Frequently Asked Questions
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BACKGROUND INFORMATION
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WHY AM I GETTING THIS NOTICE?
The purpose of this Notice is to:
1. Inform you of the existence of a case in which you are potentially eligible to participate;
2. Advise you of how your rights may be affected by this case; and
3. Instruct you on the procedure for participating in this case, if you decide to join.Defendants’ records reflect that you worked at ÃN at some point between February 21, 2015, until the closure of the restaurant, or until approximately January 30, 2017.
The Court has certified a class and collective action lawsuit that may affect you. The Court, however, has taken no position on the viability of plaintiffs’ claims or defendants’ defenses. A trial may be necessary to decide whether the claims being made against Defendants on your behalf are correct or whether Defendants’ defenses to those claims are correct. The Honorable Louise W. Flanagan, a District Court Judge in the United States District Court for the Eastern District of North Carolina, is overseeing this lawsuit.
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WHAT ARE THE FEDERAL (FLSA) CLAIMS ABOUT?
On February 21, 2017, an action was filed against Defendants Hospitality Ventures, LLC d/b/a Umstead Hotel and Spa; NC Culinary Ventures, LLC d/b/a ÃN Asian Cuisine; and SAS Institute, Inc (“Defendants”) on behalf of Named Plaintiff Wai Man Tom, and all other similarly situated individuals who worked for the ÃN Asian Cuisine Restaurant. Specifically, Plaintiffs allege claims in this lawsuit on behalf of themselves and all other employees that: (1) Defendants failed to pay all of their earned and accrued wages and benefits, including, but not limited to, illegally withheld tips as part of their wages, any minimum, straight, or overtime wages, PTO earnings, and benefits, on their regular pay date, or, as promised, part of their last paycheck, on February 10, 2017; and (2) Plaintiffs were required to contribute a portion of their wages/tips to Defendants’ illegal tip pool.
Plaintiffs seek back pay wages and liquidated damages for themselves and all other former employees who worked for ÃN Asian Cuisine Restaurant during the applicable time periods.
Defendants deny any wrongdoing and contend that all employees have been properly paid for all work they performed, that the tip pool was voluntary and lawful, and that all of the individuals who received distributions from the tip pool were legally entitled to share in the tip pool.
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WHAT ARE THE NORTH CAROLINA CLAIMS ABOUT?
In the state law part of this lawsuit, Plaintiffs claim that Defendants must pay back wages for all of their earned and accrued wages and benefits, including, but not limited to, any illegally withheld tips, minimum wage, straight time or overtime wages, PTO earnings, and benefits, plus an equal amount in additional liquidated damages, interests, plus costs and attorney’s fees.
The Defendants also deny the Plaintiffs’ allegations under North Carolina law and claim the Plaintiffs were properly compensated.
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DOES THE LAW PROTECT ME FROM RETALIATION?
Yes. If you decide to join this case or participate in this case in any way, federal law prohibits Defendants from retaliating against you in any way.
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WHAT ABOUT IMMIGRATION STATUS?
Your immigration status will not be the subject of this lawsuit. You are entitled to seek a recovery regardless of your immigration status.
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HOW DO I KNOW IF I AM PART OF THIS CLASS ACTION?
You may become a member of the FLSA collective action by returning the opt-in form if you worked for Hospitality Ventures, LLC d/b/a Umstead Hotel and Spa; NC Culinary Ventures, LLC d/b/a ÃN Asian Cuisine; and SAS Institute, Inc as a captain, server, server assistant, runner, and/or bartender during the applicable time periods.
You are automatically a member of the class action under North Carolina law if you worked for Hospitality Ventures, LLC d/b/a Umstead Hotel and Spa; NC Culinary Ventures, LLC d/b/a ÃN Asian Cuisine; and SAS Institute, Inc as a captain, server, server assistant, runner, and/or bartender any time between February 21, 2015, until the closure of the restaurant, or until approximately January 30, 2017.
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YOUR RIGHTS AND OPTIONS
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HOW DO I JOIN THIS CASE AND WHAT HAPPENS NEXT?
If you wish to join the federal claims in this case, you must complete the attached "Consent to Join" form and return it to the address at the bottom of the form in the business reply envelope included. If your completed Consent to Join form is not postmarked by November 2, 2021, you will not be allowed to join this case.
If you decide to join this lawsuit, we will keep you informed of the status of the case. Also, if you join this case and/or do not opt out of the class, while the suit is proceeding, you may be required to provide information, sit for depositions, and/or testify in court.
THIS FORM MUST BE POSTMARKED NO LATER THAN November 2, 2021.
