Pontones v. San Jose Restaurant, Incorporated, et al.

Case No. 5:18-CV-219-D

U.S. District Court, Eastern District of North Carolina

Frequently Asked Questions

  1. BASIC INFORMATION

  2. Why Did I Get A Notice? What Is the Lawsuit About?

    You have received a notice because records indicate that you worked during the relevant time period as a server for San Jose in North Carolina. Plaintiff Laura Pontones has sued San Jose, on behalf of herself and other similarly situated servers. Plaintiff claims that San Jose did not pay call center associates for required pre-shift work (including booting up computers, launching software programs, checking emails, reviewing call schedules and callbacks, and other required tasks), and that San Jose (1) failed to pay Servers minimum wage; (2) failed to pay overtime premium pay for each hour they worked in excess of 40 hours per week; and (3) took unlawful deductions from Servers’ tips. Plaintiff claims that San Jose violated the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. §§ 95-25.6, 95-25.22(a), (a1), and (d).

    You have a right to know about a proposed settlement of a class action lawsuit, and your options, before the Court decides whether to approve the settlement. If the Court approves it and after any appeals are resolved, an administrator appointed by the Court will make the payments described here.

    The Court in charge of the case is the United States District Court for the Eastern District of North Carolina, and the case is known as Pontones v. San Jose Restaurant, Incorporated, et al., Case No. 5:18-cv-219-D. The individual who sued is called the Plaintiff, and the companies she has sued, collectively operating as San Jose Mexican Restaurants, are called the Defendants.

    Litigation is risky, and neither side can predict the outcome with certainty. As a result, Plaintiff Pontones and her counsel concluded, after careful consideration of the facts and circumstances following the exchange of extensive information and data and participation in a mediation, that the proposed settlement is fair, reasonable, and adequate, and is in the best interests of the opt-in plaintiffs and class members. This settlement avoids the costs and inconvenience associated with continued litigation while providing cash benefits to opt-in plaintiffs and class members.

    Defendants deny all of the claims in the lawsuit and maintain that they have not engaged in any wrongdoing. San Jose has chosen to settle this matter and make payments to current and former employees solely for the purpose of avoiding disruption to its business and further expense of litigation.

  3. WHO IS INCLUDED IN THE NOTICE AND SETTLEMENT

  4. Am I Part of the Settlement?

    You are eligible to participate in the settlement if you were a server employed by San Jose between May 17, 2015, and the present.

    If you return the enclosed claim form or file a claim online by the deadline, you are part of the FLSA class, and will receive a payment.

    If you were a server for San Jose in North Carolina after May 17, 2015, you are part of the class. You will still need to return the claim form to receive a payment.

  5. THE SETTLEMENT BENEFITS — WHAT YOU GET

  6. What Does the Proposed Settlement Provide?

    The total amount of the settlement is $1,500,000. This amount will mostly be allocated to the current and former servers working for San Jose who are eligible for the settlement, but it will also be used to pay for Attorneys’ fees and costs awarded by the Court, the Settlement Administrator’s costs, and any service awards to Plaintiff Pontones and other individuals who previously joined this lawsuit (“Opt-in Plaintiffs”) or otherwise substantially assisted with this litigation, to the extent approved by the Court. Because the settlement amount other than fees, costs, and service awards, will be allocated to individual awards for eligible employees, if eligible employees do not submit a claim form, the portion of the settlement allocated to them will not be paid out, reducing the total amount of the settlement.

    Plaintiffs will ask the Court to award Named Plaintiff Laura Pontones and opt-in Plaintiffs/Class Members Angel Berber, Jackie Bullard, Vicente Urbina, Tianya Locklear, Imran Shafiq Khan, Carolina San Augustin, Oscar Torres, Olivia Pineda, Sandy Johnson, and Kathy Johnson a collective $175,000 in service awards, to be divided among these individuals pursuant to the terms in Section III.B.3 of the settlement agreement between the parties dated March 25, 2022 (the “Settlement Agreement”). The service awards requested would be paid to these individuals in addition to their regular settlement payment, for their role as named plaintiff and opt-in plaintiffs/class members and prosecuting this lawsuit on the behalf of all Class Members, their assistance and support in prosecuting this case, and for the broader release of claims they will provide. The Court has not yet ruled on whether it will award these amounts. The Court may deny these requests or award less than these amounts. The Court will make a determination on the reasonableness of these requests at a later date.

