JOHN Z. LEE, District Judge.
Plaintiff, Josey Crisostomo, by and through his undersigned attorneys, hereby moves this Court for an Order entering a Stipulated Consent Judgment against Defendant Adam Kidan ("Kidan") and Chartwell Staffing Services, Inc. d/b/a Chartwell Staffing Solutions ("Chartwell") pursuant to an agreement between Plaintiff, Defendants and Chartwell. In further support of this Motion, Plaintiff states as follows:
1. Plaintiff filed his original Complaint on June 21, 2016, asserting claims for alleged unpaid wages and commissions, as well as other amounts for services performed while Plaintiff was employed at Chartwell, pursuant to the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS §§ 115 et seq. (D.E. 1). Plaintiff filed an Amended Complaint on September 29, 2016. (D.E. 20).
2. On March 27, 2018, the Plaintiff, Kidan and Chartwell entered into a Settlement Agreement, the terms of which required Kidan and Chartwell to pay Plaintiff the total gross sum of $220,000.00 pursuant to a payment schedule, by which payments were to be postmarked by the first of each month beginning April 1, 2018 and final payment being postmarked by May 1, 2019. See Exhibit A, Settlement Agreement, ¶¶ 3-4.
3. Amongst other things, the Settlement Agreement provides that if Kidan and Chartwell fail to timely submit any payment by the postmark date, they may cure such failure within five (5) business days after receipt of written notice of non-payment. Id. at ¶ 5.
4. Furthermore, the Settlement Agreement provides that if Kidan and Chartwell fail to cure non-payment within the 5-day time period, they stipulate to the entry of a consent judgment against each of them, jointly and severally, without notice, for the remaining balance of the settlement payment amount, plus an amount equal to the then-remaining balance of the settlement payment amount, and any attorneys' fees and costs incurred by Plaintiff's counsel in attempting to recover such amounts. Id. at ¶ 5.
5. On February 6, 2019, Kidan and Chartwell were notified that the February payment had not yet been received. See Exhibit B, Correspondence. To date, neither Plaintiff, nor Plaintiff's Counsel, has received the February payment.
6. Pursuant to the Parties' Settlement Agreement, as a result of Kidan's and Chartwell's failure to timely submit payment and failure to timely cure non-payment, they each, jointly and severally, have stipulated to the entry of a consent judgment for the remaining balance of the Settlement Amount, $110,000.00, plus liquidated damages of $110,000.00, for a total amount of $220,000.00, as well as attorneys' fees and costs incurred in recovering such amounts.
WHEREFORE, Plaintiff Josey Crisostomo hereby requests that this Court enter the Order for Entry of Stipulated Consent Judgment, attached hereto as Exhibit C.
This Confidential Settlement Agreement and General Release (the "Agreement") is made and executed on this 26
A. Crisostomo, through his attorneys, has filed a lawsuit in the United States District Court for the Northern District of Illinois against Adam Kidan and Tracy Schneider-Kidan ("Defendants"), Case No. 16-6406 (the "Litigation"), asserting claims against Defendants for alleged unpaid wages and alleged unpaid commissions and other amounts for services performed while Crisostomo was employed at Chartwell, as well as other statutory and equitable relief, including attorneys' fees and costs, pursuant to the Illinois Wage Payment and Collection Act, 820 ILCS §§ 115 et seq. (hereinafter "IWPCA").
B. Defendants and Chartwell deny Crisostomo's claims and specifically deny owing him any amounts whatsoever.
C. The Parties desire to avoid further litigation and to settle fully and completely all claims that have been stated, or that could have been alleged by Crisostomo, against Kidan or Chartwell, existing as of the date of the execution of this Agreement, including, but not limited to, the claims set forth in the Litigation.
D. This Agreement is being entered into solely for the purpose of settling a disputed claim and shall not be construed as an admission by Kidan or Chartwell of any liability or wrongdoing.
