Settlement Agreement in Class Action Lawsuit: American Limousine Commuting Time Pay, Slides of Law

Download Settlement Agreement in Class Action Lawsuit: American Limousine Commuting Time Pay and more Slides Law in PDF only on Docsity! 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X ERNEST THOMPSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, -against- AMERICAN LIMOUSINE GROUP, LLC d/b/a ADDISON LEE, Defendant. Case No.: 19-cv-04133 (CS)(PED) X FINAL SETTLEMENT AGREEMENT AND RELEASE This Final Settlement Agreement and Release (the “Agreement”) is entered into by and between Plaintiffs (as hereinafter defined) and the class of individuals that they seek to represent (as hereinafter defined) and Defendant (as hereinafter defined) (together, “the Parties”). RECITALS WHEREAS, Plaintiff, Ernest Thompson, filed a Class Action Complaint on May 8, 2019 (“Complaint”), and Plaintiffs, Alicia Campbell, Keisha Francis-Allen, Anthony DeAngelis and Kofi Baning opted into and joined the action as plaintiffs by each filing a Consent to Join Collective Action on October 4, 2019; WHEREAS, the Complaint asserted class-action claims under the New York Labor Law (“NYLL”) and New Jersey Wage Hour Law (“NJWHL”) and collective-action claims under the Fair Labor Standards Act (“FLSA”), and sought recovery for, among other things, unpaid wages and overtime, unpaid spread-of-hours pay, unpaid gratuities, statutory penalties for alleged pay notice and pay statement law violations, liquidated damages, and attorneys’ fees and costs; WHEREAS, the Court has not conditionally certified the case as a collective action pursuant to 29 U.S.C. § 216(b) for any of the claims asserted under the FLSA; the Court also has not certified the case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; WHEREAS, Defendant has denied and continues to deny all of the allegations made by Plaintiffs in the Litigation and has denied and continues to deny that it is liable or owes damages to anyone with respect to the alleged facts or causes of action asserted in the Litigation. Nonetheless, without admitting or conceding any fault, wrongdoing, liability or damages, Defendant has agreed, subject to Court approval, to settle the Litigation on the terms and conditions set forth in this Agreement, to avoid the burden, expense, and uncertainty of continuing the Litigation; Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 2 of 29 2 WHEREAS, the Parties have engaged in targeted discovery including, but not limited to, exchanging initial disclosures, reviewing hundreds of pages of documents produced by Defendant and analyzing various information including, but not limited to, time and payroll records, customer invoices and other records relating to work performed by Plaintiffs and Class Members (as hereinafter defined); WHEREAS, the Parties participated in mediation sessions on October 10, 2019, with the assistance of Mediator Ira H. Block, Esq., and on June 23, 2020, with the assistance of Mediator Hon. John Hughes (Ret.); WHEREAS, based upon their analysis and their evaluation of a number of factors, and recognizing the substantial risks of continued litigation with respect to certain claims, including the possibility that the Litigation, if not settled now, might result in a recovery that is less favorable to the Plaintiffs and Class Members, and that would not occur for several years, if ever, Class Counsel is satisfied that the terms and conditions of this Agreement are fair, reasonable, and adequate and that this Agreement is in the best interests of the Class Members; 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 Parties agree to a full and complete settlement of the Litigation on the following terms and conditions: 1. DEFINITIONS The defined terms set forth herein shall have the meanings ascribed to them below. 1.1 Acceptance Period. “Acceptance Period” means the date by which any Class Member who wishes to qualify as an Authorized Claimant must timely file a Claim Form with the Claims Administrator pursuant to Section 2.6 of this Agreement, which shall be: (i) sixty (60) days from the date of the Claims Administrator’s initial mailing of the Notice and Claim Form (or as otherwise set by the Court); and (ii) an additional fifteen (15) days for any Class Member who did not receive the Notice, or who was unable to file the Claim Form within the original sixty (60) days from mailing allotted due to such factors as change of address, military service, hospitalization, or other extraordinary circumstances. 1.2 Agreement. “Agreement” shall mean this Final Settlement Agreement and Release. 1.3 Authorized Claimant. “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 is therefore entitled to receive a Settlement Check. Plaintiffs, defined below, are deemed Authorized Claimants upon execution of this Agreement and need not return a claim form. 1.4 Claim Form. “Claim Form” means the form, a copy of which is attached to the Notice of Settlement of Class Action Lawsuit, that Class Members must sign and return during the Acceptance Period to become an Authorized Claimant. 1.5 Claims Administrator. “Claims Administrator” shall mean the entity selected by the Parties to provide notice to the Class and administer payment of the settlement to Class Members. Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 3 of 29 5 1.25 Qualified Class Member. “Qualified Class Member” shall mean (a) Rule 23 Class Members who do not opt out, pursuant to Section 2.7 of this Agreement, and (b) FLSA Class Members. 