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Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 1 of 13 PageID #: 11
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF ARKANSAS
`FAYETTEVILLE DIVISION
`
`DANA PLOUGH, Individually and on
`Behalf of Others Similarly Situated
`
`PLAINTIFF
`
`vs.
`
`No. 3:20CV3075______
`
`MOBILELINK ARKANSAS, LLC, and
`S&S INFINITE MOBILE, INC.
`
`DEFENDANTS
`
`CLASS AND COLLECTIVE ACTION COMPLAINT
`
`COMES NOW Plaintiff Dana Plough, individually and on behalf of all others similarly situated, by
`
`and through her attorneys Chris W. Burks and Logan M. Mustain of WH Law, PLLC, and for her Original
`
`Complaint—Collective Action against Defendants MobileLink Arkansas, LLC, and S&S Infinite Mobile,
`
`Inc. ("Defendants"), does hereby state and allege as follows:
`
`I.
`
`PRELIMINARY STATEMENTS
`
`1.
`
`Plaintiff, individually and on behalf of all others similarly situated, brings this action
`
`under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), and the Arkansas Minimum
`
`Wage Act, Ark. Code Ann. § 11-4-201, et seq. ("AMWA"), for declaratory judgment, monetary
`
`damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable
`
`attorneys' fees as a result of Defendants' failure to pay Plaintiff and all others similarly situated
`
`overtime compensation for all hours worked in excess of forty (40) while participating in job-
`
`related training.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 2 of 13 PageID #: 12
`
`2.
`
`Upon information and belief, for at least three (3) years prior to the filing of this
`
`Complaint, Defendants have willfully and intentionally committed violations of the FLSA and
`
`AMWA as described infra.
`
`II.
`
`JURISDICTION AND VENUE
`
`3.
`
`The United States District Court for the Western District of Arkansas has subject
`
`matter jurisdiction over this suit under the provisions of 28 U.S.C. § 1331 because this suit raises
`
`federal questions under the FLSA.
`
`4.
`
`This Complaint also alleges violations of the AMWA, which arise out of the same
`
`set of operative facts as the federal cause of action herein alleged; accordingly, this state cause of
`
`action would be expected to be tried with the federal claim in a single judicial proceeding.
`
`5.
`
`This Court has supplemental jurisdiction over Plaintiff's state law claim pursuant
`
`to 28 U.S.C. § 1367(a).
`
`6.
`
`Defendant MobileLink Arkansas, LLC, ("MobileLink") conducts business within
`
`the State of Arkansas, operating several retail stores for Cricket wireless at various locations
`
`throughout the State.
`
`7.
`
`Defendant S&S Infinite Mobile, Inc. ("S&S") conducted business within the State
`
`of Arkansas, operating several retail stores for Cricket wireless at various locations throughout the
`
`State. S&S has been purchased by Defendant MobileLink Arkansas, LLC, and now assumes the
`
`identity of MobileLink Arkansas, LLC.
`
`8.
`
`Venue lies properly within this Court under 28 U.S.C. § 1391(b)(1) and (c)(2)
`
`because the Defendants did business in Arkansas.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 3 of 13 PageID #: 13
`
`9.
`
`Plaintiff was employed by Defendant S&S, and subsequently by Defendant
`
`MobileLink, as a Territory Manager for several retail store locations throughout northern and
`
`western Arkansas. Therefore, the acts alleged in this Complaint had their principal effect within
`
`the Fayetteville Division of the Western District of Arkansas, and venue is proper in this Court
`
`pursuant to 28 U.S.C. § 1391.
`
`III. THE PARTIES
`
`10.
`
`Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if
`
`fully set forth in this section.
`
`11.
`
`Plaintiff is a resident and citizen of Springfield, Missouri. She was employed by
`
`Defendant MobileLink as a Territory Manager and was employed to work in Arkansas, including
`
`the area around Mountain Home, Arkansas, within the three (3) years preceding the filing of this
`
`Original Complaint.
`
`12. Within the relevant time period, Plaintiff was classified by Defendants as exempt
`
`from overtime wages and was paid a salary.
