• Case 1:04-cv-03394-DLI-RML Document 1
UNITED STATES DISTRICT COu~T
EASTERN DISTRICT OF NEI.;r YORK -------------------------------------x
GERARD CERDA, individually and on behalf of all persons simj 1arly situated,
Plaintiff,
-against-
RESTAURANT ASSOCIATES, INC .. and
RA TENNIS CORP.,
__________________D_e_f_e_n_d_a_n_t_s_. _________ x

• ...... Filed 08/09/04 Page 1 of 10 , ' '* ,* UM·~.••Y. AUG 0 921)01. /If'~ "AN'on94 COMPLAINT AND J"JRY DE:1AND
GARAUFIS, J.
.!".\1I \(_

Plaintiff GERARD CERDA, by 'lis attorney, Eugene II. Gaer, for his Complaint alleges as follows:

1. This is an action for damages and equitable relief for unlawful employment discrimination on the basis of national origin and race respecting the assig::1ment of positions and locations to food vendors employed at the United States elpen 'rennis Tournament (the "US Open"). Such discrimination lS viQlative of Title VII of "he Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights La~I, Executive Law § 290 et ~ ("NYSHR,-,"), and the New York City Human Rights Law, Admielistrative Code ~ 8-107 (1) (a) Gt ~ ("NYCHRL") .

JURISDICTION AND VENUE 2. The Court has jurisdiction over the action pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. Venue is appropri.ate under 28 U.S.C. § 1391.

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 2 of 10

3. The Court has ju:r..i.sdiction over the federal claims of discrimination alleged herein in t.hae Cerda filed a complaint respecti.ng the wrongful acts of disc:cimination alleged herein with the United States Equal F.mployment Opportunity Commission on
or about October 27, 2003, which claim was dismissed upon the
issuance of a Notice of Right To .sue on June 14, 2004. Fewer than 90 days have elapsed since the date of the issuance of said Notice of Right To Sue.

4. The Court has jurisdiction over the claims of discrimination alleged herein under NYSHRL and NYCHRL under principles of supplemental and pendant jurisdiction.

THE PARTIES 5. Plaintiff Cerda is a citizen and resident of the State of New York who resides at 30:< East 103'" Street, Apt. 3-D, New York, New York 10029.

6. Plaintiff Cerda is of Hispanic national origin in that his mother is of Puerto :oI.ican, and hi.s father of Mexican, national origin.

7. For eleven years Cerda's principal cccupation has been employment as a refreshment vendor at various sports events, including the US Open.

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 3 of 10

8. Defendan:: RESTAURANT ASSOC~ATBS, INC. {"Associates"), is
a Ne~1 York: corporation having a principal place of business at 36 West 44'" Street, 5" Floor, New York, New York 10036.

9. Defendant RA TS",'NIS CORP. ("Rl\" ~ is a New York
Corporation having a prine'..:;:>al place ot business at J71ushing Meadow P<l.rk, Flushing, Queens, New York.

10. Associates and RA are coach engaged in interstate commerce and employ more than 100 persons each.

11. Because Associates and RA are closely affiliated with respect to ownership, manag8ment, labor rela~ions and all matters at issue in this case, they ar.e jointly and severally liable with respect to all claims alleged 11e);ein.
THE FACTS 12. Every year during late August and early September the United States Tennis FederatioTl (the "USTA") conducts the US Open at its tennis center located at Flushing Meadow Park, in the
Borough of Queens, City ano. State of New York. The US Open is regarded as one of the f01.:r premier international tennis tournaments. According to its organizen" tl'_e us Opon is "the hi.ghest attended annual sporting event in ehe world".

13. A spectator event of ::he magn~tude of the US Open 3

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 4 of 10

necessarily has facilities for Vr.ovi.din9 :'000. and bevf':cages. These facilities are located thrQughou:: the grounds of the tennis center, both inside and outsids the main stadium. Since at least 2000, and at all times relevant to this complaint, the USTA has contracted with Associates and Rh to oper"-tc "-:ld manage such facilities.

14. Each year in the months of June and July, Associ.ates and RA interview and hire several ~'lundred persons La staff the refreshment facilities at the US Open.

15. Tho. refreshment facilities at lha US Open are not equally valuable in terms of compensation n~ceived by the personnel who staff them. The stationary beer wagons are the best sales assignments because: (a) they generate the most tips; and (b) they are staffed by an~y two people per wagon, which means that the 14% sales ccmmj.ssians paid for each sales location are only divided between t~ose two people. Other locations are staffed by as many as 20 people in sales and support, all of whom receive a smaller share? of the commi"sions.

16, In each year since 2000, the great majority of personnel have beBn Hispanic and/or non-white (including African-Americans and Asian-Americans), but Assocj.ates and RA Lave deliberately and overwhelmingly assigned the Deer wagon" to non-Hispanic white people,

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 5 of 10

17. O:orda worked as a vendo," i'lt tl-::" US Open in ).000 a:ld 2003. In both years defendants l\ssooiates and RA failed a::ld refused to assign him to the beer wagons whDe assigning these positions to non-Hispanic white personnel. In 2002 Cerda also received a discriminatory assignment at a facility other than a beer wagon.

