Tang et al v. Wynn Las Vegas, LLC

Filing 73

ORDER granting 65 MOTION TO APPROVE SETTLEMENT OF FAIR LABOR STANDARDS ACT CLAIMS and GRANTING IN PART 66 Motion to be Relieved as Counsel for non-settling plaintiffs. Signed by Judge Andrew P. Gordon on 3/26/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:18-cv-00891-APG-DJA Document 73 Filed 03/26/21 Page 1 of 21

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THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email: [e-mail]; www.thiermanbuck.comt

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LEON GREENBERG, P.C.
Leon Greenberg
2965 South Jones Boulevard #E-3
Las Vegas, NV 89146
Tel: [phone]
Attorneys for Plaintiffs

THIERMAN BUCK LLP
Mark R. Thierman #8285
Joshua Buck #12187
7287 Lakeside Drive
Reno, NV 89511
Tel: [phone]

KAMER ZUCKER ABBOTT
Gregory J. Kamer
#0270
R.
Todd Creer #10016
Nicole A. Young
#13423
3000 West Charleston Boulevard, Suite 3
Las Vegas, Nevada 89102-1990
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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QUY NGOC TANG, et al.
Plaintiffs,

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ORDER

vs.
WYNN LAS VEGAS, LLC, et al.
Defendants.
JOSEPH CESARZ, et al.

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Case No. 2:18-cv-00891-APG-DJA

Case No. 2:13-cv-00109-APG-DJA

Plaintiffs,
v.
WYNN LAS VEGAS, LLC, et al.
Defendants.

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On January 14, 2021, this Court considered the parties' joint motion for an Order granting

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approval of a proposed collective action settlement (the "Settlement") under the Fair Labor

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Standards Act (“FLSA”) of both of these cases and the motion of plaintiffs' counsel to be relieved
- 1 ORDER

Case 2:18-cv-00891-APG-DJA Document 73 Filed 03/26/21 Page 2 of 21

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as the attorney for any plaintiffs that decline to participate in the proposed Settlement. The

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Court had previously on January 13, 2021 consolidated these two cases. Doc. 69.

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has also received on January 20, 2021 the mandate of the United States Court of Appeals for the

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Ninth Circuit regarding case 13-cv-00109 and returning jurisdiction over the same to this Court

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for the purposes of considering whether approval should be granted to the proposed Settlement.

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The Court

Having fully considered the motions, comments of counsel, and all supporting legal authorities,
and the Joint Supplement of the parties in support of the motion for approval of the Settlement
dated March 17, 2021, the Court finds and Orders as follows:
Findings as to the Proposed Settlement

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The Court finds the proposed Settlement is a fair and reasonable resolution of a

bona fide dispute arising under the Fair Labor Standards Act (the "FLSA") for those collective
action members, all of whom are current or former employees of defendant, that elect to
participate in such Settlement.

Those collective action members include the current plaintiffs

in both of these cases and persons who have not asserted claims in either case

The Court finds

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that, as discussed in Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1355-56 (11th Cir.

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1982), the terms of the proposed settlement, as set forth in the motion for approval and as

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modified by the materials submitted with the parties joint supplement in support of the motion

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for approval, represent a reasonable compromise of the disputed issue as to whether the plaintiffs'

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and other collective action members' claims are even subject to coverage by the FLSA.

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vigorous advocacy of the plaintiffs' and other collective action members' claims by their highly

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experienced counsel has included, among other things, the successful pursuit of an appeal in the

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Cesarz case and the filing of a second appeal in that case.

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and the Court finds that the settlement is the result of arms-length negotiations between

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The

There is no evidence of collusion

experienced counsel representing the interests of both sides and with the assistance of Ninth
Circuit Mediator Steve Saltiel.

While the legal basis for the collective action members' claims

in these two cases have important differences, they both arise from the same policy of the
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defendant, a policy the defendant ended in November of 2018 or eight months after the initiation

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of the Tang case.

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Court's conclusion that the proposed compromise of the FLSA claims of the collective action

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members at issue in Cesarz and Tang are fair and reasonable.

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participating plaintiffs and other collective action members to release all of their FLSA claims

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7287 Lakeside Drive
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The dismissal of Cesarz for a second time, and its appeal, also support the

While the settlement requires

arising during the two time periods covered by both cases, the settlement funds have been
apportioned fairly between those two time periods.

The Court finds that apportionment is

reasonable for the reasons set forth in the motion to approve the Settlement and constitutes a fair
and reasonable compromise of the FLSA claims at issue during both time periods.

The Court

also finds the Settlement is fair and reasonable in all other respects, including the service awards
to Quy Ngoc Tang and Joseph Cesarz for the work that they performed on behalf of others, the
attorneys’ fees and costs of Plaintiffs’ counsel, and the proposed fees of the Settlement
Administrator CPT Group

The Court specifically finds that the settlement confers a substantial

benefit to all collective acton members similarly situated to Plaintiffs, considering the strength
of Plaintiffs’ claims and the risk, expense, complexity, and duration of further litigation.
2.

The Court also exercises a more limited role in approving an FLSA collective

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action settlement than when it considers approval of a Federal Rule of Civil Procedure Rule 23

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class action settlement.

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(2013) (“Rule 23 actions are fundamentally different from collective actions under the FLSA.”)

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There are no collective action members who will have their legal rights limited by failing to take

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action in response to the proposed Settlement.

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members may accept or decline the Settlement as each deems best.

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the Settlement and release the defendant from their FLSA claims they may promptly pursue their

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See, Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1529

The persons who are eligible collective action
If they decline to accept

FLSA claims against the defendant in separate litigation without any diminution of their force
or value as a result of the Settlement.
3.

The Settlement further provides the collective action members who are plaintiffs

in either of these two cases may decline to accept the Settlement and recommence their FLSA
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claims against defendant with no erosion of the statute of limitations applicable to those claims

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as long as they do so within thirty (30) days of this Court's entry of a final judgment.