`
`13.
`
`Plaintiff's term of employment was approximately November 1, 2017, to October
`
`31, 2019.
`
`14.
`
`At all times material herein, Plaintiff has been entitled to the rights, protections,
`
`and benefits provided under the Fair Labor Standards Act 29 U.S.C. § 201, et seq.
`
`15.
`
`Defendant S&S was a for-profit, foreign, limited liability company created and
`
`existing under and by virtue of the laws of the State of New York, providing products and services
`
`in the telecommunications industry, throughout New York, Arkansas, and the United States in
`
`those areas in which telecommunications is a viable business.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 4 of 13 PageID #: 14
`
`16.
`
`Defendant S&S's annual gross volume of sales made or business done was not less
`
`than $500,000.00 (exclusive of exercise taxes at the retail level that are separately stated) during
`
`each of the three calendar years preceding the filing of this Complaint.
`
`17.
`
`Until Defendant S&S was bought by Defendant MobileLink, S&S employed at least
`
`two individuals who were engaged in interstate commerce or in the production of goods for
`
`interstate commerce or had employees handling, selling, or otherwise working on goods or
`
`materials that had been moved in or produced for commerce by any person, including goods or
`
`materials typically used in the oil and gas industry.
`
`18.
`
`Defendant MobileLink is a for-profit, domestic, limited liability company created
`
`and existing under and by virtue of the laws of the State of Arkansas, providing products and
`
`services in the telecommunications industry, throughout Arkansas and the United States in those
`
`areas in which telecommunications is a viable business.
`
`19.
`
`Defendant MobileLink's annual gross volume of sales made or business done was
`
`not less than $500,000.00 (exclusive of exercise taxes at the retail level that are separately stated)
`
`during each of the three calendar years preceding the filing of this Complaint.
`
`20. During each of the three years preceding the filing of this Complaint, Defendant
`
`MobileLink employed at least two individuals who were engaged in interstate commerce or in the
`
`production of goods for interstate commerce, or had employees handling, selling, or otherwise
`
`working on goods or materials that had been moved in or produced for commerce by any person,
`
`including goods or materials typically used in the oil and gas industry.
`
`21.
`
`Defendant MobileLink's registered agent for service of process in the State of
`
`Arkansas is Zeeshan Khan, 4250 Venetian Lane, Fayetteville, AR 72703.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 5 of 13 PageID #: 15
`
`22. Defendants were at all times relevant hereto Plaintiff's employer and are and have
`
`been engaged in interstate commerce as that term is defined under the FLSA.
`
`IV. REPRESENTATIVE ACTION ALLEGATIONS
`
`23.
`
`Plaintiff brings this claim for relief for violation of the FLSA as a collective action
`
`pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), on behalf of all persons similarly
`
`situated as District (“Territory”) Managers and who were or are employed by Defendant S&S or
`
`Defendant MobileLink and who are entitled to payment for all of their overtime wages which
`
`Defendants failed to pay from three years prior to the date of the filing of this lawsuit, through the
`
`time of the trial of this case. The Collective Class is defined as follows:
`
`All District ("Territory") Managers employed by Defendants MobileLink
`Arkansas, LLC, or S&S Infinite Mobile, Inc. within the past three years who
`had a training period.
`
`24.
`
`This group includes employees misclassified as salaried workers and employed in
`
`states where Defendants do or did business. Defendants failed to pay these workers at the proper
`
`overtime rate. These employees are similarly situated to Plaintiff and are owed overtime for the
`
`same reasons.
`
`25.
`
`Plaintiff alleges that Defendants failed to pay Plaintiff and members of the class an
`
`overtime rate of one and one-half times their regular rate of pay for all hours worked over forty (40)
`
`while participating in job-related training as required by the FLSA; Defendant paid Plaintiff and
`
`members of the class a salary with no overtime premium.
`
`26.
