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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF ARKANSAS
`FAYETTEVILLE DIVISION
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`DANA PLOUGH, Individually and on
`Behalf of Others Similarly Situated
`
`PLAINTIFF
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`vs.
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`No. 3:20CV3075______
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`MOBILELINK ARKANSAS, LLC, and
`S&S INFINITE MOBILE, INC.
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`DEFENDANTS
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`CLASS AND COLLECTIVE ACTION COMPLAINT
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`COMES NOW Plaintiff Dana Plough, individually and on behalf of all others similarly situated, by
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`and through her attorneys Chris W. Burks and Logan M. Mustain of WH Law, PLLC, and for her Original
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`Complaint—Collective Action against Defendants MobileLink Arkansas, LLC, and S&S Infinite Mobile,
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`Inc. ("Defendants"), does hereby state and allege as follows:
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`I.
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`PRELIMINARY STATEMENTS
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`1.
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`Plaintiff, individually and on behalf of all others similarly situated, brings this action
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`under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), and the Arkansas Minimum
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`Wage Act, Ark. Code Ann. § 11-4-201, et seq. ("AMWA"), for declaratory judgment, monetary
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`damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable
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`attorneys' fees as a result of Defendants' failure to pay Plaintiff and all others similarly situated
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`overtime compensation for all hours worked in excess of forty (40) while participating in job-
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`related training.
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`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 2 of 13 PageID #: 12
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`2.
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`Upon information and belief, for at least three (3) years prior to the filing of this
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`Complaint, Defendants have willfully and intentionally committed violations of the FLSA and
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`AMWA as described infra.
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`II.
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`JURISDICTION AND VENUE
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`3.
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`The United States District Court for the Western District of Arkansas has subject
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`matter jurisdiction over this suit under the provisions of 28 U.S.C. § 1331 because this suit raises
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`federal questions under the FLSA.
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`4.
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`This Complaint also alleges violations of the AMWA, which arise out of the same
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`set of operative facts as the federal cause of action herein alleged; accordingly, this state cause of
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`action would be expected to be tried with the federal claim in a single judicial proceeding.
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`5.
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`This Court has supplemental jurisdiction over Plaintiff's state law claim pursuant
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`to 28 U.S.C. § 1367(a).
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`6.
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`Defendant MobileLink Arkansas, LLC, ("MobileLink") conducts business within
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`the State of Arkansas, operating several retail stores for Cricket wireless at various locations
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`throughout the State.
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`7.
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`Defendant S&S Infinite Mobile, Inc. ("S&S") conducted business within the State
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`of Arkansas, operating several retail stores for Cricket wireless at various locations throughout the
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`State. S&S has been purchased by Defendant MobileLink Arkansas, LLC, and now assumes the
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`identity of MobileLink Arkansas, LLC.
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`8.
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`Venue lies properly within this Court under 28 U.S.C. § 1391(b)(1) and (c)(2)
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`because the Defendants did business in Arkansas.
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`9.
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`Plaintiff was employed by Defendant S&S, and subsequently by Defendant
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`MobileLink, as a Territory Manager for several retail store locations throughout northern and
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`western Arkansas. Therefore, the acts alleged in this Complaint had their principal effect within
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`the Fayetteville Division of the Western District of Arkansas, and venue is proper in this Court
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`pursuant to 28 U.S.C. § 1391.
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`III. THE PARTIES
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`10.
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`Plaintiff repeats and re-alleges all the preceding paragraphs of this Complaint as if
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`fully set forth in this section.
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`11.
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`Plaintiff is a resident and citizen of Springfield, Missouri. She was employed by
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`Defendant MobileLink as a Territory Manager and was employed to work in Arkansas, including
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`the area around Mountain Home, Arkansas, within the three (3) years preceding the filing of this
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`Original Complaint.
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`12. Within the relevant time period, Plaintiff was classified by Defendants as exempt
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`from overtime wages and was paid a salary.
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`13.
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`Plaintiff's term of employment was approximately November 1, 2017, to October
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`31, 2019.
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`14.
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`At all times material herein, Plaintiff has been entitled to the rights, protections,
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`and benefits provided under the Fair Labor Standards Act 29 U.S.C. § 201, et seq.
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`15.
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`Defendant S&S was a for-profit, foreign, limited liability company created and
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`existing under and by virtue of the laws of the State of New York, providing products and services
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`in the telecommunications industry, throughout New York, Arkansas, and the United States in
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`those areas in which telecommunications is a viable business.
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`16.
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`Defendant S&S's annual gross volume of sales made or business done was not less
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`than $500,000.00 (exclusive of exercise taxes at the retail level that are separately stated) during
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`each of the three calendar years preceding the filing of this Complaint.