18. Because of the r.ecnrring nature but short time-span of the US Open (less than three weeks) Cerda and the class set forth herein do not have an adequate r.emedy at la.,1 for the wrongful conduct of Associates.

19. The USTA is not being nam8d as a defendant at this time solely on the basis of its representation to the 8EOC that it nas no role in hiring or staffing decisions by Associates and RA. In the event that evidence developed during d~scovery indicates that the USTA is in a position to stop Lhe discriminatory conduct by its concessionaires Associatss and RA, Csrda may move to amenci this complaint to nane the USTl\. as an addicional defendant.

CLASS ACTION ALLEGATIONS 20. Cerda brings this action as a class action pursuant to subparts (a), (b) (2) and ('0) (3) of Rule 23, Fed. R. Civ. l?roc., on behalf of a class consisting of alJ Hispanic and/or non-white refreshment concessioL personne~ who were hired, employed cr offered employment by Associates or RA ac the US Open in all

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 6 of 10

years since 2000.

21. Members of the class are 50 numerOuS that joinder of all members is impracticable. The exae::: number of class members is
not known at this time and can only be ascertained through
appropriate discovery. Several hundred refreshmenc concession workers are employed during each US Open and the individuals who are so employed change from year to year. ,"creaver, the short time-span of the US Open meanS that this is a situation which has recurred and will likely recur in the future before many of the individual class members become aWare of the degree to which they havB been injured and of their legal remedios Eor sllch injury. The identity of class members may be determined from records maintained by Associates and RA and, if appropriatG, by advertisement. Class melnbers may be notified by mail and publication, using forms of notice similar to those customarily used in employment discrimination class actions.

22. CGrda' s claims arc typical of. the claims of the other members of the class. Cerda was assigced to facilities other than a beer wagon during three of the years subject to this complaint. He suffered actual diminution of income, humiliation and emotional injury as a result of being discriminated against in favor of non-Hispanic white vendors. Hc has retained competent and experienced counsel who intend tc prcsecute this action vigorously. Cerda has no interests which are contrary to

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 7 of 10

or In conflict with those of tho class which he seeks to represent. ThG interests of the class will be fairly and adequat.ely protected by Ccrdil..

23. Common questions of law and fact [lxist "-8 to all members of the class and predominate ovcr any questions solely affecting
individual members of ~he class. Among lhe questions of law and fact commOn to the class are:
(OIl Whether the distribution by hssociates and Rll. of preferable work assignmclIlts to non-Hispanic whites
constituted acts of unlawful em:ploym8nt discrimination is violation of Title VII, the NY$HRL and the NYCHl{L; (b) Whether mombers of :eha class have ,,"..!stained damages as a result of :;he conduct of Associates and RA and the proper measure of such damages; (c) Whether an injunction shoU~Q be issued barring Associates and RA from engaging in such conduct in ::he future I and (dl Whether the USTA bore any measure of responsibility for the discriminatory acts set forth herein.

24. A class action is superior to all other available methods for the fair and efficient adjud~oation of this controversy. Cerda knows of nO difficult to be encountered in the management of ths action that would preclude its maintenanoe

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•Filed 08/09/04 Page 8 of 10

as a class action.

FIRST CLAIM FOR RELIEF (Employment Discrimination under Ti~lo VII)
25. Cerda r8peats and reallegcs trtc allegations of
paragraphs 1 through 24 hereof as if fully set forth herein.

26. The acts of Associates and RA comp~:ained of herein constituted unlawful employment discrimination against Hispanic and/or non-white refreshment concession \·]orkers such as Cerda in violation of Title VII.

SECOND CLAIM FOR RELIEF (Employment Discrimir:ation under KYSHRL)
27. Cerda repeats "nd realleges tLe allegations 0::
paragraphs 1 through 26 hereof as if fully set forth herein.

28. The acts of Associ.ates and RA complained of herej.n constituted unlawful employment discdmination against Hispanic and/or non-white refreshment concession workers such as Cerda in violatiol: of NYSHRL.

THIRD CLAIM FOR RELIEF (Employment Discrimination under NYCHRL)
29. Cerda repeats and realleges the allegations of
paragraphs 1 through 28 as if fully set forth heroin.

8

• Case 1:04-cv-03394-DLI-RML Document 1

•Filed 08/09/04 Page 9 of 10

(f , On August

200~, copies of the proposed complaint

herein were served On the Now York City Commission on Human

Rights and the New York City Co:rpo:r.ation Counsel pursuant to § 8-

502(0) of the New York City Adminjstrative Code,

31. The acts of Associates and Rh com91ained of heTei" constituted unlawful employrrent discrimination against Hispanic and/or non-white refreshment concession wo~kGn; such as Cerd" in violation of NYCHRL.

