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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-23074-BLOOM/TORRES

OCTAVIO COLLADO,

Plaintiff,

vs.

450 NORTH RIVER DRIVE, LLC 

D/B/A KIKI ON THE RIVER 

AND ROMAN JONES,

Defendants.

______________________________/

MOTION FOR RULE 11 SANCTIONS

AGAINST DEFENDANTS AND THEIR COUNSEL i

Former counsel for Plaintiff and the Collective, Brian H. Pollock, Esq. and FairLaw Firm

(hereinafter the “Undersigned”), request the Court to enter an Order sanctioning Defendants, 450 

North River Drive, LLC d/b/a Kiki on the River, RJ River, LLC and Roman Jones (collectively 

“Defendants”), and their counsel, Reynaldo Velazquez, Esq., Roman Sarangoulis, Esq., Allan S. 

Reiss, and their respective law firms, Jackson Lewis P.C., and Levine and Partners, P.A.

(“collectively Defense Counsel”), under Fed. R. Civ. P. 11, and the following good cause: 

I. INTRODUCTION

The Court properly sanctions Defendants and Defense Counsel for filing “Defendants’ 

Motion for Sanctions Pursuant To 28 U.S.C. §1927 Against Brian H. Pollock, Esq. and FairLaw 

Firm” (hereinafter the “1927 Motion”) on January 12, 2024 [ECF No. 243], as limited by ECF 

No. 253. They filed the 1927 Motion, knowing full well it was baseless, lacked any modicum of 

success in obtaining sanctions against the Undersigned, and any reasonable evaluation of the 

underlying facts would have revealed the same. It, and the arguments contained therein, are 

frivolous. Rule 11 was designed to curtail the meritless and ill-fated arguments Defendants and 

Defense Counsel advance. The baseless pursuit of a meritless motion for sanctions against the 

undersigned for advancing a novel legal, which the Court did not decide due to the procedural 

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error committed by Defense Counsel, is frivolous and sanctionable. Lastly, seeking sanctions 

against the undersigned based on when Mr. Collado finally executed his Answers to Interrogatories

and when they were served is frivolous because Defendants always had Mr. Collado’s time, pay, 

and tip records. Seeking sanctions against the undersigned for the reasons identified in ECF No. 

243, as limited by ECF No. 253, without a good faith basis in law or fact, is the type of bad faith 

conduct that entitles the undersigned to recover the sanctions contemplated by Rule 11 against 

Defendants and Defense Counsel.

II. FACTUAL AND PROCEDURAL HISTORY

1. The undersigned first spoke with Mr. Collado on July 8, 2022. 

2. Mr. Collado explained that he had experience working in restaurants in South 

Florida before working for the Defendants, including Joe’s Stone Crab, and that he knew the 

difference between tips and service charges due to his acknowledgment of the “Salt Bae case” that 

was decided several months before and its impact on the distribution of service charges.1

3. During this initial consultation, Mr. Collado described how Defendants print out a 

sheet containing small print identifying, for each payroll period, everyone who received tips from 

the tip pool and the amount distributed to each after he started working at Kiki on the River 

(“Kiki”). Mr. Collado recognized people listed on the printout as getting tips who should not have 

been in the tip pool. 

4. Mr. Collado explained that he complained to Roman Jones about the distribution 

of the tips to non-tipped employees and discussed Mr. Jones’ response to him.

5. Mr. Collado was adamant that he was owed a lot of money in tips from Kiki, urged 

the undersigned to claim as many years back as possible, and actively urged those who worked at 

Kiki to contact the undersigned about recovering the tips misappropriated at Kiki.

1 The “Salt Bae case” reference was to the Eleventh Circuit Court of Appeals’ decision in Compere v. 

Nusret Miami, LLC, 28 F.4th 1180 (11th Cir. 2022). The significance of his reference to the “Salt Bae” case 

is to demonstrate Mr. Collado’s ability to distinguish distinction between a service charge and a 

tip/gratuity/overtip. The undersigned’s discussions with Mr. Collado and the other former employees at 

Kiki revealed consistent themes, including that Kiki misappropriated the voluntary gratuities left by patrons 

(tips), that Roman Jones would be considered an “employer” under the FLSA and the FMWA, and that 

the misappropriated tip damages at issue would be significant.

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6. The undersigned discussed with Mr. Collado that although the distribution of tips 

is regulated by law, no laws protect or restrict the distribution of service charges and that he would 

only be able to seek recovery of the gratuities voluntarily left by patrons as tips but not a portion of 

the service charges Kiki automatically included in the bills.

7. Before filing the complaint, the undersigned further investigated the claims to be 

pursued by collecting documents from him, and by speaking with others who contacted the 

undersigned concerned about the distribution of tips at Kiki (Yordan Acosta and Francis Taylor), 

by reviewing their documents, and by conducting legal and other factual research. 

8. Messrs. Collado, Acosta, and Taylor each separately talked about problems with 

the distribution of tips, that the tips they received did not seem accurate, why the tips they received 

did not seem accurate, that ineligible persons received tips from the tip pool, tips that they believed 

never were deposited into the tip pool, and Roman Jones’ involvement in their work.

9. After multiple individuals separately confirmed Mr. Collado’s information about 

the improper retention and distribution of tips, and after reviewing documentation, the 

undersigned filed the instant lawsuit on September 23, 2022. [ECF No. 1.]

10. The undersigned emailed a letter to Mr. Collado on September 29, 2022, 

explaining the status of his case and enclosing a copy of the Complaint.2

11. At times, someone who consulted and/or retained the undersigned’s law firm would 

complain about how Kiki collected, did not collect, or distributed the service charge it imposed on 

customers. The undersigned either personally clarified or made sure his staff explained and 

clarified the difference between a tip and a service charge, and that the case only involved tips. 

12. After working with Mr. Collado, Mr. Acosta, and Mr. Taylor to discuss the tips at 

issue and the amounts each estimated to be at issue, the undersigned prepared the Statement of 

Claim [ECF No. 10]. The undersigned emailed each a letter explaining the Statement of Claim, 

enclosed a copy, and requested they advise him of any problems with it. [ECF No. 10.] None 

informed the undersigned of any problems with or inaccuracies in the Statement of Claim.

