Notice of Settlement of Lawsuit to Recover Unpaid Wages

To:  All current and former dancers who worked at Sirens Gentlemen’s Club anytime from October 6, 2012 until February 21, 2019 (the “Class”).

Re:  Notice of settlement of lawsuit to recover unpaid wages, spoliation of evidence damages, and unjust enrichment.

Case: Hogan, et al., v.  Cleveland Ave Restaurant, Inc. (d/b/a Sirens), et al., Case No. 2:15-cv-2883, The United States District Court for the Southern District of Ohio (the “Lawsuit”)

Introduction 

This is a court-authorized notice of a class action settlement. It is not a solicitation from a lawyer. The purpose of this Notice is to inform you about a class action settlement that may affect your rights. 

The Notice describes the terms of the Settlement and Release Agreement (“Settlement Agreement,” “Agreement,” or “Settlement”) submitted in the Lawsuit to the Court for approval, and, if you decide it is in your interest to do so, how you can file a claim for monetary recovery as part of the Settlement. 

Nature of the Lawsuit

Jessica Hogan and Dejha Valentine (the “Plaintiffs”), former dancers for Sirens, brought the Lawsuit asserting claims under the federal Fair Labor Standards Act and Ohio law to recover damages from alleged unpaid wages, spoliation of evidence, and unjust enrichment on behalf of themselves and other dancers. 

Plaintiffs brought claims against Cleveland Ave Restaurant, Inc., Francis Sharrak, Michael Sharrak, Chad Sullivan, Jay Nelson, and Dominick Alkammo (the “Defendants”). 

Plaintiffs’ principal reason for entering into the Settlement is the cash benefit to Class Members, without risk or delay of further litigation, and the substantial non-monetary relief explained below. 

The recovery provided under the Settlement must be balanced against the risk of a smaller recovery—or, indeed, no recovery at all—if this lawsuit goes to trial, as well as the likelihood of appeals that could last many months, or even years, and the potential difficulty in collecting a judgment. Defendants enter into this Settlement to avoid the uncertainty, burden, and expense of further litigation.

Defendants deny they violated the law and contend, at all times, they properly paid Class Members.

This Notice does not express any opinion by the Court about the potential result of any claim in the Lawsuit, and the Court still has to decide if the Settlement should be approved. If the Court approves the Settlement, payments to eligible Class Members will be made after any potential appeals expire, and after completion of all claims processing.

Your Options

If you are a member of the Class, you have the following options:

Submit a Claim Form by February 17, 2021.

To receive a Settlement payment (described below), you must fully and accurately complete a Claim Form.

Opt-Out of the Settlement by February 17, 2021.

If you opt-out of the Settlement, you waive any relief under the Settlement. You will not, however, be bound by the Settlement, meaning you may pursue your own individual claims against Defendants relating to the claims that were made in the Lawsuit. To opt-out, you must timely and properly submit an Opt-Out Notice (as described below).

Object to the Settlement by February 17, 2021.

If you are a Class Member, and you previously submitted a request to opt-out of   the Settlement, you may not object to the Settlement. If you object to the Settlement,  in whole or in part, you may (but are not required to) write to the Court and explain why you object. If you submit a written objection by February 17, 2021,   you may (but do not have to) attend the Settlement Fairness Hearing and, at  the discretion of the Court, may speak to the Court about your objection.

Do nothing.

If you do nothing, you will not be eligible to receive payment from the Settlement. You will, however, remain a Class Member and be bound by the Settlement, including the release of any claims  that were released by the Settlement. This means you will give up your right  to sue regarding the released claims, and you will be bound by any judgments or orders entered by the Court in the Lawsuit.

How to Participate in the Settlement 

To receive a Settlement payment, you must fill out the enclosed Claim Form and return it to Class Counsel by February 17, 2021. Any claims you have that were, or could have been, raised in the Lawsuit based on the facts alleged will be released. Those claims relate to unpaid wages, unlawful or illegal deductions, spoliation of evidence, and unjust enrichment.  

You may return the Claim Form in the enclosed envelope, or by mail, to Class Counsel at: 

Attn: Philip Krzeski

Biller & Kimble, LLC

8044 Montgomery Rd., St. 515

Cincinnati, OH 45236

Payments under the Settlement will not be made unless the Court approves the Settlement. If the Court approves the Settlement, Defendants agree to pay $600,000 to the Class, less payments for bartenders, attorney’s fees, service awards, sanction awards, and reasonable expenses incurred in the prosecution and settlement administration of this Settlement. Each Class Member who submits a Claim Form shall be deemed to have submitted to the Court’s jurisdiction.

Any person who is excluded from the Class by definition, or by not timely returning a properly executed Claim Form, will not receive any payments under the Settlement.