1.26 Releasees. “Releasees” shall mean Defendant, as defined herein, and Defendant’s present and former parent companies, subsidiaries, related or affiliated companies, including but not limited to Errands Plus, Inc., and any of their respective shareholders, officers, directors, employees, members, managers, fiduciaries, trustees, employee benefit plan administrators, agents, attorneys, insurers, successors and assigns, and all persons or entities acting by, through, under or in concert with any of them, and any individual or entity which could be jointly liable with any of them. 1.27 Settlement Fund. “Settlement Fund” shall mean the total settlement fund of One Million Five Hundred Ninety-Five Thousand Dollars and No Cents ($1,595,000.00), plus any interest accrued as provided in Section 3.1(B). 1.28 Individual Settlement Amount. “Individual Settlement Amount” shall mean the amount available to be paid to each Qualified Class Member pursuant to Section 3.4 of this Agreement, if they have become and Authorized Claimant by timely submitting a Claim Form. 2. APPROVAL AND CLASS NOTICE 2.1 Retention of Claims Administrator. Within fourteen (14) calendar days after the execution of this Agreement, Defendant’s counsel, in consultation with and approval by Class Counsel, shall select a settlement Claims Administrator to administer the settlement process. Plaintiffs’ counsel shall ask the Court to approve the selection of the Claims Administrator as part of the preliminary approval process. The Claims Administrator shall be responsible for: (i) preparing, printing and disseminating to Class Members the Notice of class action settlement and claim form in a form approved by the Court; (ii) copying counsel for the Parties on material correspondence; (iii) tracking and promptly furnishing Class Counsel and Defendant’s Counsel with copies of objections, Opt-out Statements, Claims Forms or other written or electronic communications from Class Members that the Claims Administrator receives; (iv) mailing the Settlement Checks to Class Members who have filed claims and who have not opted out; (v) preparing and mailing Class Counsel’s attorneys’ fees, expenses, and costs, and Service Awards in accordance with this Agreement and/or any Order of the Court; (vi) administering all payroll tax obligations of Defendant, including issuing the W-2 and 1099 Forms for all amounts paid to the Class Members who have not opted out; (vii) responding to inquiries of Class Counsel and Defendant’s Counsel consistent with the Claims Administrator’s duties specified herein; (viii) maintaining adequate records of its activities, including the dates of the mailing of any Notice, returned mail and other communications and attempted written or electronic communications with Class Members; (ix) providing Class Counsel and Defendant’s Counsel with all information, documents, and calculations necessary to determine the Net Settlement Fund (pursuant to the formulas outlined in Section 3.4), and each Class Members pro rata share or allocation of the Net Settlement Fund; (x) providing a weekly email to Class Counsel and Defendant’s Counsel with an update of the number and identity of objections, and Opt-out Statements; (xi) throughout the period of claims administration, the Claims Administrator will provide reports to the Parties upon request by either Party, Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 6 of 29 6 regarding the status of the mailing/e-mailing of the Notices to Class Members, the claims administration process, distribution of the Settlement Checks, or any other aspect of the claims administration process, subject to the terms of this Agreement; (xiii) establishing and maintaining an interest-bearing Escrow Account for contributions towards the Settlement Fund, and (xiii) such other tasks as the Parties mutually agree. Other than as set forth herein, the Claims Administrator shall not initiate communications with any Class Member. The Parties agree to cooperate with the Claims Administrator and assist it in any way possible in administering the settlement described herein as approved by the Court. Defendant shall pay up to $55,000 toward expenses of the Claim Administrator’s costs and fees. All other Claim Administrator costs and fees shall be paid from the Gross Settlement Fund. 2.2 Preliminary Approval by the Court. Within 14 calendar days of the execution of this Agreement, Plaintiffs will submit to the Court a Motion for Preliminary Approval of the Class Action Settlement and Collective Action Settlement (“Preliminary Approval Motion”). In the Preliminary Approval Motion, Class Counsel will inform the Court of the intended process to obtain a “Final Approval Order” and a “Judgment of Dismissal” that will, among other things: (a) approve the settlement as fair, adequate and reasonable; (b) incorporate the terms of the Release, as described herein; (b) dismiss the Litigation with prejudice; (d) award Class Counsel fees and costs; and (e) award Service Awards to Named Plaintiffs as more fully set forth herein. 2.3 The Preliminary Approval Motion. In connection with the Preliminary Approval Motion, Plaintiffs will submit to the Court, among other things: (a) a proposed Notice of Settlement of the Class/Collective Action Lawsuit and Fairness Hearing and Claim Form, which is appended hereto as Exhibit A, and (b) a proposed Order Granting Preliminary Approval. The proposed Order Granting Preliminary Approval shall certify, solely for purposes of this settlement, a class pursuant to Rule 23 of the Federal Rules of Civil Procedure of all Class Members. The proposed Order Granting Preliminary Approval shall also include the findings required by Fed. R. Civ. P. 23(a) and (b)(3). Plaintiffs will provide to Defendant the opportunity to review the proposed Order Granting Preliminary Approval prior to filing it. The Parties will work together diligently and in good faith to obtain preliminary and final approval expeditiously. The Preliminary Approval Motion will seek the setting of dates for Rule 23 Class Members to opt-out, objections, and a Fairness Hearing. Defendant will not oppose the Preliminary Approval Motion. 