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any plaintiffs that decline to accept the Settlement would have to initiate such separate

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litigation(s), as the Settlement requires that both cases be dismissed by a final judgment, that

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requirement does not negate the Court's finding that the Settlement is fair and reasonable under

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7287 Lakeside Drive
Reno, NV 89511
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While

the FLSA and warrants approval. As discussed in the submission of plaintiffs' counsel, (ECF
65, Ex. 4,

¶

8) none of the plaintiffs in either case have paid anything to plaintiffs' counsel

or paid any case expenses such as a filing fee.

None have been required to participate in

discovery or expend any effort in the prosecution of this case.

The dismissal of their FLSA

claims against the defendant in these cases, with a right to recommence the same within a
specified time period, does not penalize any of the plaintiffs or cause them to forfeit any
advantage they have secured in either case or dissipate any investment of time, money or effort
they have made in either case.
Findings as to Plaintiffs' Counsel's Motion to be Relieved for Non-Settling Plaintiffs
4.

Plaintiffs' counsel's motion to be relieved as attorney for any plaintiffs who

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decline to accept the Settlement is governed by Local Rule 11-6 (b) requiring an attorney seeking

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to withdraw to file a motion and "serve it on the affected client."

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the client "…may, but is not required to, file a response to the attorney's motion within 14 days

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of the filing of the motion, unless the court orders otherwise." It is also governed by Local Rule

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11-7 (a) that requires attorneys practicing in this Court to adhere to the Model Rules of

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Professional Conduct as adopted by the Nevada Supreme Court. One such relevant rule is the

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Nevada Rules of Professional Conduct Rule 1.16(b) containing a non-exclusive list of reasons

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that may constitute an appropriate basis for an attorney to withdraw from representing a client.

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Such rule also provides that

It provides such a withdrawal may be appropriate where it "can be accomplished without material
adverse effect on the interests of the client" as well as when the client insists on a course of action
"with which the lawyer has a fundamental disagreement."

Another germane rule is Nevada

Rules of Professional Conduct Rule 1.16(a)(1) requiring an attorney to withdraw from
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representation when that "representation will result in violation of the Rules of Professional

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Conduct."

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5.

The Court has found the proposed Settlement will not have a negative material

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impact on the legal rights possessed by any plaintiffs who decline to accept the Settlement.

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Plaintiffs' counsel has exercised their professional judgment in recommending the Settlement to

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Reno, NV 89511
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their clients and fundamentally disagree with any of their clients that may choose to reject the
Settlement and continue to litigate their claims. Given this circumstance, plaintiffs' counsels'
request to be relieved as attorney for any non-settling plaintiffs squarely falls within the
permissible reasons for the Court to grant such withdrawal as provided for in Nevada Rules of
Professional Conduct Rule 1.16(b)
6.

One of the conditions of the Settlement is that these cases proceed, in their entirety,

to a final judgment and conclusion. There is no impropriety in that term of the Settlement and
in the plaintiffs' counsel recommending the Settlement to their clients with that term.
Plaintiffs' counsel is not agreeing to restrict their ability to represent non-settling plaintiffs on
their claims in violation of Nevada Rules of Professional Conduct Rule 5.6.
7.

The Settlement's requirement that this case be concluded also creates a situation

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that may require plaintiffs' counsel in compliance with Nevada Rules of Professional Conduct

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Rule 1.16(a)(1) to withdraw from representing plaintiffs who decline to accept the Settlement.

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Plaintiffs' counsel is charged with a duty to independently represent the individual interests of

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each of the FLSA "opt in" plaintiffs in each case.

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reject any settlement of their individual claims and instruct their counsel (who represents all of

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those plaintiffs) to take their claims to trial.

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named plaintiffs and plaintiffs' counsel anticipates that a strong majority of their clients, the

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Each of those plaintiffs have the right to

The Settlement has been agreed to by the two

current plaintiffs in this case, will accept the Settlement.

Yet if even one of those over 500

"opt in" plaintiffs rejects the Settlement, and insists that plaintiffs' counsel proceed to trial in this
case on their individual claim, the Settlement would be void as to all of the plaintiffs as the "final
judgment in its entirety" condition of the Settlement will be unattainable.
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This may pose an

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irreconcilable conflict of interest for plaintiffs' counsel under Nevada Rules of Professional

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Conduct Rule 1.7(a)(1) directing that an attorney "shall not represent a client" when the

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"representation of one client will be directly adverse to another client."

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instruction from one of the plaintiffs in this case to proceed to trial (an instruction such a plaintiff

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could properly make) plaintiffs' counsel would be acting in a directly adverse manner to all of

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7287 Lakeside Drive
Reno, NV 89511
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Email: [e-mail]; www.thiermanbuck.comt

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By following such an

their other clients who have accepted the Settlement and would be denied that Settlement as a
result of such action.

Such a conflict of interest would preclude continued representation of

all of those clients under Nevada Rules of Professional Conduct Rule 1.7(a)(1) and would in turn
trigger the mandatory withdrawal of plaintiffs' counsel under Rule 1.16(a)(1).
8.

The Court's foregoing findings on plaintiffs' counsel's motion to be relieved as

counsel for the non-settling plaintiffs cannot, at this stage of this case, result in an Order directing
that relief.

Local Rule 11-6 (b) requires such a motion be served on each plaintiff and each

plaintiff be given an opportunity to respond to that motion and contemplates giving the Court
control over that service and response process.

As a result, plaintiffs' counsel's motion seeks

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to have the Court approve a form of proposed motion to be relieved as counsel that will be mailed

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out to all of the FLSA "opt in" plaintiffs in both cases with the Settlement notice and provide an

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opportunity for responses to that motion.

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a disposition on a future date after that opportunity for response by the plaintiffs has transpired.

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The Court finds that process is fair and reasonable and complies with Local Rule 11-6 (b).