2 The undersigned provided a copy of the operative Complaint to Mr. Collado and each other person 

who joined this lawsuit, and at no time did Mr. Collado or anyone else inform the undersigned of any factual 

inaccuracies in any of the operative Complaints.

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13. The undersigned’s investigation into the facts underlying this case did not end with 

the filing of the initial Complaint, as the undersigned and other members of his office spoke with 

more former employees of the Defendants about their experiences involving the tips at Kiki.

14. For instance, the undersigned also spoke with Ines Berzina, Jovana Majetic, Andrea 

Compaoresi, and Andreas Bouras to discuss the information they had about the distribution and 

retention of tips, and they provided information that paralleled the information provided by 

Messrs. Collado, Acosta, and Taylor.

15. In a conversation with one former Kiki employee who was eligible to participate in 

the tip pool who did not join the case, the undersigned learned that managers (specifically naming 

Xandra Hollow) would log into the Point of Sale (“POS”) system as Captains, receive points as if 

they were Captains, and receive distribution of tips from the tip pool, even though they were 

ineligible managers. 

16. Others who worked at Kiki informed the undersigned that members of Sia 

Hemmati’s family did not actually work in tipped positions at the restaurant but still received tips 

from the tip pool.3 One person identified Mr. Hemmati’s daughter as someone who did not work 

in a tipped position at Kiki but who received tips from the tip pool.

17. Meanwhile, the office of the undersigned worked with Mr. Collado, Mr. Acosta, 

Mr. Taylor, Augusto Guerra, and Patricia Buraschi to help estimate and calculate the tips at issue 

under the FMWA before sending a letter demanding the recovery of tips for them and others 

similarly situated to the Defendants on November 10, 2022, pursuant to Fla. Stat. §448.110 and 

Art. X, §24, Fla. Const., while providing copies to each person named in the letter as a claimant. 

None thereafter identified any factual inaccuracies with the letter. 

18. This letter estimated 56 eligible employees for 260 weeks, and was based on the 

information obtained from Mr. Collado, Mr. Acosta, Mr. Taylor, Mr. Guerra, and Ms. Buraschi, 

and “subject to revision/adjustment based on the records” maintained by Defendants.4 The letter 

also stated that it was based on “the absence of actual paychecks to [my clients] and the class and 

3 Sia Hemmati is the Managing Partner of 450 North River Drive, LLC. [122-1 at 6.]

4 On July 24, 2023, Defendants identified another 358 people who had not yet joined the lawsuit 

and who were eligible to receive notice of their rights of the assemblage of a collective action for the three 

years at issue in Count I.

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the records reflecting the gratuities left by patrons and the gratuities paid out.” 

19. The undersigned filed an Amended Complaint on December 7, 2022, to include 

claims to recover the tips unlawfully retained or distributed under the FLSA, the Florida Minimum 

Wage Act, and Florida common law after the deadline to resolve the FMWA demand letter passed. 

[ECF No. 40.] A copy of this letter was sent to Mr. Collado, who did not identify any factual 

inaccuracies to the undersigned.

20. Mr. Collado remained in contact with the undersigned. During one telephone 

conversation that occurred on December 7, 2022, Mr. Collado recounted a situation in which Ciro 

Constanzo, a former General Manager, told him $900,000 in tips was distributed amongst Roman 

Jones, Aris Nanos, and Sia Hemmatti in one year, and that another owner – Lee Lyons – was not 

aware of this situation. Mr. Collado also identified Defendants as using Unify Employee as their 

payroll company and City National Bank for their corporate accounts during the call.

21. During the same conversation with Mr. Collado on December 7, 2022, he recalled 

and described a situation when he complained to Roman Jones and John Maria about the 

distribution of the tips at Kiki.

22. The undersigned then sent a corrected FMWA demand letter to Defendants on 

December 8, 2022, to address a scrivener’s error in the prior FMWA demand letter, again emailing 

copies of it to those identified in the letters as a claimant, and none advised the undersigned of any 

facts incorrectly stated therein.

23. To assemble a collective action, the undersigned filed a Motion for Conditional 

Certification on January 19, 2022 [ECF No. 44].

24. Mr. Collado executed a Declaration on December 13, 2022, and Mr. Guerra on 

December 19, 2022, after each confirmed the facts contained therein were true and correct. [ECF 

Nos. 44-1, 44-2.] 

25. Each described, in his Declaration, the differences between the service charges 

imposed by Kiki and gratuities (tips or overtips) left by customers, and that each was paid with “an 

hourly wage less than the applicable minimum wage, commissions (or service charges), and tips,” 

along with other factual details. [ECF Nos. 44-1 at ¶¶11, 15, 16; 44-2 at ¶¶14, 16, 17.]

26. The undersigned then filed the Second Amended Complaint (“SAC”) on January 

11, 2023 [ECF No. 59] and provided copies of it by email to Mr. Collado and the others who had 

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joined the case by then. The SAC alleged that Defendants paid a direct hourly wage that was “less 

than” or “below” the federal and Florida minimum wages. Id. at ¶¶8, 28, 40, 90, 98, 109. 

27. Defendants requested the Court to dismiss the SAC by contending that they were 

confused about whether Count I sought relief under 29 U.S.C. §203(m)(2)(B) as a claim for tip 

confiscation and retention or for recovery of minimum wages, by contending that Count II was 

not viable because the FMWA does not permit a claim for tip confiscation and retention absent a 

minimum wage violation, and by claiming that Count III was not viable because Florida law does 

not consider tips as wages. [ECF No. 63.] 

28. The undersigned filed a Response in Opposition to the Defendants’ Motion to 

Dismiss directed to the SAC, to which the Defendants filed a Reply. [ECF Nos. 64, 69.]

29. To assemble a collective action for Count I of the SAC, the undersigned file a 

Renewed Motion for Conditional Certification on January 27, 2022 [ECF No. 65.]Messrs. 