WHEREFORE, Plaintiff dema::lds judgment in favor of himself and the class as follows;

(a) back pay in an amount to be decermined at trial foT. past salary lost as a result of discrimination respecting work assignments;

(b) an injunction barring defendants from further engaging in the discriminatory conduct alleged herein;

(c) front pay In an amount to be determined at trial;

(d) compensation in an amount to be determined at trial for humiliation, mental anguish, pain and suffering with respect to all clai,ms as to which such damages are

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•Filed 08/09/04 Page 10 of 10

authorized by law;

together with interest on ::he amounts mlarded, th", costs and disbursements of this actj.orr (iccluding reasonable attorney's
fees and litigation expenses as pocQvided by law) and such other
relief as is just and proper.

Plaintiff Demands a Trial by Jury.

9 Dated: New York, New York

August

2004

Ej;A.~k
Attorney for Plaintiff
317 Madison Avenue, Suite. 2310
N8W York, New York 10017 (212) 949-%96 (telephone) (2:..2) 949-6241 (fax)

Of counsel,
ROGER J. BERNSTEIN 331 Madisoro Avenue. 1S" Floor New York, New York 10017
(212) 338-9188 (telephone) (212) 338-9102 (fax)

 
 Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X

GERARD CERDA, individually and on :

behalf of all persons similarly

situated,

:

Plaintiff,

:

-against-

:

RESTAURANT ASSOCIATES, INC. and

RA TENNIS CORP.,

:

Defendants.

-------------------------------------X

No. 04-CV-03394 (NGG)(RML)

_________________________________________________________________
PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT __________________________________________________________________

Eugene Gaer, Esq. 420 Lexington Ave., Suite 2620 New York, NY 10170 Tel: (212) 949 9696
Roger J. Bernstein, Esq. 331 Madison Avenue, 15th Fl. New York, New York 10017 Tel: (212) 338-9188
Attorneys for Plaintiffs

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 2 of 10
Preliminary Statement Plaintiff now requests Court approval of the settlement of this class action under Fed. R. Civ. P. 23(e). The class consists of all Hispanic and non-white employees of defendants Restaurant Associates, Inc., and RA Tennis Corp. who worked at the US Open Tennis Tournament in 2003. Notice of the settlement has been sent to each of the 279 members of the class. Declaration of Laurence B. Jones, ¶¶ 3-4. A total of 101 claim forms have been submitted, of which 97 have been determined by the parties to be eligible for participation in the class action settlement. This memorandum of law is submitted in support of approval of the proposed settlement.
FACTUAL BACKGROUND Defendant Restaurant Associates, Inc. (“RA”) operates and manages the facilities at the US Open for providing food and beverages, both inside and outside the Arthur Ashe stadium. Each summer RA hires several hundred persons to staff these facilities for approximately a three-week period. Plaintiff alleges that RA has given the higher-paying concession stand jobs to white employees and that he and all Hispanic and non-white employees are shunted off to lower-paying positions, in violation of the federal, state and City employment non-discrimination statutes. Amended Complaint, ¶¶ 15-16. Defendant has denied these allegations and denies any liability
1

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 3 of 10
to plaintiff or to the proposed class. In discovery the RA payroll records for concession
stand vendors at the US Open in 2003 have been produced and exhaustively reviewed by counsel for the parties. While plaintiff contends that these records demonstrate that the pay of non-whites working at food and beverage stands is systematically lower than that of whites working at those stands, defendant has identified instances where the pay of a black employee is higher than that of white employees. Given the conflicting evidence, establishment of discrimination against non-whites therefore remains uncertain.
As the Court is aware, extensive settlement negotiations took place during 2004-2005 that were supervised by the Court. These negotiations did not result in a settlement. In December of 2005 plaintiff served a motion for class certification on defendant as well as a motion to amend the complaint. Settlement negotiations resumed in January of 2006 before the full briefing and filing of these motions; plaintiff and an executive of defendant, in addition to their respective counsel, participated in these negotiations.
Eventually the negotiations resulted in a settlement which calls for defendant to establish a $90,000 settlement fund to be divided pro rata among non-white employees and employees of non-U.S. national origin who file claims. Counsel fees of $50,000 and an incentive award to the named plaintiff of $7,500
2

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 4 of 10
are provided for separately in the settlement agreement, and these payments are not charged against the $90,000 class member fund. Reference is made to the attached settlement agreement for a complete statement of the settlement terms. Approximately 100 class members have filed claim forms. Therefore the payment to each class member will be approximately $900.
Based on comparison of the wages paid by RA to white and non-white employees, plaintiff’s counsel estimate that the average lost wage claim of each class member is in the vicinity of $400.00. This estimate is the result of extensive review and analysis by plaintiff's counsel (with the participation of plaintiff himself) of the data in defendant's files concerning the job assignments and wages of persons employed by RA at the 2003 US Open.
Besides considering race and ethnicity, they reviewed such factors as type and location of concession, day of the week and point of time within the overall tournament to obtain an accurate cross-section of the differential in compensation between white non-Hispanic employees and class members. The small (but internally consistent) amount of the differential reflects the short period of employment (two-three weeks) and the low pay for these jobs. The amount to be received by each class member in excess of $400 is applicable to each class member’s non-economic claim for damages other than lost wages under the employment discrimination statutes.
3

