Cardoza et al v. Bloomin' Brands, Inc. et al

Filing 430

ORDER re 413 Motion to Certify Class. Signed by Judge Jennifer A. Dorsey on 4/19/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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5 BROOKE CARDOZA, et al., all on behalf
of themselves and all similarly-situated
6 individuals,
Plaintiffs,

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CASE NO.: 2:13-cv-01820-JAD-NJK

vs.

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BLOOMIN’ BRANDS, INC., a Delaware
Corporation; OSI RESTAURANT
PARTNERS, LLC, a Florida Limited
Liability Company; OUTBACK
STEAKHOUSE OF FLORIDA, LLC, a
Florida Limited Liability Company; OS
RESTAURANT SERVICES, LLC, a
Florida Limited Liability Company; and
DOES 5 through 100, Inclusive,

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ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS SETTLEMENT

Defendants.

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Plaintiffs’ Motion for Preliminary Approval of FLSA Class Settlement (“Motion”) came

17 before this Court for hearing on April 11, 2016. No opposition was filed to Plaintiffs’ Motion;
18 Defendants’ filed a Notice of Non-Opposition on March 9, 2016 (ECF No. 415). The Court
19 having fully reviewed the Motion, the supporting Memorandum of Points and Authorities, the
20 supporting Declaration of Don Springmeyer, Esq., the Stipulation of Settlement and Release, the
21 proposed General Release, proposed Notice of Proposed Class Action Settlement, and proposed
22 Class Action Claim Form, and in recognition of

duty to make a preliminary

23 determination as to the reasonableness of any proposed class action settlement, and if
24 preliminarily determined to be reasonable, to ensure proper notice is provided to all members
25 of the Class in accordance with due process requirements, and to set a Final
26 Fairness/Approval Hearing to consider the proposed settlement as to the good faith, fairness,
27 adequacy and reasonableness of any proposed settlement, HEREBY MAKES
28 THE FOLLOWING FINDINGS AND ORDERS:

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1.

The Court conditionally finds that, for the purposes of approving this

2 Settlement only, the proposed Settlement Class meets the requirements for certification as a
3 collective action pursuant to 29 U.S.C. § 216(b) and as a class pursuant to Rule 23 of the
4 Federal Rules of Civil Procedure, in that: (a) the proposed Settlement Class is ascertainable
5 and so numerous that joinder of all members of the class is impracticable; (b) there are
6 questions of law or fact common to the proposed Settlement Class, and there is a well -defined
7 community of interest among members of the proposed Settlement Class with respect to the
8 subject matter of the litigation; (c) the claims of the proposed Class Representatives are
9 typical of the claims of the members of the proposed Settlement Class; (d) th e proposed Class
10 Representatives have and will fairly and adequately protect the interests of the proposed
11 Settlement Class; (e) questions of law or fact common to members of the Settlement Class
12 predominate over any questions affecting only individual class members; (f) a class action is
13 superior to other available methods for an efficient adjudication of this controversy in the
14 context of settlement; and (g) Class Counsel are qualified to serve as counsel for the proposed
15 Class Representatives and proposed Settlement Class and will adequately protect their
16 interests.
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2.

If the Settlement does not become final for any reason, the fact that the Parties

18 were willing to stipulate to certification of a class as part of the Settlement shall have no
19 bearing on, and will not be admissible in connection with, the issue of whether a collective
20 action or class in this action should be certified in a non-settlement context. The Court’s findings
21 are
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for
3.

purpose of conditionally certifying a Settlement Class.
The Court now finds on a preliminary basis that the Stipulation of Settlement

23 and Release, attached to the Declaration of Don Springmeyer, Esq. as Exhibit “1” (ECF Doc.
24 419-1), incorporated herein by this reference in full and made a part of this Order Granting
25 Preliminary Approval of Class Settlement, appears to be within the range of reasonableness
26 of a settlement

could ultimately be given final approval by this Court.

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4.

It further appears to the Court on a preliminary basis that: (a) the propos ed

2 Settlement Fund amount is fair and reasonable to the Settlement Class Members when
3 balanced against the probable outcome of further litigation in relation to potential
4 decertification of an FLSA collective action, certification of various state Rule 23 classes,
5 liability issues, damages issues and potential appeals; (b) significant investigation, formal and
6 informal discovery, research, and litigation have been conducted s that counsel for the Parties at
7 this time are able to reasonably evaluate their respective positions; (c) settlement at this time will
8 avoid substantial costs, delay and risks that would be presented by the further prosecution of the
9 litigation; and (d) the proposed settlement has been reached as the result of intensive, serious and
10 non-collusive negotiations between the Parties facilitated by an experienced wage and hour
11 mediator.
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5.