`
`The proposed FLSA class members are similarly situated in that they have been
`
`subject to uniform practices by Defendants, which violated the FLSA, including:
`
`A. Defendants’ uniform misclassification of them as exempt employees under the
`
`FLSA; and
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 6 of 13 PageID #: 16
`
`B. Defendants’ failure to pay members of the class overtime compensation in violation
`
`of the FLSA, 29 U.S.C. § 201 et seq.
`
`27.
`
`Plaintiff is unable to state the exact number of the class but believes that the class
`
`membership exceeds twenty (20) persons but is less than 120 persons. Defendants can readily
`
`identify the members of the class, who are a certain portion of the current and former employees
`
`of both Defendants.
`
`28.
`
`The names and physical mailing addresses of the probable FLSA collective action
`
`Plaintiffs are available from Defendants, and notice should be provided to the probable FLSA
`
`collective action Plaintiffs via first-class mail to their last known physical and mailing addresses as
`
`soon as possible.
`
`29.
`
`The email addresses or cell phone numbers of many of the probable FLSA collective
`
`action Plaintiffs are available from Defendants, and notice should be provided to the probable
`
`FLSA collective action Plaintiffs via email and/or text message to their last known email
`
`addresses/cell phone as soon as possible.
`
`30.
`
`In addition, and in the alternative, Plaintiff brings this action in her individual and
`
`personal capacity, separate and apart from the class claims set forth herein.
`
`V.
`
`FACTUAL ALLEGATIONS
`
`31.
`
`Plaintiff repeats and re-alleges all the preceding paragraphs of this Original
`
`Complaint as if fully set forth in this section.
`
`32. Within the time period relevant to this case, Plaintiff worked for Defendants as a
`
`District Manager.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 7 of 13 PageID #: 17
`
`33.
`
`On or around September 26, 2019, S&S was purchased by MobileLink, at which
`
`time MobileLink recruited Plaintiff to continue in her role as a salaried District Manager (also
`
`referred to as "Territory Manager").
`
`34. While employed with MobileLink, Plaintiff and other similarly situated employees
`
`did not have the authority to hire and fire other employees.
`
`35. While employed with MobileLink, Plaintiff and other similarly situated employees
`
`did not regularly supervise other employees.
`
`36. Within the time period relevant to this case, Plaintiff and other similarly-situated
`
`employees of MobileLink worked in excess of forty (40) hours per week attending job-related
`
`training required by MobileLink.
`
`37. MobileLink did not pay Plaintiff and other similarly-situated employees one and
`
`one-half times their regular rate of pay for all hours worked over forty hours per week.
`
`38.
`
`Plaintiff worked for Defendant MobileLink in various places in Arkansas, and
`
`MobileLink's pay practices were the same at all locations.
`
`39.
`
`Defendant MobileLink knew or showed reckless disregard for whether the way they
`
`paid Plaintiff and their other Territory Managers violated the FLSA.
`
`40.
`
`Plaintiff and other Territory Managers for Defendants S&S and MobileLink
`
`routinely used, handled, sold, and/or worked on goods or materials that were produced for or
`
`traveled in interstate commerce.
`
`VI.
`
`LEGAL ALLEGATIONS
`
`41.
`
`Plaintiff repeats and re-alleges all the preceding paragraphs of this Original
`
`Complaint as if fully set forth in this section.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 8 of 13 PageID #: 18
`
`A. Individual Allegations under the FLSA
`
`42.
`
`29 U.S.C. § 207 requires employers to pay employees one and one-half times the
`
`employee's regular rate for all hours that the employee works in excess of forty (40) per week. 29
`
`U.S.C.S. § 207 (LEXIS 2013).
`
`43.
`
`Defendants
`
`intentionally misclassified Plaintiff as exempt from overtime
`
`compensation.
`
`44. Defendants deprived Plaintiff of overtime compensation for all of the hours over
`
`forty (40) per week while participating in job-related training in violation of the FLSA.
`
`45.
`
`Defendant's conduct and practice, as described above, is and has been at all times
`
`relevant hereto, willful, intentional, unreasonable, arbitrary, and in bad faith.
`
`46.