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`17.
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`Until Defendant S&S was bought by Defendant MobileLink, S&S employed at least
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`two individuals who were engaged in interstate commerce or in the production of goods for
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`interstate commerce or had employees handling, selling, or otherwise working on goods or
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`materials that had been moved in or produced for commerce by any person, including goods or
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`materials typically used in the oil and gas industry.
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`18.
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`Defendant MobileLink is a for-profit, domestic, limited liability company created
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`and existing under and by virtue of the laws of the State of Arkansas, providing products and
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`services in the telecommunications industry, throughout Arkansas and the United States in those
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`areas in which telecommunications is a viable business.
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`19.
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`Defendant MobileLink's annual gross volume of sales made or business done was
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`not less than $500,000.00 (exclusive of exercise taxes at the retail level that are separately stated)
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`during each of the three calendar years preceding the filing of this Complaint.
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`20. During each of the three years preceding the filing of this Complaint, Defendant
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`MobileLink employed at least two individuals who were engaged in interstate commerce or in the
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`production of goods for interstate commerce, or had employees handling, selling, or otherwise
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`working on goods or materials that had been moved in or produced for commerce by any person,
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`including goods or materials typically used in the oil and gas industry.
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`21.
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`Defendant MobileLink's registered agent for service of process in the State of
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`Arkansas is Zeeshan Khan, 4250 Venetian Lane, Fayetteville, AR 72703.
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`22. Defendants were at all times relevant hereto Plaintiff's employer and are and have
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`been engaged in interstate commerce as that term is defined under the FLSA.
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`IV. REPRESENTATIVE ACTION ALLEGATIONS
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`23.
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`Plaintiff brings this claim for relief for violation of the FLSA as a collective action
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`pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), on behalf of all persons similarly
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`situated as District (“Territory”) Managers and who were or are employed by Defendant S&S or
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`Defendant MobileLink and who are entitled to payment for all of their overtime wages which
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`Defendants failed to pay from three years prior to the date of the filing of this lawsuit, through the
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`time of the trial of this case. The Collective Class is defined as follows:
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`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.
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`24.
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`This group includes employees misclassified as salaried workers and employed in
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`states where Defendants do or did business. Defendants failed to pay these workers at the proper
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`overtime rate. These employees are similarly situated to Plaintiff and are owed overtime for the
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`same reasons.
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`25.
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`Plaintiff alleges that Defendants failed to pay Plaintiff and members of the class an
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`overtime rate of one and one-half times their regular rate of pay for all hours worked over forty (40)
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`while participating in job-related training as required by the FLSA; Defendant paid Plaintiff and
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`members of the class a salary with no overtime premium.
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`26.
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`The proposed FLSA class members are similarly situated in that they have been
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`subject to uniform practices by Defendants, which violated the FLSA, including:
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`A. Defendants’ uniform misclassification of them as exempt employees under the
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`FLSA; and
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`B. Defendants’ failure to pay members of the class overtime compensation in violation
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`of the FLSA, 29 U.S.C. § 201 et seq.
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`27.
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`Plaintiff is unable to state the exact number of the class but believes that the class
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`membership exceeds twenty (20) persons but is less than 120 persons. Defendants can readily
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`identify the members of the class, who are a certain portion of the current and former employees
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`of both Defendants.
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`28.
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`The names and physical mailing addresses of the probable FLSA collective action
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`Plaintiffs are available from Defendants, and notice should be provided to the probable FLSA
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`collective action Plaintiffs via first-class mail to their last known physical and mailing addresses as
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`soon as possible.
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`29.
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`The email addresses or cell phone numbers of many of the probable FLSA collective
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`action Plaintiffs are available from Defendants, and notice should be provided to the probable
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`FLSA collective action Plaintiffs via email and/or text message to their last known email
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`addresses/cell phone as soon as possible.
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`30.
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`In addition, and in the alternative, Plaintiff brings this action in her individual and
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`personal capacity, separate and apart from the class claims set forth herein.
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`V.
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`FACTUAL ALLEGATIONS
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`31.
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`Plaintiff repeats and re-alleges all the preceding paragraphs of this Original
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`Complaint as if fully set forth in this section.
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`32. Within the time period relevant to this case, Plaintiff worked for Defendants as a
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`District Manager.
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`33.
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`On or around September 26, 2019, S&S was purchased by MobileLink, at which
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`time MobileLink recruited Plaintiff to continue in her role as a salaried District Manager (also
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`referred to as "Territory Manager").
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`34. While employed with MobileLink, Plaintiff and other similarly situated employees
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`did not have the authority to hire and fire other employees.