2.4 Denial of Preliminary Approval. If the Court denies the Motion for Preliminary Approval, then the Parties agree to jointly seek reconsideration of the ruling or seek Court approval of a renegotiated settlement. Should reconsideration and/or should the Parties’ attempt to secure Court approval of a renegotiated settlement be denied, the case will proceed as if no settlement had been attempted, and Defendant shall retain the right to contest whether this case should be maintained as a class action or collective action and to contest the merits of the claims being asserted by Plaintiffs in this Litigation. In such a case, the Parties will negotiate and submit for Court approval a revised case management schedule. 2.5 Final Order and Judgment from the Court. Plaintiffs will seek to obtain from the Court, as a condition of settlement, a Final Order and Judgment in a form to be agreed upon by the Parties. The proposed Final Order and Judgment will, among other things: (a) finally Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 7 of 29 7 certify the Rule 23 Class and FLSA Collective Class for purposes of settlement, (b) enter Judgment in accordance with this Agreement, (c) approve the settlement as fair, adequate, reasonable, and binding on all Class Members who have not timely opted out pursuant to Section 2.7, (d) dismiss the Litigation with prejudice, (e) enter an order permanently enjoining all Class Members who do not opt out from pursuing and/or seeking to reopen claims that have been released by this Agreement, (f) award class counsel fees and costs, (g) award service awards to the named Plaintiffs as more fully set forth herein and (h) incorporate the terms of this Agreement. Defendant will not oppose the application for the Final Order and Judgment. 2.6 Class Notice and Claim Form. (A) Within twenty-one (21) days after entry of the order granting preliminary approval, Defendant will provide the Claims Administrator with a Class List, in electronic form, containing: (1) names, (2) last known addresses, (3) last known telephone numbers, (4) last known email addresses, (5) social security numbers, (6) applicable number of weeks worked of each Class Member employed by American Limousine LLC on or after January 1, 2019, including those formerly employed by its predecessor Flyte-Tyme from May 8, 2016 through December 31, 2018, who according to company records took a company vehicle home and was not paid for commuting time, and were classified by the company as a CT, NY, and/or NJ drivers, as well as persons employed by American Limousine LLC after January 1, 2019 who were formerly employed by Tristar Chauffeur Management Inc., who according to company records took company vehicles home and were not paid for commuting time after July 15, 2019, and (7) for Class Members employed by American Limousine LLC on or after January 1, 2019 who were formerly employed by Tristar Chauffeur Management Inc., amounts erroneously received as potential gratuities from customers during the period between January 1, 2019 and July 15, 2019, excluding those individuals with pending claims in Diwan et al. v. Tristar Chauffeur Management, Inc. et al., Case No., 19-cv-06716 (RPK)(ST), which is pending in U.S. District Court for the Eastern District of New York. With respect to items (2), (3), and (4), the information shall be provided as it exists in the Defendant’s human resources information system of record, ADP Workforce Now. Defendant also will provide electronically readable Class Member information to Class Counsel, excluding contact information and social security numbers. Prior to Defendant providing social security numbers, the Claims Administrator shall confirm in writing that Defendant will be covered under the Claims Administrator’s policy of insurance for any exposure or claim relating to any data breach by the Claims Administrator. Class Counsel agrees to execute any and all business association or engagement document(s) necessary for Defendant to obtain additional direct coverage for any data breach issues. (B) Within fifteen (15) days of the date on which Defendant provides the Class List, the Claims Administrator shall e-mail and send via First Class United States mail, postage prepaid, the Notice of Proposed Settlement of Class Action Lawsuit and Fairness Hearing and Claim Form in the form appended hereto as Exhibit A (“the Notice” and “Claim Form”, respectively) to all Class Members using each individual’s last known address as recorded in Defendant’s records. Individuals who have already opted-in to this action will not be provided with an opportunity Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 8 of 29 10 (A) Any Class Member may request exclusion from the Class by “opting out.” Any Class Member who chooses to do so must mail a written, signed statement to the Claims Administrator that he or she is opting out of the Settlement (“Opt-Out Statement”). The Opt-Out Statement must contain the name, job title, address and telephone number of the Class Member to be valid. It must also contain the words “I elect to exclude