Martinez, Ill v. Catch a Wave by Blue Nami, Inc. NOTICE OF PENDENCY AND SETTLEMENT OF CLASS ACTION; SETTLEMENT HEARING;
AND CLAIM, CONSENT, AND EXCLUSION PROCEDURES
Victor S. Martinez III v. Catch a Wave by Blue Nami, Inc.
Sacramento County Superior Court
Case No. 39-2015-00184485
PLEASE READ THIS NOTICE CAREFULLY. PLAINTIFF VICTOR S. MARTINEZ III AND DEFENDANT CATCH A WAVE BY BLUE NAMI, INC., AGREED TO SETTLE THE CLASS ACTION THAT IS DESCRIBED IN THIS NOTICE. CATCH A WAVE BY BLUE NAMI, INC.’S RECORDS SHOW YOU MAY BE ENTITLED TO PARTICIPATE IN THE CLASS ACTION SETTLEMENT AND RECEIVE A SETTLEMENT PAYMENT. YOUR RIGHTS MAY BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS ACTION.
You are receiving this Notice because you may be a member of the following Class:
All persons who at any time from September 18, 2011 to February 9, 2020 were employees of the Defendant, employed in California as a "Server”.
YOUR LEGAL RIGHTS, OPTIONS, AND IMPORTANT DEADLINES:
I. WHY IT IS IMPORTANT TO READ THIS NOTICE:
Judge Shama H. Mesiwala of the State of California, San Joaquin County Superior Court (the “Superior Court”) granted preliminary approval of a proposed class action settlement (the “Settlement”) of all claims alleged or that could have been alleged in the following action: Victor S. Martinez III v. Catch a Wave by Blue Nami, Inc. Case No. 39-2015-00184485. The Settlement is subject to the approval of the Sacramento County Superior Court.
You are being sent this Notice because Catch A Wave By Blue Nami, Inc.’s records show that you are a member of the Class described below:
All persons who at any time from September 18, 2011 to February 9, 2020 were employees of the Defendant, employed in California as a "Server".
The purpose of this Notice is to provide you with a brief description of the class action lawsuit at issue, to inform you of the terms of the proposed Settlement and to discuss your rights and options in connection with the lawsuit and the Settlement. It is important that you read this Notice carefully as your rights may be affected by the Settlement.
II. WHAT THIS CLASS ACTION IS ALL ABOUT:
A class action is a lawsuit brought by one or more representative plaintiffs in which the claims and rights of many people are decided in a single court proceeding. Through the lawsuit at issue here, the Named Plaintiffs sought to be class representatives and recover various forms of relief from Catch A Wave By Blue Nami, Inc. (“Catch A Wave” or the “the Defendant”), on behalf of the Class described above, including for the claims listed below, interest, attorneys’ fees, and costs of suit.
Victor S. Martinez III (hereinafter “Named Plaintiff”), former server of Catch A Wave By Blue Nami, Inc. who worked in California, filed a Complaint against the Defendant that alleged the following claims: improper tip pooling. Defendant denies each of the allegations and does not admit any liability, as explained below.
III. THE SETTLEMENT OF THE CLAIMS ALLEGED IN THE LAWSUITS:
Since the inception of the lawsuit, the Parties actively investigated and litigated the claims asserted. Based on a comprehensive investigation of the claims, the Parties and their counsel reached agreement to settle the pending Action.
The Named Plaintiff claim and continue to claim that Catch A Wave By Blue Nami, Inc.’s defenses are without merit. The Named Plaintiff and Class Counsel recognize, however, the expense and length of continued proceedings necessary to pursue the litigation through trial and through any possible appeals. The Named Plaintiffs and Class Counsel also have taken into account the uncertainty and risk of further litigation, the potential outcome, and the difficulties and delays inherent in such litigation, including the financial ability of the Defendant to respond to any judgment that may be obtained against them if the claims are successful. Based on the foregoing, the Named Plaintiff and Class Counsel believe the Settlement set forth in this Agreement is a fair, adequate and reasonable settlement, and is in the best interests of the Putative Class Members.
Defendant denies and continues to deny each of the claims and contentions alleged by the Named Plaintiffs in this Action. Defendant repeatedly asserted and continues to assert defenses thereto, and expressly deny and continue to deny any wrongdoing or legal liability arising out of any of the facts or conduct alleged in the Action or that the Plaintiffs and Putative Class Members were harmed by the conduct alleged in the Action. Defendant believes, however, that any further defense of this litigation would be protracted and expensive. Substantial amounts of time, energy and resources of Defendant have been used and, unless this Settlement is made, will continue to be devoted to the defense of the claims asserted by Named Plaintiff. Defendant, therefore, agreed to settle in the manner and upon the terms set forth in this Agreement to put to rest the Claims as set forth in the Action. Based on the foregoing, Defendant and Counsel for Defendant believes the Settlement set forth in this Agreement is a fair, adequate and reasonable settlement, and is in the best interests of the Defendant and Putative Class Members.
