data to any persons or entities except as required by law or Court order. Notwithstanding
the foregoing, the Settlement Administrator may disclose individual Settlement Class Member
data to the individual Settlement Class Member to whom the data applies.
,;~
c.
The Settlement Administrator shall also have the responsibility to
determine any Settlement Class Member's eligibility for a Settlement Award (i.e., to dete~xnine
whether any Settlement Class Member is an Eligible Settlement Class Member). A Settlement
Class Member shall be eligible to receive a Settlement Award only if he or she meets the
Settlement Class definition specified in Sectionl.f., above, and submits a timely Claim Form in
accordance with Section l.i., above, and Section 8.e.(4), below. Within foiu~teen (14) days after
the Notice Deadline, the Settlement Administrator shall provide Brinker with:(1) an electronic
report setting forth the names and identities of all Settlement Class Members who submitted a
valid Claim Form or Exclusion Form in conformity with this Agreement; and (2) copies of all
Claim Foams returned and Exclusion Forms returned. Brinker shall be entitled to review the
eligibility determinations made by the Settlement Administrator for compliance with the terms of
this Agreement. The Settlement Administrator shall retain copies of all Exclusion Forms or
Claim Forms returned, along with their envelopes, and objections received. Brinker shall have
ten (10) days after receiving the electronic report and related documentation from the Settlement
Administrator to challenge any Claim Foi~rn, Exclusion Foam, andlor eligibility determination in
writing directed to the Settlement Administrator. Within five (5) days after a submitting such
concerns to the Settlement Administrator, the Parties shall meet and confer in an attempt to
resolve any disputes relating to the subject Claim Foirns, Exclusion Forms, and/or eligibility
determinations. In the event the Panties are unable to reach resolution on any disputes relating to
the subject Claim Forms, Exclusion Fozms, and/or eligibility determinations, the Parties shall
submit their respective positions in writing to the Superior Court, which shall make the final
decision regarding the subject Claim Forms, Exclusion Forms, and/or eligibility determinations.
Thereafter, the Settlement Administrator shall provide the final results of its eligibility
detez~nninations to Brinker, which results will include the names and identities of all Eligible
Settlement Class Members and the identity of all individuals who opted out of the Settlement
Class.
In the event the number of Settlement Class Members who have timely
d.
requested exclusion from the Settlement Class exceeds 10 percent (10%)of the total number of
potential members of the Settlement Class, Brinker has the right in its sole discretion to terminate
or not to terminate the Settlement. If Brinker chooses to exercise this right, it shall give written
notice to Class Counsel within ten (10) days after receiving the report from Class Counsel
required by Section 7.c. No party will encourage any class member to opt out ofthe Settlement.
e.
As part of seeking the Superior Count's final approval of this Settlement,
Class Counsel will apply to the Superior Court for a Settlement Administration Expenses Award of
no more than $16,086.17. The costs, fees and expenses incurred by the Settlement Administrator in
administering this Settlement shall be paid froze the Settlement Administration Expenses Award
approved by the Court. In the event the costs, fees and expenses incurred by the Settlement
E
Adminishator in administering this Settlement exceed the Settlement Administration Expenses
Award approved by the Court, such costs, fees and expenses shall be borne solely by Class Counsel.
f.
Any data provided by Defendants to the Settlement Administrator
pursuant to this Agreement shall be used solely for the pwposes of administering this Settlement
and not for any other purpose. The Settlement Administrator shall maintain any wage or social
security data provided pursuant to this Agreement as private and confidential and shall not
disclose such data to any persons or entities except as required by law or Court order.
Notwithstanding the foregoing, the Settlement Administrator may disclose individual Settlement
Class Member data to the individual Settlement Class Member to whom the data applies.
8.
Notice/Approval of Settlement Class Certification and of Settlement Agreement.