myself from the class settlement in Ernest Thompson v. American Limousine Group, LLC d/b/a Addison Lee” in order to be valid. To be effective, such Opt-Out Statement must also be sent via mail and postmarked by a date certain to be specified on the Notice of Proposed Settlement of a Class Action Lawsuit and Fairness Hearing, which will be sixty (60) calendar days after the Claims Administrator mails the Notice. The sixty (60) day period will begin to run from the first mailing, except for those Class Members whose first mailing was returned to the Claims Administrator as undeliverable, in which case the sixty (60) day period for any such Class Member will begin to run from the date of the second mailing (or, if there are more than 2 mailings, the final mailing) to such Class Member, unless another period is set by the Court. The Claims Administrator shall not attempt more than 2 mailings of the Notice. The Claims Administrator shall, within 10 calendar days after the last day on which it makes such a mailing, notify Class Counsel and Defendant’s Counsel of the precise date of the end of the Opt- Out Period. Opt-out requests must be made in writing in accordance with the instructions set forth in the Notice. (B) The Claims Administrator shall stamp the postmark date on the original of each Opt-Out Statement that it receives and shall serve copies of each Statement on Class Counsel and Defendant’s Counsel not later than 3 calendar days after receipt thereof. The Claims Administrator shall, within 24 hours of the end of the Opt-Out Period, send a final list of all Opt-Out Statements to Class Counsel and Defendant’s Counsel. The Claims Administrator shall retain the stamped originals of all Opt- Out Statements and originals of all envelopes accompanying Opt-Out Statements in its files until such time as the Claims Administrator is relieved of its duties and responsibilities under this Agreement. (C) Any Rule 23 Class Member who does not properly submit an Opt-out Statement pursuant to this Agreement, will be deemed to have accepted the settlement and the terms of this Agreement subject to the Final Approval Order. (D) Defendant shall have the right to revoke this Agreement in the event that 10% or more of the absent Class Members file Opt-Out Statements requesting exclusion from the settlement within the 60-day period. 2.8 Objections to Settlement. (A) Class Members who wish to present objections to the proposed settlement at the Fairness Hearing must first do so in writing. To be considered, such statement must be mailed to the Claims Administrator no later than the applicable Bar Date. Objections must be made in writing in accordance with the instructions set forth in the Notice. The statement must contain the name, job title, address and telephone Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 11 of 29 11 number of the Class Member to be valid. It must also contain the words “I object to the settlement in Ernest Thompson v. American Limousine Group, LLC d/b/a Addison Lee” and set forth the reasons for the objection. Any reasons not included in the written objection will not be considered. The Claims Administrator shall stamp the date received on the original objection and send copies of each objection to Class Counsel and Defendant’s Counsel not later than 3 calendar days after receipt thereof. Class Counsel shall file the date-stamped originals of any and all objections with the Clerk of Court within 10 calendar days after the end of the Opt- Out Period. (B) A Class Member who files objections to the settlement (“objector”) also has the right to appear at the Fairness Hearing either in person or through counsel hired by the objector. An objector who wishes to appear at the Fairness Hearing must state his or her intention to do so at the time he/she submits his/her written objections by including the words, “I intend to appear at the Fairness Hearing” in his or her written objection. An objector may withdraw his/her objections at any time. No Class Member may appear at the Fairness Hearing to present objections unless he or she has filed a timely objection that complies with all procedures provided in this section and the previous sections. Any Class Member who has submitted an Opt-out requesting exclusion may not submit objections to the settlement. (C) The Parties may file with the Court written responses to any objections no later than seven (7) calendar days before the Fairness Hearing, or any date ordered by the Court. 2.9 Motion for Judgment and Final Approval. No later than 14 calendar days before the Fairness Hearing, Plaintiffs will submit a Motion for Judgment and Final Approval. The Fairness Hearing shall be held at the Court’s convenience. 2.10 Entry of Judgment. At the Fairness Hearing, Class Counsel will request that the Court, among other things, (a) finally certify the Class for purposes of settlement, (b) enter Judgment in accordance with this Agreement, (c) approve the settlement as fair, adequate, reasonable, and binding on all Qualified Class Members, (d) dismiss the Litigation with prejudice, (e) enter an order permanently enjoining all Qualified Class Members from pursuing and/or seeking to reopen claims that have been released by this Agreement, (f) incorporate the terms of this Agreement, (g) award Class Counsel fees and costs; and (h) award Service Awards to Named Plaintiffs as more fully set forth herein. 