Such motion would then come before the Court for

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In compliance with the foregoing findings, the Court hereby Orders that:

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The proposed Settlement is approved as a fair and reasonable compromise and settlement

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of Fair Labor Standards Act claims for such plaintiffs and the other collective action members

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who agree to accept it.

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The Court approves in substantially the form annexed as Exhibit "1"

the Notice and Settlement Offer and Release forms for the proposed Settlement that will be
mailed no later than April 16, 2021 to the plaintiffs and other collective action members.
The plaintiffs' counsel's motion to be relieved as attorney for all non-settling plaintiffs is
partially granted to the extent of directing such motion be served by mail no later than
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April 16, 2021 upon all of the plaintiffs eligible to participate in the Settlement substantially in

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the form annexed to this Order as Exhibit "2."

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shall

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with any reply to be served and filed seven days thereafter.

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7287 Lakeside Drive
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be

serve

and

filed

Any responses by such plaintiffs to that motion
no

later

than

going to be held) approve and enter an Order substantially in the form of Exhibit "B" to the
parties supplement of March 17, 2021 in support of the joint motion for approval of the
Settlement that enters a final judgment dismissing this case as provided for by the Settlement
and approving a final settlement of the Fair Labor Standards Act claims of the plaintiffs and the
other collective action members who agree to participate in the Settlement.

That Order shall

also address and resolve plaintiffs' counsel's motion to be relieved as attorney for any non-settling
plaintiffs.

IT IS SO ORDERED.

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either with or without a further hearing (the Court will advise all counsel if such a hearing is

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7,

If the Settlement is not voided pursuant to its terms the Court shall on July 21, 2021

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May

Dated:

March 26, 2021
Honorable Andrew Gordon
District Court Judge

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Case 2:18-cv-00891-APG-DJA Document 73 Filed 03/26/21 Page 8 of 21

EXHIBIT “1”

EXHIBIT “1”

Case 2:18-cv-00891-APG-DJA Document 73 Filed 03/26/21 Page 9 of 21

NOTICE OF SETTLEMENT
IN WYNN TIP POOLING CASES
Re: Cesarz, et al. v. Wynn Las Vegas, LLC, et al., United States District Court for the District of
Nevada, Case No. 2:13-cv-109-RCJ-CWH, and Tang, et al. v. Wynn Las Vegas, LLC, et al., United
States District Court for the District of Nevada, Case No. 2:18-cv-891-APG-GWF
YOUR LEGAL RIGHTS WILL BE AFFECTED WHETHER YOU ACT OR DO NOT ACT.
PLEASE READ THIS NOTICE CAREFULLY.
I.

SUMMARY OF THE SETTLEMENT

Settlement has been reached in the two related tip sharing cases against the Wynn Las Vegas, LLC (Wynn)
and its co-Defendants: Cesarz, et al. v. Wynn Las Vegas, LLC, et al., United States District Court for the
District of Nevada, Case No. 2:13-cv-109-RCJ-CWH (“Cesarz Action”), and Tang, et al. v. Wynn Las Vegas,
LLC, et al., United States District Court for the District of Nevada, Case No. 2:18-cv-891-APG-GWF (“Tang
Action”).
The Total Settlement Amount is $5.6 million. The Net Settlement Amount available for distribution is
[insert], which is the Total Settlement Amount of $5.6 million minus (i) attorneys’ fees of $1.4 million, (ii)
actual litigation costs of up to $10,000, (iii) Service Awards to Lead Plaintiffs Joseph Cesarz and Quy Ngoc
Tang of $10,000 each, and (iv) Settlement Administrator fees of [insert]. This Settlement was reached with
the assistance of a mediator with the United States Court of Appeals for the Ninth Circuit.

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YOU ARE RECEIVING THIS NOTICE BECAUSE YOU HAVE EITHER PREVIOUSLY
AGREED TO BE A PLAINTIFF AND FILED A CLAIM IN THE CESARZ AND/OR TANG
ACTIONS OR ARE INCLUDED AS A COLLECTIVE ACTION MEMBER IN THE PROPOSED
SETTLEMENT AND ARE ENTITLED TO PARTICIPATE IN THAT SETTLEMENT
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:
A.
Accept the Settlement
Within __ Days of _____
Your minimum payment from
the proposed Settlement:
$«Est.SettAmt».

You will receive a cash payment from the Settlement, provided that
you sign and submit the enclosed Settlement Offer and Release
Form no later than 60-days from the mailing of this Notice. By
signing the enclose Settlement Offer and Release Form you will
receive a cash payment and you will be giving up your wage-and
hour claims against the Wynn and any claims regarding the tip
pool.

B.

Reject the Settlement

You will not receive a cash payment from the Settlement if you do
not sign and submit the enclosed Settlement Offer and Release
Form and you will not give up your claims against the Wynn.
However, if you want to pursue further legal action against the
Wynn, you will need to take further action on your own behalf and
cannot rely upon the attorneys representing the dealers in this case
to pursue any claim against the Wynn for you. Your legal claims
will be put on hold (stayed) for 30 days after the Effective Date
(defined below) of the Settlement; after 30 days, the statute of
limitations will begin to run.

C.

Do Nothing

You will not receive a cash payment from the Settlement if you
take no affirmative action—i.e,. do nothing. You will not release
any of your claims against the Wynn but you must take further
legal action on your own behalf and at your own expense if you
wish to pursue your claim. You must do so within 30 days after the
Effective Date (defined below) of the Settlement.
You may, however, claim your allotted Settlement cash payment
up to 365 days after the Effective Date by signing and submitting
the enclosed Settlement Offer and Release Form.

II.