    For information relating to your amount due, please contact Class Counsel at the number shown below in paragraph 5. It was calculated as described in paragraph 9, below.

  7. What Am I Giving Up If I Remain in the Settlement?

    If you are part of the class, and you do not exclude yourself from the settlement by June 17, 2022 using the procedure explained below in Section 10, you will be deemed to have forever released and discharged San Jose from any claims known or unknown, asserted or unasserted, of any kind whatsoever, that relate to hours worked or the payment of wages, that arose or will arise before the date of the Court’s final approval of the settlement, except to the extent that any such claims may not be waived as a matter of law. That means you will waive all wage and hour claims that arise before March 29, 2022, even if they are not claims asserted in this Litigation. However, if you do not exclude yourself, but also do not submit a claim form, you will not waive your claims under the Fair Labor Standards Act, only other wage, and hour claims, and you will not receive a settlement payment.

    If you are part of the FLSA class and you return the claim form, then you will be bound by the same release of claims. That means you will waive all wage and hour claims that arise before March 29, 2022, even if they are not claims asserted in this Litigation. If you are part of the FLSA class and you do not return the claim form, you will not be bound by the terms of the release and you retain the right to sue Defendant for any valid wage and hour claims, subject to the statute of limitations and any other defenses Defendant may have.

    This release of claims against Defendants (which includes their parents, affiliates, and subsidiaries, and all of their successors and assigns and all owners, officers, directors, stockholders, managers, agents, employees, and representatives) specifically includes, without limitation:

    (i) any and all claims asserted in the Litigation; AND

    (ii) any and all claims for unpaid wages, minimum wages, overtime, late payment of wages, retaliation for complaining about wages or for asserting wage-related claims and/or any other claims of any kind, or any other wage-related or recordkeeping-related claims, damages or relief of any kind, including but not limited to the federal FLSA, 29 U.S.C. § 201, et seq., any and all claims under North Carolina state law, including but not limited to the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. § 95-25.1, et seq.; or any other statutes and/or regulations regulating hours of work, wages, the payment of wages, wage-related or recordkeeping-related claims, the payment of minimum wages, and/or the payment of overtime compensation;

    AND

    (iii) any and all claims under state and federal law for earned wages, overtime, and/or missed or interrupted meal breaks, including such claims for breach of express contract or labor agreement, implied contract, money had and received in assumpsit, quantum meruit/unjust enrichment, fraud, negligent misrepresentation, equitable estoppel, promissory estoppel, conversion, and failure to keep accurate records.

    This release does not apply to any claim by any Class Member for discrimination in violation of state or federal law (except for Named Plaintiff), or any claim of any type arising on or after the date the settlement has received final approval from the U.S. District Court for the Eastern District of North Carolina.

  8. THE LAWYERS REPRESENTING YOU

  9. Do I Have a Lawyer in the Case?

    Opt-in plaintiffs and class members who do not request exclusion from the settlement are represented in this case by the following attorneys and law firm:

    Gilda Adriana Hernandez, Esq.
    Charlotte Claire Smith, Esq.
    THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC
    1020 Southhill Drive, Suite 130
    Cary, NC 27513
    Tel: 919-741-8693
    www.gildahernandezlaw.com
    rkreuz@gildahernandezlaw.com

    The Court decided that these lawyers and law firm are qualified to represent the settlement class members in this case. These lawyers are called “Class Counsel.” You can contact Class Counsel if you have questions about this case. If you want to be represented by your own lawyer, you may hire one at your own expense.