Collado, Guerra, and Taylor executed Declarations in support of the Motion, wherein each 

described his experiences at Kiki, the differences between the service charges (imposed by Kiki) 

and gratuities (tips or overtips left by customers), and identified how each received as pay “an 

hourly wage less than the applicable minimum wage, commissions (or service charges), and tips.” 

[ECF Nos. 65-1 at ¶¶13, 17; 65-2 at ¶¶17-19; 65-3 at ¶22.] Messrs. Collado, Guerra, and Taylor 

each attested to not receiving all the tips they should have received because Defendants improperly 

or failed to distribute them. [ECF Nos. 65-1 at ¶18, 65-2 at ¶21, 65-3 at ¶23.]

30. Defendants then admitted to liability by conceding that discrepancies existed in the 

distribution of the tips at issue in this lawsuit in their February 8, 2023, Answers to Plaintiff’s 

Interrogatories Nos. 4 and 19, validating the basis for pursuing recovery of tips for Mr. Collado 

and the others who worked at Kiki. [ECF No. 122-1.] 

31. The Court directed the parties to conduct a settlement conference on March 1, 

2023.5 In preparation, the undersigned discussed with Mr. Collado and others who attended the 

event’s significance, the nature of the claims being pursued (for tips and not service charges), and 

the potential for resolution. 

5 If compelled, the undersigned would divulge certain information discussed during the settlement 

conference and its impact on his view of the viability of the claims alleged.

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32. After the settlement conference was adjourned, the undersigned emailed a letter to 

Mr. Collado and the other former employees at Kiki who attended to remind them of the 

confidential nature of the proceedings, discuss the claims in the lawsuit, and specify that the claims 

were for recovery of “tips” under three different legal theories. 

33. The Court conducted a hearing on the Joint Motion to Dismiss on March 23, 2023, 

and dismissed the SAC without prejudice for the reasons stated on the record. [ECF No. 112.]

34. Defendants objected to the initial discovery, resulting in a discovery hearing on 

April 5, 2023, wherein the Court required them to provide better and more complete responses. 

[ECF Nos. 121, 145.]

35. The Third Amended Complaint (TAC) was filed on April 7, 2023 [ECF No. 122].6

36. Like the SAC, the TAC reiterated that Defendants paid a direct hourly wage that 

was “less than” or “below” the applicable Florida minimum wage(s). Id., at ¶¶95, 99, 101, 108, 

110, 120, 122.7 The TAC removed the references to the payment/receipt of a service charge as 

immaterial and unnecessary to the FMWA claims asserted based on the undersigned’s 

understanding of how the FMWA incorporated 29 U.S.C. §203(m)(2)(B), and created a similar 

cause of action for recovery of tips improperly retained or distributed regardless of the wages paid.8

37. Priya Krishna interviewed Mr. Collado and the undersigned on April 11, 2023, for 

an article to be published in the New York Times. Ms. Krishna discussed with Mr. Collado his 

experiences while working at Kiki, the differences between tips and service charges, and his 

thoughts on them. Mr. Collado responded to several of Ms. Krisna’s follow-up questions by 

confirming how he told diners to tip in cash to ensure he would receive the money and asked the 

owners at Kiki about who received money from the service charges and tips without a response.9

6 Defendants misrepresent that the TAC alleged “that Defendants failed to pay minimum wages” in 

paragraphs 102, 111, and 123 of Count II. [ECF No. 243 at ¶7.]

7 The TAC omitted the references from the SAC to the payment of a reduced direct hourly wage (or 

“tip credit”) in Count I as immaterial. [Compare ECF Nos. 59, 122.]

8 Defendants always had (and then produced in this case) the payroll records identifying how and 

how much they paid Mr. Collado and the other members of the Collective. Defendants also had 

Declarations wherein Mr. Collado attested to receiving an hourly wage below the applicable minimum 

wage, supplemented by a part of the service charges, and tip. [ECF Nos. 44-1, 65-1.]

9 The article, The Restaurant Service Charge Isn’t Going Anywhere, was published in the New York Times 

on May 15, 2023, and includes statements attributable to Mr. Collado. 

(https://www.nytimes.com/2023/05/15/dining/restaurant-service-charges.html.)

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38. The Second Renewed Motion for Conditional Certification was filed on April 21, 

2023, and included Mr. Collado’s Declaration from December 13, 2022, and Declarations from 

Samantha Mehew, Hiosmel Zayas, and Brenna Wagnon [ECF Nos. 127, 127-1, 127-3, 127-4, 

127-5]. Each separately attested to receiving an hourly wage below the applicable minimum wage, 

plus services charges and tips, and to receiving paystubs reflecting their hourly wages, service 

charges received, and tips distributed. Id.

39. Defendants responded to the TAC with their Motion to Strike [ECF No. 136] 

followed by their Motion to Dismiss [ECF No. 137]. Defendants argued inter alia that certain 

language in Count II of the TAC should be stricken, while arguing that the Claim at Count II was 

not viable. Id.

40. Plaintiff’s Response in Opposition to the Motion to Strike elaborated on the 

position that the FMWA incorporated the FLSA’s definition of wage, thereby incorporating 29 

U.S.C. §203(m)(2)(B), and similarly created a cause of action for improper tip retention or 

distribution regardless of the total non-tip wages paid exceeded the minimum wage required by 

Florida law [ECF No. 143]. 

41. Defendants’ procedural blunder of filing a Motion to Strike and then a Motion to 

Dismiss [ECF Nos. 136, 137] precluded the Court from reaching the issue of whether the FMWA 

allows for recovery of tips improperly retained or distributed by an employer regardless of whether 

a tip credit is taken. [ECF No. 152: “Accordingly, the Court agrees with Plaintiff that Defendants’ 

second Rule 12 motion—the Motion to Dismiss, ECF No. [147]—must be denied as being 

improperly filed.”]10 

42. The Court specifically considered Defendants’ argument that “employees may 

recover only up to the tip credit and not the actual tips” and found “that the cases Defendants cites 

for this proposition provide weak support, as they discuss the FLSA rather than the FMWA.” 

[ECF No. 152 at fn. 1.] [Emphasis added.]