BACKGROUND ABOUT THE CESARZ AND TANG ACTIONS AND CLAIMS

On January 21, 2013, Joseph Cesarz and Quy Ngoc Tang filed a putative opt-in collective action complaint on
behalf of themselves and other similarly situated dealers, styled Cesarz v. Wynn Las Vegas, LLC, 2:13-cv00109, against Defendant Wynn Las Vegas, LLC (“Wynn” or “Defendant”), alleging that Wynn violated the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) because boxmen and Casino Service Team Leads
(“CSTLs”) were included in the tip pool. In bringing the suit, Plaintiffs relied exclusively on 2011 regulations
issued by the United States Department of Labor regarding tip pooling. In 2016, a divided panel of the Ninth
Circuit reversed the district court’s first order dismissing the Appellants’ complaint. Or. Rest. & Lodging Ass’n
v. Perez (“ORLA”), 816 F.3d 1080 (9th Cir. 2016). Writing for the majority, Judge Pregerson deferred to the
2011 Department of Labor regulations. While Wynn’s petition for a writ of certiorari to the Supreme Court
was pending, Congress amended the FLSA and stated that the 2011 regulations would have “no further force

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or effect.” 2018 Appropriations Act, Div. S § 1201(c). The Parties dispute the meaning of that provision. But
the district court agreed with Defendant, ruling that entry of any judgment against Wynn would give
impermissible “further force or effect” to the 2011 regulations and dismissed the lawsuit for the second time.
Cesarz v. Wynn Las Vegas LLC, No. 13- cv-1009, 2019 WL 237389, at *1 (D. Nev. Jan. 13, 2019). Plaintiffs
have filed a Notice of Appeal regarding that decision. See Case No. 19-15166 (9th Cir.). The appeal in the
Cesarz Action is currently stayed pending this settlement. (During the pendency of their first appeal, Plaintiffs
filed a separate action, styled Doe v. Wynn Las Vegas, LLC, 2:16-cv-00482-JCM-NJK, which was consolidated
with the Cesarz Action.)
On May 16, 2018, Quy Ngoc Tang and Joseph Cesarz filed the Tang putative opt-in collective action complaint
on behalf of themselves and other similarly situated dealers, styled Tang v. Wynn Las Vegas, LLC, 2:18-cv00891, against Defendant Wynn Las Vegas, LLC, alleging that Wynn violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b) (as amended by the 2018 Appropriations Act as effective on March 23, 2018)
because boxmen and Casino Service Team Leads (“CSTLs”) were included in the tip pool. The case was
stayed pending settlement discussions.
On May 9, 2019, the Parties engaged in mediation with Ninth Circuit mediator Steven Saltiel. The Parties
reached a settlement-in-principle, executed a Memorandum of Understanding, and subsequently entered into
this proposed Settlement. On DATE the United States District Court for the District of Nevada, in the Tang
Action entered an Order approving the Settlement's terms as fair and reasonable and finding that the Settlement
should proceed. This means unless the Settlement is voided by the Wynn as provided for infra at III(F) the
Settlement will become binding and a final judgment will be entered dismissing the Tang Action pursuant to
the Settlement's terms.
III.

DETAILED SETTLEMENT TERMS

This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please
see the settlement agreement available at [insert Settlement Administrator’s website], by contacting counsel at
[insert], by accessing the Court docket in this case, for a fee, through the Court’s Public Access to Court
Electronic Records (PACER) system at https://ecf.nvd.uscourts.gov/cgi-bin/login.pl, or by visiting the office
of the Clerk of the Court for the United States District Court for the District of Nevada, located at 333 S. Las
Vegas Blvd, Las Vegas, Nevada, 89101, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding
Court holidays.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE
ABOUT THIS SETTLEMENT.
A.
Total Settlement Amount. Defendant has agreed to pay a maximum amount of $5,600,000
(the “Total Settlement Amount”) to fund the Settlement. The Total Settlement Amount includes (i) the payment
of all cash payments to plaintiffs and collective action members, (ii) attorneys’ fees of $1,400,00 (which is 25%
of the Total Settlement Amount) for all the work performed on this case and for prosecuting this action on a
contingency fee basis (that is, without being paid any money to date), (iii) litigation costs that have been paid
out of pocket by the attorneys of up to $10,000, (iv) Service Awards to Lead Plaintiffs Joseph Cesarz and Quy
Ngoc Tang of $10,000 each for the risks and all the work that they performed on behalf of all plaintiffs, and
(v) Settlement Administrator fees of [insert].
B.
Net Settlement Amount. The “Net Settlement Amount” available for distribution to all
plaintiffs and collective action members is the Total Settlement Amount minus (i) attorneys’ fees, (ii) actual
litigation costs, (iii) Service Awards to Lead Plaintiffs Joseph Cesarz and Quy Ngoc Tang, and (iv) Settlement
Administrator fees of [insert]. The estimated Net Settlement Amount available for distribution to plaintiffs is
[insert amount].