  10. How Will the Lawyers Be Paid?

    Class Counsel will ask the Court to approve payment of up to one-third of the gross settlement amount ($500,000.00), to compensate them for their services in this matter. Class Counsel will also ask the Court to approve reimbursement for their costs spent in litigating this case, which are currently estimated to be approximately $20,000. Class Counsel will file a motion with the Court setting out the bases for their requested costs and fees. At a later date, the Court will decide whether Class Counsel’s request is reasonable. If the Court does not approve the full amount of the fee request, then any unawarded funds will be added to the amount available for distribution to the class/collective.

  11. HOW YOU GET A PAYMENT — SUBMITTING A CLAIM FORM

  12. How Can I Get a Payment?

    To receive a settlement payment, you must timely complete a Claim Form. You can submit a claim electronically or complete and sign the enclosed claim form and return it to the settlement administrator by U.S. Mail in the postage pre-paid enveloped included with this notice, or by e-mail info@SanJoseSettlement.com.

    To be considered timely, any completed forms returned to the settlement administrator by U.S. Mail must be postmarked no later than June 17, 2022. Any completed forms returned to the settlement administrator by fax or e-mail must be received no later than June 17, 2022.

    If you lose, misplace, or need another one of these forms, you can contact the settlement administrator by email at info@SanJoseSettlement.com to request a new copy.

  13. How Much Can I Expect to Receive?

    Should you want information about the amount you can expect to receive, contact Class Counsel. Your payment depends on (1) the number of workweeks you worked during the Class Period, as well as the number of overtime hours you worked during each workweek; and (2) how many relevant bonuses you received during the Class Period, as well as the number of overtime hours you worked during the period applicable to the bonus payment.

    Your estimated payment was calculated using the formulas set forth in the settlement agreement and assuming that the Court approves and awards the other amounts requested to be paid from the Gross Settlement Amount, which were discussed in Section 6. If the Court does not approve the full amount of these other payments, your award payment may increase.

    Each final settlement payment will be separated into two amounts: 50% will be allocated to the claims asserted in the lawsuit for wage-related damages, and 50% will be allocated to the claims asserted in the lawsuit for liquidated damages and other relief. The portion allocated to claims asserted in this lawsuit for unpaid overtime and other wage-related damages will be subject to all authorized or required deductions, just as if it were a regular paycheck, including, but not limited to local, state, and federal taxes, garnishments, child support orders, and tax levies/liens. The portion allocated to wage claims will be reported on an I.R.S. Form W-2. The portion allocated to liquidated damages and other relief will be reported as non-wage income and reported on an I.R.S. Form 1099.

  14. When Would I Get My Payment?

    If you are eligible to participate in the settlement and timely provide the form described in Section 8 above, you will be sent a settlement check following Defendants’ completed payment of the gross settlement fund. Before the settlement is effective, however, settlement class members must be given time to object to the settlement or opt-out, the Court must hold a hearing to consider the fairness of the settlement and grant final approval of the settlement, and any appeals of the court’s order granting final approval must be resolved. Please be patient.

    Please watch your mail for a check and cash it when you get it. You will have 180 days from issuance of the check to cash it. The check will be void after 180 days. The settlement agreement provides that any amounts from voided, uncashed checks will then be returned to San Jose.

  15. EXCLUDING YOURSELF FROM THE SETTLEMENT

  16. How Do I Get Out of the Settlement?

    If you do not wish to be part of this settlement, you may elect to “opt out” by excluding yourself from this action and the associated settlement and judgment. Class Members who opt out of this action, and FLSA class members who do not return a claim form, would remain free, subject to the statute of limitations, to bring claims against San Jose that are covered by this settlement and release, against which San Jose would assert defenses and litigate. If you decide to opt out, you will not be allowed to object to this settlement. The deadline to opt out is June 17, 2022.

    This deadline is final, and forms not postmarked before the pertinent deadline will not be honored. IF YOU OPT OUT OF THE SETTLEMENT, YOU WILL NOT RECEIVE A PAYMENT.