Accordingly, good cause appearing, Plaintiffs’ Motion for Preliminary

13 Approval of FLSA Class Settlement is hereby GRANTED. As a part of preliminary approval, the
14 Court hereby accepts and incorporates by reference the Stipulation of Settlement and Release. For
15 purposes of this Settlement only, the Settlement Class includes:
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a.

Named Plaintiffs, as defined in the Stipulation of Settlement

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b.

Opt-in Plaintiffs and Late Opt-in Plaintiffs, as defined in the Stipulation of

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Settlement and Release
c.

All hourly employees of Defendants employed at Outback Steakhouse

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restaurants located in Illinois from December 24, 2003, through April 11,

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2016, as reflected by Defendants’ records

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d.

All hourly employees of Defendants employed at Outback Steakhouse

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restaurants located in New York from December 24, 2007, through April 11,

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2016, as reflected by Defendants’ records

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e.

All hourly employees of Defendants employed at Outback Steakhouse

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restaurants located in Maryland from December 24, 2010, through April 11,

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2016, as reflected by Defendants’ records

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f.

All hourly employees of Defendants employed at Outback Steakhouse

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restaurants located in

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2011, through April 11, 2016, as reflected by Defendants’ records;
g.

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Ohio or North Carolina from December 24,

All hourly employees of Defendants employed at Outback Steakhouse

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restaurants located in

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September 15, 2012, through April 11, 2016, as reflected by Defendants’

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records; and
h.

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All other hourly employees of Defendants at Outback Steakhouse
restaurants in the United States, from April 11, 2013 to April 11, 2016, as
reflected by Defendants’ records.

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Massachusetts or South Carolina from

6.

The Court further finds that the proposed General Release, Notice of Proposed

12 Class Action Settlement, and Class Action Claim Form attached to the Stipulation of Settlement
13 and Release as Exhibits A, B and C, respectively, fairly, plainly and adequately advise
14 Settlement Class Members of: (a) the pendency of the Class Action (b) preliminary Court
15 approval of the proposed Settlement; (c) the date of the Final Fairness/Approval Hearing; (d) the
16 terms of the proposed Settlement and the benefits available to Settlement Class Members
17 thereunder; (e) the right to make a claim for his or her proportional share of the settlement
18 proceeds and

procedure and deadline for doing so; (f) the right to object to the settlement and

19 procedure and deadline for doing so; (g) the right to request exclusion and procedure and deadline
20 for doing so; and (h) the right to file documentation in support of or in opposition to, and to appear
21 in connection with, said hearing. The Court further finds that the General Release, Notice of
22 Proposed Class Action Settlement, and Class Action Claim Form comport with due process.
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7.

Accordingly, good cause appearing, the Court hereby APPROVES the

24 proposed General Release, Notice of Proposed Class Action Settlement, and Class Acti on
25 Claim Form, subject to certain necessary technical revisions to the Notice of Proposed Class
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1 Action Settlement, as discussed in open court at the hearing on April 11, 2016. An updated
2 version of the Notice of Proposed Class Action Settlement is attached hereto as Exhibit 1.
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8.

The Court finds that the Named Plaintiffs, with the exception of Jeffrey Brown

4 and Kevin Connelley, for whom the Court has granted Class Counsel’s request to withdraw as
5 counsel, and their counsel will fairly and adequately represent the Settlement Class.
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9.

Accordingly, good cause appearing, IT IS HEREBY ORDERED that:
a.

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Plaintiffs Brooke Cardoza, Cody C. Hancock, Michael Yendes, Trevor

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Tullis, Denise Goodlin, Joseph Verrengia, Amy Womack, Valerie Gardner, Alex Nesbitt,

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Daniel Geiger, Rachel Talasko, Wesley Miles, Jennifer Arms, Donald Murphy, Robert

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Lassman, Nicholas Zimmerman, Marlon Blue, Anne Gearo, Dawn Miller, Megan Loveall,

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and Amanda Boharski be appointed as the Class Representatives.
b.

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The law firms of Wolf Rifkin Shapiro Shulman & Rabkin, LLP; Johnson

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Becker, PLLC; Sommers Schwartz, P.C.;

and Levin, Papantonio, Thomas, Mitchell,

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Rafferty & Proctor, P.A. be appointed Class Counsel for the Settlement Class.

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10.

The Court further finds that mailing to the last known address of Settlement

16 Class Members as specifically described within the Stipulation of Settlement and Release,
17 with measures taken for verification of an address set forth therein and ninety (90) days
18 provided to Class Members to respond, constitutes an effective method of notifying
19 Settlement Class Members of their rights with respect to the class action and the settlement.
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11.