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`35. While employed with MobileLink, Plaintiff and other similarly situated employees
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`did not regularly supervise other employees.
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`36. Within the time period relevant to this case, Plaintiff and other similarly-situated
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`employees of MobileLink worked in excess of forty (40) hours per week attending job-related
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`training required by MobileLink.
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`37. MobileLink did not pay Plaintiff and other similarly-situated employees one and
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`one-half times their regular rate of pay for all hours worked over forty hours per week.
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`38.
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`Plaintiff worked for Defendant MobileLink in various places in Arkansas, and
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`MobileLink's pay practices were the same at all locations.
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`39.
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`Defendant MobileLink knew or showed reckless disregard for whether the way they
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`paid Plaintiff and their other Territory Managers violated the FLSA.
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`40.
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`Plaintiff and other Territory Managers for Defendants S&S and MobileLink
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`routinely used, handled, sold, and/or worked on goods or materials that were produced for or
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`traveled in interstate commerce.
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`VI.
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`LEGAL ALLEGATIONS
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`41.
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`Plaintiff repeats and re-alleges all the preceding paragraphs of this Original
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`Complaint as if fully set forth in this section.
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`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 8 of 13 PageID #: 18
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`A. Individual Allegations under the FLSA
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`42.
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`29 U.S.C. § 207 requires employers to pay employees one and one-half times the
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`employee's regular rate for all hours that the employee works in excess of forty (40) per week. 29
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`U.S.C.S. § 207 (LEXIS 2013).
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`43.
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`Defendants
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`intentionally misclassified Plaintiff as exempt from overtime
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`compensation.
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`44. Defendants deprived Plaintiff of overtime compensation for all of the hours over
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`forty (40) per week while participating in job-related training in violation of the FLSA.
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`45.
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`Defendant's conduct and practice, as described above, is and has been at all times
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`relevant hereto, willful, intentional, unreasonable, arbitrary, and in bad faith.
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`46.
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`By reason of the unlawful acts alleged herein, Defendant is liable to Plaintiff for
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`monetary damages, liquidated damages and costs, including reasonable attorney's fees provided by
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`the FLSA for all violations which occurred beginning at least three (3) years preceding the filing of
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`Plaintiff's initial Complaint, plus periods of equitable tolling.
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`47.
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`Alternatively, should the Court find that the Defendants acted in good faith in
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`failing to pay Plaintiff as provided by the FLSA, Plaintiff is entitled to an award of prejudgment
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`interest at the applicable legal rate.
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`B. FLSA § 216(b) Representative Action Allegations
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`48. Defendants mandated that Plaintiff and similarly situated members of the class
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`participate in job-related training, which required them to work in excess of forty (40) hours in a
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`given workweek.
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`49. Defendants deprived Plaintiff and the class members overtime compensation for all
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`of the hours over forty (40) per week, in violation of the FLSA.
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`50. Defendants' conduct and practice, as described above, was/is willful, intentional,
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`unreasonable, arbitrary, and in bad faith.
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`51.
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`By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiff and
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`similarly situated members of the class for monetary damages, liquidated damages, and costs,
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`including reasonable attorney's fees provided by the FLSA.
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`52.
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`Alternatively, should the Court find that Defendants acted in good faith in failing
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`to pay Plaintiff and similarly situated members of the class as provided by the FLSA, Plaintiff and
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`similarly situated members of the class are entitled to an award of prejudgment interest at the
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`applicable legal rate.
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`C. Individual Allegations Under the AMWA
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`53.
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`Plaintiff asserts this claim for damages and declaratory relief pursuant to the
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`AMWA, Arkansas Code Annotated §§ 11-4-203(4).
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`54.
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`At all relevant times, Defendants was Plaintiff's "employer" within the meaning of
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`the AMWA, Ark. Code Ann. § 11-4-203(4).
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`55.
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`Defendants failed to pay Plaintiff overtime wages owed, as required under the
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`AMWA.
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`56.
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`Defendants' conduct and practices, as described above, was and were willful,
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`intentional, unreasonable, arbitrary, and in bad faith.
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`57.
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`By reason of the unlawful acts alleged herein, Defendants are liable to Plaintiff for
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`monetary damages, liquidated damages, costs, and a reasonable attorney's fee provided by the
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`AMWA for all violations that occurred beginning at least three (3) years preceding the filing of
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`Plaintiff's initial Complaint, plus periods of equitable tolling.
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`58.
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`Alternatively, should the Court find that Defendants acted in good faith in failing
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`to pay Plaintiff as provided by the AMWA, Plaintiff is entitled to an award of prejudgment interest
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`at the applicable legal rate.