As part of this Settlement, the Parties agree to the following procedures for obtaining preliminary
Superior Count approval of the Settlement, certifying the Settlement Class, the Automatic Fee
Sub-Class and the Kitchen Employee Sub-Class, notifying the Settlement Class Members,
obtaining fnal Superior Court approval of the Settlement, and implementing payment of
Settlement Awards to Eligible Settlement Class Members:
a.
As soon as practicable, and in any event prior to filing a motion with the
Superior Court to obtain preliminary approval of the Settlement, the Parties shall enter and file a
stipulation allowing Plaintiffs to amend the complaint, and Class Counsel shall file a Third
Amended Complaint which:(i) adds Thomas Busch as a Kitchen Employee Sub-Class Member
and Named Plaintiff; (ii) amends the allegations to include claims of off-the-clock work by
Kitchen Employee Sub-Class Members in connection with required meetings; and (iii) amends
the Class Definition section of the complaint to reflect the addition of a Kitchen Employee SubClass.
Class Counsel shall file a motion with the Superior Count to obtain
b.
preliminary approval ofthe Settlement in conformity with this Agreement.
c.
For purposes of this Settlement, Class Counsel will aslc the Superior Court
to enter an order certifying the Settlement Class, Automatic Fee Sub-Class, and Kitchen
Employee Sub-Class, preliminarily approving the Settlement and this Agreement, approving
notice to the Settlement Class, and setting a date for a Fairness Hearing to detei7nine whether the
Court will grant final approval of the Settlement and this Agreement (the "Preliminary Approval
Order"). Defendants will not oppose these requests, as long as Class Counsel provides
Defendants with a copy of Class Counsel's motion for preliminary approval and proposed
Preliminary Approval Order at least three (3) days in advance of filing these with the Superior
Court, and as long as these documents are consistent with this Agreement and the Settlement.
The Preliminary Approval Order shall provide for notice to the Settlement Class Members of
these matters (the "Notice").
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Within twenty one(21) days after this Agreement is executed, Defendants
d.
will provide to Class Counsel an Excel spreadsheet containing the following information for
each Settlement Class Member (with all information included in one row, but each specific item
in its own column): naive, last known address, social security number, and the aggregate hours
infoirnation described in Section 4.a. above. Defendants will cooperate with reasonable requests
from Class Counsel in finding correct addresses. for those whose last known addresses are
incorrect or no longer valid.
e.
Subject to the Superior Count's approval, Notice ofthe Settlement shall be
provided using the following procedures:
(1) Within twenty-one (21) days of the date the Superior Court grants
preliminary approval to the Settlement and issues its Preliminary Approval Order, Class Counsel
shall mail Notice to all Settlement Class Members.
(2) The Notice shall provide that Settlement Class Members who do not
opt out and who wish to object to the Settlement must submit to Class Counsel a written
statement objecting to the Settlement. Such written statement must be postmarked or delivered
to Class Counsel on or before the Notice Deadline.
(3) The Notice shall also provide that Class Members who wish to exclude
themselves (i.e., opt out) from the Settlement Class must mail an executed Exclusion Form to
Class Counsel requesting exclusion from the Settlement Class on or before the Notice Deadline.
Settlement Class Members who fail to submit a valid and timely request for exclusion on or
before the Notice Deadline shall be bound by all terms ofthe Settlement and any Final Judgment
entered in this Case if the Settlement is approved by the Superior Court, regardless of whether
they have objected to the Settlement, regardless of whether they qualify as an Eligible Settlement
Class Member, and regardless of whether they receive a Settlement Award under this
Agreement.
(4) The Notice shall also advise Settlement Class Members that, in order
to receive a Settlement Award, each Settlement Class Member must timely submit a signed
Claim Form that provides his/her individual release. To be timely, the Claim Form must be
postmarked or delivered to Class Counsel by the Notice Deadline.
f.
