Windheim, et al. v. LynnHaven Inn, Inc.

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

Windheim, et al. v. LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille Case No. CACE23015128 (Seventeenth Judicial Circuit in and for Broward County, Florida)

PLEASE READ THIS NOTICE CAREFULLY. YOU MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT IF YOU WORKED AS A SERVER AT UPPER DECK ALE & SPORTS GRILLE IN HALLANDALE BEACH, FLORIDA BETWEEN FEBRUARY 27, 2018, AND APRIL 7, 2023.

A federal court authorized this notice of a proposed class action settlement. This is not a solicitation from a lawyer and is not notice of a lawsuit against you.

WHY DID I GET THIS NOTICE?

This notice is to inform you that a proposed settlement has been reached in a class action lawsuit between LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille (“Defendant”) and certain individuals who worked as Servers at Upper Deck Ale & Sports Grille between February 27, 2018, and April 7, 2023. Joshua Windheim (“Mr. Windheim”), a former Server at Upper Deck Ale & Sports Grille, initiated this Rather than continue to litigate these matters, the Parties have reached a settlement. Pursuant to the terms of the settlement, tipped employees (except for bartenders) who worked at Upper Deck Ale & Sports Grille between February 27, 2018, and April 7, 2023, may receive payments depending on the amount of time they worked at Upper Deck Ale & Sports Grille between those dates. Defendant continues to deny any violation of any federal or state wage and hour laws.

The lawsuit alleges that Defendant violated the Florida Minimum Wage Act purportedly by failing to provide servers adequate notice of the tip credit, failing to compensate servers the applicable reduced wage. The case is Windheim, et al. v. LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille, Case No. CACE23015128, currently pending in the Seventeenth Judicial Circuit in and for Broward County, Florida. The proposed settlement is not an admission of wrongdoing by Defendant, and Defendant denies that they violated the law. The Court has not decided who is right or wrong. Rather, to avoid the time, expense, and uncertainty of litigation, the Parties have agreed to settle the lawsuit. The settlement has been preliminarily approved by the Court.

You are a member of the class and eligible to participate in the settlement if you worked as a Server at Upper Deck Ale & Sports Grille in Hallandale Beach, Florida between February 27, 2018, and April 7, 2023.

If the Court approves the settlement, members of the class who submit valid claims will receive a distribution from a settlement fund that Defendant has agreed to establish. Each individual who submits a valid claim will receive a portion of this fund, after all notice and administration costs, an individual payment to Mr. Windheim, and attorneys’ fees – if approved by the Court – have been Payments are estimated to be $0.54 per hour for each hour you worked, depending on the duration of your actual employment.

Summary of Your Rights and Choices:
Your Legal Rights Are Affected Even If You Do Not Act.
Read This Notice Carefully.

You May:	Effect of Choosing the Option:	Due Date:
Exclude Yourself	You can elect to get out of the class and keep your right to sue Upper Deck on your own in regard to the claims in the lawsuit. To exclude yourself from participating in the Settlement, you must complete and return a request for exclusion pursuant to Section 11 below.	Postmarked by: December 23, 2023
File Objection	If you do not exclude yourself, you can remain a class member and still write to the Court about why you disagree with the settlement.	Postmarked by: December 23, 2023
Appear at a Hearing	If you do not exclude yourself, you can remain a class member and appear at the final hearing to advise the Court about why you disagree with the settlement.	The Notice of Appearance must be postmarked on or before December 23, 2023 to appear at the final hearing on January 29, 2024 at 10:00 a.m. at the Broward County Courthouse in Ft. Lauderdale, Florida.
Do Nothing	You will be bound by the terms of the settlement and give up your right to sue Upper Deck on the claims in the lawsuit, but receive no money.
Claim Your Settlement	If you wish to be included in the settlement, you may receive a payment if you submit a completed Claim Form as instructed below.	Postmarked by: December 23, 2023

BASIC INFORMATION

1. Why did I get this Notice?

The Court directed this Notice to be sent to you because you may have performed work as a tipped employee at Upper Deck Ale & Sports Grille between February 27, 2018, and April 7, 2023, and therefore may be entitled to benefits pursuant to the terms of the settlement.

If you are a member of the Class, the proposed settlement will affect your legal rights. Therefore, it is important that you read this notice carefully. You have choices to make before the Court decides whether or not to finally approve the settlement.