You may also complete and submit a “Consent to Join” form by clicking this CONSENT TO JOIN. Any form submitted online must be done no later than November 2, 2021. Joining this case does not guarantee that you will receive any money from the case because a monetary recovery is not certain. If you join this case, you will be bound by any judgment entered by the Court, whether favorable or unfavorable, and you will forfeit the right to sue Defendants as an individual for the same claims made in this case.
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IF THE PLAINTIFFS ARE SUCCESSFUL IN THIS CASE, WHAT MONEY MIGHT I RECEIVE?
The Plaintiff seeks money for himself and all of those similarly situated, including you, should you decide to join this case. In particular, he seeks:
(1) Backpay for unpaid minimum wage and overtime hours worked at straight-time and time and one-half for hours over 40 per week;
(2) Backpay for illegally withheld tips;
(3) Backpay for unpaid benefits and PTO earnings;
(3) Liquidated or doubled monetary damages;
(4) That Defendants pay Plaintiffs’ attorneys’ fees; and
(5) That Defendants pay Plaintiffs’ costs of the case. -
WHAT HAPPENS IF I DON’T JOIN THIS CASE?
If you decide not to join this case, you will not be affected by any judgment or settlement on the Plaintiff's legal claims under the Fair Labor Standards Act. You also may not be allowed to participate in any money damages if Plaintiff wins. You will also retain the right to sue Defendants individually if you so choose, provided you do so in a timely manner.
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YOUR LEGAL REPRESENTATION IF YOU JOIN
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WHO WILL BE MY LAWYER?
The Court ordered that attorneys at The Law Offices of Gilda A. Hernandez, PLLC may represent you and all collective action members. However, if you decide to join this case, you have the right to hire your own lawyers at your own expense. You can contact the firm to learn more information about them, their practice, and their lawyers’ experience at the information listed below:
Gilda A. Hernandez, Esq.
Charlotte C. Smith, Esq.
THE LAW OFFICES OF
GILDA A. HERNANDEZ, PLLC
1020 Southhill Dr., Ste 130
Cary, NC 27513
Tel: (919) 741-8693
Fax: (919) 869-1853
www.gildahernandezlaw.com rkreuz@gildahernandezlaw.com -
HOW WILL THE LAWYERS BE PAID?
The Class Representative has entered into a contingency fee agreement with Class Counsel. Under this agreement, you are not responsible for paying out of pocket any of the attorneys’ fees or costs expended in the lawsuit. By returning the two forms enclosed, you are agreeing to be bound by this agreement. Class Counsel will be paid as follows: (1) if there is a settlement, Class Counsel may ask the Court to award it up to 33% of any recovery obtained in addition to reasonable out of pocket costs; (2) if there is a trial and Plaintiffs prevail, Class Counsel may ask the Court to award it 33% of the award and reasonable out of pocket costs and/or may ask the Court to order defendants to pay their attorneys’ fees and costs separately, on top of the award to the Plaintiffs.
If you elect to opt into this lawsuit, you will not be required to pay attorneys' fees or expenses to the Plaintiffs’ lawyers. This is true regardless of whether or not you win or lose this case. The lawyers for Plaintiffs will be paid only if Plaintiffs win or Defendants settle the case. If that happens, these fees will either be paid by Defendants or as a percentage of any monetary judgment in favor of Plaintiffs as ordered by the Court. If there is no recovery, there will be no attorneys' fees paid to the Plaintiffs’ lawyers.
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THE TRIAL
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HOW AND WHEN WILL THE COURT DECIDE WHO IS RIGHT?
If the lawsuit is not resolved by a settlement or by the Court before trial, the Plaintiffs will have to prove their claims at a trial. The trial would take place in the United States District Court for the Eastern District of North Carolina. During the trial, a jury will hear evidence, including the testimony of witnesses, to help them reach a decision about whether the Plaintiffs are right about the claims in the lawsuit. No guarantee exists that the Plaintiffs will prevail, or that they will be awarded any damages. The Court has as yet made no decision in this lawsuit about the merits of the Plaintiffs’ claims or Defendants’ defenses.
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DO I HAVE TO COME TO TRIAL?
You are not required to attend the trial unless one of the parties asks you to be a witness at the trial. If Class Counsel or Defendants’ counsel believes that your testimony may be helpful to establishing important facts in the litigation, Class Counsel will contact you before the trial to provide more information regarding your participation in the trial.
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Getting More Information
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HOW DO I GET MORE INFORMATION?
If you have any questions or would like additional information, please contact Class Counsel, whose contact information is provided above in Paragraph 10. Or you can e-mail us at info@AnAsianRestaurantCary-ClassActionLawsuit.com.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, THE HONORABLE JUDGE LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE. THE COURT TAKES NO POSITION REGARDING THE MERITS OF THE PLAINTIFFS’ CLAIMS OR DEFENDANTS’ DEFENSES.
DO NOT CONTACT THE CLERK OF COURT REGARDING THIS NOTICE.