`
`By reason of the unlawful acts alleged herein, Defendant is liable to Plaintiff for
`
`monetary damages, liquidated damages and costs, including reasonable attorney's fees provided by
`
`the FLSA for all violations which occurred beginning at least three (3) years preceding the filing of
`
`Plaintiff's initial Complaint, plus periods of equitable tolling.
`
`47.
`
`Alternatively, should the Court find that the Defendants acted in good faith in
`
`failing to pay Plaintiff as provided by the FLSA, Plaintiff is entitled to an award of prejudgment
`
`interest at the applicable legal rate.
`
`B. FLSA § 216(b) Representative Action Allegations
`
`48. Defendants mandated that Plaintiff and similarly situated members of the class
`
`participate in job-related training, which required them to work in excess of forty (40) hours in a
`
`given workweek.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 9 of 13 PageID #: 19
`
`49. Defendants deprived Plaintiff and the class members overtime compensation for all
`
`of the hours over forty (40) per week, in violation of the FLSA.
`
`50. Defendants' conduct and practice, as described above, was/is willful, intentional,
`
`unreasonable, arbitrary, and in bad faith.
`
`51.
`
`By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiff and
`
`similarly situated members of the class for monetary damages, liquidated damages, and costs,
`
`including reasonable attorney's fees provided by the FLSA.
`
`52.
`
`Alternatively, should the Court find that Defendants acted in good faith in failing
`
`to pay Plaintiff and similarly situated members of the class as provided by the FLSA, Plaintiff and
`
`similarly situated members of the class are entitled to an award of prejudgment interest at the
`
`applicable legal rate.
`
`C. Individual Allegations Under the AMWA
`
`53.
`
`Plaintiff asserts this claim for damages and declaratory relief pursuant to the
`
`AMWA, Arkansas Code Annotated §§ 11-4-203(4).
`
`54.
`
`At all relevant times, Defendants was Plaintiff's "employer" within the meaning of
`
`the AMWA, Ark. Code Ann. § 11-4-203(4).
`
`55.
`
`Defendants failed to pay Plaintiff overtime wages owed, as required under the
`
`AMWA.
`
`56.
`
`Defendants' conduct and practices, as described above, was and were willful,
`
`intentional, unreasonable, arbitrary, and in bad faith.
`
`57.
`
`By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiff for
`
`monetary damages, liquidated damages, costs, and a reasonable attorney's fee provided by the
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 10 of 13 PageID #: 20
`
`AMWA for all violations that occurred beginning at least three (3) years preceding the filing of
`
`Plaintiff's initial Complaint, plus periods of equitable tolling.
`
`58.
`
`Alternatively, should the Court find that Defendants acted in good faith in failing
`
`to pay Plaintiff as provided by the AMWA, Plaintiff is entitled to an award of prejudgment interest
`
`at the applicable legal rate.
`
`D. Class Allegations under the AMWA
`
`59.
`
`Plaintiff, individually and on behalf of all others similarly situated who were
`
`employed by Defendants within the State of Arkansas, brings this claim for relief for violation of
`
`the AMWA as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.
`
`60.
`
`Plaintiff proposes to represent the first AMWA liability class of individuals defined
`
`as follows:
`
`All District ("Territory") Managers employed by Defendants MobileLink
`Arkansas, LLC, or S&S Infinite Mobile, Inc. within the past three years who
`had a training period.
`
`61.
`
`This group includes employees misclassified as salaried workers and employed in
`
`states where Defendants do or did business. Defendants failed to pay these workers at the proper
`
`overtime rate. These employees are similarly situated to Plaintiff and are owed overtime for the
`
`same reasons.
`
`62. Upon information and belief, there are more than twenty (20) persons in the
`
`proposed class. Therefore, the proposed class is so numerous that joinder of all members is
`
`impracticable.
`
`63.
`
`Common questions of law and fact relate to all the proposed liability class members,
`
`such as:
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 11 of 13 PageID #: 21
`
`i. Whether Defendants' policy of failing to properly pay overtime-rate wages to
`members of the proposed class who worked in excess of forty (40) hours per week
`was unlawful under the AMWA; and
`
`ii. Whether, as a result of Defendants' failure to lawfully calculate Plaintiff's overtime
`pay, Defendant paid members of the proposed class one and one-half times their
`regular wages for hours worked over forty (40) in each week in accordance with the
`AMWA.