The Settlement was preliminarily approved by the Superior Court on June 22, 2022. A summary of the terms of the preliminarily approved Settlement is set forth below. The complete terms of the proposed Settlement are described in the Stipulation and Settlement Agreement (“Settlement Agreement”), copies of which are available for your review as set forth at the end of this Notice.
IV. THE TERMS OF THE PRELIMINARILY APPROVED SETTLEMENT:
The Martinez settlement has a potential value of $150,000 (“Settlement Amount”), allocated as follows: (1) monetary relief (“Net Settlement Fund”) to class members who make a claim (“Settlement Class Members”); (2) attorneys’ fees and reimbursement of costs awarded by the Superior Court to attorneys representing the class; (3) representative incentive payments awarded by the Superior Court to Named Plaintiff (“Representative Incentive Awards”); (4) claims administration expenses, including the costs of mailing this Notice and Claim Form to you and administering the settlement payments should the Settlement be effective (“Administration Costs”).
(1) The monetary relief to class members, or Net Settlement Fund, has an estimated potential value of $83,000. To make a claim for your share of this monetary compensation you need to timely submit a valid Claim Form (see Section VI and the Claim Form for instructions).
(2) The total amount of attorneys’ fees awarded will be subject to the Superior Court’s discretion and approval, but in any event will not exceed $50,000 or 33.33% of the Settlement Amount. The total amount of costs awarded will be subject to the Superior Court’s discretion and approval, but in any event will not exceed $2,000. The fees and costs awards are for attorneys’ fees and costs past, present and future, incurred in the lawsuit. As part of the Settlement, you will not be required to pay Class Counsel for their representation of you in the lawsuit.
(3) The amount of the Representative Incentive Awards to Named Plaintiff will be subject to the Superior Court’s discretion and approval, but in any event will not exceed a collective total of $5,000.
(4) The Administration Costs incurred by the Claims Administrator, ILYM Group, Inc., will be subject to the Superior Court’s discretion and approval, but in any event will not exceed $10,000. These costs and fees are associated with the administration of this Settlement by a neutral third party who is responsible for all mailings required by the Settlement, sending payments to Settlement Class Members and associated recordkeeping obligations.
V. HOW YOUR SHARE WILL BE CALCULATED IF YOU PARTICIPATE:
If you wish to participate in the Settlement and receive monetary compensation, you must sign and return the enclosed Claim Form by August 25, 2022 to the Claims Administrator, as stated in Section VI. If you are a Class Member, you are entitled to request a settlement payment.
This is a claims-made settlement. If a Putative Class Member does not timely submit a valid Claim Form, their unclaimed share will be reallocated to those putative class members making valid claims.
Although this Settlement is claims-made, the Parties agreed that Catch A Wave will pay at least 50% of the Net Settlement Fund, which equates to at least $83,000 (or greater if the Court awards less than the projected Attorneys’ Cost Award, Representative Incentive Awards, and/or Administration Costs). In determining whether the 50% minimum has been reached, all Gross Damages Settlement Amounts will be considered. If and only if the total claimed Gross Damages Settlement Amounts of all Settlement Class Members determined by the method described in the Settlement Agreement do not equal or exceed 50% of the Net Settlement Fund), Catch a Wave will direct the Claims Administrator to redistribute on a pro-rata basis the Net Settlement Fund Deficiency to Settlement Class Members in the same manner and time as provided for with respect to their initial payout calculation.
Each Settlement Class Member will receive a Settlement Payment, which is a share of the Net Settlement Fund based on the total number of shifts worked. Each Class Member’s Individual Number of Shifts Worked will be stated on the Class Member’s claim form. A Settlement Class Member who believes that the Individual Number of Shifts Worked used to calculate his/her Settlement Payment is incorrect will have the opportunity to object and provide relevant information and documents to the Claims Administrator prior to the expiration of the claim period. The Claims Administrator’s decision on all such disputes will be final and non-appealable.
Each Settlement Class Member’s Gross Damages Settlement Amount will be characterized as wages subject to withholding for all applicable local, state, and federal taxes owed by the Settlement Class Member thereon.