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 5 of 10
ARGUMENT APPROVAL OF THE SETTLEMENT IS APPROPRIATE The parties have conducted substantial discovery and have engaged in court-supervised negotiations followed by armslength separate negotiations that resulted in the proposed settlement. The undersigned counsel have achieved a thorough understanding of the strengths and weaknesses of the claims and of the potential defenses. The state of the evidence is such that it is far from a foregone conclusion that the class would achieve a more favorable result if the case went to trial. In particular, it is uncertain what damages a jury would award in excess of the wage differential being recovered by means of the settlement. The settlement in this case has drawn no objections and has received support from nearly 100 class members who desire to participate in it. The recovery for class members is certain and represents well more than the average lower-pay claim that each class member has. And further prosecution of this action would take significantly more time for remaining discovery, motions, trial, and any appeal, for an uncertain result. For these reasons, as supported by the applicable case law factors, the settlement should be approved. 1. Standards for Approval of a Class Action Settlement “The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable
4

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 6 of 10
and adequate.” Schenek v. FSI Futures, Inc., 1999 U.S. Dist. LEXIS 707 at *3-4, (S.D.N.Y. 1999), citing Weinberger v. Kendrick, 698 F.2d 61, 73 (2nd Cir. 1982), cert. denied, 464 U.S. 818 (1983); accord, Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995). A proposed class action settlement enjoys a strong presumption that it is fair, reasonable and adequate if, as is the case here, it was the product of arms-length negotiations conducted by capable counsel experienced in class action litigation. See, e.g., In re Sumitomo Copper Litig., 189 F.R.D. 274, 280 (S.D.N.Y. 1999; New York & Maryland v. Nintendo of Am., Inc., 775 F. Supp. 676, 680-81 (S.D.N.Y. 1991). Moreover, “(s)ettlement approval is within the Court’s discretion, which ‘should be exercised in light of the general judicial policy favoring settlement.’”) Sumitomo, supra, 189 F.R.D. at 280 (citation omitted).
The factors governing approval of class action settlements are well-established in this Circuit. In City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), the Second Circuit Court of Appeals held that the following factors are to be considered in evaluating a proposed class action settlement:
(1) the complexity, expense and likely duration of the litigation . . ; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the
5

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 7 of 10
best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 463(citations omitted); see also County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323-24 (2d Cir. 1990). These factors support the settlement achieved in this case or are neutral; none of them disfavors the settlement. As to factor (1), the settlement saves the significant time that would be required for the remaining discovery (depositions of RA staff, among others), for class certification briefing and decision, for disposing of the likely summary judgment motion, and for trial. As to (2), the reaction of the class is overwhelmingly favorable: nearly 100 eligible class members have filed claims and no class member has objected. As to (3), sufficient discovery has been obtained from defendant’s pay records to establish the likely damages and the possible difficulties of maintaining a class action. As to (4) and (5), while plaintiff does not perceive a significant risk as to whether liability will be established, it is not realistic to ignore the risk that defendant’s counterexamples will be credited by a jury. As to (6), class action certification has not yet been granted, so there is the risk that it will not be granted at all if the settlement and settlement class are not approved. Factor (7) is neutral: there is no question as to the ability of the defendant to withstand a larger judgment and the case is not being settled on that basis; rather,
6

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 8 of 10
the dollar amount reflects the low wage amounts paid in a period of only three weeks. As to (8), the range of reasonableness of the settlement fund in relation to the best possible recovery, it suffices to state that the recovery is greater than the lost wage claim alone (determined in the manner summarized above at p. 3). No one can say whether a jury would award significant noneconomic damages in this case. As to (9), given all the risks already discussed, the amount to be paid is more than reasonable in light of the litigation risks and the uncertainty as to what might be recovered through further litigation.
In short, the $90,000 settlement in this case is within a range which reasonable and experienced attorneys, and class representatives, could accept, considering the size of the class, the low dollar amounts at issue in a wage case involving three weeks, and all of the risks, facts and circumstances in the case. The range for an acceptable settlement, as once defined by Judge Friendly, “recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion . . . .” Newman v. Stein, 464 F.2d 689, 693 (2nd Cir. 1972).
Finally, we note that the class action notice procedures met the requirements of Fed. R. Civ. P. 23(c)(2). All class members had provided their home addresses to their employer, and notice was sent to all class members at their last known address. This satisfies the requirements of Rule 23.
7

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 9 of 10 Martens v. Smith Barney, Inc., 1998 WL 1661385 (S.D.N.Y. 1998) (court ordered that class notice be distributed by first-class mail to the last known addresses of all members of the class); Langford v. Devitt, 127 F.R.D. 41, 45 (S.D.N.Y. 1989) (“notice mailed by first class mail has been approved repeatedly as sufficient notice of a proposed settlement”) (citation omitted). Moreover, as a practical matter, close to 100% individual notice was achieved. Individual mailed notice was provided through first-class mail to all class members at their last known addresses.
In sum, considering the risks, delays and expenses associated with trial, we submit that the proposed $90,000 settlement is well within the range of reasonableness considering the number of class members, the wage amounts involved, and the
8

Case 1:04-cv-03394-DLI-RML Document 19 Filed 07/24/06 Page 10 of 10

short (three-week) duration of the wage differential.