Accordingly, IT IS FURTHER ORDERED that:
a.

Rust Consulting be appointed the Claims Administrator to administer

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the settlement of this matter as more specifically set forth in the Stipulation of

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Settlement and Release;

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b.

On or before April 18, 2016, Class Counsel shall provide Defendants and

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the Claims Administrator with the following information for the Opt-In Plaintiffs and the

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Late Opt-In Plaintiffs in the form of an Excel spreadsheet or similar sortable electronic

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format: names (including any known changes to last or first names), mailing address as

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provided to Class Counsel by Defendants in February and April of 2015, last-known

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mailing address, the filing number of the Consent to Join (if applicable), the date of filing

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of the Consent to Join (if applicable).

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c.

On or before May 11, 2016, but subject to the Claims Administrator first

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providing adequate and contractual assurances with respect to confidentiality and data

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security, Defendants shall provide the Claims Administrator with the following

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information for the Settlement Class Members in the form of an Excel spreadsheet or

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similar sortable electronic format: names, last-known mailing addresses from Defendants’

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records, social security numbers,

hours worked during the Applicable Period(s) based

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upon Defendants’ payroll records.

Class Counsel and Named Plaintiffs will not be

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provided the contact information, social security numbers or the hours worked information

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for any Settlement Class Members in connection with this settlement or Settlement

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Agreement. The data provided to the Claims Administrator will remain confidential and

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will not be disclosed to anyone, except as required to applicable tax authorities, pursuant to

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the express written consent of any of the Defendants, or by order of the Court.

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d.

The Notice of Class Action Settlement, as approved by the Court, shall be

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sent by the Claims Administrator to the Settlement Class Members, by First Class Mail (in

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English) to those addresses provided, as soon as practicable but in any event within

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twenty-one (21) days after receipt of their contact information from Defendants.

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Spanish version of the Notice of Class Action Settlement will be available to a Settlement

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Class Members upon request from the Settlement Class Member to the Claims

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Administrator. The Spanish version of the Notice of Class Action Settlement shall reflect

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the same content as the English version attached hereto and will be subject to the mutual

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approval of the Parties.

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e.

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In order to receive a Settlement Payment, Settlement Class Members who

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are not Named Plaintiffs, Opt-In Plaintiffs or Late Opt-In Plaintiffs, as defined in the

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Stipulation of Settlement and Release, must 1) not opt-out and 2) submit a complete and

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executed Claim Form to the Claims Administrator, which must be postmarked before the

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expiration of the Notice Period, which will be ninety days from the first mailing date

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postmarked on the first Notice of Class Action Settlement mailed by the Claims

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Administrator.

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Settlement Class Members unless they opt out. All original Claim Forms shall be sent

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directly to the Claims Administrator at the address indicated on the Claim Form. To be

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valid, a Claim Form must be completed in full including, but not limited to, the portion

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requesting the last four digits of the Settlement Class Member’s Social Security Number,

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and signed without any deletion or amendment of the release language and without any

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deletion or amendment of any other portion of the Claim Form. The Claims Administrator

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will notify any Settlement Class Member from whom it receives a Claim Form that is not

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timely and/or valid. Any disputes regarding the timeliness, validity or effectiveness of a

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Claim Form shall be decided by the Claims Administrator consistent with the Settlement

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Agreement, with input from the Parties if appropriate. If a Settlement Class Member

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submits both a valid Claim Form and a request for exclusion, the Claims Administrator

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shall resolve the inconsistency by treating the conflicting submissions as a valid claim

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submission and will seek rescission from the Settlement Class Member of the request for

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exclusion. In the event that a Settlement Class Member submits both a defective Claim

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Form and a request for exclusion, the Claims Administrator will follow the same procedure

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that it would follow for defective Claim Forms and if the defective Claim Form is timely

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cured by the Settlement Class Member, the Claims Administrator shall treat the submission

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as a valid claim submission. The Claims Administrator will not disclose the identities of

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Settlement Class Members who submit timely and valid requests for exclusion to Class

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Counsel or to any other Settlement Class Member.

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f.

Opt-In Plaintiffs and Late Opt-In Plaintiffs will become Participating

Within seven (7) days after the expiration of the Notice Period, the Claims

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Administrator shall, after making a copy, transmit all originals of the Consent to Join

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portion of the Claim Forms to Class Counsel. Class Counsel will file all Consents to Join

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received from the Claims Administrator, along with all Consents to Join received from the

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Late Opt-In Plaintiffs, with the Court ten (10) court days after receipt of the Consent to

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Join forms from the Claims Administrator. Should the Settlement Agreement not receive

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final approval

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they were never executed or filed.