10 Defendants’ procedural error precluded the Court from making a substantive ruling on the viability 

of Plaintiff’s FMWA claim alleged at Count II. The Court declined to address Defendants’ arguments for 

dismissal of Count II because of their mistake, and so they are not “without blame” in allowing the FMWA 

claim to persist. Compare Caiazza v. Marceno, 2021 WL 1193166, at *1 (M.D. Fla. Mar. 30, 2021) (Denying 

sanctions under 28 U.S.C. §1927 and finding the Defendant “is not without blame. He could have moved 

for summary judgment on the matter but did not do so. This left the exemption for trial.”)

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43. No court has yet ruled on the issue presented in Count II, whether the FMWA 

incorporates 29 U.S.C. §203(m)(2)(B), rendering it a novel issue of first impression.

44. The undersigned diligently pursued discovery in this case, including serving 

interrogatories and requests for production on Defendants on January 9, 2023, and then timely 

obtaining a hearing to address Defendants’ deficient responses thereto. [See e.g. ECF Nos. 120, 121, 

145.] The undersigned then served a second request for production on Defendants on March 14, 

2023. In response to the disclosure requirements imposed by Rule 26 and the discovery requests 

served on them, Defendants produced tens of thousands of documents in digital format. 

45. After going back and forth, and initially claiming that the documents could not be 

located, Defendants ultimately located and produced digital copies of the handwritten reports the 

Captains at Kiki would complete at the end of each shift to document their total sales, service 

charges collected, and tips collected for the three of the four weeks the undersigned 

requested/identified (Kiki Captain Closeout). The undersigned analyzed the Captain Closeouts to 

calculate the total tips reported as having been received in each of the three identified weeks against 

the tips Defendants reported as having distributed during those weeks in their Sales By Range and 

Sales Summary reports. The undersigned found accounting discrepancies between the amounts 

reported as collected in tips and the amounts distributed in tips each week, calling into question 

the accuracy of Defendants’ records and accounting of the tips at issue in this lawsuit:

a. The total tips reported in the Kiki Captain Closeouts for the week of January 

20-26, 2020, reflected a discrepancy of $2,984.72 with the tips Kiki reported as paying out 

in the Sales Summary report for the same week;

b. The total tips reported in the Kiki Captain Closeouts for the week of 

November 22-28, 2021, reflected a discrepancy of $9,387.25 with the tips Kiki reported as 

paying out in Sales By Range Report for the same week; and

c. The total tips reported in the Kiki Captain Closeouts for the week of 

February 22-27, 2022, reflected a discrepancy of $3,460.62 with the tips Kiki reported as 

paying out with the Sales Summary Export for the same week.

46. Defendants, on the other hand, did not “work[] diligently” in seeking discovery and 

instead lollygagged by waiting until June 16, 2023, to propound any written discovery before the 

looming discovery cut-off of October 9, 2023. [ECF Nos. 26, 243 at ¶8.] 

47. Defendants possibly delayed serving written discovery because they always had the 

time and pay records for Mr. Collado. They created or possessed nearly all other records relevant 

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to the case claims and defenses. See, e.g., Statement of Earnings at KIKI000008-000014 and 

KIKI000040-003808 (produced in discovery by Defendants as “Confidential.”)

48. Defendants mislead the Court by claiming that the undersigned unreasonably 

delayed responding to their written discovery served on June 16, 2023. 

a. Defendants neglected to acknowledge initially serving 25 initial 

interrogatories plus 43 requests for production (excluding sub-parts) directed to Mr. 

Collado and 29 Opt-Ins, totaling 750 interrogatories and 1,200 requests for production. 

b. Defendants served revised discovery requests on July 21, 2023, that included 

6 interrogatories and 10 requests for production, totaling 120 interrogatories and 300 

requests for production. 

c. Defendants failed to acknowledge the prior informal verbal agreement 

amongst counsel for an informal stay of discovery in favor of devoting efforts to mediate 

the case. [ECF No. 250-2.]

49. Once the undersigned requested dates from Defendants to depose Sia Hemmati in 

the event the mediation proved unsuccessful on September 22, 2023, they responded by refusing 

to provide dates for his deposition until after they (i) received discovery responses and (ii) deposed 

Mr. Collado and reneged on the agreement previously struck. Id. 

50. The parties engaged in email exchanges not reflected on the record to confer about 

the pending discovery issues between October 13-18, 2023. The undersigned then prepared for 

and attended trial before Judge Dimitrouleas from October 30, 2023, to November 1, 2023, in 

Valdivieso Figuera vs. All VIP Care Inc., S.D.Fla. Case No.: 0:22-CV-61553-WPD. 

51. The undersigned obtained verified answers to the interrogatories from Mr. Collado 

in compliance with the Court’s Order [ECF No. 231] after an extensive process that started long 

before the hearing held on November 27, 2023, and his responses revealed information consistent 

with the claims pursued.11 [See ECF No. 250-3.]

52. Mr. Collado’s verified Answers to Interrogatories [ECF No. 243-4] resulted from 

many discussions, including in-person discussions, with the undersigned law firm’s paralegal, 

Steffany Sanguino. [ECF No. 250-3.]

53. The undersigned coordinated to meet with Mr. Collado in person to prepare him 

for his deposition on Thursday, December 7, 2023. 

11 Defendants sought no sanctions during the November 27, 2023, discovery discovery regarding 

these interrogatory answers, waiving the issue. [ECF No. 243-2.]

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54. Mr. Collado discussed that the Captain had the financial responsibility to account 

for the money collected/charged for food and drinks, service charges, and tips. He described 

turning in the receipts to the Manager on Duty, writing the total amounts received for each type 

of revenue on an envelope, and how he would distribute cash tips to people who were not eligible 

to receive tips – such as those working in the kitchen. Mr. Collado also discussed how he was 

reprimanded for asking patrons to tip in cash after having done so because Defendants were not 

properly distributing the credit card tips.