CONCLUSION For the foregoing reasons, plaintiff respectfully requests that the settlement be approved by the Court.

Dated:

New York, New York July 20, 2006

______________________________ Eugene A. Gaer, Esq. (EG 2632) Co-Counsel for Plaintiff 420 Lexington Ave., Suite 2620 New York, NY 10170 (212) 949 9696 Roger J. Bernstein (RB 9501) Co-Counsel for Plaintiff 331 Madison Avenue, 15th Floor New York, New York 10017 (212) 338-9188

9

 
 Case 1:04-cv-03394-DLI-RML Document 21 Filed 07/28/06 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-------------------------------------X
GERARD CERDA, individually and on behalf of all persons similarly situated,
Plaintiff,

No. f:09M4--eoR/Mc.L3) 94
----

-against-
RESTAURANT ASSOCIATES, INC. and RA TENNIS CORP.,
Defendants.
-------------------------------------x

. FltED
*U.S. ci~¥~~~Kc·SOOFF'CE' URTE.O.N.Y. 'JUt 2 ~ 2006 ..

... riME

P.M. A.M.

--

-...

.

zr;

FINAL APPROVAL ORDER

Plaintiff having moved for an order granting final

approval of the proposed settlement of this action, and the Court

having reviewed the Declaration of Laurence B. Jones respecting

the mailing of class action notices and the Declaration of Eugene

A. Gaer concerning the receipt of claims, the Court hereby finds

as follows:

1. Individual notice to class members has been given

in accordance with Fed. R. civ. P. 23(c) (2);

2. The proposed class action settlement is fair,

reasonable and adequate in light of all the circumstances of the

case, and is hereby approved;

3. Based on the information supplied by plaintiff's

counsel and defendant's counsel, the claims submitted by Grice1

Hernandez, Kevin Hines, Patricia Ross, and Josiah VanFleet are

disallowed because they are not members of the class as defined

in the complaint and in the settlement agreement.

Case 1:04-cv-03394-DLI-RML Document 21 Filed 07/28/06 Page 2 of 3

4. The application made by plaintiff's counsel to authorize the processing of claims mailed by class members after the July 5, 2006 deadline for mailing same is approved, and all class member claims received by Mr. Gaer on or before July 25, 2006, as well as the claims of Olutowin Cole, Peter Muli-Kaindi, Peggy Mutuku, and Nyambura Mwangi, shall be paid out of the class action Settlement Fund.
5. The parties are authorized and directed to carry out the distribution of the Settlement Fund, as well as payment to plaintiff and counsel in accordance with the terms of the settlement agreement; and
6. The Clerk is hereby directed to close the file in this matter and to mark this case terminated. The Court shall retain jurisdiction for 90 days hereafter to address any questions concerning settlement fund administration and distribution.

Dated:

Brooklyn, New York July;&o/" 2006

2

ACKNOCWaLEsDeGM1E:N0T4IN-cNvE-W0Y3O3R9K 4ST-ADTEL(IR-RPLM30L9-8) Document 21

Filed 07/28/06 Page 3 of 3 ACKNOWLEDGMENT BY SUBSCRIBING WrrNESS(ES)

State of New York, County of New York

ss.:

On May 16, 2003

before me, the undersigned,

State of County of

ISS.:

personally appeared
MANUEL GUAMAN

On personally appeared

before me, the undersigned,

personally known to me or proved to me on the basis of satisfac-

tory evidence to be the individual(s) whose name(s) is (are)

the subscribing witness(es) to the foregoing instrument, with

subscribed to the within instrument and acknowledged to me that

whom I am personally acquainted, who, being by me duly

he/she/they executed the same in hislher/their capacity(ies),

sworn, did depose and say that he/she/they reside(s) in (;j the

and that by hislher/their signature(s) on the instrument, the indi-

place of re~;jdence is in a city, include the street and slreet number,

vidual(s), or the person upon behalf of which the individual(s)

if any, thereoj);

acted, executed the ins

0' "- ""'" MARIAN GOLUB
_ r y Public•.Slate

ytyt/}% au.1IIeNdo~. 3.1=04.64'69:/.