The Parties agree that neither they nor their counsel will solicit or
otherwise encourage any of the Settlement Class Members to opt out or object to the Settlement
or to appeal from the Superior Court's Final Judgment approving the Settlement. Likewise, the
Panties agree that neither they nor their counsel will discourage any Settlement Class Members
from submitting a Claim Form.
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g.
Should any Notice be 2•etuined as undeliverable, Class Counsel shall
attempt one trace to locate a good address and, if located, shall make a second attempt at mailing
the Notice. If such Notice is again returned as undeliverable, no further attempts at delivery of
the Notice are required to be made. Notwithstanding the foregoing, Class Counsel may mail or
email a Notice, Claim Form, and Exclusion Form to a Settlement Class Member at an address or
email address obtained by other means if the Settlement Class Member's Notice is returned as
undeliverable or upon the Settlement Class Member's request for the same (e.g„ if a Named
PlaintifF or other Settlement Class Member provides Class Counsel an address or email address
for a Settlement Class Member not previously provided by Defendants or obtained thzough a
trace).
h.
No later than twenty-one (21) days after the Notice Deadline, Class
Counsel must file with the Superior Count and serve on Defendants copies of all written
objections received from any Settlement Class Member, with copies oftheir envelopes.
i.
No sooner than thirty-five(35) days after the Notice Deadline, and no later
than one hundred twenty (120) days after en~iy of the Preliminary Approval Order, and subject to
the Superior Court's availability and direction, a Fairness Hearing shall be held for the Superior
Count to determine whether to grant final approval of the Settlement, including Class Counsel's
Attorneys' Fees/Costs Award, the Settlement Administration Expenses Award, and the Service
Awards to the Named Plaintiffs. If the Superior Count finally approves the Settlement, the
Parties will promptly and jointly ask the Superior Court to enter• a Final Judgment dismissing the
Case with prejudice and without an award of attorneys' fees, expenses or costs to any Party
except as provided herein.
j.
After entry of the Final Judgment, the Superior Cotut shall have
continuing jurisdiction solely for the purposes of enforcement of the Settlement Agreement and
addressing (A) settlement administration matters, and (B) such post-Final Judgment matters as
maybe appropriate under Count rules.
k.
Brinker will transfer the Gross Settlement Amount ($900,000.00) into the
QSF within three (3) business days after the Effective Date. At that same time, Brinker will also
transfer into the QSF an amount equal to the employer share of the payroll taxes required on the
W-2 payments made to Eligible Settlement Class Members (including employer's share of
FICA, Medicare, FU1'A (if applicable), and any other employer-paid, federal, Washington state,
or local requirements). Thereai~er, if there is any dispute relating to the amount needed for the
employer share of required payroll taxes, the Parties and Settlement Administrator shall confer
within five (5) days in an attempt to resolve this dispute. In the event they axe unable to reach
resolution of any such dispute, the Parties shall submit their respective positions in writing to the
Superior Count, which shall make the final decision regarding the amount required for the
12
employer share of payroll tomes. The QSF will hold all funds transfet7~ed by Brinker for the Gross
Settlement Amount and for the employer share of payroll taxes pending the issuance of the
Settlement Awards to Eligible Settlement Class Members, the Service Awards to the Named
Plaintiffs, and the Attorneys' Fees/Costs Award to Class Counsel. Until the date that Brinlcer's
funding of the QSF is due, Brinker shall have sole and complete control over all such funds and
shall have no obligation to segregate such funds or to place them in escrow or to otherwise
earmark them before the funding deadline.
1.