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g.

consents will be deemed immediately cancelled ab initio, as if

Settlement Class Members, except Named Plaintiffs and any person that has

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ever served as a named plaintiff in this Action, shall be entitled to “opt out” of the

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Settlement Class by submitting a request for exclusion to the Claims Administrator

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containing the information stated in the Notice of Class Action Settlement. To be valid,

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the request for exclusion must (1) include a clear statement of intention to be excluded

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from the settlement; (2) include the full name, address, telephone number, and last four

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digits of the Social Security Number of the Settlement Class Member requesting exclusion;

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(3) be signed by the Settlement Class Member; (4) be returned by U.S. Mail to the Claims

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Administrator at the specified address; and (5) must be postmarked no later than the last

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day of the Notice Period. The date of the postmark on the mailing envelope for any

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request for exclusion shall be the exclusive means used to determine whether the request

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for exclusion has been timely submitted.

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h.

Settlement Class Members who do not opt-out of the Settlement shall be

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entitled to object to the Settlement by filing a written, signed objection with the Court and

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serving the objection on counsel for the Parties. An objection must be signed and state the

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Settlement Class Member’s name, current address and telephone number, the basis for the

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objection, and dates and location of alleged employment for Defendants as an hourly

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employee. The Notice of Objection must be signed by the Settlement Class Member. The

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objection must be filed with the Court and mailed, via First Class U.S. Mail, to counsel for

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the Parties and postmarked no later than the last day of the Notice Period. The postmark

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date of the filing and service of an objection shall be deemed the exclusive means for

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determining that the objection is timely. Such a Class Member may also be heard at the

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Final Approval Hearing if he or she has provided written notice of his or her intention

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to appear at the Final Approval Hearing, which notice is served on Counsel for the

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Parties. Any attorney who intends to represent a Settlement Class Member objecting

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to the Settlement must file a notice of appearance with the Court and serve counsel for

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all Parties no later than the end of the Notice Period. Any Settlement Class Member

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who fails to properly and timely serve an objection shall be foreclosed from objecting

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to the proposed Settlement, unless otherwise ordered by the Court.

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12.

IT IS FURTHER ORDERED that the Final Fairness/Approval Hearing shall be

5 held before the undersigned on November 4, 2016 at 10:30 a.m., in Courtroom 6D of the
6 United States District Court for the District of Nevada, 333 S. Las Vegas Blvd., Las Vegas, NV
7 89101, to consider the fairness, adequacy and reasonableness of the proposed Settlement
8 preliminarily approved by this Order of Preliminary Approval, and to consider the requests
9 for the Class Representatives’ Service Awards, and for Class Counsel’s attorneys’ fees and
10 costs payments.
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13.

IT IS FURTHER ORDERED that Plaintiffs’ motion for final approval of class

12 settlement shall be filed with this Court not later than October 10, 2016.
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14.

IT IS FURTHER ORDERED that Plaintiffs’ motion for attorneys’ fees must

14 be filed at least fourteen days before the deadline for objecting to the settlement , in
15 accordance with In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988 (9th Cir.
16 2010).
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15.

IT IS FURTHER ORDERED that if for any reason the Court does not execute

18 and file an Order Granting Final Approval, the Stipulation of Settlement and Release and the
19 proposed Settlement that is the subject of this Order, and all evidence and proceedings had in
20 connection therewith, shall be without prejudice to the status quo ante rights of the Parties to
21 the litigation, as more specifically set forth in the Stipulation of Settlement and Release, and
22 this Order shall be rendered null and void and shall be vacated.
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16.

IT IS FURTHER ORDERED that pending further order of this Court, all

24 proceedings in this matter except those contemplated herein and in the Stipulation of
25 Settlement and Release are stayed.
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The Court, on its own initiative or pursuant to stipulation or motion practice, may

2 extend any of the deadlines set forth in this Order or adjourn or continue the Final
3 Approval Hearing without further notice to the Class.
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IT IS SO ORDERED.

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6 Dated:
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JENNIFER A. DORSEY
ER A. DORSEY
O
United States District Judge
District
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
BROOKE CARDOZA, et al.,

CASE NO. 2:13-cv-01820-JAD-NJK

Plaintiffs,
v.
BLOOMIN’ BRANDS, INC., a Delaware
Corporation; OSI RESTAURANT PARTNERS,
LLC, a Florida Limited Liability Company;
OUTBACK STEAKHOUSE OF FLORIDA, LLC,
a Florida Limited Liability Company; OS
RESTAURANT SERVICES, LLC, a Florida
Limited Liability Company; and DOES 5 through
100, Inclusive,

NOTICE OF PROPOSED CLASS
ACTION SETTLEMENT AND
FAIRNESS HEARING
REGARDING LAWSUIT
AGAINST DEFENDANTS
BLOOMIN’ BRANDS, INC., OSI
RESTAURANT PARTNERS, LLC,
OUTBACK STEAKHOUSE OF
FLORIDA, LLC, AND OS
RESTAURANT SERVICES, LLC

Defendants.