Defendants Cannot Retaliate Against You for Joining the Lawsuit

The law strictly forbids an employer from retaliating against an employee for filing a claim, or joining the Lawsuit, including firing you, docking your pay, changing your hours, etc. 

The Settlement’s Terms

Under the Settlement’s terms, the Defendants have agreed to create a settlement fund to be paid to eligible Class Members who submit a Claim Form by February 17, 2021. Class Members who make valid claims will receive a pro-rated portion of the settlement fund based on alleged weeks worked for Defendants between October 6, 2012 until February 21, 2019. It is unknown how much any Class Member will receive until all Class Members’ claims are calculated.

There is a protective order in place. The purpose of this protective order is to protect identities of Class Members from public disclosure and/or retaliation. Thus, Defendants are prohibited from disclosing the names of individuals making claims in the case.

Within 14 days of the Court’s final settlement approval, the Dancer Claims Administrator will distribute $75,000 (minus all amounts from the Settlement Fund already paid) among the Class Members who have made valid claims based on each Dancer’s percentage. Starting the next month and for every month thereafter until a total of $600,000 (minus all amounts from the Settlement Fund already paid) has been deposited, Defendants will deposit $8,000 in an escrow account to cover remaining Class Member payments, attorney’s fees, service awards, sanction awards, and litigation expenses. From that amount, every six months (biannually from the date of final approval) the Dancer Claims Administrator will distribute payments to Class Members based on each Class Member’s percentage.

Once a Class Members submits a claim form and it is determined that the Class Member should be included, the Dancer Claims Administrator will mail a check to the Class Member for $85 (the “Submission Payment”), along with a letter informing the Class Member that the Submission Payment is an advance on the Class Member’s award and not a substitute for it and that to receive future payments it is necessary for the Class Member to maintain a current address with the Dancer Claims Administrator. 

Defendants Sirens, Michael Sharrak, Francis Sharrak, and Jay Nelson will be jointly and severally liable for the full amount. Defendants Chad Sullivan and Dominick Alkammo will not be personally liable for payments from the Settlement Fund. 

No portion of the Settlement Fund will revert to Defendants.

As part of the non-monetary relief achieved through Settlement, Defendants will allow Class Members at Sirens to choose their employment classification as either employees or independent contractors. If a Class Member chooses to be classified as an employee at Sirens, Defendants are required to comply with all state and federal employee wage and hour laws, including payment of minimum wage, overtime, and relevant taxes. Defendants may not attempt to persuade Class Members to choose to be an independent contractor rather than an employee. In the alternative, Defendants also have the option at their discretion to classify all Class Members who currently work at Sirens as employees. 

In the event that any of Class Counsel in this case is granted an injunction against another Ohio exotic dance club regarding the use or promotion of the “entertainer tenant system,” or in the event any of Class Counsel obtain comparable, non-monetary relief via settlement with another Ohio exotic dance club, Defendants Sirens, Jay Nelson, Francis Sharrak, and Michael Sharrak will be required to comply with the terms of such injunction or settlement beginning no more than 24 months after that injunction is issued or that settlement is effective. 

By agreeing to this Settlement, the Defendants deny that they broke the law. To the contrary, Defendants contend they properly paid all Class Members as required by law.

This Notice is a summary of the terms of the proposed Settlement. For more detailed information about the Lawsuit, or the Settlement, you may access the filings made in the Lawsuit, which may be inspected during regular office hours at the Clerk’s Office, United States District Court for the Southern District of Ohio, Office of the Clerk, Joseph P. Kinneary U.S. Courthouse, Room 121, 85 Marconi Blvd., Columbus, Ohio 43215. If you have questions about the Settlement, you should not contact the Court or the Defendants.

Release of Class Claim

If you are a Class Member, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment dismissing and releasing claims against Defendants, as follows:

Defendants Cleveland Ave Restaurant, Inc., Francis Sharrak, Michael Sharrak, Chad Sullivan, Jay Nelson, and Dominick Alkammo, and their insurers, agents, servants, parents, subsidiaries, affiliates, divisions, members, trustees, partners, officers, directors, employees, attorneys, successors, predecessors, administrators, and employee benefit plans, both individually and in their business capacities (collectively, “Released Parties”) are released and discharged from any and all claims, demands, rights, liabilities, and causes of action, whether known or unknown, that were asserted in the Lawsuit relating to failure to pay minimum wage, unlawful or illegal deductions, failure to tender pay by regular payday, spoliation of evidence, unjust enrichment, or that could have been asserted in the Lawsuit based upon the same factual allegations concerning wage and hour claims under Ohio law, claims under Ohio’s Prompt Pay Act O.R.C. §4113.15, spoliation of evidence claims, and unjust enrichment between October 6, 2012 until February 21, 2019 (the “Class”).