2.11 Effect of Failure to Grant Final Approval. In the event the Court does not enter Judgment in accordance with this Agreement, or such Judgment does not become Final as defined herein, the Parties agree to proceed as follows. The Parties jointly agree to (a) seek reconsideration of the decision denying entry of Judgment, or (b) attempt to renegotiate the settlement and seek Court approval of the renegotiated settlement. In the event any reconsideration is denied, or a mutually-agreed-upon settlement is not approved: (A) The Litigation will proceed as if no settlement had been attempted. In that event, the class certified for purposes of settlement shall be decertified, and Defendant retains the right to contest whether this Litigation should be maintained as a class Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 12 of 29 12 action or collective action and to contest the merits of the claims being asserted by Plaintiffs in this action. (B) Payments made by Defendant to the Claims Administrator prior to the denial of Court approval shall be credited against any future settlement or judgment, if any. If notice of settlement was provided to the Class before final approval was denied, the Parties shall jointly prepare, and submit for Court approval, a notice to Class Members that the Agreement did not receive final approval and that, as a result, no payments will be made to Class Members under the Agreement. Such notice shall be mailed by the Claims Administrator via First Class United States Mail, postage prepaid, to the last address used by the Claims Administrator in mailing the Notice of Proposed Settlement of Class Action Lawsuit and Fairness Hearing. Class Counsel shall be responsible for the costs of mailing the Court-approved notice advising the settlement was not approved. (C) Upon notification from counsel for the Parties that the Agreement did not receive final approval, the Claims Administrator shall return to Defendant within 10 days the entire amount of the Settlement Fund that has been deposited (if any), with any interest accrued thereon. 2.12 Claims Administrator’s Fees. Defendant will agree to pay, separate from the gross settlement, up to $55,000 towards the Claims Administrator’s costs and fees associated with the class settlement, with any costs/fees in excess of $55,000 to be deducted from the gross settlement amount. 3. SETTLEMENT TERMS 3.1 Settlement Payment. (A) Defendant agrees to pay One Million Five Hundred Ninety-Five Thousand Dollars and No Cents ($1,595,000.00), which shall resolve and satisfy: (a) any and all damages, interest thereon, attorneys’ fees, costs and disbursements, and any other damages, costs or expenses arising out of the Litigation; (b) Court-approved attorneys’ fees and costs; (c) all amounts to be paid to Class Members; (d) Court- approved service payments to Plaintiffs; (e) the costs/fees of the Claims Administrator to the extent the Claims Administrator’s costs/fees exceed $55,000 (to be paid separately by Defendant); (f) the employer share of payroll taxes; (g) any fees associated with investing and liquidating the Settlement Fund; and (h) any taxes incurred directly or indirectly by Defendant as a result of investing the Settlement Fund to the extent not covered by accrued interest. Other than up to $55,000 in Claims Administration costs and fees, the Settlement Fund will be Defendant’s only monetary obligation under this Agreement. (B) The Settlement Fund shall be funded by payments made into an interest-bearing Escrow Account approved by counsel for all parties, to be established and maintained by the Claims Administrator upon the following schedule: (1) One Hundred Thousand Dollars and No Cents ($100,000.00) within 14 days after this Agreement is fully-executed by all Parties, or September 1, 2020, whichever is later; Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 13 of 29 15 (B) The substance of Class Counsel’s application for attorneys’ fees and costs is not part of this Agreement and is to be considered separately from the Court’s consideration of the fairness, reasonableness, adequacy, and good faith of the settlement of the Litigation. The outcome of any proceeding related to Class Counsel’s application for attorneys’ fees and costs shall not terminate this Agreement or otherwise affect the Court’s ruling on the Motion for Judgment and Final Approval. Any monies not approved by the Court become part of the Net Settlement Fund. 3.3 Service Awards to Plaintiffs. Class Counsel also will petition the Court to award from the Settlement Fund a service award to Plaintiff Ernest Thompson in the amount of Five Thousand Dollars and No Cents ($5,000.00) for services rendered to the Class. In addition, Class Counsel also will request service awards from the Settlement Fund on behalf of Plaintiffs Alicia Campbell, Keisha Francis-Allen, Anthony DeAngelis, and Kofi Baning in the amount of Two Thousand Five Hundred Dollars and No Cents ($2,500.00) for services rendered to the Class. Finally, Class Counsel will request a service award from the Settlement Fund for the subclass representative Angelo Efstathopoulos in the amount of Two Thousand Five Hundred Dollars and No Cents ($2,500.00) for services rendered to the subclass. Defendant will not oppose such applications. The service awards and the requirements for obtaining such payments are separate and apart from, and in addition to, Plaintiffs’ recovery from the Net Settlement Fund. The substance of the above-referenced Plaintiffs’ applications for service payments is not part of this Agreement and is to be considered separately from the Court’s consideration of the fairness, reasonableness, adequacy and good faith of the settlement of the Litigation. The outcome of the Court’s ruling on the application(s) for