VI. OPTIONS YOU HAVE REGARDING THE CLASS ACTION SETTLEMENT:
You have four options under this Settlement, each of which is discussed below: You may: (1) remain in the Class and claim money under the Settlement; or (2) remain in the Class and do nothing; or (3) exclude yourself from the Class and the Settlement; or (4) remain in the Class and object to the Settlement.
1. Claim Procedure for Monetary Recovery
If you wish to participate in the Settlement and receive a monetary payment under the terms of the Settlement, you must properly complete and timely submit the enclosed Claim Form to the Claims Administrator, ILYM Group, Inc., located at P.O. Box 2031 Tustin, CA 92781, via first class U.S. mail or equivalent, postage paid, postmarked on or before August 25, 2022. Only Class Members who complete, sign and return the enclosed Claim Form by August 25, 2022 will become Settlement Class Members who are eligible to receive payment.
Any Claim Form that is postmarked after August 25, 2022, that is not completely and legibly filled out, or that is not signed by the Class Member, will not constitute a valid claim and will be denied by the Claims Administrator. The Claims Administrator shall review each Claim Form received and shall verify each form to reasonably ensure its validity and accuracy. If your Claim Form is timely but fails to contain: (1) your name; (2) your signature and the date you signed it; (3) a checked box verifying the accuracy of the last four digits of your social security number; and/or (4) your name does not match Catch A Wave By Blue Nami Inc.’s records, your Claim Form will be returned to you notifying you of the defect(s) and inviting you to call the Claims Administrator with any questions or concerns regarding the defect(s). You will be given fourteen (14) business days within which to cure the defect(s) and return your corrected Claim Form to the Claims Administrator. If your Claim Form is not postmarked within that fourteen (14) day period, your claim will be rejected.
If you properly and timely submit a Claim Form, you will be mailed a monetary payment pursuant to the formulas set forth in this Notice, as applicable, within five business days after Catch A Wave By Blue Nami Inc.’s. makes its final installment payment which shall occur within thirty (30) calendar days of the Effective Date of the Settlement or April 20, 2016, whichever date is later.
Each Settlement Class Member who submits a valid and timely Claim Form shall be paid by check if the Settlement becomes final. The checks shall remain valid and negotiable for 180 days. Any check that is not negotiated within 180 days of mailing to a Settlement Class Member shall be sent to Workplacefairness.org, an organization that supports projects that would benefit the Settlement Class pursuant to Code of Civil Procedure Section 384.
2. Doing Nothing
If you do nothing and the Court approves the Settlement, you will be bound by the terms of the Settlement, but you will not receive any money under the Settlement.
3. Procedure for Requesting Exclusion from the Settlements
If you do not wish to be bound by the Settlement and do not wish to receive any monetary recovery from the Settlement, you may exclude yourself from the Settlement by mailing a written statement expressing your desire to be excluded from the Settlement to the Claims Administrator, ILYM Group, Inc., located at P.O. Box 2031 Tustin, CA 92781 postmarked on or before August 25, 2022. Your
request for exclusion shall be deemed valid only if: (1) you provide your name on the request for exclusion; (2) you date and sign the request for exclusion; and (3) the name you provide on the request for exclusion matches Catch A Wave By Blue Nami Inc.’s records. Your written request for exclusion from the Settlement must state as follows:
I wish to be excluded from the Settlement in the pending class action entitled: Victor S. Martinez III v. Catch a Wave by Blue Nami, Inc. Case No. 39-2015-00184485. I understand that in asking to be excluded from the Settlement, I will not receive any portion of the Settlement approved by the Superior Court in this case.
Requests for exclusion that do not include all required information, or that are not submitted on a timely basis, will be deemed null, void and ineffective. If you are eligible to and do submit a valid and timely request for exclusion from the Settlement, you will not receive any monetary recovery from the Settlement, nor will you have any right to object, appeal or comment thereon, nor will you be bound by the terms of the proposed Settlement, if it is approved, or bound by the Final Judgment in the Action. If you timely submit a valid request for exclusion from the Settlement, you preserve any right you may have to bring your own action, with respect to claims that were or could have been asserted in the Action against Defendant.
Note: If you do not timely and properly return the Claim Form and do not request exclusion as discussed herein, you will be bound by the Settlement and YOU WILL NOT RECEIVE A MONETARY PAYMENT.