55. Mr. Collado explained that besides guests who paid at the time of dining, Kiki 

allowed certain other guests to pay at the end of the month or weeks after dining. He explained 

that when those checks/accounts were paid, the money would go to the office, the office would log 

the money as “no revenue,” and he would not see any no tips distributed from the money collected.

56. Mr. Collado further stated that Mr. Hemmati had financial management 

responsibilities at Kiki before they hired their CFO, and that he was “siphoning” tips and 

distributing them to Roman Jones, Aris Nanos, and himself, based on a discussion he had with 

Ciro Constanza. Mr. Collado described overhearing the conversation Mr. Constanza had with 

Petra Stepanik (Bar Manager) and Petra. He specifically recalled Petra’s remark “You have no 

idea what I’ve seen,” in regard to improprieties at Kiki. 

57. Although Mr. Collado said he believed Mr. Hemmati’s daughter improperly 

received money from the tip pool, he acknowledged not having personal knowledge of this fact.

58. Mr. Collado further explained how Mr. Jones would direct him and others at Kiki 

to not charge customers for certain items (including costly ones such as bottles of wine, champagne, 

or alcohol), to attend to certain things he observed, and to take certain actions to improve the guest 

experience at Kiki.

59. The undersigned also discussed with Mr. Collado the difference between tips and 

service charges, the discrepancy between the tips the Captains reported as having received and the 

tips that Defendants paid out, showed him the spreadsheets reflecting the discrepancies, and 

discussed the significance of the discrepancy (indicating financial irregularities). 

60. Mr. Collado’s two-day deposition commenced but was not completed on Tuesday, 

December 12, 2023 [ECF No. 250-1].

61. The morning session of Mr. Collado’s deposition was largely innocuous, and during 

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the lunch break, the undersigned ate with Mr. Collado. Although Mr. Collado disclosed certain 

facts he intended to bring out later that afternoon, he did not later testify to them.

62. Mr. Collado’s deposition issues evolved from at first seeming to omit facts previously 

disclosed (whether in a sworn statement or a statement to the undersigned), to explicitly 

contradicting his prior sworn statements (and statements to the undersigned), to drawing 

conclusions from incomplete documents that did not allow such a conclusion to be drawn,12 to 

claiming confusion and that he (and everyone else) received all they tips they were entitled to 

receive, to ultimately acknowledging Kiki paid him all the tips left by customers.13 [ECF No. 250-

1 at pp. 229.]

63. After his deposition was adjourned, and while waiting for the elevator with Mr. 

Collado after his deposition concluded for the day, and without the undersigned saying anything, 

Mr. Collado remarked “I had to tell the truth.” 

64. Mr. Collado discharged the undersigned the next day. [ECF No. 233, 234.] 

65. The undersigned conferred with defense counsel by requesting their position on the 

undersigned’s withdrawal from this case by email at 5:14 p.m. on Monday, December 18, 2023.

66. Defendants responded by email at 2:14 p.m. on Tuesday, December 19, 2023, that 

they needed to confer with their clients, requested the basis for withdrawal, and would attempt to 

coordinate a call with them and “circle back” by December 20, 2023. 

67. The undersigned responded at 3:55 p.m. that Mr. Collado had discharged the 

undersigned and was required to withdraw under Rule 4-1.16(a). 

12 Defendants introduced excerpted pages from their payroll records that contained the payroll details 

identifying the amounts paid to Mr. Collado each week from September 6, 2019, to December 31, 2021, 

as Exhibits 6-9 (designated as “Confidential”). There was no way Mr. Collado could have actually verified 

(or calculated) whether he received all tips to which he was entitled based on the deposition Exhibits offered 

by Defendants. Missing was evidence or information that would have allowed for a comparison of the total 

weekly tips received against the total amount distributed in payroll, calculations for how the tips received 

were distributed, and calculations performed to go from the total tips received to the tips reported on Mr. 

Collado’s weekly payrolls.

13 Mr. Collado testified that he had no basis to dispute that the amount of tips Defendants reported 

as having received in Exhibits 9-12 were inaccurate [ECF No. 250-1, pp. 192-3], despite his Answers to 

Interrogatories [ECF No.122-1], his discussions with the Undersigned, and his review of the spreadsheets 

reflecting the discrepancies between the tips calculated as having been received the Captain Reports and 

those reported as having been received in the Sales Summary Reports and Sales by Range Reports. 

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68. Defendants ultimately responded by email at 8:01 a.m. on December 20, 2023, as 

follows: “Attached please find our clients’ Rule 11 motion and exhibits in support. In light of the 

issues raised in the motion, our clients oppose your motion to withdraw from this case.” The email 

attached a letter to the undersigned, a Motion for Rule 11 Sanctions Against Brian H. Pollock, 

Esq. and FairLaw Firm, and the Exhibits referenced in the Motion.

69. Defendant opposed the undersigned’s request to withdraw, conditioning 

withdrawal on having to respond to their unfiled Motion for Rule 11 Sanctions. [ECF No. 237.]

70. The Court granted the undersigned’s request to withdraw, finding that Defendants 

did not timely request sanctions pursuant to Rule 11. [ECF No. 241.]

71. A week later, Defendant filed their Motion for Sanctions through Defense Counsel. 

[ECF No. 243.]

72. The Undersigned served this Motion on February 9, 2024, and gave Defendants 

and Defense Counsel 21 days to withdraw the 1927 Motion [ECF No. 243] voluntarily and to 

abandon their attempt(s) at seeking sanctions from the undersigned, considering the facts and the 

law unequivocally establish that their arguments for sanctioning the Undersigned are meritless,

lack any legitimate legal or factual basis, and that they knew their arguments were frivolous. (A 

copy of the letter, the draft Motion, and the email enclosing same are appended hereto as Exhibit

“A”.)

III. THE LAW

Rule 11 includes provisions intended to dissuade litigants and their counsel from pursuing 

claims or defenses for an improper purpose, as well as those that were not legally or factually 

supported.