THIS LEGAL NOTICE MAY AFFECT YOUR RIGHTS, PLEASE READ IT CAREFULLY.
TO:

Plaintiffs;
Individuals who have previously filed a Consent to Sue in this lawsuit (“Opt-In Plaintiffs”);
Individuals who have executed a Consent to Sue for this lawsuit received by Class Counsel (“Late Opt-In Plaintiffs”); and,
The following current and former hourly employees of Bloomin’ Brands, Inc.; OSI Restaurant Partners, LLC; Outback
Steakhouse of Florida, LLC; and OS Restaurant Services, LLC who are or were employed at an Outback Steakhouse restaurant
in the following locations and time periods:
Illinois
New York
Maryland
Ohio/North Carolina
Massachusetts/South Carolina
Other States

December 24, 2003-April 11, 2016
December 24, 2007-April 11, 2016
December 24, 2010-April 11, 2016
December 24, 2011-April 11, 2016
September 15, 2012-April 11, 2016
April 11, 2013-April 11, 2016

The persons to whom this notice is addressed are “Settlement Class Members.” For any Settlement Class Member who is a member of more
than one of the groups above, the longest period applies to that individual for the time actually worked in the corresponding location.
If you are a Settlement Class Member and you worked any hours as an hourly employee during an Applicable Period (as defined in the
Stipulation of Settlement) at a company-owned Outback Steakhouse restaurant, you are entitled to receive money from the Class Action
Settlement described in this Notice. This Notice explains the terms of the proposed Settlement and sets forth the procedures for claiming
your pro rata share of the Net Settlement Amount, or alternatively for objecting to or requesting exclusion from the Settlement.
A.

BACKGROUND INFORMATION

1.

Summary of the Lawsuit

Plaintiffs filed this lawsuit in the U.S. District Court for the District of Nevada on behalf of themselves all others similarly situated against
defendants Bloomin’ Brands, Inc.; OSI Restaurant Partners, LLC; Outback Steakhouse of Florida, LLC; and OS Restaurant Services, LLC
(collectively, “Defendants”) on October 4, 2013. Plaintiffs are current and former hourly employees of Defendants who allege that they
were required to perform work off-the-clock and, therefore, were not paid minimum and/or overtime wages during all or part of their
employment.
Page 1 of 5
NOTICE OF CLASS ACTION SETTLEMENT
Claim Form Must Be Submitted by [INSERT DATE], 2016

Plaintiffs allege they were made to arrive and work prior to the beginning of their work shift, but not allowed to clock in upon arrival;
made to work after the end of their work shift and after clocking out; completed mandatory training sessions online without being paid
for this time; worked promotional events and attended company or restaurant meetings without pay; and have not been paid premium
overtime wages for working more than 40 hours in a given week. Plaintiffs filed the lawsuit individually and on behalf of all other
similarly-situated persons claiming that Defendants violated their rights under the FLSA. The lawsuit seeks back pay plus liquidated
damages equal to the amount of unpaid minimum and/or overtime wages owed under the FLSA.
Defendants deny that they violated the FLSA and claim that hourly employees of Outback Steakhouse restaurants were paid properly
under the FLSA’s minimum-wage and overtime provisions and other applicable laws.
Class Counsel and Counsel for Defendants documented a settlement agreement that was preliminarily approved by Judge Jennifer
Dorsey on April 11, 2016. The Court has not ruled on the merits of Plaintiffs’ Third Amended Complaint.
2.

Why Did I Receive This Notice?

Based upon Plaintiffs’ records of consents to sue filed in this Action as well as Defendants’ business and employment records, which
indicate you are or were employed at a non-franchise Outback Steakhouse restaurant in the United States as an hourly-paid, nonexempt employee at some time during the Applicable Period, as described above, you appear to be a Settlement Class Member.
3.