`
`The above common questions of law and fact predominate over any questions
`
`64.
`
`affecting only Plaintiff, and a class action is superior to other available methods for fairly and
`
`efficiently adjudicating the controversy.
`
`65.
`
`The class members have no interest in individually controlling the prosecution of
`
`separate actions because the policy of the AMWA provides a bright-line rule for protecting all
`
`nonexempt employees as a class. To wit: "It is declared to be the public policy of the State of
`
`Arkansas to establish minimum wages for workers in order to safeguard their health, efficiency,
`
`and general well-being and to protect them as well as their employers from the effects of serious
`
`and unfair competition resulting from wage levels detrimental to their health, efficiency, and
`
`well-being. " Ark. Code Ann. S 11-4-202. To that end, all non-exempted employees must be paid
`
`for time worked over forty (40) hours per week at a rate of one and one-half times their regular
`
`rate. Ark. Code Ann. S 11-4-211.
`
`66.
`
`At the time of the filing of this Complaint, neither Plaintiff nor Plaintiff's counsel
`
`know of any litigation already begun by any members of the proposed class concerning the
`
`allegations in this Complaint.
`
`67. No undue or extraordinary difficulties are likely to be encountered in the
`
`management of this class action.
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 12 of 13 PageID #: 22
`
`68.
`
`The claims of Plaintiffs are typical of the claims of the proposed liability class in
`
`that Plaintiffs and all others in the proposed liability class will claim that they were not paid one
`
`and one-half times their regular rate of pay for hours worked in excess of forty per week.
`
`class.
`
`69.
`
`70.
`
`Plaintiffs and their counsel will fairly and adequately protect the interests of the
`
`Plaintiff’s counsel is competent to litigate Rule 23 class actions and other complex
`
`litigation matters, including wage and hour cases like this one.
`
`VII. PRAYER FOR RELIEF
`
`WHEREFORE, premises considered, Plaintiff, individually and on behalf of all others
`
`similarly situated, respectfully pray for relief and damages as follows:
`
`(a)
`
`(b)
`
`That Defendants be summoned to appear and answer herein;
`
`That Defendants be required to account to Plaintiff, the class members, and the
`
`Court for all of the hours worked by Plaintiff and the class members and all monies paid to them;
`
`(c)
`
`A declaratory judgment that Defendants' practices alleged herein violate the Fair
`
`Labor Standards Act, 29 U.S.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq.;
`
`(d) Certification of, and proper notice to, together with an opportunity to participate in
`
`the litigation, all qualifying current and former employees;
`
`(e)
`
`Judgment for damages for all unpaid overtime compensation under the Fair Labor
`
`Standards Act, 29 U.S.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq.;
`
`(e)
`
`Judgment for liquidated damages pursuant to the Fair Labor Standards Act, 29
`
`US.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq., in an amount equal to all
`
`

`

`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 13 of 13 PageID #: 23
`
`unpaid overtime compensation owed to Plaintiff and members of the Class during the applicable
`
`statutory period;
`
`(f)
`
`An order directing Defendants to pay Plaintiff and members of the Class
`
`prejudgment interest, reasonable attorney's fees and all costs connected with this action; and
`
`(g)
`
`Such other and further relief as this Court may deem necessary, just and proper.
`
`
`Respectfully submitted,
`
`DANA PLOUGH, Individually and
`on Behalf of All Others Similarly
`Situated, PLAINTIFF
`
`WH Law, PLLC | We Help
`North Little Rock Office
`1 Riverfront Place, Suite 745
`North Little Rock, AR 72114
`
`
`
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`
`
`
`
`By:
`
`
`
`
`/s/ Chris Burks
`Chris W. Burks (ABN: 2010207)
`chris@wh.law
`Logan M. Mustain (ABN: 2020030)
`logan@wh.law
`
`
`
`
`
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`

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