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C.
Calculation of Settlement Payments. The Net Settlement Amount available for distribution to
plaintiffs will be allocated as follows:
(1)
Allocation between Cesarz and Tang Claims. Seventy percent
(70%) of the Net Settlement Amount will be allocated the Tang Claims
and thirty percent (30%) of the Net Settlement Amount will be allocated
to the Cesarz Claims. The estimated Net Settlement Amount allocated to
the Tang Claims is [insert amount]. The estimated Net Settlement Amount
allocated to the Cesarz Claims is [insert amount]. This respective
allocation is based upon the procedural posture of the cases and Plaintiffs’
Counsels’ relative assessment of the strengths and weaknesses of each
group of Claims; and
(2)
Pro Rata Distribution based on Tips. Each plaintiff’s
settlement award will be based on pro rata assessment of tips received by
each plaintiff, for the Cesarz claims as adjusted for each plaintiff's
applicable relevant time period, in comparison to the total amount of tips
received by all plaintiffs during the relevant time period applicable to each
group of Claims. The relevant time period in the Tang Claims is March
23, 2018 to November 11, 2018 For the Cesarz Claims the relevant time
period is the date three years prior to the date you filed with the Court a
written consent to join the Cesarz Action but not earlier than May 1, 2011
and ending on March 22, 2018. If you have not previously filed a consent
to join the Cesarz Action the relevant time period that will apply to your
Cesarz Claim will be January 31, 2017 through March 22, 2018. Some
plaintiffs and collective action members worked during the time period of
both groups of Claims and will receive two (2) separate settlement awards.
YOUR ESTIMATED SETTLEMENT SHARE:
Tang Claims: Defendant’s records reflect that you received [insert
percentage] of the total tips distributed to Wynn table games dealers
during the Tang time period. Based on this information, your estimated
Settlement Share for the Tang Claims is $«Est.SettAmt».
Cesarz Claims: Defendant’s records reflect that you received [insert
percentage] of the total tips distributed to Wynn table games dealers during
the Cesarz time period as limited by the Cesarz claims calculated for all
Cesarz plaintiffs and collective action members Based on this information,
your estimated Settlement Share for the Cesarz Claims is $«Est.SettAmt».
D.
Release of Claims. All plaintiffs and collective action members (referred to in the rest of this
paragraph as "Plaintiff") who accept the Settlement will forever release and discharge Defendants from any
and all claims that arose out of the Cesarz and/or Tang lawsuit or were proposed as part of either case.
Specifically, in consideration of the payments provided for in this Settlement Offer and Release, the sufficiency
of which is hereby acknowledged, Plaintiff, on behalf of Plaintiff and Plaintiff’s respective heirs, estates,
representatives, successors, assigns and agents, hereby expressly and unconditionally waives any appeal from
a Court order approving this settlement and dismissing the Actions with prejudice, and releases and forever
discharges Defendant and all of the Released Parties from any and all wage and hour claims and causes of
action that are based on the factual allegations in the complaints in the Actions, known or unknown, that have

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arisen or could have arisen at any time prior to the date that this Settlement Offer and Release is executed,
including, but not limited to (i) any and all claims for unpaid minimum and/or overtime wages, fines, penalties,
liquidated damages, and attorneys’ fees and expenses; and (ii) any and all wage and hour claims that Plaintiff
asserted or could have asserted in the Actions based on the tip pool(s) at the Wynn and/or Encore, whether
under federal, state, local or other laws or ordinances, or pursuant to contract, tort, or equitable theories.
E.
Tax Matters. Neither Counsel plaintiffs nor Defendant’s counsel intend anything contained in
this Settlement to constitute advice regarding taxes or taxability. You may wish to consult a tax advisor
concerning the tax consequences of the payments received under the Settlement.
F.
Conditions of Settlement. Defendants retain the right to void, at its sole discretion, this
Settlement if the net amount allocated to the Rejecting Plaintiffs and Non-Responding Plaintiffs totals
$280,000 or more. This Settlement is further conditioned upon the Court entering an order approving the
Settlement.

IV.

G.
EFFECTIVE DATE OF SETTLEMENT. THE SETTLEMENT WILL BE
EFFECTIVE ONLY AFTER THE COURT HAS ENTERED AN ORDER AND FINAL
JUDGMENT OF DISMISSAL. FOR FULL DETAILS REGARDING THE EFFECTIVE DATE
OF THE SETTLEMENT, OR ANY OTHER TERMS, GO TO THE SETTLEMENT
ADMINISTRATOR’S WEBSITE AT <WEBSITE>.YOUR LEGAL RIGHTS AND
OPTIONS

A.
Accept the Settlement. If you wish to accept the Settlement and receive your cash payment
on the schedule provided by the Settlement Agreement, you must sign and submit the enclosed Settlement
Offer and Release Form no later than 60-days from the mailing of this Notice. (Plaintiffs and collective
action members who sign and return their Settlement Offer and Release form within the Response Period will
be referred to as “Accepting Plaintiffs.”) By signing the enclose Settlement Offer and Release Form you will
receive a cash payment and you will be giving up your claims against the Wynn (see Section III.D., “Release
of Claims”, above).
B.
Reject the Settlement. If you do not wish to participate in the Settlement and receive your
cash payment, you may reject the settlement by sending a written notice of rejection to the Settlement
Administrator no later than 60-days from the mailing of this Notice. (Plaintiffs and collective action
members who communicated their rejection of the settlement in writing to the Settlement Administrator within
the Response Period are referred to herein as “Rejecting Plaintiffs.”). You may also reject the settlement, with
a right to later claim your settlement share up until 365 days after the Effective Date, by doing nothing, as
explained below.
By rejecting the Settlement, you do not release your legal claims against Defendants but you must take
further legal action on your own behalf and at your own expense if you wish to pursue your claim. The
attorneys who have represented the dealers in the Tang and Cesarz Actions do not believe it is in the interests
of any of the dealers to reject the settlement and are advising the dealers to not reject the settlement. Those
attorneys will not act as your attorneys on any such legal claims you bring against Defendants if you reject the
settlement. In addition those attorneys will be asking the Court to issue an Order relieving them as your
attorney in the Tang Action if you reject the settlement and have previously entered into a retainer agreement
with them. If you want to reject the settlement and continue to pursue the claims raised in the Tang and/or
Cesarz Actions you must prosecute your claims on your own or find separate legal counsel.
You must take further action immediately if you wish to preserve your claim. You will be dismissed
from the Tang Action (if you previously joined that Action) and will be responsible for filing your own case.