1. For and in consideration of the sums set forth in Paragraph 3 below, and for other good and valuable consideration, the adequacy of which is acknowledged, Crisostomo does hereby fully and forever release, demise, acquit and forever discharge Defendants and Chartwell from any and all causes of action, claims, liabilities, rights, demands, actions, contracts, covenants, complaints, costs, expenses, fees (including attorneys' fees), compensation, fringe benefits, sums of money, damages, statutory penalties, interest and rights of any kind and nature whatsoever, at law or equity, arising under the laws of the United States, the State of Illinois, common-law, or any other state or local laws, now existing in favor of Crisostomo and against Defendants or Chartwell, by reason of any facts existing as of the date hereof, whether known or unknown, for any reason whatsoever, without exception or reservation, specifically including, but not limited to, any and all claims asserted or which could have been asserted by Crisostomo, including any and all alleged claims or causes of action against Defendants or Chartwell arising out of or related to his employment at Chartwell, his employment agreement with Chartwell, and claims for alleged unpaid wages, commissions or other amounts allegedly owed under his employment agreement or the IWPCA. The foregoing release and discharge and waiver includes, but is not limited to, all claims and any obligations or causes of action arising under common law including retaliatory or wrongful discharge, breach of contract and any action arising in tort including assault, battery, libel, slander, defamation, intentional interference with contract or economic advantage or intentional infliction of emotional distress, and claims under any federal, state or local statute including but not limited to Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Immigration Reform and Control Act of 1986 as amended, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Equal Pay Act, the Illinois Human Rights Act, the IWPCA, the Illinois Whistleblower Act or any other federal, state or local statute or regulation, and/or any claims under any express or implied contract which Crisostomo, his successors, assigns or representatives may claim existed with Defendants or Chartwell. This release, discharge and waiver expressly includes all claims, and any obligations or causes of action arising from such claims, that could have been raised in state or federal court or with a state, federal, municipal or other agency or entity, including in the Litigation. Further, the Parties agree that Tracy Schneider-Kidan is an intended third-party beneficiary of this Agreement.
2. For good and valuable consideration, the adequacy of which is acknowledged, Kidan and Chartwell do hereby fully and forever release, demise, acquit and forever discharge Crisostomo from any and all causes of action, claims, liabilities, rights, demands, actions, contracts, covenants, complaints, costs, expenses, fees (including attorneys' fees), sums of money, damages, and rights of any kind and nature whatsoever, at law or equity, arising under the laws of the United States, the State of Illinois, or any other state or local laws, now existing by reason of any facts existing as of the date hereof, whether known or unknown, for any reason whatsoever, without exception or reservation.
3. In consideration of the promises and Crisostomo's releases as set forth above, Kidan and Chartwell, jointly and severally, agree to pay to Crisostomo the total gross sum of Two Hundred Thousand Dollars ($220,000.00) (the "Settlement Amount") pursuant to the following schedule:
The Parties agree that 1/2 of the payments of the Settlement Amount to Crisostomo are specifically for his alleged lost wages and shall be subject to applicable withholdings (at the same rate when Crisostomo was actively employed by Defendants) and that 1/2 of the payments of the Settlement Amount are specifically for penalties or liquidated damages and shall be reported on an IRS Form 1099. Chartwell shall issue Crisostomo an IRS Form W-2 in 2018 and 2019 for the payments to Crisostomo. The payments of the Settlement Amount to Crisostomo's attorneys, Stephan Zouras, LLP, are payments for attorneys' fees and will not be subject to withholdings. Chartwell shall issue Crisostomo and Stephan Zouras, LLP an IRS Form 1099 in 2018 and 2019 for the liquidated damages payments and payments to Stephan Zouras, LLP.
4. Payments of the Settlement Amount shall be postmarked by the Payment Due Date, as set forth in Paragraph 3 above, and delivered via U.S. Mail, third-party courier or hand delivery to Crisostomo's counsel at the address below:
Upon notice from Stephan Zouras, Kidan and Chartwell agree to deliver the checks to a new or different firm address.