2. What is a Class Action?

In a class action lawsuit, one or more people called “Class Representative Plaintiffs” sue one or more defendants on behalf of other people who may have similar claims. All these people together are a “class” or are “class members.” The court can determine whether it will allow a lawsuit to proceed as a class action. If it does, a trial then decides the lawsuit for everyone in the class or the parties may settle without a trial.

In a class action, one court resolves the common issues for everyone in the Class – except for those people who choose to exclude themselves from the Class.

3. What is this Class Action about?

Mr. Windheim claims that Upper Deck and its owners violated the Florida Minimum Wage Act by: failing to provide tipped employees adequate notice of the tip credit, and/or failing to compensate Servers the applicable reduced wage for all hours of work performed by Servers. As a result, Mr. Windheim claims that he and other Servers are entitled to payment of the tip credit taken by the employer, an additional amount as liquidated damages, and attorneys’ fees and costs. You can read Mr. Windheim’s operative complaint filed in this case at www.browardclerk.com.

The Court has preliminarily approved the certification of the class of tipped employees who worked at Upper Deck Ale & Sports Grille at the Parties’ request.

The Parties have reached a settlement in this case. Defendant continues to deny any violation of any federal or state wage and hour laws. The Court has not ruled on the merits of Plaintiff’s claims or on Defendant’s defenses. Rather, the Court has simply certified a settlement class and tentatively approved the proposed settlement.

4. Who are the Class Members?

In order to determine if you are entitled to benefits from this settlement, you first must determine if you are a Class Member, defined as:

All Servers who worked at Upper Deck Ale & Sports Grille in Hallandale Beach, Florida from February 27, 2018, through April 7, 2023.

If you fall within the definition of a Class Member, you may qualify for a payment pursuant to the criteria set forth in the settlement agreement. If you are not a Class Member as described above, you do not qualify for settlement benefits.

5. Why is the Class Action being settled?

This matter is being settled because both sides have agreed to a settlement of this case in order to avoid the costs and risks of trial.

SETTLEMENT BENEFITS AND MY OPTIONS

6. What are the Settlement Benefits?

The settlement, if approved, provides monetary benefits to the Class. After certain agreed upon and Court approved deductions, the settlement fund will be allocated to the Settlement Class based upon the number of hours Class Members worked as Servers at Upper Deck Ale & Sports Grille in Hallandale Beach, Florida between February 27, 2018, and April 7, 2023.

Each Class Member that submits their claim form will receive a specified share of the settlement after the Court enters a final approval of the settlement. It is estimated that each Server will receive $0.54 for each hour worked during the class period. Therefore, it is very important that you tell us your new address and other contact information if your address or other contact information changes at any time during the payment period.

7. What are my options to receive Settlement Benefits?

If you wish to receive payment from the settlement fund, you must file the Claim Form that is included with this notice. Only one Claim Form is needed, and only one form will be accepted.

Each tipped employee (except for bartenders) electing to receive payments will be paid based on the amount of time he or she worked at Upper Deck Ale & Sports Grille, as follows:

Each Settlement Class Member with an Approved Claim will receive approximately Fifty-Four Cents ($0.54) for each hour worked as a Server at Upper Deck Ale & Sports Grille between February 27, 2018, and April 7, 2023. Notwithstanding the foregoing, the Settlement Payment to any one Settlement Class Member will be no less than $0.54.

YOU MUST SUBMIT A TIMELY CLAIM FORM TO RECEIVE A PAYMENT. If you elect to receive a payment, you will receive an IRS Form W-2 and Form 1099-MISC for the amount of the payment made to you if applicable in accordance with IRS regulations. You will be responsible for the payment of federal and state taxes due as a result of the payment. You should seek the advice of a tax professional if you have any questions about the tax implication of this settlement.

Please read the Claim Form for more detailed instructions on how to submit a claim for a payment.

Summary: To summarize, if you wish to remain in the Class and receive a payments, then you MUST fill in the Claim Form and submit it to the Claims Administrator.

REMAINING IN THE CLASS

8. What happens if I do nothing and stay in the Class?

If you do nothing you will be included in the Class, and you will be bound by the terms and conditions of the settlement. However, you will not receive monetary compensation unless you elect to receive payment as described herein.