Dahl Administration, LLC shall issue Settlement Award checks as soon as
practicable after the Effective Date, and deliver the same, along with the Forms W-2 and 1099 to
each Eligible Settlement Class Member. There shall be two Settlement Award checks for each
Eligible Settlement Class Member: one check fox wages and one check for interest. Dahl
Administration, LLC shall withhold, and pay to the appropriate taxing authority(ies), all federal,
Washington state, and local withholding taxes from each check far wages, and shall issue
appropriate IRS Foams W-2 for each check for wages. The interest check shall not be subject to
withholdings and shall be reported on an IRS Form 1099 (marked "Other Income") issued by
Dahl Administration, LLC. Using the funds transferred into the QSF by Brinker for the
employer share of the payroll taxes required on the W-2 payments, Dahl Administration, LLC
will also pay all of the required employer share of payroll taxes in connection with issuing the.
wage checks to Eligible Settlement Class Members, including the employer's share of FICA,
Medicare, FUTA (if applicable), and any other employer-paid, federal, Washington state, and
local requirements. Except for Dahl Administration, LLC facilitating the payment described in
the preceding sentence using funds provided by Brinker, neither Dahl Administration, LLC nor
Class Counsel will be required to pay any portion of the employer share of payroll taxes in
connection with issuing the wage checks to Eligible Settlement Class Members under any
circumstances. Dahl Adminishation, LLC shall deliver to Class Counsel checks for the Superior
Count-approved Service Awards to the Named Plaintiffs as well as the Attorneys' Fees/Costs
Award and Settlement Administration Expenses Award within ten (10) days of the Effective
Date. These payments will not be subject to withholdings and each of the payments will be
reported on a separate IRS Form 1099(marked "Other Income").
m.
No later than one hundred and fifty (150) days after Dahl Administration,
LLC issues the Settlement Award checks, the Service Awards checks, the Attorneys' Fees/Costs
Award check, and the Settlement Administration Expenses Award check required by Section 8.1.,
above, Class Counsel shall file a Satisfaction of Judgment confilrning that the payments required
by the Final Judgment have been made and that no further actions are needed to comply with the
Final Judgment. This shall terminate the Count's jurisdiction over the Case.
13
n.
Any Eligible Settlement Class Member whose Settlement Award checks
are retained as undeliverable shall receive his/her Settlement Award if he/she contacts the
Settlement Administrator and provides a coi7ect mailing address within ninety(90) days after the
distribution of the Settlement Award checks. No later than one hundred and twenty (120) days
aftez• the distribution of the Settlement Award checks, Dahl Administration, LLC shall provide
both Parties with an accounting indicating which funds have been distributed to Settlement Class
Members and which, if any, checks to Settlement Class Members have not been negotiated by
that time. At this same time, Dahl Administration, LLC shall also provide Brinker with copies of
all IRS Forms W-2 and IRS Foams 1099 documents issued in connection with the payment of the
Settlement Awards, the Service Awards, the Attorneys' Fees/Costs Award, and the Settlement
Administ~•ation Expenses Award, and any other tax documentations reasonably required by
Brinker. In the event any QSF funds have not been distributed by one hundred and twenty (120)
days after the initial distribution of the Settlement Award checks, or any checks mailed to
Settlement Class Members have not been negotiated within one hundred and twenty (120) days
after distribution of the Settlement Checks, such funds shall be considered Residual Funds.
These Residual Funds shall be distributed by the Settlement Administrator to the Legal
Foundation of Washington.
o.
If the Superior Court does not enter an Order preliminarily or finally
approving the Settlement, or if the Settlement does not become final for any other reason, this
Agreement shall be null and void. In such case, the parties shall proceed in all respects as if this
Agreement had not been executed. In the event an appeal is filed from the Superior Court's
Final Judgment, or from any other appellate review that is sought prior to the Effective Date,
funding and administration of the Settlement shall be stayed pending final resolution of the
appeal or any other foi~rn of appellate review.
No Effect on Employee Benefits, This Settlement, and any payments made under
9.
the Settlement to Eligible Settlement Class Members, shall have no effect on the eligibility for
and/or calculation ofemployee benefits of any Settlement Class Members.
10.
Miscellaneous Provisions.
a.