3

ACKNOWLEPGMENT OUTSIDE NEW YORK STATE (RPL 309-b)

State of ~1\1:0!1(\

County of 1-\(1(1'Ln~ CI

sS.:

On ~~'j \~) 2W?J

before me, the undersigned,

personally appeared ~\i\ ~\QC~v.x;l\

personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hiS/her/their capacity(ies), and that by hislher/their s;gnature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in
t..__.... (insert city or political subdivision a state or ('ountY. r other place aclaww/-
edgmem taken)
(signoture and office of individual taking acknowledgment)

that he/she/they know(s)
to be the individual(s) described in and who executed the foregoing instrument; that said subscribing witness(es) was (were) present and saw said
execute the same; and that said witness(es) at the same time subscribed hislher/their name(s) as a witness(es) thereto. ( 0 iffaken outside New York Slate insert city or polilical subdivision and state or country or OIher place acknowledgment taken And that said subscribing witness(es) made such appearance before the undersigned In
(signature and office of individual raking ackrww/edgmeflt)

 
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 Case: 1:04-cv-3394 As of: 07/20/2009 02:25 PM EDT 1 of 5
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:04−cv−03394−DLI−RML

CLOSED

Cerda v. Restaurant Associates, Inc. et al Assigned to: Judge Dora Lizette Irizarry Referred to: Magistrate−Judge Robert M. Levy Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/09/2004 Date Terminated: 07/28/2006 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Gerard Cerda individually and on behalf of all others similarly situated

represented by Eugene A. Gaer 317 Madison Avenue Suite 2310 New York, NY 10017 (212) 949−9696 Email: eugaer@earthlink.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger J. Bernstein Law Offices of Roger Bernstein, Esq. 233 Broadway Suite 2701 New York, NY 10279 212−227−8383 Fax: 646−964−6633 Email: rbernstein@rjblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Restaurant Associates, Inc.

represented by Jonathan P. Harmon McGuire Woods, LLP One James Center 901 East Cary Street Richmond, VA 23059 (804) 775−1000 Fax: (804) 775−1061 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. DiMattia McGuire Woods LLP 1345 Avenue of the Americas 7th Floor New York, NY 10105−0106 212−548−7009 Fax: 212−715−2312 Email: mdimattia@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neera Mahajan Shetty McGuire Woods, LLP Bank of America Tower 50 North Laura Street Suite 3300 Jacksonville, FL 32202−3661 (904) 798−3200

Case: 1:04-cv-3394
Defendant RA Tennis Corp.

As of: 07/20/2009 02:25 PM EDT 2 of 5
Fax: (904) 798−3207 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard David Sutton McGuire Woods, LLP 1345 Avenue of the Americas 7th Floor New York, NY 10105−0106 212−548−7024 Fax: 212−715−6262 ATTORNEY TO BE NOTICED
represented by Jonathan P. Harmon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. DiMattia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neera Mahajan Shetty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard David Sutton (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/09/2004 08/09/2004 08/12/2004
08/16/2004 09/09/2004 09/09/2004

# Docket Text
1 COMPLAINT against RA Tennis Corp., Restaurant Associates, Inc. filing fee $ 150, receipt number 297849, filed by Gerard Cerda. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) (Entered: 08/10/2004)
Summons Issued as to RA Tennis Corp., Restaurant Associates, Inc. (Villanueva, William) (Entered: 08/10/2004)
2 SCHEDULING ORDER:An initial conference has been scheduled for December 9, 2004 at 2:30 pm, in Courtroom 619 at 225 Cadman Plaza East, Brooklyn, New York. All counsel must be present. Plaintiff's counsel is directed to confirm with defendant's counsel that all necessary participants are aware of this conference. SEE ATTACHED ORDER Signed by Judge Robert M. Levy on 8/12/04. (Marino, Janine) (Entered: 08/12/2004)
Email Test − DO NOT REPLY − All documents have to be filed electronically. http://www.nyed.uscourts.gov (Vaughn, Terry) (Entered: 08/16/2004)
3 ANSWER to Complaint by RA Tennis Corp., Restaurant Associates, Inc.(Lee, Tiffeny) (Entered: 09/09/2004)
4 ADMINISTRATIVE ORDER 2008−04: You are required to file all original documents electronically. In the future, please ensure that all original documents in this action are filed electronically. Clearly marked hard copy−courtesy documents should be submitted to Chambers. Courtesy copies should also indicate that the original of the submitted document has already been electronically filed. Further Hard Copy filings may not be accepted. Registration forms are also attached. Michael J. DiMattia, Esq. is directed to advise McGuire Woods, LLP Co−Counsel of Mandatory ECF Compliance in the Eastern District of New York, and forward registration forms. (Lee, Tiffeny) (Entered: 09/09/2004)

Case: 1:04-cv-3394 As of: 07/20/2009 02:25 PM EDT 3 of 5

10/07/2004 10/15/2004
12/10/2004
01/20/2005 03/03/2005
04/26/2005
05/12/2005
05/13/2005 05/13/2005 05/20/2005 06/27/2005