9. If I remain in the Class, what am I giving up?

If the Court approves the settlement, you will have released LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille from any further state and federal law claims related to the matters raised in this lawsuit, and you can’t ever sue the Defendant about these issues based upon conduct that occurred prior to the effective date of the settlement. Notwithstanding the foregoing, if you do not elect to receive a payment, any wage claim under the Fair Labor Standards Act will be preserved subject to the applicable statute of limitations.

EXCLUDING YOURSELF FROM THE CLASS

10. Why would I want to be excluded from the Class?

You do not have to take part in the settlement or be a member of the Class. You can exclude yourself from the settlement by “opting out.” If you exclude yourself, you will not get the benefits of the settlement. Any Court orders will not apply to you. By excluding yourself, you keep any right to file or proceed with a lawsuit against Defendant based upon the facts alleged in the lawsuit.

If you have sued any of the Defendant and want to continue with your suit, you need to personally ask to be excluded from the Class. If you exclude yourself, you will not be legally bound by the Court’s judgments in this case. Similarly, if you wish to start your own lawsuit against any of the Defendant, you must exclude yourself from the Class. Should you do so, you will have to hire and pay your own lawyer for that lawsuit and prove your claims. If you do exclude yourself so you can start or continue your own lawsuit, you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations.

11. How do I exclude myself from the Class?

If you are a member of the Class and wish to be excluded from the settlement, you must send a written request, signed by you personally, which includes all of the following:

Your legal name, current address and telephone number;
The name and number of the lawsuit: Windheim, et v. LynnHavenn Inn, Inc. d/b/a Upper Deck Ale & Sports Grille, Case No. CACE23015128; and
A statement, signed personally by you, clearly stating that you want to be excluded from the Class.

All exclusion requests must be mailed first class United States mail, postmarked on or before December 23, 2023 to:

Windheim, et al. v. LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille, et al.
Settlement Administrator
c/o ILYM Group, Inc.
PO Box 2031
Tustin, California 92781
Tel: (888) 250-6810
E-mail: claims@ilymgroup.com
Website: upperdecksettlement.ILYMGroup.com/

Any request for exclusion must contain your personal signature, which shall be an indication to the Court that you wish to be excluded from the Class. You cannot exclude yourself by phone. Further, if you do not follow these instructions properly or if you also submit a claim form, you will lose your right to exclude yourself. There are no exceptions.

UNLESS YOU PROPERLY SIGN AND TIMELY MAIL A REQUEST FOR EXCLUSION, YOU WILL BE BOUND BY ANY JUDGMENT IN THIS CASE AND YOU WILL NOT BE PERMITTED TO PURSUE ANY PENDING OR FUTURE LITIGATION AGAINST DEFENDANTS BASED UPON THE FACTS ALLEGED IN THE LAWSUIT, EXCEPT FOR ANY CLAIMS UNDER THE FAIR LABOR STANDARDS ACT. SHOULD YOU WISH TO EXCLUDE YOURSELF FROM THIS SETTLEMENT, IT IS IMPORTANT THAT YOU FOLLOW THESE INSTRUCTIONS CAREFULLY.

12. How do I object to the Settlement?

If you don’t like the settlement, you may file an objection to it. This means you can tell the Court that you disagree with the settlement or some of its terms. For example, you can say you don’t think the settlement is fair or adequate, or that you object to the amount of attorneys’ fees, costs, or expenses. The Court will consider your views but may approve the settlement anyway.

You can object only if you do not exclude yourself from the Class. If you exclude yourself, you cannot object.

To object, either you or a lawyer of your own choosing must prepare an objection that contains all of the following:

The name and title of the lawsuit: Windheim, et al. v. LynnHaven Inn, Inc. d/b/a Upper Deck Ale & Sports Grille., Case No. CACE23015128;
A written statement of objections clearly specifying the grounds or reason for each objection;
A statement of whether or not you or your lawyer will ask to appear at the Final Approval Hearing to talk about your objections, and, if so, how long you will need to present your objections; and
Copies of documents (if any) you or your lawyer will present at the Final Approval

Your objection must be filed with the Court and served on Class Counsel and Counsel for the Defendants no later than December 23, 2023. Any objection postmarked after that date will be rejected.

To File an Objection with the Court, Mail Objection to:

Clerk of the Court
Broward County Circuit Court
201 S.E. 6^th Street
Fort Lauderdale, Florida 33301

To Serve Class Counsel, Mail Objection to:

Jordan Richards, Esq.
USA Employment Lawyers
1800 SE 10^th Ave. Suite 205
Fort Lauderdale, Florida 33316

To Serve Defendants’ Counsel, Mail Objection to:

Matthew Green, Esq.
Cole Scott & Kissane, P.A.
110 S.E. 6^th Street, Suite 2700
Fort Lauderdale, Florida 33301

Objections postmarked after December 23, 2023, will be untimely and may not be considered by the Court.