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`D. Class Allegations under the AMWA
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`59.
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`Plaintiff, individually and on behalf of all others similarly situated who were
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`employed by Defendants within the State of Arkansas, brings this claim for relief for violation of
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`the AMWA as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.
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`60.
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`Plaintiff proposes to represent the first AMWA liability class of individuals defined
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`as follows:
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`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.
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`61.
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`This group includes employees misclassified as salaried workers and employed in
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`states where Defendants do or did business. Defendants failed to pay these workers at the proper
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`overtime rate. These employees are similarly situated to Plaintiff and are owed overtime for the
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`same reasons.
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`62. Upon information and belief, there are more than twenty (20) persons in the
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`proposed class. Therefore, the proposed class is so numerous that joinder of all members is
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`impracticable.
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`63.
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`Common questions of law and fact relate to all the proposed liability class members,
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`such as:
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`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 11 of 13 PageID #: 21
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`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
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`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.
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`The above common questions of law and fact predominate over any questions
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`64.
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`affecting only Plaintiff, and a class action is superior to other available methods for fairly and
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`efficiently adjudicating the controversy.
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`65.
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`The class members have no interest in individually controlling the prosecution of
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`separate actions because the policy of the AMWA provides a bright-line rule for protecting all
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`nonexempt employees as a class. To wit: "It is declared to be the public policy of the State of
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`Arkansas to establish minimum wages for workers in order to safeguard their health, efficiency,
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`and general well-being and to protect them as well as their employers from the effects of serious
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`and unfair competition resulting from wage levels detrimental to their health, efficiency, and
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`well-being. " Ark. Code Ann. S 11-4-202. To that end, all non-exempted employees must be paid
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`for time worked over forty (40) hours per week at a rate of one and one-half times their regular
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`rate. Ark. Code Ann. S 11-4-211.
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`66.
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`At the time of the filing of this Complaint, neither Plaintiff nor Plaintiff's counsel
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`know of any litigation already begun by any members of the proposed class concerning the
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`allegations in this Complaint.
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`67. No undue or extraordinary difficulties are likely to be encountered in the
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`management of this class action.
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`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 12 of 13 PageID #: 22
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`68.
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`The claims of Plaintiffs are typical of the claims of the proposed liability class in
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`that Plaintiffs and all others in the proposed liability class will claim that they were not paid one
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`and one-half times their regular rate of pay for hours worked in excess of forty per week.
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`class.
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`69.
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`70.
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`Plaintiffs and their counsel will fairly and adequately protect the interests of the
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`Plaintiff’s counsel is competent to litigate Rule 23 class actions and other complex
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`litigation matters, including wage and hour cases like this one.
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`VII. PRAYER FOR RELIEF
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`WHEREFORE, premises considered, Plaintiff, individually and on behalf of all others
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`similarly situated, respectfully pray for relief and damages as follows:
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`(a)
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`(b)
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`That Defendants be summoned to appear and answer herein;
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`That Defendants be required to account to Plaintiff, the class members, and the
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`Court for all of the hours worked by Plaintiff and the class members and all monies paid to them;
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`(c)
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`A declaratory judgment that Defendants' practices alleged herein violate the Fair
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`Labor Standards Act, 29 U.S.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq.;
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`(d) Certification of, and proper notice to, together with an opportunity to participate in
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`the litigation, all qualifying current and former employees;
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`(e)
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`Judgment for damages for all unpaid overtime compensation under the Fair Labor
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`Standards Act, 29 U.S.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq.;
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`(e)
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`Judgment for liquidated damages pursuant to the Fair Labor Standards Act, 29
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`US.C. §201, et seq., and attendant regulations at 29 C.F.R. §516 et seq., in an amount equal to all
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`Case 3:20-cv-03075-TLB Document 2 Filed 11/18/20 Page 13 of 13 PageID #: 23
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`unpaid overtime compensation owed to Plaintiff and members of the Class during the applicable
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`statutory period;
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`(f)
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`An order directing Defendants to pay Plaintiff and members of the Class
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`prejudgment interest, reasonable attorney's fees and all costs connected with this action; and
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`(g)
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`Such other and further relief as this Court may deem necessary, just and proper.
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`Respectfully submitted,
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`DANA PLOUGH, Individually and
`on Behalf of All Others Similarly
`Situated, PLAINTIFF
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`WH Law, PLLC | We Help
`North Little Rock Office
`1 Riverfront Place, Suite 745
`North Little Rock, AR 72114
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`By:
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`/s/ Chris Burks
`Chris W. Burks (ABN: 2010207)
`chris@wh.law
`Logan M. Mustain (ABN: 2020030)
`logan@wh.law
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