service awards shall not terminate this Agreement or otherwise affect the Court’s ruling on the Motion for Judgment and Final Approval. Any monies not approved by the Court become part of the Net Settlement Fund. 3.4 Allocations to Class Members. (A) Class Members will be deemed eligible for a payment hereunder. (B) A Class Member’s proportionate share of the Net Settlement Fund shall be determined by the Claims Administrator pursuant to the formula set forth below: (1) Up to $80,000 from the Net Settlement Fund shall be distributed to those Class Members who do not opt out who were employed by American Limousine LLC on or after January 1, 2019 and were formerly employed by Tristar Chauffeur Management Inc., with individualized amounts based on company records reflecting potentially amounts erroneously received as potential gratuities from customers during the period between January 1, 2019 and July 15, 2019 after they became employed by American Limousine LLC. These individualized amounts shall be the “Settlement Award” for Qualified Class Members in this category; (2) After allocation of amounts from the Net Settlement Fund in Section 3.4(B)(1), the remainder of the Net Settlement Fund shall be apportioned to all other Class Member who do not opt out, i.e., all American Limousine LLC drivers from January 1, 2019 forward, as well as those drivers formerly Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 16 of 29 16 employed by its predecessor Flyte-Tyme Worldwide Transportation during the period from May 8, 2016 through December 31, 2018, who based on Defendant’s records took the company vehicles home, were not paid for their commuting time, and were classified by the company as CT, NY, and/or NJ drivers, as well as persons employed by American Limousine LLC after January 1, 2019 who were formerly employed by Tristar Chauffeur Management Inc., who according to company records took company vehicles home and were not paid for commuting time after July 15, 2019, as follows: (a) Each such Class Member shall be assigned 1 point for each week worked between May 8, 2013 and the date of the Court’s order preliminarily approving the settlement. (b) To calculate each Class Member’s proportionate share of the remainder of the Net Settlement Fund: (i) Add all points for Class Members together to obtain the “Total Denominator;” (ii) Divide the number of points for each Class Member by the Total Denominator to obtain each Class Member’s “Total Share of the remainder of the Net Settlement Fund.” (iii) Multiply each Class Member’s Total Share of the remainder of the Net Settlement Fund by the remainder of the Net Settlement Fund to determine the “Settlement Award” for each Class Member in this category. (3) Each Class Member’s Notice shall contain an estimate of the total amount allocated to him/her pursuant Section 3.4(B)(1) and/or Section 3.4(B)(2), presuming full distribution of the Net Settlement Fund. Regardless of the number of Class Members who timely return Claim Forms, to the extent the amount not claimed (i.e., amounts allocated to Class Members who fail timely return their Claim Forms) exceeds $150,000, those unclaimed amounts will be reallocated on a proportionate basis to the Class Members who timely filed Claim Forms. (4) The Claims Administrator’s calculations regarding Qualified Class Members’ “Settlement Awards” from the Net Settlement Fund will be final and binding. (C) Defendant and the Claims Administrator shall exchange such information as is necessary for the Claims Administrator to make proper tax withholdings and comply with tax reporting obligations as described in Section 3.5. (D) To the extent additional individuals come forward on or before July 1, 2021 who are determined to be Class Members but who were not identified by Defendant, the Parties agree to use the Reserve Fund to compensate them according to the allocation plan in Section 3.4(B) above. The Reserve Fund also shall be available Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 17 of 29 17 to resolve claims by Authorized Claimants challenging their allocation from the Net Settlement Fund. (E) Subject to and in accordance with the payment terms described in Section 3.1, the Claims Administrator shall mail to all Authorized Claimants their allocated Settlement Awards from the Net Settlement Fund. Following the First Distribution (which shall be roughly 45% of each Class Member’s individualized Settlement Award), and subject to and in accordance with the payment terms described in Section 3.1, the Second Distribution shall be mailed by the Claims Administrator to all Authorized Claimants who endorsed and cashed their First Distribution checks. The Claims Administrator shall use reasonable efforts to make an additional mailing to Authorized Claimants whose checks are returned because of incorrect addresses for either distribution. Such efforts shall include conducting one additional address search (not to exceed $25) using social security numbers to obtain better address information. Any additional efforts undertaken shall be in the sole discretion of the Claims Administrator. The Claims Administrator shall not utilize or disclose information received in connection with this Agreement except in connection with executing the terms of this Agreement. (F) Authorized Claimants will have sixty (60) calendar days after delivery (or re- delivery) of their check to redeem their settlement payments. If Authorized Claimants do not redeem their settlement payment checks within the 60-day period, their settlement checks will be void. If an Authorized Claimant