5 Notice of MOTION for Leave to Appear Motion to Appear Pro Hac Vice by all defendants. (Sutton, Richard) (Entered: 10/07/2004)
6 ORDER granting 5 Motion for Leave to Appear Pro Hac Vice as to Jonathan P. Harmon, Esq. and Neera Mahajan Shetty, Esq. Signed by JudgeNicholas G. Garaufis on 10/05/2004. c/em All counsel is further reminded of Administrative Order 2004−08, mandating that all filings in the Eastern District of New York are to be made electronically. Any and all counsel that has yet to register for CM/ECF is directed to do so immediately. (www.nyed.uscourts.gov) (Lee, Tiffeny) (Entered: 10/15/2004)
Minute Entry for proceedings held before Robert M. Levy: Eugene Gaer, Roger Bernstein, plaintiff; Jonathan Harmon, defendants. Settlement discussions initiated. The following discovery shall be completed by 4/1/05: all document requests and interrogatories, and the deposition of the named plaintiff Gerard Cerda. The parties shall appear for a status conference on March 3, 2005 at 2:00 pm. A settlement conference with lawyers and principals will be held on April 28, 2005 from 10:00 to 12:00 to discuss resolution of the injunctive claims. Initial Conference Hearing held on 12/10/2004. (Levy, Robert) (Entered: 12/10/2004)
Case reassigned to Judge Dora Lizette Irizarry. Judge Nicholas G. Garaufis no longer assigned to the case. (Villanueva, William) (Entered: 01/20/2005)
Minute Entry for proceedings held before Robert M. Levy: Eugene Gaer, plaintiff; Jonathan Harmon, Larry Jones, defendants. The settlement conference on 4/28/05 will be held from 10−2. Principals shall attend, as discussed. The parties shall submit pre−conference statements to my chambers by 4/21/05. The parties shall clearly designate as confidential any portions of their statements that are for chambers' eyes only.Status Conference held on 3/3/2005. (Levy, Robert) (Entered: 03/03/2005)
7 SCHEDULING ORDER:A telephone conference has been scheduled for May 12, 2005 at 11:30 a.m., before the Honorable Robert Levy, United States Magistrate Judge, at (718) 260−2340. All counsel must be available. Plaintiff's counsel is requested to initiate conference call and confirm with defendants'counsel that all necessary participants are aware of this conference. No request for an adjournment will be considered unless made at least forty−eight (48) hours before the scheduled conference. Ordered by Judge Robert M. Levy on 4/26/05. (Marino, Janine) (Entered: 04/26/2005)
Minute Entry for proceedings held before Robert M. Levy: Eugene Gaer, Roger Bernstein, plaintiff; Jonathan Harmon, Larry Jones, defendants. Discovery is progressing. The parties will appear for a mediation on June 27, 2005 at 3:00 pm. Confidential pre−mediation submissions shall be submitted by June 17, 2005. Clients with settlement authority shall be present at the conference and available by telephone.Status Conference held on 5/12/2005. (Levy, Robert) (Entered: 05/12/2005)
8 STIPULATION − Protective Order between Plaintiff Gerard Cerda and Defendant Restaurant Associates, Inc. by Restaurant Associates, Inc.. (Sutton, Richard) (Entered: 05/13/2005)
ELECTRONIC ENDORSED ORDER re 8 Stipulation filed by Restaurant Associates, Inc., −−−−− This application for approval of a protective order which has been stipulated to by the parties is referred to Magistrate Judge Robert M. Levy as are all other discovery and non−dispositive matters. SO ORDEREDby Judge Dora Lizette Irizarry on 05/13/05. (Irizarry, Dora) (Entered: 05/13/2005)
ORDER re Order,, 8 Stipulation filed by Restaurant Associates, Inc. Following review of the proposed protective order, the order is hereby APPROVED. Ordered by Judge Robert M. Levy on 5/20/05. (Levy, Robert) (Entered: 05/20/2005)
Minute Entry for proceedings held before Robert M. Levy: All counsel present with clients. Settlement discussions held. Parties to reformulate proposals and return for continued settlement discussions 7/15/05 at 12:00. Discovery schedule to be revised at that time, if the case does not settle.Settlement Conference held on 6/27/2005. (Levy, Robert) (Entered: 06/27/2005)

Case: 1:04-cv-3394 As of: 07/20/2009 02:25 PM EDT 4 of 5

07/15/2005 09/13/2005 10/21/2005 11/04/2005 12/27/2005 01/25/2006 01/27/2006 03/15/2006 03/23/2006
03/23/2006
03/23/2006
03/29/2006