4. Procedure for Objecting To the Settlement
You may appear at the Settlement Hearing in person or through counsel and be heard as to why the proposed Settlement should or should not be approved as fair, adequate and reasonable by the Superior Court, or why a Final Judgment should or should not be entered by the Superior Court. However, you or any other Putative Class Member will not be entitled to object, and no papers or briefs submitted by you or any Putative Class Member shall be received or considered by the Superior Court, unless a written statement objecting to the Settlement is filed with the Superior Court and served on the Claims Administrator and counsel for the Parties personally on or before August 25, 2022 or, if by mail, postmarked on or before August 25, 2022. The address for the Claims Administrator, ILYM Group, Inc. is P.O. Box 2031 Tustin, CA 92781. The addresses for Parties’ counsel are as follows:
Class Counsel: Erin M. Scharg
| Counsel for the Defendant: Robert H. Panman |
If you do not make and serve your written objections in the manner provided above you shall be deemed to have waived such objections and shall be foreclosed from making any objections (by appeal or otherwise) to the Settlement. Any Putative Class Member who is satisfied with the proposed Settlement need not appear at the Settlement Hearing. The location, date and time of the Settlement Hearing is set forth in Section VIII of this Notice.
VII. RELEASE OF CLAIMS BY CLASS MEMBERS:
As of the Effective Date (as defined in the relevant Settlement Agreement), anyone who has not excluded themselves from the Settlement(s) will release Catch A Wave By Blue Nami Inc., all its present and former subsidiaries, affiliates, divisions, related or affiliated companies, parent companies, franchisors, franchisees, shareholders and attorneys and each of their company-sponsored employee benefit plans, and their respective successors, assigns, and predecessors in interest, all of their respective officers, directors, employees, administrators, fiduciaries, trustees and agents, and each of their past, present and future officers, directors, shareholders, employees, agents, principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers and their counsel of record (the “Released Parties”) from the claims described below.
For purposes of the Settlement, the released claims include all claims, demands, rights, liabilities, and causes of action of every nature and description whatsoever, known or unknown, asserted or that might have been asserted, whether in tort, contract, or for violation of any state or federal constitution, statute, rule or regulation, including state wage and hour laws, pursuant to case law, or otherwise, whether for economic damages, non-economic damages, restitution, penalties or liquidated damages, arising out of, relating to, or in connection with any and all facts, transactions, events, policies, occurrences, acts, disclosures, statements, omissions or failures to act, which are or could be the basis of the claims for wages, benefits and related penalties alleged in the Action, during the relevant Class Period, including: failure to provide meal and rest periods, nonpayment or underpayment of the premium for meal and rest period violations, violation of the Unfair Competition Act, declaratory relief, failure to provide an accounting, and related representative actions under the Private Attorneys’ General Act (“PAGA”), and interest, penalties and remedies thereon, including claims under the Labor Code and IWC Wage Orders.
Further, in exchange for the promises made by Defendant contained in the Settlement Agreement, the Named Plaintiffs, Settlement Class Members as well as individuals who do not properly elect to exclude themselves from the Settlement shall be deemed to have expressly waived and relinquished, to the full extent permitted by law, all rights under California Civil Code section 1542 with respect to Released Claims that they may have against the Defendant. Section 1542 provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
As such, the Named Plaintiffs, Settlement Class Members, as well as individuals who do not properly elect to exclude themselves from the Settlement understand that they are providing the Defendant with a full and complete release with respect to the Released Claims. Released Claims do not include any claims that cannot be released as a matter of law.
VIII. THE NEXT STEP – THE SETTLEMENT HEARING
A hearing (the “Settlement Hearing”) will be held before the Sacramento County Superior Court, on September 14, 2022, at 1:30 p.m., 813 6th Street, Sacramento California 95814 to determine whether the proposed Settlement is fair, adequate and reasonable and should be finally approved by the Superior Court. The Settlement Hearing may be adjourned by the Superior Court from time to time as the Superior Court may determine without further notice.
IX. HOW TO OBTAIN ADDITIONAL INFORMATION
The foregoing is only a summary of the lawsuit and the proposed Settlement and does not purport to be comprehensive. For a more detailed statement of the matters involved in the lawsuit and the specific terms of the proposed Settlement, you may refer to the pleadings, the Settlement Agreement, and other papers filed in the Action, which may be inspected at the Office of the Clerk of the Sacramento County Superior Court during regular business hours of each court day.
All inquiries regarding this Notice and/or the Settlement should be directed to the Class Counsel and/or Claims Administrator, ILYM Group Inc.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT, THE JUDGE, DEFENDANT, OR DEFENDANT’S ATTORNEY WITH INQUIRIES.
SO ORDERED BY THE HONORABLE JUDGE SHAMA H. MESIWALA OF THE SUPERIOR COURT.