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The Cesarz Action has previously been dismissed by the Court. Your legal claims, if you previously made
any in the Cesarz and/or Tang actions will be put on hold (stayed) for only 30 days after the Effective Date
(defined below) of the Settlement. Once that 30-day period expires, your ability to pursue legal claims against
the Wynn over its tip pooling policy will be limited in whole or in part by operation of the statute of limitations.
You should also understand that the Cesarz Action and the claims covered by the Cesarz Action were
dismissed by the district court and appealed but that appeal was never ruled upon. If you bring a new case
involving the same claims dismissed in the Cesarz Action under the terms of the settlement those claims are
not prevented from proceeding against Defendant under the legal doctrines of res judicata or collateral
estoppel but Defendants do have the right to ask the court in any such new case to take notice of that decision
in the Cesarz Action and adopt its result.
C.
Do Nothing. If you do not take any affirmative action (accept or reject the Settlement) within
the 60-day deadline for responding to this Notice, you will be deemed a “Non-Responding Plaintiff.” You
will be treated as a “Rejecting Plaintiff” so that you will not receive a cash payment but you will not release
any your claims against Defendants. In addition, if you have previously entered into a retainer agreement with
plaintiffs' counsel those attorneys will be asking the Court to issue an Order relieving them as your attorney in
the Tang Action if you become a Non-Responding Plaintiff. However, Non-Responding Plaintiffs may claim
their allocated share of the settlement up to a period of 365 days after the Effective Date if they do not file any
other lawsuit against defendant concerning the claims raised in Cesarz and Tang, by signing the Settlement
Offer and Release form and returning it to the Settlement Administrator.
V.

PLAINTIFF COUNSELS’ RECOMMENDATION

Counsel for plaintiffs have been litigating against the Wynn Casino over its tip-pooling policy since 2006 in
the Nevada State Court, the Federal Court, and before the Nevada Labor Commissioner. They have not
succeeded in any of those cases and the Wynn has now stopped its “tip-pooling” policy and offered a settlement
to the dealers. It is the opinion of plaintiffs’ counsel that the proposed Settlement is a fair, adequate, and
reasonable resolution of the hard-fought dispute and that the Settlement should be accepted.
A.
Settlement of the Cesarz Claims is Fair, Adequate, and Reasonable. The Cesarz Action is
currently dismissed and on appeal. The Judge in the Cesarz Action has twice dismissed the case for failure to
state a valid legal claim against Defendants. The Judge most recently stated that the United States Department
of Labor’s (DOL) 2011 Tip Pooling Regulations had been invalidated by the 2018 amendments to the Fair
Labor Standards Act (FLSA). Since the Cesarz Claims are based on the 2011 Regulations, the Judge found
that the plaintiffs could not pursue their claim. Even if the Judge’s decision were reversed, Defendants believe
they have very strong defenses to the Cesarz, Claims both on the law and the facts, if they do not prevail
outright on the now second appeal in Cesarz. Plaintiffs’ counsel, having evaluated the issues, and while
believing the Cesarz case may succeed for the plaintiffs, agrees that defendants have significant defenses to
the Cesarz Claims and whether the plaintiffs will prevail on the Cesarz Claims is far from certain. It is
unknown whether the appeal in Cesarz will be successful and securing a reversal on appeal in Cesarz for the
plaintiffs, for the second time, does not mean the plaintiffs will be successful in collecting any money in the
Cesarz Action. Plaintiffs’ counsel believes it is fair and reasonable, under all of the relevant circumstances,
for the plaintiffs in Cesarz and the other collective action members to accept a settlement of their Cesarz
Claims for $1,680,000, the portion of the proposed Settlement allocated to those claims and recommend they
do so. In making that recommendation, plaintiffs' counsel acknowledges that payment is for a minority of the
money alleged to be owed to the plaintiffs and the other collective action members on the Cesarz Claims but
believe that settlement is reasonable and should be accepted based upon the relevant facts and circumstances.
B.
Settlement of the Tang Action and Claims is Fair, Adequate, and Reasonable. Congress
passed an amendment to the FLSA in 2018, which states that “An employer may not keep tips received by its
employees for any purposes, including allowing managers or supervisors to keep any portion of employees’

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tips, regardless of whether or not the employer takes a tip credit.” The key legal question presented in Tang is
what type of employee would be considered a “manager or supervisor.” The DOL is charged with developing
regulations to define who will be considered a “manager or supervisor” under the new law and has taken the
position that a "manager or supervisor" is only prohibited from participating in a tip pool if they hire or fire
other employees or have significant involvement in making hiring or firing or other decisions about employees.
If the DOL interpretation of what it means to be a “manager or supervisor” is accepted by the courts the Wynn
insists that the Tang case will also be unsuccessful for the dealers because the CSTLs and boxmen are not
“managers or supervisors.” Plaintiffs’ counsel does not agree with that argument by the Wynn, but agrees that
is a serious argument and it is unknown how that argument would be ruled on by the courts. Assuming that
plaintiffs could prevail on the merits of their claim under the new law, the total amount of tips Wynn took from
the dealers’ tip pool from March 23, 2018 to November 11, 2018 was $3,879,951. Seventy (70%) of the Total
Settlement Amount, or $3,920,000, has been allocated to pay the Tang Claims . Given the uncertainty of the
new law and the development of new regulations that will interpret the new law, Counsel believe that the
Settlement is a fair, adequate, and reasonable resolution of the Tang Action and Claims and recommend that
the Settlement be accepted.
VI.

COURT DISMISSAL OF CASE

So long as Defendant does not void the Settlement on account of the amount of persons who do not accept or
who do not respond to the Settlement, the Court will issue an Order directing that a final judgment be entered
dismissing the Tang action and that the Settlement's terms become effective. The Court will also determine
whether to relieve the attorneys prosecuting the Tang Action from any further responsibility for the legal
claims possessed by those dealers who reject the settlement or are Non-Responding Plaintiffs and who have
previously entered into retainer agreements with those attorneys. The Court may take this action with or
without a hearing. You may check the settlement website identified in Section III above or the Court’s PACER
site to confirm whether a hearing has been scheduled. You are not required to attend any hearing, although
any plaintiff or collective action member is welcome to attend any hearing.
VII.