In pertinent part, Rule 11 provides that when an attorney signs or files a pleading, motion, 

or other paper, he or she certifies certain things, to the best of his or her knowledge, 

information and belief, formed after an inquiry reasonable under the circumstances: First, 

that the pleading is not being submitted for an improper purpose [Rule 11(b)(1)]; second, 

that the legal contentions are warranted by existing law or by a nonfrivolous argument for 

extending the law [Rule 11(b)(2)]; and third, that the factual contentions have evidentiary 

support or, if specifically so identified, will likely have evidentiary support after a reasonable 

opportunity for further investigation or discovery. [Rule 11(b)(3)]. See Fed. R. Civ. P. 11(b). 

The Rule authorizes courts to sanction attorneys, law firms or parties who have violated 

these provisions. Fed. R. Civ. P. 11(c)(1).

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Estrada v. FTS USA, LLC, 2018 WL 1836007, at *2 (S.D. Fla. Jan. 23, 2018), report and recommendation 

adopted, 2018 WL 1811907 (S.D. Fla. Mar. 16, 2018). “The purpose of Rule 11 sanctions is to 

“‘reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuvers.’” Kaplan v. 

DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003) (quoting Massengale v. Ray, 267 F.3d 1298, 

1302 (11th Cir.2001).)

The 1993 Advisory Committee’s notes reflect the requirement for “litigants to ‘stop-andthink’ before initially making legal or factual contentions.” Fed. R. Civ. P. 11. The Rule provides 

for sanctions to be imposed when a filing is frivolous, legally unreasonable, without factual 

foundation, or is brought for an improper purpose. Specifically, Fed. R. Civ. P. 11(b) provides:

By presenting to the Court a pleading, written motion, or other paper- whether by signing, 

filing, submitting, or later advocating it-an attorney or unrepresented party ce1tifies that to 

the best of the person's knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause 

unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by 

existing law or by a non-frivolous argument for the extension, modification, or 

reversal of existing law or the establishment of new law; [and]

(3) the factual contentions have evidentiary support or, if specifically so identified, 

will likely to have evidentiary support after a reasonable opportunity for further 

investigation or discovery ....

Rule 11 imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the 

viability of a pleading before it is signed. See Collins v. Walden. 834 F.2d 961 (11th Cir. 1987. In 

addition, an attorney is required “to perform a reasonably thorough and objective investigation of 

the facts before asserting them as bases for [the] causes of action.” Byrne v. Nezhat, 261 F.3d 1075, 

1115 (11th Cir. 2001); Fed R. Civ. P. 1l(b). 

While the “selection of the type of sanction to be imposed lies within the district court’s 

sound exercise of discretion,” Massengale, 267 F.3d at 1301, once a court determines that a party 

violated Rule 11, a court is “mandated to impose sanctions.” Chapman & Cole v. Itel Container Int’l 

B.V., 865 F. 2d 676, 685 (5th Cir. 1989). Sanctions under the Rule may be imposed against a party 

and her counsel. Byrne, 261 F.3d at 1106.

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To determine whether a filing is frivolous and subject to Rule 11 sanctions the Court 

traditionally engages in a two-step analysis involving “(1) whether the party’s claims are objectively 

frivolous; and (2) whether the person who signed the pleadings should have been aware that they 

were frivolous.” Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998). 

If the first prong of the analysis is met, then the court will move to analyze the second prong, 

which focuses on whether the non-moving party should have been aware the claim was frivolous. 

Id. Concerning the second prong, the court will look to the amount of time that was available for 

investigation before filing the document in question, whether the signing attorney had to rely on a 

client for the underlying facts at issue, and whether the document was based upon a plausible view 

of the law. See Jones, 49 F.3d 692 at 695. In the instant case, both prongs are met.

III. ARGUMENT

Defendants and Defense Counsel knew they had no basis to sanction the undersigned 

counsel under 28 U.S.C. §1927 or its inherent authority. The Undersigned did not engage in bad 

faith conduct for which sanctions could be imposed under 28 U.S.C. §1927 or the Court’s inherent 

authority. The Undersigned did not vexatiously multiply these proceedings, pursue knowingly 

frivolous claims, or act in bad faith. Defendants and Defense Counsel sought sanctions in their 

1927 Motion by contending that the alleged claims were frivolous based on Mr. Collado’s 

deposition testimony as the sole basis for arguing the lack of merit. [ECF No. 243.]

The Defendants do not dispute that the undersigned was blindsided by Mr. Collado’s 

deposition testimony but, despite their purported outrage following his deposition epiphanies, 

improperly and curiously only sought recourse from the Undersigned. The only way for 

Defendants and Defense Counsel to have argued that the Undersigned lacked a legitimate basis to 

file and pursue the claims alleged was to either ignore or be ignorant of the underlying facts. Under 

either scenario, Defendants and Defense Counsel still made bold accusations and sought significant 

sanctions without citing any specific evidentiary or legal support for their baseless contentions.

Rule 11 was designed to curtail the meritless and ill-fated arguments advanced in the 1927 

Motion. Defendants and Defense Counsel sought sanctions from the Undersigned based on 

arguments they knew to be frivolous for no purpose other than to harass the Undersigned. See 

Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (‘A finding of bad faith is warranted where 

an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for 

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the purpose of harassing an opponent.”) (Quoting Primus Automotive Fin. Servs., Inc. v. Batarse, 115 F.3d 

644, 649 (9th Cir.1997)). Under the applicable objective standard, the Court properly imposes 

sanctions against Defendants and Defense Counsel under Rule 11 to punish them commensurate 

with the severity of the harassment they perpetrated on the Undersigned through their filings:

The Eleventh Circuit appears to adopt the latter approach utilizing Rule 11 sanctions as a 

form of punishment as opposed to a fee-shifting measure. Pelletier v. Zweifel, 921 F.2d 1465, 

1522 (11th Cir. 1991); In Re Sir John, Inc., 142 B.R. 524 (S.D. Fla. 1992). See Donaldson v. 

Clark, 819 F.2d 1551, 1556-7 (11th Cir. 1987) (whether sanctions are viewed as a form of 

cost-shifting or punishment, they are imposed for the purpose of deterring attorneys from 

violating Rule 11.) In all instances the court has broad discretion to tailor the sanction to 

the particular circumstances. Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1209-10 

(11th Cir. 1987).