Benefits to the Settlement Class

Plaintiffs and Defendants disagree as to whether there is any liability, including but not limited to: (1) whether this lawsuit is appropriate
for treatment as a class or collective action; (2) whether the Settlement Class Members are owed any unpaid wage s, compensation,
reimbursement, or penalties; and (3) the amount of wages or penalties owed, if any. Defendants have raised numerous defenses to
Plaintiffs’ claims and those defenses could significantly reduce or even eliminate any liability or damages ow ed to the Settlement Class
Members. Class Counsel has conducted an extensive investigation into the facts of the class action and the Plaintiffs and Settlement
Class Members’ claims, including through formal discovery, informal disclosures between the Par ties, and other investigations
undertaken by counsel for Plaintiffs. Furthermore, the Parties engaged in extensive negotiations and exchange of data, docum ents,
information and mediation with mediator Mark Rudy. As a result, Class Counsel have concluded that the Settlement Agreement is fair,
reasonable, and adequate and is in the best interest of the Settlement Class in light of all known facts and circumstances, i ncluding the
likely damages, risk of significant delay, risk that the Action would not proceed on a collective or class action basis, defenses asserted by
Defendants, and numerous potential appellate issues. The Settlement ends the continued expense of further litigation, the risk and
uncertainty of possible negative future outcomes and attendant delay. The terms of the Settlement were reviewed by the Court and
preliminarily approved as being fair and reasonable to the Settlement Class Members. The Court has not ruled on the merits of Plaintiffs’
Third Amended Complaint.
B.

YOUR RIGHTS AND OPTIONS.

1.

How Do I Make a Claim to Get a Settlement Payment?

If you are an Opt-In Plaintiff or a Late Opt-In Plaintiff, then you do not need to take any further action to make a claim for a settlement
payment.
If you have not previously filed a consent to join this lawsuit or did not execute a consent to join this lawsuit that was previously received
by Class Counsel, to claim your pro rata share of the Settlement Fund, you must sign, date, and return the enclosed Claim Form to the
Claims Administrator postmarked on or before [INSERT DATE], 2016 (90 days after mailing.) You may return your Claim Form to the
Claims Administrator at the following address: OUTBACK STEAKHOUSE/BLOOMIN’ BRANDS, Claims Administrator, c/o Rust Consulting,
Inc., 777 S. Figueroa Street, Suite 4600, Los Angeles, CA 90017.
2.

Right to Object

Any Settlement Class Member who has not opted out may file a written objection with the Court regarding the final approval of the
proposed settlement, including Class Counsel’s motion for attorneys’ fees and costs, by filing a copy of your objection and any supporting
briefs or other materials with the Court and mailing, via First Class U.S. Mail, copies to the counsel below, and post marked no later than
[INSERT DATE].

Page 2 of 5
NOTICE OF CLASS ACTION SETTLEMENT
Claim Form Must Be Submitted by [INSERT DATE], 2016

To Plaintiffs and the Settlement Class:
Don Springmeyer, Esq.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP
3556 East Russell Road, 2nd Floor
Las Vegas, Nevada 89120
To Defendants:
Jesse A. Cripps, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Your objection must include (1) the case name and case number shown on page 1; (2) be signed and state your name, current address
and telephone number, (3) state the basis for the objection; and (4) the dates and location of your employment for Defendants as an
hourly employee. If you wish to speak to the Court about your objection at the Fairness Hearing, you must state clearly in your written
objection that it is your intention to appear at the Fairness Hearing. You may enter an appearance th rough your own attorney if you so
desire.
3.

What if I Do Not Return a Claim Form?

If you are not an Opt-In Plaintiff or Late Opt-In Plaintiff and you do not return a timely Claim Form, you will not receive any settlement
payment. Unless you exclude yourself from the Settlement as set forth below, you will be bound by the Released Claims as set forth in
Section D below.
4.

Right to Opt Out

All Settlement Class Members who have not opted to exclude themselves will be bound by the Settleme nt. If you do not want to be a
member of the Settlement Class and be barred by the terms of the Settlement, you may exclude yourself (“opt out”) by sending written
notice of your intent to opt out to: OUTBACK STEAKHOUSE/BLOOMIN’ BRANDS, Claims Administrator, c/o Rust Consulting, Inc., 777 S.
Figueroa Street, Suite 4600, Los Angeles, CA 90017.
The request must (1) include a clear statement of your intention to be excluded from the settlement; (2) include your full name, address,
telephone number, and last four digits of the Social Security Number; (3) be signed and dated; (4) be returned by U.S. Mail to the Claims
Administrator at the specified address; and (5) must be postmarked no later than [INSERT DATE].
Requests for exclusion that are not timely submitted will be disregarded. Any person who opts out will not be entitled to any portion
of the Net Settlement Fund. Do NOT return both a timely Claim Form and a request for exclusion. Should you do so, your request for
exclusion will be deemed to be invalid and your Claim Form will be deemed validly submitted.
C.

TERMS OF THE SETTLEMENT

1.