Class Members who submit a Claim Form will also release their federal claims as follows: 

The Released Parties are also released and discharged from any and all claims, demands, rights, liabilities, and causes of action, whether known or unknown, that were asserted in the Lawsuit concerning failure to pay minimum wage claims, unlawful or illegal deductions or that could have been asserted in the Lawsuit based upon the same factual allegations concerning wage and hour claims during the Class Period, including all clams under federal law, including the Fair Labor Standards Act, 29 U.S.C. §§201, et seq., for the period between October 6, 2012 until February 21, 2019. 

Opting Out of the Class

Class Members who want to opt-out of the Settlement must submit a timely and valid Opt-Out Notice. To be timely, it must be received no later than February 17, 2021. To be valid, the Opt-Out Notice must be signed and notarized and include the words to the following effect:

I want to opt-out of the Settlement of the Lawsuit, Hogan, et al., v. Cleveland Ave Restaurant, Inc. (d/b/a Sirens). I understand, by asking to opt-out of the Settlement, I will receive no money from the Settlement. I understand that if I opt-out of the Settlement and file a separate lawsuit, I may receive nothing, or less than I would have received if I had submitted a Claim Form under the Settlement. 

If a Class Member submits both a Claim Form and an Opt-Out Notice, the Claim Form will govern.

How to Object to the Settlement

Class Members who do not opt-out of the Settlement may, in whole, or in part, object to the Settlement. Objections must be made in writing and filed, together with copies of all papers and briefs supporting the objection, with the Clerk of Court on or before February 17, 2021. You must also serve anything you file on Class Counsel and Defendants’ Counsel at the addresses below so that your filings are received by February 17, 2021. 

Clerk’s Office

Joseph P. Kinneary U.S. Courthouse, Room 121

85  Marconi Blvd. 

Columbus, Ohio 43215

Phone:  (614) 719-3000

Class Counsel

Andrew Biller

Andrew Kimble

Philip Krzeski

Biller & Kimble, LLC

8044  Montgomery Rd., Ste. 515

Cincinnati,  OH 45236

Phone:  (513) 202-0710

Defendants’ Counsel

Christina L. Corl

Plunkett Cooney

300 East Broad St., Suite 950

Columbus, Ohio 43215

Phone: (614) 629-3019

Any objection to the Settlement must (a) state the name, address, and telephone number of the person objecting, and must be signed by the objector, (b) include a statement of the Class Member’s objection(s) and the specific reasons for each objection, including any legal or evidentiary support the Class Member wants to bring to the Court’s attention, and (c) must include documents sufficient to prove the objector’s membership in the Class, such as proof of employment. You may not object to the Settlement if you are not a Class Member, or if you are a Class Member who opts-out of the Settlement. 

You may file a written objection without having to appear at the Settlement Fairness Hearing. You may not, however, appear at the Settlement Fairness Hearing to present your objections unless you first filed and served a written objection in accordance with the procedures described above, unless the Court orders otherwise.

If you want to be heard at the Settlement Fairness Hearing, and if you file and serve a timely and proper written objection, you must also file a notice of appearance with the Clerk’s Office and serve it on Class Counsel and Defendants’ Counsel at the addresses set forth above so it is received by February 17, 2021. If you intend to object and want to present evidence at the Settlement Fairness Hearing, you must include in your written objection or notice of appearance the identity of any witnesses you may call to testify and exhibits you intend to introduce into evidence. The Court has direction to grant or deny any request to be heard at the Settlement Fairness Hearing.

If you object to the Settlement, you are not required to hire an attorney to represent you. However, if you hire an attorney, your attorney will be paid at your own expense, and your attorney must file a notice of appearance with the Court and serve it on Class Counsel and Defendants’ Counsel at the addresses set forth above so it is received by February 17, 2021. The Settlement Fairness Hearing may be adjourned by the Court without further written notice to the Class. Unless the Court orders otherwise, any Class Member who does not object in the manner described in this Notice will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement.

Class Counsel and Attorney’s Fees, Expenses, and Service Award

Biller & Kimble, LLC, Markovits, Stock & DeMarco, LLC, and Gupta Wessler PLLC represent Jessica Hogan, Dejha Valentine, and Class Members. Class Counsel’s contact information is set forth below: 

Andrew Biller (0081452)

Andrew Kimble (0093172)

Philip Krzeski (0095713)

Biller & Kimble, LLC 

8044 Montgomery Rd., Ste. 515

Cincinnati, Ohio 45236

Telephone: 513.202.0710 

Website: billerkimble.com

Paul Demarco (0041153)

Markovits, Stock & DeMarco, LLC

3825 Edwards Road, Suite 650

Cincinnati, OH 45209

Telephone: 513.665.0210

Website: msdlegal.com

Rachel Bloomekatz (0091376)

Gupta Wessler PLLC

1148 Neil Avenue

Columbus, Ohio 43201

Telephone: (202) 888-1741

Website: guptawessler.com

You may direct any questions about the Settlement or the Lawsuit to Class Counsel. You should not contact the Court or Defendants about this Notice. 