Ro-Ro Enterprises, Inc. v. State Farm Fire & Cas. Co., 1996 WL 556928, at *2 (S.D. Fla. Sept. 5, 1996).

The Court properly considers the extent to which Defendants and Defense Counsel intended to 

wreak financial havoc on the Undersigned (and his family) by seeking $300,000 in sanctions, that 

the Response [ECF No 250] required the Undersigned to commit significant resources that 

otherwise would have been devoted to other matters, that Defense Counsel routinely practices

employment law in this Court, the resources available to Defendants and Defense Counsel, the 

severity of their conduct, and the need to deter such conduct in this Court in the future.

A. The 1927 Motion Is Objectively Frivolous.

Defendant and Defense Counsel should have never filed or pursued the Motion for 

Sanctions [ECF No. 243], and their continued pursuit of it in light of the facts, the procedural 

history, and the law requires the imposition of sanctions against them under Rule 11. Defendants 

and Defense Counsel did not make a “reasonable inquiry” before seeking sanctions from the 

Undersigned, and upon the Court finding as much, it is obligated to sanction them under Rule 11. 

Gulisano v. Burlington, Inc., 34 F.4th 935, 942 (11th Cir. 2022).

1. The Claims That The Undersigned Failed To “Properly Investigate” Or 

Have A “Simple Conversation” With Mr. Collado Are Frivolous. 

This argument for sanctions was withdrawn [See ECF No. 253]; therefore, the argument

for sanctions based on the withdrawn contention has been removed.

14

14 Defendants and Defense Counsel claimed that the Undersigned conducted an inadequate

investigation, not that he facilitated Mr. Collado’s presentation of false testimony. But see U.S. v. Bradberry, 

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2. The Request To Sanction The Undersigned For Pursuing The FMWA Tip 

Credit Claim Is Frivolous.

Defendants and Defense Counsel argued that the undersigned’s continued prosecution of 

the FMWA claim contained in the TAC was improper and sanctionable in their 1927 Motion. 

[ECF No. 243.] They have yet to cite any authority decided since the Consolidated Appropriations 

Act amended the FLSA (by including 29 U.S.C. §203(m)(2)(B)) that precluded a claim under the 

FMWA to recover only (and all of) the tips unlawfully distributed or withheld. [See ECF Nos. 136, 

137, 146, 147, 243.] The Undersigned did not cite any binding precedent addressing the issue in 

the Responses filed. [ECF Nos. 142, 143, 250.] No binding authority permits or forecloses a claim 

for recovery of tips under the FMWA without regard to whether the wages paid meet the minimum 

wage required by the FMWA. Without any authority addressing whether the FMWA incorporated 

29 U.S.C. §203(m)(2)(B) to allow a claim to recover only misappropriated tips, regardless of the 

wage paid, the Undersigned presented a novel issue of first impression. 

The court never decided this novel legal theory because the Defendants and Defense 

Counsel committed a procedural gaff by violating Rule 12(g) in filing a motion to strike followed 

by a motion to dismiss. [See ECF No. 136, 137, 152.] It was the Defendants and Defense Counsel, 

not the Undersigned, who prevented the Court from deciding the issues raised in the Motion to 

Dismiss directed to the TAC. [ECF No. 137, 152.] The argument the Undersigned advanced was 

that the FMWA incorporated 29 U.S.C. §203(m)(2)(B)’s restrictions on the distribution of tips and 

allowed for a claim for recovery of tips regardless of the wage paid. [ECF No. 143.] The pursuit of 

sanctions in the 1927 Motion against the undersigned for advancing a novel legal, which the Court 

did not decide due to the procedural error committed by Defendants and Defense Counsel, is 

frivolous.

3. Defendants And Defense Counsel Baselessly Pursued Sanctions In Their 

1927 Motion By Ignoring Or Failing To Utilize The Evidence They 

Created, Maintained, And Produced In Discovery.

Defendants and Defense Counsel sought sanctions in their 1927 Motion against the 

Undersigned for purportedly delaying these proceedings. [ECF No. 243 at 12.] Defendants and 

466 F.3d 1249, 1254 (11th Cir. 2006) (“[b]y knowingly facilitating the presentation of false testimony before 

the court, a defendant does more than just allow a witness to give perjured testimony; rather, he acts in a 

manner that obstructs the administration of justice.”)

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Defense Counsel baselessly argued that the Undersigned vexatiously multiplied these proceedings 

by delaying Mr. Collado’s answer to Interrogatory No. 6, wherein he acknowledged that the hourly 

wage and service charges he received exceeded the FMWA’s minimum wage. [ECF No. 243, 243-

4.] To make this argument, Defendants and Defense Counsel must represent that they did not 

know and could not know Mr. Collado received more than the minimum wage required by the 

FMWA until receiving his sworn Answers to Interrogatories and deposition testimony. [ECF No. 

243.]

The first problem with their argument is that there was no dispute that Mr. Collado’s 

hourly wages and service charges exceeded the amount required by the FMWA. The other glaring 

problem with this argument is that, while not entirely responsible for the timing of Mr. Collado’s 

response to the interrogatories, Defendants created and maintained Mr. Collado’s time and pay 

records. Therefore, they already had the information (in more precise detail) than his answer to 

Interrogatory No. 6, and so the claim that they “needed his deposition testimony and interrogatory 

answer [to] definitively establish” he received more than the amount required by the FMWA is 

false. [ECF No. 243 at 16; see e.g., KIKI000008-000014 and KIKI000040-003808, designated by 

Defendants as “Confidential.”; and Depo. Collado, at Exhibits 5-8, designated by Defendants as 

“Confidential.”)

Therefore, the claim that the undersigned unreasonably delayed Mr. Collado’s answer to 

Interrogatory No. 6 or vexatiously multiplied this case is disingenuous at best. Defendants and 

Defense Counsel already had evidence identifying the wages and service charges they paid to Mr. 

Collado, just like they always possessed all the documents necessary to establish that his hourly 

wages and service charges exceeded the minimum wage required by the FMWA. 