MORE INFORMATION ABOUT THE SETTLEMENT

You may call the Settlement Administrator at <phone> or write to Cesarz/Tang v. Wynn Settlement
Administrator, c/o CPT Group <address>; or contact plaintiffs’ Counsel at:
LEON GREENBERG, P.C.
Leon Greenberg
2965 South Jones Boulevard #E-3
Las Vegas, NV 89146
Tel: [phone] / Fax: [phone]
Email:

THIERMAN BUCK LLP
Mark Thierman
Joshua Buck
Leah Jones
7287 Lakeside Drive
Reno, NV 89511
Tel: [phone] / Fax: [phone]
Email: [e-mail]

This notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You may
receive a copy of the Settlement Agreement, by going to the Settlement Administrator’s website at <website>.
PLEASE DO NOT CALL THE COURT ABOUT THIS NOTICE.

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ATTACHMENT TO NOTICE: SETTLEMENT OFFER AND RELEASE
IN WYNN TIP POOLING CASES
Re: Fair Labor Standards Act Claims also subject to litigation in Cesarz, et al. v. Wynn Las Vegas,
LLC, et al., United States District Court for the District of Nevada, Case No. 2:13-cv-109-RCJCWH, and Tang, et al. v. Wynn Las Vegas, LLC, et al., United States District Court for the District of
Nevada, Case No. 2:18-cv-891-APG-GWF

You have received a notice regarding the Settlement of the Claims made in two parallel wage and
hour collective actions regarding Wynn’s tip pooling. This Settlement Offer and Release is provided
subject to that notice and the terms of the Settlement. The Settlement of your Claims as discussed in
that notice has been approved by the Court. If you decide to accept that Settlement you will be paid
the amounts discussed below unless the defendant, as discussed in that notice, exercises a possible
option to void the Settlement.
Your settlement share is as follows:

Defendant’s records reflect that you received [insert
percentage] of the total tips distributed to Wynn table games dealers during
Tang Claims:

the Tang time period. Based on this information, your estimated Settlement
Share for the Tang Claims is $«Est.SettAmt», after attorneys’ fees and
costs. One-half of this amount shall be considered wages, which will be subject
to deductions for federal and state taxes and other required withholdings and
will be reported by the Company as wage income on an IRS W-2 form. The
other half of this amount shall be considered to be a payment of liquidated
damages, penalties, and/or interest and will be reported by the Company as nonwage income on an IRS 1099 form.

Cesarz Claims: Defendant’s records reflect that you received [insert
percentage] of the total tips during the Cesarz time period distributed to
Wynn table games dealers during the Cesarz time period as limited by the
Cesarz claims calculated for all Cesarz plaintiffs and collective action members.
If you have not yet filed a consent to join the Cesarz action that number reflects
that amount of total tips you received from January 31, 2017 through March 23,
2018. Based on this information, your estimated Settlement Share for the
Cesarz Claims is $«Est.SettAmt, after attorneys’ fees and costs. One-half
of this amount shall be considered wages, which will be subject to deductions
for federal and state taxes and other required withholdings and will be reported
by the Company as wage income on an IRS W-2 form. The other half of this
amount shall be considered to be a payment of liquidated damages, penalties,
and/or interest and will be reported by the Company as non-wage income on an
IRS 1099 form.

If you agree to accept this Settlement offer, you will be paid your Settlement share in exchange for releasing
and discharging your all claims that arose out of the Cesarz and/or Tang lawsuit or that could have been made
in either of those lawsuits. Specifically, in consideration of the payments provided for in this Settlement Offer
and Release, you and your respective heirs, estates, representatives, successors, assigns and agents, hereby
expressly and unconditionally waives any appeal from a Court order approving this settlement and dismissing
the Tang and Cesarz Actions with prejudice, and releases and forever discharges Defendant and all of the
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Released Parties from any and all wage and hour claims and causes of action that are based on the factual
allegations in the complaints in the Actions, known or unknown, that have arisen or could have arisen at any
time prior to the date that this Settlement Offer and Release is executed, including, but not limited to (i) any
and all claims for unpaid minimum and/or overtime wages, fines, penalties, liquidated damages, and attorneys’
fees and expenses; and (ii) any and all wage and hour claims that Plaintiff asserted or could have asserted in
the Actions based on the tip pool(s) at the Wynn and/or Encore, whether under federal, state, local or other
laws or ordinances, or pursuant to contract, tort, or equitable theories.
Neither Counsel plaintiffs nor Defendant’s counsel intend anything contained in this Settlement to constitute
advice regarding taxes or taxability. You may wish to consult a tax advisor concerning the tax consequences
of the payments received under the Settlement.
By signing below, you agree to accept this Settlement Offer and Release. If you have not already submitted a
Consent to Join in these Actions, your signature below also evidences that you consent to join in the Tang and
Cesarz Actions and to be represented in those matters by the named plaintiffs and counsel, Joshua Buck of
Thierman Buck, LLP, and Leon Greenberg and James P. Kemp.

I SWEAR THAT I HAVE READ THIS RELEASE, FULLY UNDERSTAND ALL OF ITS
TERMS AND CONDITIONS, AND AM ENTERING INTO IT OF MY OWN FREE WILL. I
HAVE HAD AN OPPORTUNITY TO DISCUSS THIS RELEASE WITH MY ATTORNEYS.
I UNDERSTAND THAT, IF I SIGN THIS RELEASE, MY CLAIM AGAINST THE
COMPANY WILL BE RESOLVED THROUGH THIS RELEASE AND IN ACCORDANCE
WITH THE TERMS OF THE STIPULATION OF SETTLEMENT IN THE ACTION.

[name]

[date]

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EXHIBIT “2”

Case 2:18-cv-00891-APG-DJA Document 73 Filed 03/26/21 Page 19 of 21

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LEON GREENBERG PROF. CORP..
Leon Greenberg #8094
2965 South Jones Boulevard
Suite E-3
Las Vegas, NV 89146
Tel: [phone]

JAMES P. KEMP
NSB# 6375
7435 West Azure Drive #110
Las Vegas, NV 89130
Tel: [phone]

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THIERMAN BUCK LLP
Mark R. Thierman #8285
7 Joshua Buck #12187
8 7287 Lakeside Drive
Reno, NV 89511
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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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QUY NGOC TANG and JOSEPH
CESARZ, and all persons whose names
are set forth in Exhibit A, individually
and on behalf of all others similarly
situated,
vs.