THE LAWYERS REPRESENTING THE CLASS

13. Do I have a lawyer representing my interests in this case?

Yes. The Court has appointed a law firm to represent you and other Class Members. The lawyer is referred to as Class Counsel and his information is as follows:

Jordan Richards, Esq.
USA Employment Lawyers
1800 SE 10^th Ave. Suite 205
Fort Lauderdale, Florida 33316
Tel: (954) 871-0050
Website: www.usaemploymentlawyers.com

You will not be charged directly by Class Counsel for their lawyers’ services, but they will ask the Court to award them a fee from the Settlement. More information about Class Counsel and their experience is available at the website listed above.

If you so desire, you may hire your own attorney. However, you will be responsible for that attorney’s fees and expenses.

14. How will the Lawyers be paid?

The lawyers who represent the Class will ask the Court for reimbursement for their out of pocket expenses and an award of attorneys’ fees based on their work in this litigation. The amount of attorneys’ fees to be awarded will be determined solely by the Court. Under the terms of the settlement agreement and subject to Court approval, Class Counsel can petition the Court for 40% of the Class Fund plus litigation costs in a total amount not to exceed $52,000.00.

Attorney’s fees and costs payable to Class Counsel have been factored into the value of the settlement. In particular, the $130,000.00 Defendant has agreed to pay to the Class members will be reduced by the amount of attorney’s fees and costs awarded to Class Counsel.

The settlement agreement provides further details on attorney fees payable to Class Counsel, and a copy of the settlement agreement may be obtained either from Class Counsel or the Court.

15. How Will the Class Representative be Paid?

To compensate the Class Representative, Mr. Windheim, for his individual FLSA claims and for his execution of a mutual general release, he will receive a separate payment in the amount of $10,000.00 which will be paid from the Settlement Fund. If approved, the Defendant shall pay these amounts to Mr. Windheim as part of the settlement.

THE COURT’S FINAL APPROVAL HEARING

16. When and where will the Court decide whether to approve the settlement?

The Court will hold a Final Approval hearing on January 29, 2024. At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are written objections, the Court will consider them, and the Court will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether or not to approve the settlement.

The Hearing will be held before the Honorable Daniel Casey at:
Broward County Circuit Court
201 S.E. 6^th Street
Fort Lauderdale, Florida 33301

January 29, 2024, at 10:00 a.m.

17. Do I have to attend the Hearing?

No. Class Counsel will answer questions the Court may have, but you may appear at your own expense. If you send a written objection, the Court will consider it. You may also pay your own lawyer to attend the hearing if you desire.

18. Can my lawyer appear at the Final Approval Hearing to tell the Court about my opinions regarding the Settlement?

Yes. As long as you don’t exclude yourself, you have the right to appear through counsel at the Final Approval Hearing, so long as your attorney’s Notice of Appearance and any written objections you may have are postmarked or received by the Court, Defendants, and Class Counsel by December 23, 2023. If you do this, however, the cost of having your lawyer appear will be at your own expense.

GETTING MORE INFORMATION

19. Where do I obtain more information?

If you want additional information, you may call or write to Class Counsel at the address and phone number listed above.

In addition, the Settlement Administrator has created a specific website containing relevant documents including the operative class action complaint and complete settlement agreement: upperdecksettlement.ILYMGroup.com/

The specific terms of the settlement are outlined in the legal documents that have been filed with the Court. You can look at and copy these documents at any time during regular office hours at the Office of the Clerk of Court for the Broward County Circuit Court, 201 S.E. 6^th Street, Fort Lauderdale, Florida 33301. You may view the documents on the Court’s website at www.browardclerk.com.

Please do not call the court or Upper Deck Ale & Sports Grille for assistance. Any question or requests for further information about this notice or lawsuit should be directed to any of the plaintiffs’ attorneys whose information is displayed below:

Jordan Richards, Esq.
USA Employment Lawyers
1800 SE 10^th Ave. Suite 205 Fort Lauderdale, Florida 33316
Tel: (954) 871-0050
Website: www.usaemploymentlawyers.com