The Proposed Settlement and Net Settlement Amount

Without admitting any wrongdoing, Defendants have agreed to pay Three Million Dollars ($3,000,000.00) (the “Settlement Fund”) to fully
resolve the claims regarding liability and for Class Counsel’s attorney’s fees in this Class Action. Defendants have also agreed to pay,
independent of the Settlement Fund, the administrative costs associated with providing notice to class members, various efforts to
locate class members, administering payments of claims on behalf of the Settlement Class, and administering payments to Plaintiffs and
Class Counsel.
The Net Settlement Amount may vary if the Court does not approve the requested amount for fees, litigation expenses, or class
representative enhancement payments. No portion of the Settlement Fund will revert to Defendants.
2.

Distributions from the Settlement Amount

Subject to Court approval, distributions will be made from the Settlement Amount as follows:
Page 3 of 5
NOTICE OF CLASS ACTION SETTLEMENT
Claim Form Must Be Submitted by [INSERT DATE], 2016

First, Service Award payments of $5,000.00 to each of the named Plaintiffs who is no longer employed at or resigns his/her
position with Defendants, or $2,500.00 to named Plaintiffs who continue employment with Defendants, in recognition of their
efforts and risks taken in pursuing this lawsuit, and in exchange for a general release and other valuable consideration.
Second, Class Counsel will ask the Court to award at least $1,500,000.00 in attorneys’ fees and up to $450,000.00 in costs. The
Court will determine the actual amount awarded.
Third, payments to the appropriate tax authorities for Defendants’ share of any and all payroll taxes owed in connection with
payments made under this Settlement.
Fourth, the remaining amount (the “Net Settlement Fund”) will be distributed to Settlement Class Members as described below
who submit a timely and valid Claim Form and do not exclude themselves from the Settlement.
3.

Calculation of Your Settlement Share

If you are an Opt-In Plaintiff, a Late Opt-In Plaintiff, or are a Settlement Class Member and you return the enclosed Claim Form signed,
dated, and postmarked on or before [INSERT DATE], 2016, you become a “Participating Settlement Class Member,” entitled to a
settlement payment on the terms described below. Your settlement is calculated by adding (a) the Hours Claim Benefit; and (b) the
Residual Claim Benefit (if any).
The “Hours Claim Benefit” is your pro rata share of the Net Settlement Fund based on (a) the number of hours recorded during the
Applicable Period for the state or states in which you worked as an hourly non-exempt employee (the “Individual Settlement Class
Member Hours”); (b) divided by the aggregate of all Settlement Class Member hours worked during the Applicable Periods as hourly nonexempt employees for Defendants. However, if you who worked at Outback Steakhouse locations in Illinois, the Applicable Period for
calculating the Individual Settlement Claim Member Hours will be limited to the period from December 24, 2010, and ending on the date
of the preliminary approval of the settlement. If you worked at Outback Steakhouse locations in Illinois during the period December 24,
2003, to December 23, 2010, and you are not otherwise entitled to an Hours Claim Benefit under Subsection (i) above, then you are
entitled to an Hours Claim Benefit of five dollars ($5.00).
In the event that the aggregate Hours Claim Benefit claimed by the Participating Settlement Class Members is less than the Net
Settlement Fund, the remainder will constitute the “Residual Claim Benefit Fund,” which will be allocated to Class Counsel an d
Participating Settlement Class Members as follows:
Up to 50% of the Residual Claim Benefit Fund will be distributed to Class Counsel as the “Class Counsel Residual
Payment”; however, the Class Counsel Residual Payment will be capped so that the aggregate of the Court-approved
attorneys’ fees and the Class Counsel Residual Payment does not exceed Class Counsel’s total reasonable attorneys’
fees.
The remainder of the Residual Claim Benefit Fund available (after any Class Counsel Residual Payment), which will be
at least 50% of the Residual Claim Fund, will be distributed to Participating Settlement Class Members on a pro rata
basis based upon (a) Individual Settlement Class Member Hours; (b) divided by the aggregate Hours Claim Benefit.
In the event that you did not record any hours worked in Defendants’ payroll records during the Applicable Period(s) as an hourly nonexempt employee, you will not be entitled to receive any benefit from the Settlement Fund.
4.

Tax Withholdings

1/3 of your settlement payment will be treated as wages that are subject to the normal payroll taxes, withholdings and W-2 reporting.
The remaining 2/3 will be treated as interest and penalties that are not subject to payroll taxes and are subject to IRS Form 1099
reporting. You are solely and exclusively responsible for remitting to state and/or federal taxing authorities any applicable other taxes
due and shall hold Released Parties, Class Counsel and the Claims Administrator harmless for any taxes, penalties, interest, liabilities,
costs and expenses caused by any such taxing authority relating in any way to your tax treatment of payments made to them or failure to
timely or properly pay any taxes owed on your settlement payments.
5.