    To opt out, you must submit a written statement to the settlement administrator expressly stating that you wish to be excluded from the settlement. Such requests for exclusion should state at the top of the letter “Request for Exclusion from Settlement in Pontones v. San Jose Restaurant, Incorporated, et al., Case No. 5:18-cv-219-D.” Also be sure to include your name, address, telephone number, and signature. All written requests for exclusion must be sent by First-Class U.S. Mail, postmarked no later than June 17, 2022, to:

    Pontones v. San Jose Restaurant, Inc., et al Settlement Administrator
    c/o Settlement Administration
    ATTN: Exclusion Request
    P.o.Box 58220
    Philadelphia, PA 19102

    You cannot exclude yourself by phone or by e-mail. Requests for exclusion that do not include all required information, or that are not timely postmarked, will be deemed null, void, and ineffective.

  17. If I Do Not Exclude Myself, Can I Sue This Defendant for the Same Thing Later?

    If you are receiving this notice, you have been identified as a class member for purposes of this lawsuit. As a class member, unless you exclude yourself, you give up any right to sue defendant for the claims that this settlement resolves, which are set forth in Section 4 above. If you have a pending lawsuit asserting the claims resolved by this settlement, speak to your lawyer in the pending lawsuit immediately. You must exclude yourself from this settlement to continue your own lawsuit against San Jose regarding the claims resolved by this settlement.

  18. If I Exclude Myself from the Settlement, Can I Get Money From This Settlement?

    No.

  19. OBJECTING TO THE SETTLEMENT

  20. How Do I Object or Tell the Court That I Don’t Like the Settlement?

    You can ask the Court to deny approval of the settlement by filing an objection with the Court. You cannot ask the Court to order a different settlement; the Court can only approve or reject the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.

    To object, you must send a letter to the Court, Class Counsel, and counsel for San Jose giving the reasons why you object to the proposed settlement. The top of your letter should be labeled with the name and case number of this lawsuit (“Pontones v. San Jose Restaurant, Inc., et al., Case No. 5:18-cv-219-D”) and must include: (i) your full name, address, telephone number, the approximate dates of your employment with San Jose, and the restaurant(s) where you worked; and (ii) each specific reason for your objection, including any legal or evidentiary support you have for your objection. You must mail copies of the objection to the Court, Class Counsel, and counsel for San Jose (addresses below), postmarked no later than June 13, 2022.

    THE COURT
    Clerk of Court
    U.S. District Court for the Eastern District of North Carolina
    310 New Bern Avenue
    Raleigh, NC 27611

    CLASS COUNSEL
    Gilda A. Hernandez, Esq.
    Charlotte C. Smith, Esq.
    THE LAW OFFICES OF
    GILDA A. HERNADNEZ, PLLC
    1020 Southhill Dr., Ste. 130
    Cary, NC 27513

    COUNSEL FOR DEFENDANTS
    James Larry Stine
    WIMBERLY, LAWSON, STECKEL, SCHNEIDER & STINE, P.C.
    3400 Peachtree Rd., NE
    Suite 400, Lenox Towers
    Atlanta, GA 30326

    Albert J. Bolet (GA Bar No. 065785)
    Hipolito M. Goico (GA Bar No. 299195)
    GOICO & BOLET, P.C.
    2021 North Druid Hills Road, N.E.
    Suite 200
    Brookhaven, GA 30329

    If you file a timely written objection, you may (but are not required to) appear at the Fairness Hearing, described in Section 16, either in person or through your own attorney. If you appear through your own attorney, you are responsible for hiring and paying that attorney.

  21. What Happens if the Court Rejects my Objection?

    The Court will consider any objections that are timely filed. This does not mean, however, that the Court will necessarily take action based on any objection. If the Court rejects your objection, you will still be bound by the terms of the settlement and the release of claims explained in Section 4 above.

    Moreover, if you intend to object to the settlement, but still wish to receive a settlement payment, you must timely file the required claim form described in Section 7 above. If the Court approves the settlement despite your objections, and you have not timely filed the required form necessary to receive a settlement payment, you will not receive a settlement payment.