5. Kidan and Chartwell agree that should they fail to make any payment, in accordance with the payment schedule in Paragraph 3, and they fail to cure such non-payment within five (5) business days after their receipt of written notice of such non-payment, Kidan and Chartwell stipulate to the entry of a consent judgment against each of them, jointly and severally, without notice, for the then remaining balance of the Settlement Amount, plus an amount equal to the then remaining balance of the Settlement Amount as liquidated damages; and if Crisostomo, through his attorneys, is required to take further efforts to recover any unpaid amounts due or default payments, Plaintiff's attorneys shall be entitled to their reasonable attorneys' fees and costs from Kidan and Chartwell. Further, in the event that Kidan and Chartwell fail to make any payment required under this Agreement then Plaintiff may pursue a claim against Tracy Kidan but in no event can that claim exceed the amount owed, under this Agreement.
6. Notwithstanding any provision in this Agreement to the contrary, Crisostomo agrees to be solely responsible for any and all taxes owed by him in connection with his receipt of any payment made pursuant to this Agreement. Kidan and Chartwell agree to be solely responsible for any employer portion of taxes owed for that portion of the Settlement Amount paid and reported as W-2 income pursuant to Section 3 above. Kidan and Chartwell bear absolutely no responsibility nor liability whatsoever with regard to whether or not all or part of that portion of the Settlement Amount paid and reported as 1099 income is determined by the IRS or other governmental agencies to be subject to federal, state or local income taxation. Crisostomo acknowledges that he is not relying upon the advice or representations of Kidan, Chartwell, or their agents, representatives or attorneys concerning the treatment of taxes from his receipt of the Settlement Amount.
7. In further consideration of this Agreement, Crisostomo, and his attorneys on the one hand, and Kidan, Chartwell and their attorneys on the other hand, agree that they have not and will not communicate orally or otherwise regarding: (1) any aspect of the Litigation, including but not limited to, any of the allegations made by the Parties in any pleading, deposition, or any written or oral communication of any kind; (2) the content of any documents or information disclosed in the course of the Litigation which was marked or otherwise deemed to be confidential; (3) the fact of settlement; (4) the terms of this Agreement, including the Settlement Amount and any other terms herein, to any third party, other than by Parties to their respective attorney(s), spouse, accountant(s), and/or as otherwise required by law. The Parties further agree that if anyone inquires about the Litigation, they will respond only that "the matter was amicably resolved" and nothing further.
8. Crisostomo agrees that he will not make any disparaging remarks about Kidan or Chartwell, their business operations, or any present or former managers, officers, directors or employees of Chartwell, which would negatively impact the personal or professional reputation or cause embarrassment to Kidan or Chartwell, or any of their current or former managers, officers, directors or employees. Kidan and Chartwell agree that Kidan and Chartwell's current shareholders, officers and directors, excluding Tracy Schneider-Kidan, will not do or say anything that would negatively impact Crisostomo's personal or professional reputation or cause Crisostomo embarrassment.
9. The Parties agree that the Court retains jurisdiction to enforce this Agreement. Crisostomo agrees to enter a dismissal without prejudice of the Litigation within fourteen (14) days of the Effective Date of this Agreement and shall enter a dismissal with prejudice upon receipt by his attorneys of the final payment as set forth in Paragraph 3, above.
10. Except as necessary to enforce the terms of this Agreement, Crisostomo agrees that he will not file a lawsuit or claim of any type in any forum against any of the Defendants or Chartwell, for any of the claims released herein, and that if he does, this Agreements stands a complete bar to such lawsuit and the lawsuit or claim will be immediately dismissed; and, the terms of this Agreement shall otherwise remain in full force and effect.