Attorneys’ Fees and Costs

Class Counsel have not yet received any payment for the services that they have provided in this litigation on behalf of the Plaintiffs and
the Settlement Class, nor have they been reimbursed for their out-of-pocket expenses incurred on behalf of the Settlement Class, which
are expected not to exceed $450,000.00. Class Counsel will file a motion with the Court to approve payment of attorneys’ fees to Class
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NOTICE OF CLASS ACTION SETTLEMENT
Claim Form Must Be Submitted by [INSERT DATE], 2016

Counsel in the amount of $1,500,000.00, plus 50% of any the “Residual Claim Benefit Fund,” plus reimbursement of the litigation costs
they advanced (up to $450,000.00), all of which would be paid to Class Counsel from the $3,000,000.00 Settlement Fund. The attorneys’
fees must be approved by the Court. These fees will serve to compensate Class Counsel for their efforts achieving the settlement for the
benefit of the Settlement Class and for the risk in undertaking this representation on a contingency basis. Class Counsel ha ve already
spent many hours litigating this case, conducting discovery, investigating Settlement Class Members’ claims, and negotiating this
Settlement. You can review Class Counsel’s motion for attorneys’ fees and costs, which will be filed with the Court by October 10, 2016.
D.

RELEASE OF CLAIMS

In exchange for these payments, Plaintiffs and the Settlement Class agree to dismiss and release all claims that were asserted in this
lawsuit against Defendants with prejudice, as well as all claims that could have been asserted in this lawsuit. This means that all
members of the Settlement Class who do not opt out will be barred from seeking, among other things, any other relief on any and all
claims under federal or state law pertaining to minimum wage, off-the-clock work, training, meetings, charity events, overtime, hours of
work, wage statements, record-keeping requirements, tip credits, lactation accommodation, unpaid expense reimbursements,
deductions, or payment of wages, and including without limitation all state and local claims that were asserted or could have been
asserted in the Lawsuit based on the allegations in the pleadings regarding events that occurred or are alleged to have occurred from the
beginning of time until the entry of the Final Approval Order, and will be bound by this release, even if they take no action in response to
this Notice. (You may read a fuller description of the types of claims being release in the Claim Form and in the parties’ S tipulation of
Settlement and Release, as noted below.)
E.

FINAL SETTLEMENT APPROVAL HEARING

The Court will hold a hearing in the United States District Court for the District of Nevada, 333 S. Las Vegas Blvd., Las Vegas, NV
89101, on November 4, 2016 at 10:30 a.m. to decide whether to finally approve the Settlement as fair, reasonable, and adequate.
At that time, the Court also will be asked to approve Class Counsel’s request for attorneys’ fees and reimbursement of litiga tion
costs, and the Service Awards for the Plaintiffs. If you wish to appear at the hearing you must file and mail your written comments
pursuant to the procedure described above, no later than [INSERT DATE]. It is possible that the hearing date or time will be
changed, so you should check the Court’s calendar before attending, if you plan to attend. If you mail written comments, it is not
necessary for you to appear at this hearing.
The pleadings and other documents in this lawsuit may be examined during regular business hours at the Office of the Clerk , 333 S.
Las Vegas Blvd., Las Vegas, NV 89101. Certain pleadings—including the Stipulation of Settlement Release, which sets forth the full
terms of the Settlement, and Class Counsel’s motion for attorneys’ fees and costs, may also be examined by visiting the Claims
Administrator’s website at [INSERT].
This notice has been reviewed and approved by the United States District Court for the District of Nevada. If you have any
questions regarding this lawsuit, how it affects your rights, or how to file a claim, please contact OUTBACK STEAKHOUSE/BLOOMIN’
BRANDS, Claims Administrator, c/o Rust Consulting, Inc., 777 S. Figueroa Street, Suite 4600, Los Angeles, CA 90017 or Class counsel:
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP
3556 East Russell Road, 2nd Floor
Las Vegas, Nevada 89120
Phone: [phone]
Fax: [phone]
Email: [e-mail]
http://www.wrslawyers.com/

Sommers Schwartz, P.C.
2000 Town Center, Suite 900
Southfield, Michigan 48075
Phone: [phone]
http://www.sommerspc.com/

Johnson Becker, PLLC
33 South Sixth Street, Suite 4530
Minneapolis, Minnesota 55402
Phone: [phone]
Fax: [phone]
http://www.johnsonbecker.com/

Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.
316 South Baylen Street, Suite 600
Pensacola, Florida 32502
Phone: [phone]
Fax: [phone]
http://www.levinlaw.com

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NOTICE OF CLASS ACTION SETTLEMENT
Claim Form Must Be Submitted by [INSERT DATE], 2016