  22. What is the Difference Between Objecting and Excluding?

    Objecting is telling the Court you do not like something about the settlement. You can object only if you stay in the settlement. If you exclude yourself from this lawsuit, you are telling the Court you do not want to be part of the lawsuit or settlement. If you request to be excluded from the lawsuit, you have no basis to object to the settlement, because the case no longer affects you.

  23. THE COURT’S FAIRNESS HEARING

  24. When and Where Will the Court Decide Whether to Approve the Settlement?

    The Court preliminarily approved this settlement on March 29, 2022. The Court will hold a final hearing (sometimes called a fairness hearing) on this settlement on August 19, 2022 at 3:00p.m This hearing will take place in Courtroom 1 of the U.S. District Court for the Eastern District of North Carolina, located at 310 New Bern Avenue, Raleigh, North Carolina, 27611, Judge James C. Dever III presiding. After the hearing, the Court will decide whether to approve the settlement. We do not know how long the decision will take.

  25. Do I Have to Come to the Hearing?

    No. Attendance at this hearing is completely optional. It is not required to participate in the settlement or opt out of the lawsuit.

  26. May I Speak at the Hearing?

    You may ask the Court for permission to speak at the fairness hearing. To do so, you must send a letter saying that it is your “Notice of Intention to Appear at Hearing on Final Approval of Class Settlement in Pontones v. San Jose Restaurant, Incorporater, et al., Case No. 5:18-cv-219-D.” Be sure to include your full name, address, telephone number, and signature. Your notice of intention to appear must be postmarked no later than June 17, 2022, and be sent to the Clerk of Court, and to Class Counsel and Counsel for San Jose at the addresses list above in Section 13. You cannot speak at the hearing if you have opted out of the lawsuit.

  27. IF YOU DO NOTHING

  28. What Happens If I Do Nothing at All?

    You have the right to do nothing. If you do nothing, however, you will not receive any money from this proposed settlement. In addition, unless you timely return a written request for exclusion, you will be bound by the Court’s orders in this lawsuit and the release of claims explained in Section 4 above. You will not be able to start a legal action, continue with a legal action, or be part of any other legal action against San Jose regarding the claims resolved by this settlement.

  29. NO RETALIATION OR DISCRIMINATION

  30. If I Am a Current Employee, Will I Experience Any Retaliation or Discrimination?

    No. It is against the law to retaliate or discriminate against an employee who decides to participate in this settlement agreement. San Jose will not discriminate or retaliate against you in any way because of your decision to participate or not in the lawsuit or this settlement.

  31. GETTING MORE INFORMATION

  32. Are There More Details About the Settlement?

    The notice summarizes the basic terms of the proposed settlement. Further information is available from the settlement administrator and/or Class Counsel. See Section 5 above.

    More details of the settlement are also contained in the stipulation of settlement and the pleadings and other documents relating to the lawsuit that are on file with the U.S. District Court for the Middle District of North Carolina. Copies of the complete stipulation of settlement and select other filings in the lawsuit are available by contacting Class Counsel. Their contact information is located in Section 5 above.

  33. How Do I Get More Information?

    The notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can also write to Pontones v. San Jose Restaurant, Incorporated, et al., Settlement Administrator, 1650 Arch St. Suite 2210, Philadelphia, PA 19103, or email the Settlement Administrator at info@SanJoseSettlement.com. In addition, see Section 5 for Class Counsel’s contact information.

    PLEASE DO NOT CALL THE COURT, THE CLERK, OR SAN JOSE MEXICAN RESTAURANT, INC., OR ITS COUNSEL ABOUT THIS SETTLEMENT.

    If, for any future reference or mailings, you wish to change the name or address listed on the envelope in which the Notice was sent, please inform the settlement administrator of your new address. You can do so by sending a letter to:

    Pontones v. San Jose Restaurant, Incorporated, et al., Settlement Administrator
    1650 Arch St. Suite 2210
    Philadelphia, PA 19103
    Fax: 215-525-0209
    info@SanJoseSettlement.com