11. Crisostomo understands and agrees that he waives all rights to current and future employment with Defendants, Chartwell, and any of its affiliated or related companies and that he will not seek employment with Defendants, Chartwell or any of its affiliated or related companies in the future, whether as an employee, independent contractor or otherwise and that if he does, this Agreement will constitute a legitimate non-discriminatory and non-retaliatory reason for denying such employment.
12. It is further understood and acknowledged that the terms of this Agreement are contractual and are not mere recitals and that there are no agreements understandings, or representations made by Kidan or Chartwell, except as expressly stated.
13. Crisostomo affirms that he is not, and has never been, a recipient of Medicare benefits and that he has not sought medical treatment or incurred medical costs through Medicare as a result of the claims alleged in the Litigation. Crisostomo affirms that he is under age 65 and is not otherwise eligible for Medicare, and that Medicare has not notified him of, and he is not aware of, any Medicare liens applicable to him. The Parties have made every effort to protect Medicare's interest, if any, in this Agreement, and have not shifted responsibility for medical treatment to Medicare in contravention of federal law. Any present or future action or decision by Center for Medicare Services (CMS) regarding this Agreement or Crisostomo's eligibility or entitlement to Medicare will not render this release void or ineffective. Crisostomo waives any and all private causes of action for damages under 42 USC § 1395 and acknowledges that Kidan and/or Chartwell may report the above payments to CMS if required by law to do so.
14. This Agreement contains the entire agreement and understanding between Crisostomo, Kidan and Chartwell with respect to any and all disputes or claims that Crisostomo has, or could have had, against Defendants and/or Chartwell as of the date this Agreement is executed, and supersedes all other agreements between Crisostomo, Kidan and Chartwell to the contrary. This Agreement shall not be changed unless such change is made in writing and is signed by both Crisostomo and Kidan.
15. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair any other provisions, which shall remain in full force and effect.
16. Crisostomo understands and acknowledges that the releases set forth in this Agreement expressly release all rights and claims he may have against the Defendants and/or Chartwell under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. Crisostomo expressly understands that by law he has 21 days to consider this Agreement but may waive that 21-day period by signing this Agreement prior to that period's expiration. By signing this Agreement before the expiration of the 21-day consideration period, Crisostomo expressly waives the 21-day consideration period voluntarily, knowingly and willingly. Crisostomo also expressly understands that he has 7 days from the date he executes this Agreement to revoke his assent and nullify this Agreement, including his release and the agreed upon payment schedule of the Settlement Amount. Revocation must be communicated in writing and delivered by Crisostomo to Kidan's and Chartwell's counsel, Robert McKenna Winter at Robbins, Salomon & Patt, Ltd., 180 North LaSalle Street, Suite 3300, Chicago, Illinois 60601, or by email to Kidan's and Chartwell's counsel (rwinter@rsplaw.com) with receipt confirmed by return e-mail.
17. Crisostomo further acknowledges and recites that
18. This Agreement may be executed in counterparts, all of which, when taken together, shall constitute one agreement and be binding upon the parties with the same force and effect as if all signatures had been entered on one document.
IN WITNESS WHEREOF, the undersigned have duly executed this Confidential Settlement Agreement and General Release on the respective dates listed below.
Hi Gwen,
Did you mail February's payment yet? I assumed last week they may have been delayed due to the weather, but we still haven't received anything yet.
Thanks,
Kerry
Office Manager & Executive Legal Assistant
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This matter coming before the Court upon agreement of the Plaintiff Josey Crisostomo, Defendant Adam Kidan and Chartwell Staffing Services, Inc. d/b/a Chartwell Staffing Solutions ("Chartwell"), IT IS HEREBY ORDERED:
1. Judgment is entered in favor of the Plaintiff Josey Crisostomo and against Defendant Adam Kidan and Chartwell for the total amount of $220,000.00, as well as attorneys' fees and costs incurred with respect to the Motion.
2. Plaintiff is awarded all future attorneys' fees and costs that may be incurred as a result of Plaintiff's counsel's efforts to ensure payment.