alerts Class Counsel, Defendant’s Counsel, or the Claims Administrator during the 60-day period to redeem settlement payments that he or she has not received his or her settlement check, the Claims Administrator will, upon confirming that the settlement check in question has not been redeemed, issue a stop payment on the Authorized Claimant’s original settlement check and reissue that Authorized Claimant’s settlement check. All such reissued checks will be valid for sixty (60) days after the date of delivery and will be void thereafter. For purposes of this provision, the mailing date shall be deemed to be the date posted on the settlement checks. No second distribution payment will be made to an Authorized Claimant who fails to timely endorse the First Distribution payment. (G) To the extent the amount of any uncashed settlement checks from the First Distribution, plus any amounts not claimed and not reallocated to Authorized Claimants pursuant to Section 3.4(B)(3), plus the remainder of the Reserve Fund shall exceed $150,000, the amount in excess of $150,000 shall be reallocated on a proportionate basis to be paid in the Second Distribution to Authorized Claimants who cashed their First Distribution checks. Following the Second Distribution, to the extent the remainder of the Reserve Fund, plus unclaimed Net Settlement Funds, plus uncashed First and Second Distribution checks exceeds $150,000, the remaining amount in excess of $150,000 shall be donated to a 501 [c][3] charitable organization with some connection to the class. The charitable organization shall be agreed to by the Parties and approved by the Court. All other amounts remaining in the Reserve Fund, uncashed distribution checks, and/or Net Settlement Funds up to $150,000 shall be returned to Defendant seventy-five (75) days following the Second Distribution. Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 18 of 29 20 Notification Act; New Jersey Conscientious Employee Protection Act; New Jersey Equal Pay Law; New Jersey Paid Sick Leave Law; New Jersey Occupational Safety and Health Law; New Jersey Smokers’ Rights Law; New Jersey Genetic Privacy Act; New Jersey Fair Credit Reporting Act; New Jersey Statutory Provision Regarding Retaliation/Discrimination for Filing A Workers' Compensation Claim; New York City Administrative Code; New York State Human Rights Law, New York Executive Law; New York Civil Rights Law; New York Labor Law; New York occupational safety and health laws; any claim arising under the common law; any other claim for employment discrimination, retaliation, wrongful termination, constructive discharge, pain and suffering, mental anguish, intentional and/or negligent infliction of emotional distress; any claim for costs, fees, or other expenses, including attorneys’ fees or any other action against Releasees, based upon any conduct occurring up to and including the date Plaintiffs execute this Agreement. (C) Release of Fees and Costs for Settled Matters. Except as provided for in this agreement, Class Counsel and Plaintiffs, on behalf of the Class and each individual Qualified Class Member, hereby irrevocably and unconditionally release, acquit, and forever discharge any claim that they may have against Defendant for attorneys’ fees or costs associated with Class Counsel’s representation of Plaintiffs and the Class in the Litigation. (D) No Assignment. Class Counsel and Plaintiffs, on behalf of the Class and each individual Class Member, represent and warrant that they have not assigned or transferred, or purported to assign or transfer, to any person or entity, any interest or claim in this Litigation, or any portion thereof. (E) Non-Admission of Liability. By entering into this Agreement, Defendant in no way admits any fault, any violation of law or any liability whatsoever to Plaintiffs and/or the Class, individually or collectively, all such liability being expressly denied. Likewise, by entering into this Agreement, Defendant in no way admits to the suitability of this case for class- or collective-action litigation other than for purposes of settlement. Rather, Defendant enters into this Agreement to: avoid further protracted litigation, avoid further expense and disruption to Defendant’s business due to the pendency of the matter, and fully and finally resolve and settle all disputes with Plaintiffs and the Class Members. Settlement of the Litigation, negotiation and execution of this Agreement, and all acts performed or documents executed pursuant to or in furtherance of this Agreement: (a) are not, shall not be deemed to be, and may not be used as an admission or evidence of any wrongdoing or liability on the part of Defendant or of the truth of any of the factual allegations in any and all Complaints filed in the Litigation; and (b) are not, shall not be deemed to be, and may not be used as an admission or evidence of fault or omission on the part of Defendant in any civil, criminal, administrative or arbitral proceeding. The Parties understand and agree that this Agreement is a settlement document and shall be inadmissible in evidence in any proceeding, except an action or proceeding to approve, interpret, or enforce the terms of the Agreement. Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 21 of 29 21 3.7 Miscellaneous (A) No Retaliation. Defendant agrees not to retaliate against any workers for their participation in this settlement or litigation. (B) Cooperation Among the Parties; Further Acts. The Parties shall cooperate fully with each other and shall use their best efforts to obtain the Court’s approval of this Agreement and all of its terms. Each of the Parties, upon the request of any other party, agrees to perform such further acts and to execute and deliver such other documents as are reasonably necessary to carry out the provisions of this Agreement. (C) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein, and all prior and contemporaneous negotiations and understandings between the Parties shall be deemed merged into this Agreement. (D) Binding Effect. This Agreement shall be binding upon the Parties and, with respect to Plaintiffs and the Qualified Class Members, their spouses, children, representatives, heirs, administrators, executors, beneficiaries, conservators, attorneys and assigns. (E) Arm’s Length Transaction; Materiality of Terms. The Parties have negotiated all the terms and conditions of this Agreement at arm’s length. All terms and conditions of this Agreement in the exact form set forth in this Agreement are material to this Agreement and have been relied upon by the Parties in entering into this Agreement. (F) Captions. The captions or headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and shall have no effect upon the construction or interpretation of any part of this Agreement. (G) Construction. The determination of the terms and conditions of this Agreement has been by mutual agreement of the Parties. Each party participated jointly in the drafting of this Agreement, and therefore the terms and conditions of this Agreement are not intended to be, and shall not be, construed against any party by virtue of draftsmanship. (H) Severability. Following the Effective Date, if any provision of this Agreement is held by a court of competent jurisdiction to be void, voidable, unlawful or unenforceable, the remaining portions of this Agreement will remain in full force and effect. However, if any portion of the Release of Claims provisions in Section 3.6 is held to be unenforceable for any reason by a court of competent jurisdiction in an action commenced by a Rule 23 Class Member or by any other person acting on their behalf, then the Rule 23 Class Member shall return to Defendant the payment received by the Rule 23 Class Member under this Agreement. (I) Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of New York, without regard to choice Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 22 of 29 22 of law principles, except to the extent that the law of the United States governs any matter set forth herein, in which case such federal law shall govern. (J) Continuing Jurisdiction. The Parties agree that the Mediator the Hon. John Hughes (Ret.) shall retain jurisdiction to resolve any and all disputes between the Parties relating to any modified payment amount(s) and/or a revised payment due date(s), including binding mediation as referenced in Section 3.1(D). Otherwise, the Court shall retain jurisdiction over the interpretation and implementation of this Agreement, as well as any and all matters arising out of, or related to, the interpretation or implementation of this Agreement and of the settlement contemplated thereby. (K) Waivers, etc. to Be in Writing. No waiver, modification or amendment of the terms of this Agreement, whether purportedly made before or after the Court’s approval of this Agreement, shall be valid or binding unless in writing, signed by or on behalf of all Parties and then only to the extent set forth in such written waiver, modification or amendment, subject to any required Court approval. Any failure by any party to insist upon the strict performance by the other party of any of the provisions of this Agreement shall not be deemed a waiver of future performance of the same provisions or of any of the other provisions of this Agreement, and such party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement. (L) When Agreement Becomes Effective; Counterparts. This Agreement shall become effective upon its execution. The Parties may execute this Agreement in counterparts, and execution in counterparts shall have the same force and effect as if Plaintiffs and Defendant had signed the same instrument. The failure of one or more Plaintiff to sign this Agreement does not affect its enforceability. (M) Facsimile/Electronic Signatures. Any party may execute this Agreement by causing its counsel to sign on the designated signature block below and transmitting that signature page via facsimile or email to counsel for the other party. Any signature made and transmitted by facsimile or email for the purpose of executing this Agreement shall be deemed an original signature for purposes of this Agreement and shall be binding upon the party whose counsel transmits the signature page by facsimile or email. DATED: September__, 2020 DEFENDANT: American Limousine LLC _________________________________ By: Michael Fogarty, President American Limousine LLC Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 23 of 29 Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 26 of 29 23 DATED: September __, 2020 PLAINTIFFS: Ernest Thompson _________________________________ DATED: September __, 2020 Alicia Campbell _________________________________ DATED: September __, 2020 Keisha Francis-Allen _________________________________ DATED: September __, 2020 Anthony DeAngelis _________________________________ DATED: September __, 2020 Kofi Baning _________________________________ DATED: September __, 2020 Angelo Efstathopoulos _________________________________ 4830-3677-4341, v. 13 30 Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 27 of 29 Case 7:19-cv-04133-CS Document 29-1 Filed 09/30/20 Page 28 of 29