Minute Entry for proceedings held before Robert M. Levy : All parties present with counsel. Detailed settlement discussions held. Some progress made. Next conference 9/13/05 at 2:15 (settlement).Settlement Conference held on 7/15/2005. (Levy, Robert) (Entered: 07/15/2005)
9 Minute Entry for proceedings held before Robert M. Levy : Settlement Conference held on 9/13/2005. Extensive settlement discussions held. Next Conf. set for 10/20/05 at 2:15 (Permaul, Jenny) (Entered: 09/15/2005)
10 ORDER endorsed on letter dated 10/18/05 from Jonathan Harmon to Mag. Robert M. Levy reqesting a continuance of the settlement conference that is scheduled for 10/20/05. Application granted. The Conference is adjourned to 12/5/05 at 4:00 p.m. Ordered by Judge Robert M. Levy on 10/18/05. (Black, Amanda) (Entered: 10/21/2005)
11 ENDORSED ORDER granting application to adjourn 12/5/2005 settlement conference. Conference now scheduled for 12/21/2005 @ 10:00 a.m. Ordered by Judge Robert M. Levy on 11/3/5. (Lee, Tiffeny) (Entered: 11/04/2005)
12 ENDORSED ORDER: conference adjourned to 1/27/2006 @ 4:00 p.m. Ordered by Judge Robert M. Levy, on 12/20/2005. (Endorsed on letter dated 12/20/2005 from Jonathan P. Harmon to USMJ Levy) (Barrett, C.) (Entered: 12/27/2005)
ORDER. As the parties report that they have reached agreement in principle on a settlement, the January 27, 2006 settlement conference is cancelled. The parties shall contact chambers by 2/3/06 to schedule a conference to resolve any remaining questions. The conference may be by telephone, if the parties prefer . Ordered by Judge Robert M. Levy on 1/25/06. (Levy, Robert) (Entered: 01/25/2006)
13 Letter dated 1/24/2006 from Eugene A. Gaer to USMJ Levy, requesting that the conference scheduled for 1/27/2006, @ 4:00 p.m., be cancelled subject to rescheduling at a mutually convenient date. (Barrett, C.) (Entered: 01/27/2006)
14 ORDER endorsed on letter dated 3/13/06 from Jonathan Harmon to Mag. Robert M. Levy requesting a conference to discuss a preliminary settlement of this class action. APPLICATION GRANTED. Conference scheduled for 3/23/06 at 3:00 p.m. Ordered by Judge Robert M. Levy on 3/14/06. (Black, Amanda) (Entered: 03/15/2006)
Minute Entry for proceedings held before Robert M. Levy: Eugene Gaer; Jonathan Harmon, Lawrence Jones. Parties agree to settlement, submit proposed order and notice of settlement and hearing, execute consent to jurisdiction of magistrate judge. Hearing on Proposed Class Action Settlement scheduled for May 31, 2006 at 11:00 a.m. in Courtroom 11 B South.Settlement Conference held on 3/23/2006. (Levy, Robert) (Entered: 03/23/2006)
15 SCHEDULING ORDER:The Hearing on Approval of Proposed Class Action Settlement will be held on May 31, 2006 at 11:00 a.m. in Courtroom 11 B South before Judge Robert M. Levy. Attached is the Order with Respect to Preliminary Approval of Class Action Settlement, and Notice and Hearing on Proposed Class Action Settlement and (1) the Consent to Magistrate Judge Trial. Ordered by Judge Robert M. Levy on 3/23/06. (Attachments: # 1 Consent to Magistrate Judge Trial)(Levy, Robert) Additional attachment(s) added on 3/23/2006 (Vaughn, Terry). (Entered: 03/23/2006)
16 NOTICE of filing settlement agreement and consent to proceed before magistrate judge: SCHEDULING ORDER:The Hearing on Approval of Proposed Class Action Settlement will be held on May 31, 2006 at 11:00 a.m. in Courtroom 11 B South before Judge Robert M. Levy. Attached is the Order with Respect to Preliminary Approval of Class Action Settlement, and Notice and Hearing on Proposed Class Action Settlement and (1) the Consent to Magistrate Judge Trial. Ordered by Judge Robert M. Levy on 3/23/06. (Attachments: # 1 Consent to Proceed before Magistrate Judge)(Vaughn, Terry) (Entered: 03/23/2006)
17 Letter As to Changing Final Hearing Date to post−July 11, 2006 by Gerard Cerda. (Attachments: # 1)(Bernstein, Roger) (Entered: 03/29/2006)

Case: 1:04-cv-3394 As of: 07/20/2009 02:25 PM EDT 5 of 5

03/29/2006 04/19/2006 07/24/2006 07/26/2006 07/28/2006

ORDER re 17 Letter filed by Gerard Cerda. The application is GRANTED. The final hearing date is adjourned from May 31, 2006 to July 26, 2006 at 11:15 a.m. Counsel shall conform the order and class notice accordingly Ordered by Judge Robert M. Levy on 3/29/06. (Levy, Robert) (Entered: 03/29/2006)
18 Letter dated 3/29/2006 from Roger J. Bernstein to USMJ Levy, advising that the parties are available for a final hearing on a date after 7/11/2006.(Barrett, C.) (Entered: 04/19/2006)
19 MOTION for Settlement Approval − Memorandum of Law in Support of Final Approval of Class Action Settlement by Gerard Cerda. (Attachments: # 1 Affidavit Gaer Declaration as to Settlement Claims Administration 7 20 06# 2 Affidavit Jones Decl. as to Mailing of Notices)(Bernstein, Roger) (Entered: 07/24/2006)
20 Minute Entry for proceedings held before Robert M. Levy : Settlement Conference held on 7/26/2006. Counsel for the parties present. Hearing held. Settlement approved. Case can be closed. (Permaul, Jenny) (Entered: 07/28/2006)
21 FINAL APPROVAL ORDER of Proposed Settlement of this action. The Clerk is directed to close the file in this matter and to mark this case terminated. The Court shall retain jurisdiction for 90 days hereafter to address any questions concerning settlment fund administration and distribution. Ordered by Judge Robert M. Levy on 7/26/06. (Permaul, Jenny) (Entered: 07/28/2006)