Plaintiffs,

WYNN LAS VEGAS, LLC,
Defendant.
__________________________

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Case No. 2:18-cv-00891-APG-GWF
NOTICE OF MOTION TO BE
CONDITIONALLY
RELIEVED AS COUNSEL

__________________________

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TO: (Name and Mailing Address of Opt In Plaintiff)
YOU ARE RECEIVING THIS NOTICE ALONG WITH A "NOTICE OF
SETTLEMENT IN WYNN TIP POOLING CASES" EXPLAINING YOUR
RIGHT TO PARTICIPATE IN A PROPOSED SETTLEMENT OF THIS CASE.
IF YOU HAVE DECIDED TO ACCEPT THAT SETTLEMENT AND ARE
SIGNING AND RETURNING A "SETTLEMENT OFFER AND RELEASE"
FORM YOU SHOULD IGNORE THIS NOTICE AS IT DOES NOT APPLY
TO YOU.
IF YOU ARE NOT RETURNING A "SETTLEMENT OFFER AND
RELEASE" FORM REGARDING THE PROPOSED SETTLEMENT OF THIS
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CASE OR INTEND TO REJECT THAT PROPOSED SETTLEMENT YOU
SHOULD READ THIS NOTICE. IT ADVISES YOU OF THE REQUEST OF
YOUR ATTORNEYS IN THIS CASE TO BE RELIEVED AS YOUR
ATTORNEYS SO THIS CASE MAY BE DISMISSED AND THE PROPOSED
SETTLEMENT COMPLETED. THAT DISMISSAL WILL NOT PREVENT
YOU FROM PROCEEDING WITH THE CLAIMS YOU HAVE MADE IN THIS
CASE, BUT TO DO THAT YOU WILL HAVE TO FILE A NEW LAWSUIT
WITHIN A LIMITED AMOUNT OF TIME AND YOUR CURRENT
ATTORNEYS ARE NOT REQUIRED TO ASSIST YOU WITH DOING THAT.
Why does this notice apply to me if I am not
accepting the proposed Settlement of this case?
When you filed a claim as part of this lawsuit against the Wynn Casino for
tips allegedly owed to you and other casino table games dealers you agreed to be
represented by the three attorneys listed at the top of the first page of this notice
(Leon Greenberg, J.P. Kemp and Mark Thierman). Those attorneys have
negotiated a proposed Settlement of this case and are recommending that you and
all of the other plaintiffs in this case (all of the Wynn dealers who joined this case)
accept that settlement. The terms of that Settlement are explained in the other
papers you are receiving with this notice.

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You do not have to accept the proposed Settlement of this case. But the
attorneys representing you in this case believe they cannot continue to represent
you in this case, and do not want to continue to represent you, if you do not want to
accept that Settlement. One of the conditions of that Settlement is that this entire
case be dismissed for all of the over 500 Wynn dealers who have joined this case.
The attorneys who represent you believe, based on that condition of the Settlement,
it would be conflict of interest under the Nevada Rules of Professional Conduct for
attorneys, Rule 1.7(a)(1) for them to continue to represent anyone who does not
accept the Settlement They believe that conflict of interest, and their strong belief
all of the plaintiffs in this case should accept that Settlement, either requires or
allows the Court, pursuant to Nevada Rules of Professional Conduct for attorneys,
Rules 1.16(a)(1) and 1.16(b), to relieve them as the attorney for any plaintiff who
refuses to accept that settlement. In compliance with that belief, the attorneys who
represent you in this case are asking the Judge to relieve them as your attorneys if
you are not agreeing to the Settlement of this case and are not signing and
returning a "Settlement Offer and Release" form.

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What can I do in response to this notice if I am not
accepting the proposed Settlement of this case?

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The purpose of this notice is to ensure you are advised of your rights and
your attorneys' request to be relieved as your attorneys if you choose to not accept
the proposed Settlement. The Court in this case must decide whether to grant that
request of your attorneys. The Court currently plans to decide that request on
INSERT DECISION DATE. The Court has not yet decided whether to grant that
request.
You do not have to do anything in response to this notice. You have the
right to tell the Court of any objections you have to your attorneys' request to be
relieved as your attorneys. The Court will consider any objections you have to that
request. But if you want the Court to consider those objections you must make
them in writing and have them filed with the Court, and delivered to your attorneys
at the three addresses listed at the top of page one of this notice, no later than
INSERT DATE 21 DAYS PRIOR TO DECISION DATE. The Court is located at
Lloyd D. George United States Courthouse, 333 Las Vegas Boulevard South, Las
Vegas, Nevada 89101 and the Judge who will decide the request of your attorneys
to be relieved as your attorney is United States District Judge Andrew P. Gordon.
You should not telephone or attempt to speak with the Judge or his staff directly
and may want to seek assistance from an attorney regarding the filing any
objections you may want to make.
If I am not accepting the proposed Settlement of this case
and the Court grants my attorneys' request to be relieved
can I still have the Court to decide the claims I made in this case?

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A decision by the Court granting your attorneys' request to be relieved as
your attorneys does not change your right to have the Court decide the claims you
made in this case. It only means those attorneys have no further responsibility to
take any action on your behalf. The proposed Settlement contains terms that will
allow you to fully pursue those claims by filing a new lawsuit within a limited
amount of time. If you file that new lawsuit within 30 days from the date a final
judgment is entered in this case, you will have the right to pursue with equal force
all of the claims you made in this case. If you wait beyond that time period to file
such a new case you may not. If you are not accepting the proposed Settlement
and the Court grants your attorneys' request to be relieved as your attorneys you
may want to find another attorney to assist you in pursuing your claims in a new
lawsuit. Your current attorneys have not agreed assist you in filing any such new
lawsuit and are not required to assist you with doing so.
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