The Parties agree to stay all further proceedings in this Case, except such
proceedings as are necessary to implement and complete this Settlement and/or to implement this
Agreement, pending the Fairness Hearing to be conducted by the Superior Court and the
Effective Date ofthe Settlement.
b.
This Agreement may be amended or modified only by a written
instrument signed by counsel for all Parties or their successors-in-interest.
14
c.
This Agreement constitutes the entire Agreement among these Patties. No
representations, warranties or inducements have been made to any Party concerning this
Agreement, other than the representations, warranties and covenants contained and memorialized
in this Agreement and the documents it requires (such as the Notice, Claim Foirn, and Exclusion
Form).
d.
Counsel for all Panties wai7ant and represent that they are expressly
authorized by the Parties whom they represent to enter into this Ag~~eement and to take all
appropriate action required or peirnitted to be taken by such Parties pursuant to this Agreement
to effectuate its tei7ns, and to execute any other documents required to effectuate the terms of
this Agreement. The Parties and their counsel will cooperate with each other' and use their best
efforts to implement this Settlement. If the Parties are unable to reach agreement on the fo~~tn or
content of any document needed to implement this Settlement or this Agreement, or on any
supplemental provisions that may become necessary to effectuate the terms of this Settlement or
this Agreement, then either Pasty may seek the Superior Count's assistance to resolve such
disagreement.
e.
This A~•eement shall be binding upon, and shall inure to the benefit of,
the successors ofthe Panties hereto, as previously defined.
f.
All terms of this Agreement shall be governed by and interpreted
according to the laws of the State of Washington.
g.
Plaintiffs and Defendants believe that this is a fair, reasonable and
adequate settlement, and have arrived at this Settlement tluough ai~rn's-length negotiations,
assisted by an experienced Mediator, and taking into account all relevant factors, present and
potential.
h.
The Parties, and each of them, represent that they have not made, and that
they will not make any disclosure of the fact of Settlement or any of the Settlement terms prior to
Class Counsel filing the motion for preliminary approval with the exception of disclosures made
to those persons who are within each Party's attorney-client privilege, including but not limited
to new Named Plaintiff Thomas Busch.
i.
Plaintiffs' Counsel and the Named Plaintiffs agree that they have not and
will not, prior to the Effective Date:(i) affirmatively contact any member of the media regarding
this Settlement; or (ii) issue any press releases regarding this Settlement. Plaintiffs' Counsel and
the Named Plaintiffs further agree that in response to any inquiry from the media prior to the
Effective Date, they will make no comment beyond referring the repot~ter making the inquiry to
the Court file for this Case or to Class Counsel's notice website, which may contain information
about the Settlement. Plaintiffs' Counsel may create a notice website with information about this
Settlement after preliminary approval of this Settlement is obtained from the Superior Court,
15
which notice website may include a copy of this Agreement and any other documents filed with
the Superior Court.
IT IS SO AGREED.
FOR THE NAMED PLAINTIFFS
AND THE SETTLEMENT CLASS
FOR BRINKER INTERNATIONAL
PAYROLL COMPANY,L.P., AND
MAGGIANO'S HOLDING
CORPORATION
Dated.
Dated:
~/r b/l
TERRELL MARSHALL & DAUDT,PLLC
BRINKER INTERNATIONAL
COMPANYl~!~~
~~.
PAYROLL
.~ ,~.
Toby J. Marshall /Marc Cote
~,~y~K
~L'~~Counsel for Named Plaintiffs and Class Se~i~Vice President &General(,
"ounsel
Counsel
I~`
J~SS/
Dated:
~~
Johan
omatka, individually and on
behalf of th Settlement Class and Automatic
Fee Sub-Class
,~_
Dated:
~/~ ~
1-~
achariah S gart, individually and on
behalf of the Settlement Class and Automatic
Fee Sub-Class
~'~~~~6~w~~
16
«u~
homas Busch, individually and on half of
the Settlement Class and Kitchen Employee
Sub-Class
17