Class Counsel has prosecuted this lawsuit since October 2015 and has not received payment of any attorney’s fees or expenses incurred in representing the Class other than an award for $200,000 relating to Defendants’ counsel’s conduct during discovery. Under the Settlement Agreement, Class Counsel intends to ask the Court to award them up to $200,000 in attorney’s fees, as well as reasonable expenses, including settlement administrations, they have incurred and will incur. In addition, Class Counsel will seek a service award up to $15,000 payable to Plaintiff Jessica Hogan and $10,000 to Plaintiff Dejha Valentine for their service to the Class by prosecuting the Lawsuit. Ms. Hogan’s payment is for her services on behalf of Sirens’ bartenders (addressed in a different notice) and her work on behalf of Sirens’ dancers (addressed in this notice). 

You may also hire your own attorney to represent you in this matter. If you do, your attorney will be paid at your own expense.

When and Where Will the Court Decide Whether to Approve the Settlement

The Court will determine whether to approve this Settlement. To do so, on Wednesday, January 27 at 9:00 AM, the Court will conduct a Settlement Fairness Hearing before the Honorable Judge Algenon Marbley at the Joseph P. Kinneary U.S. Court House, 85 Marconi Blvd. Room 121, Columbus, OH 43215. To participate in the Settlement, you are not required to attend this hearing, but you are welcome to do so. At the hearing, the Court will determine:

(a) If the Settlement is fair, reasonable, and adequate; 

(b) If the Lawsuit should be dismissed;

(c) If Class Counsel’s request for attorney’s fees and expenses should be approved; 

(d) If Plaintiff(s) should receive Service Award(s), and if so, the amount of the Service Award(s); and

(e) If any other relief is necessary.

The Court may approve the Settlement and/or any other related matter at or after the Settlement Fairness Hearing without further notice to Class Members. 

***

Please Direct Any Questions About this Notice to Class Counsel (contact information above).

____________________________________________________________________________________________________________________________________________

Claim Form and Release for Entertainer Subclass Members

Hogan, et al., v. Cleveland Ave Restaurant, et al., Case No. 2:15-cv-2883

The United States District Court for the Southern District of Ohio (the “Lawsuit”)

By signing and filling out this Claim Form and Release, I agree to the following: 

1. I understand that the above-referenced Lawsuit has been settled, and that the Court has preliminarily approved the Settlement.

2. I understand that I will ONLY receive a payment through this Settlement if I timely and properly submit this Claim Form and Release. 

3. I understand that, unless I submit an Opt-Out Notice, I am bound and intend to be bound by the following release: 

I release and discharge Defendants Cleveland Ave Restaurant, Inc., Francis Sharrak, Michael Sharrak, Chad Sullivan, Jay Nelson, and Dominick Alkammo, and their insurers, agents, servants, parents, subsidiaries, affiliates, divisions, members, trustees, partners, officers, directors, employees, attorneys, successors, predecessors, administrators, and employee benefit plans, both individually and in their business capacities (collectively, “Released Parties”), from any and all claims, demands, rights, liabilities, and causes of action, whether known or unknown, that were asserted in the Lawsuit concerning wage and hour claims, spoliation of evidence, and unjust enrichment claims related to entertainment performed at Sirens Gentlemen’s Club or that could have been asserted in the Lawsuit upon the same factual allegations, including all claims under Ohio law and FLSA claims raised in the lawsuit, from October 6, 2012 to February 21, 2019. 

4. I consent to join the Action under the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) and submit to the jurisdiction of the United States District Court, Southern District of Ohio, for purposes of this litigation and enforcement of this Settlement. I acknowledge that I am bound by and subject to the terms of any judgment that may be entered in the litigation.

5. I understand that by submitting this form, if it is validated, I will receive a “submission payment” of $85, which will be an advance against the full amount I will eventually receive under the Settlement (assuming I am due more than $85). 

I declare under penalty of perjury that the information provided on this form is true and correct.

Signature: ____________________________________________________________  

Print Full Name: _______________________________________________________

Print Stage Name(s) used at Sirens:

_________________________________________________________________________________

Number of weeks you entertained at Sirens including, if possible, the approximate month(s)/year(s): 

_________________________________________________________________________________

Your Current Address:

____________________________________________________________________________________________________________________________________________

Street                           Apt.                             City                                State                              Zip Code

Phone Number: ____________________________________________________

Email Address: _____________________________________________________

(OPTIONAL) Please provide any other information you are able to share that could be useful to the Entertainer Claims Administrator in verifying that you were an entertainer at Sirens and when:

____________________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________________

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