B. Defendants And Defense Counsel Knew Their 1927 Motion And Its 

Contents Were Frivolous.

Having established that the Motion for Sanctions filed at ECF No. 243 is frivolous by 

lacking an adequate investigation in addition to lacking legal and factual support, i.e., “meritless’,” 

the second prong of the court’s inquiry as to whether sanctions are appropriate considers whether 

the individual(s) signing and certifying the assertions should have been aware that they were 

frivolous; “that is, whether he would have been aware had he made a reasonable inquiry.” 

Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). Defendants and Defense 

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cannot claim ignorance of Rule 11, having recently drafted and attempted to pursue such a motion 

against the undersigned. [ECF No. 237.] Their Motion is based on rank speculation, not evidence, 

and ignored significant facts of record and procedural blunders. Defendants and Defense Counsel 

are savvy enough to have known that supposition, distraction, misrepresentation, and conflicting 

testimony would not support an award of sanctions under 28 U.S.C. §1927 or the Court’s inherent 

authority. They could have, but did not, file anything to address the issues identified in their 1927 

Motion until after the Undersigned sought to withdraw from the case.

Defendants and Defense Counsel should have engaged in the type of professionalism 

normally encountered when counsel seeks to withdraw upon discharge, but they did not. Instead 

of promptly responding to the undersigned’s conferral, they served him with a Rule 11 Motion and 

conditioned withdrawal upon being able to pursue sanctions under Rule 11. [ECF No. 237.] 

Having failed in that endeavor and without a legitimate basis, Defendants and Defense Counsel 

repackaged their arguments and filed a frivolous Motion for Sanctions. [ECF Nos. 241, 243.] The 

Court properly now addresses the impropriety demonstrated by Defendants and Defense Counsel 

by sanctioning them under Rule 11 commensurate with the severity of their conduct.

The Jackson Lewis P.C. website reflects that Mr. Velazquez and Mr. Sarangoulis represent 

employers as their primary practice area. Mr. Velazquez has practiced in Florida since 1995, 

appearing in 183 cases in this Court; Mr. Reiss since 1990, appearing in 98 cases; and Mr. 

Sarangoulis since 2018, appearing in 38 cases in this Court. Given their individual and collective 

experience, the 1927 Motion and arguments contained therein are frivolous, in bad faith, should 

have never been presented, and they know better.

Once the Court decides that conduct is sanctionable under Rule 11, it considers the 

following nine (9) factors in fashioning the appropriate sanction:

Specifically, we should consider the following factors in determining an appropriate 

sanction: (1) “[w]hether the improper conduct was willful, or negligent”; (2) “whether it was 

part of a pattern of activity, or an isolated event”; (3) “whether it infected the entire 

pleading, or only one particular count or defense”; (4) “whether the person has engaged in 

similar conduct in other litigation”; (5) “whether it was intended to injure”; (6) “what effect 

it had on the litigation process in time or expense”; (7) “whether the responsible person is 

trained in the law”; (8) “what amount, given the financial resources of the responsible 

person, is needed to deter that person from repetition in the same case”; and (9) “what 

amount is needed to deter similar activity by other litigants.” Fed.R.Civ.P. 11, advisory 

committee notes (1993 Amendments).

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Thomas v. Early Cnty., Ga., 518 Fed. Appx. 645, 646 (11th Cir. 2013). The Court’s award of 

monetary sanctions should start with an award of attorney’s fees to the Undersigned by 

determining the number of hours reasonably expended in responding to Defendants’ Motion for 

Sanctions [ECF No. 243] multiplied by a reasonable hourly rate – in this Court and in the Eleventh 

Circuit Court of Appeals – which is known as the “lodestar approach.” See Bivins v. Wrap It Up, Inc., 

380 Fed. Appx. 888, 890 (11th Cir. 2010). The Eleventh Circuit utilizes a 12-prong test to 

determine what constitutes a reasonable hourly rate. Id. Also, the reasonable number of hours 

expended is the hours that the Court finds were reasonably spent in obtaining the result for the 

client. See Norman v. Haus. Author. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) 

(abrogated on other grounds). The Undersigned asks the Court to augment the award the 

attorney’s fees as sanctions to accomplish the deterrence. Baker v. Alderman, 158 F.3d 516, 528 (11th 

Cir. 1998) (“deterrence remains the touchstone of the Rule 11 inquiry.”) Appropriate sanctions

should take into account the frivolous request for an award of over $300,000 in sanctions against 

the undersigned, the intended resultant stress, anxiety, sleepless nights, and significance of such a 

request on the Undersigned, the financial means of Defendants, their insurance carrier, and 

Defense Counsel, and deterring similar conduct by other litigants.

V. CONCLUSION

WHEREFORE Brian H. Pollock, Esq. and FairLaw Firm, request that the Court sanction 

Defendants, 450 North River Drive, LLC d/b/a Kiki on the River, RJ River, LLC and Roman 

Jones and their counsel, Reynaldo Velazquez, Esq., Roman Sarangoulis, Esq., Allan S. Reiss, and 

their respective law firms, Jackson Lewis P.C., and Levine and Partners, P.A., under Rule 11

following discovery regarding the attorney’s fees expended by the Undersigned and the financial 

resources of Defendants, their insurance carrier, and Defense Counsel.

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RULE 11 CERTIFICATION

The Undersigned certifies that a copy of this Motion was served on defense counsel on 

February 9, 2024 and that it has not been filed with the Court until after the expiration of 21 days 

in compliance with Fed. R. Civ. P. 11.

Dated this 21st day of June 2024.

s/Brian H. Pollock, Esq.

Brian H. Pollock, Esq.

Fla. Bar No. 174742

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Fax: 305.230.4844

Former Counsel for Plaintiff(s)

i The Court entered its Order on Defendants’ Motion on Sanctions on May 7, 2024, denying the 

relief requested. [ECF No. 254.] Former counsel for Plaintiff does not seek sanctions against Defendants or 

Defense Counsel for the portion of their Motion for Sanctions [ECF No. 243] they timely withdrew, 

pursuant to Fed. R. Civ. P. 11, in ECF No. 253.

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