`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`Southern Division – Detroit
`
`LITTLE CAESAR ENTERPRISES,
`INC.,
`a Michigan corporation, and
`LC TRADEMARKS, INC.,
`a Michigan corporation,
`Plaintiffs,
`
`v.
`
`BIG PAPA’S DOUGH COMPANY,
`LLC,
`a Missouri limited liability company,
`TIMOTHY GLORE,
`a Missouri citizen,
`JAMIE GLORE,
`a Missouri citizen, and
`CONNIE INMAN,
`a Missouri citizen,
`Defendants.
`
`Case No. 2:21-cv-12531
`
`COMPLAINT
`
`Plaintiffs Little Caesar Enterprises, Inc. and LC Trademarks, Inc.
`
`(collectively, “Little Caesar”) bring this action for breach of contract, trademark
`
`infringement, unfair competition, and trade dress infringement. Little Caesar has
`
`terminated its Franchise Agreement with Defendants based on Defendants’ breach
`
`of that Agreement by failing to provide multiple financial statements to Little
`
`Caesar. Despite the termination, Defendants continue to hold themselves out as
`
`
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.2 Filed 10/28/21 Page 2 of 18
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`LITTLE CAESARS franchisees.
`
`Defendants’ continued, unauthorized use and enjoyment of Little Caesar’s
`
`confidential business system and the LITTLE CAESARS trademarks, trade name,
`
`and trade dress breaches the Franchise Agreement and violates the Lanham Act, 15
`
`U.S.C. §§ 1114, et seq. Little Caesar seeks injunctive, monetary, and other relief
`
`against Defendants for the reasons set forth below.
`
`THE PARTIES
`
`1.
`
`Plaintiff Little Caesar Enterprises, Inc. is a Michigan corporation with
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`its principal place of business in Detroit, Michigan. It is engaged in the business of
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`franchising independent businesspersons to operate LITTLE CAESARS restaurants
`
`throughout the United States. Little Caesar’s franchisees are licensed to use the
`
`LITTLE CAESARS trade name, trademarks, and service marks and to operate under
`
`the LITTLE CAESARS System, which involves the production, merchandising, and
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`sale of pizza, chicken wings, and related products utilizing special equipment,
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`equipment layouts, interior and exterior accessories, identification schemes,
`
`products, management programs, standards, specifications, proprietary marks, and
`
`information.
`
`2.
`
`Plaintiff LC Trademarks, Inc. is a Michigan corporation with its
`
`principal place of business in Detroit, Michigan. LC Trademarks, Inc. is the owner
`
`of the trademark, service mark, and trade name “LITTLE CAESARS,” and related
`
`
`
`2
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`
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.3 Filed 10/28/21 Page 3 of 18
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`marks. It licenses these marks to Plaintiff Little Caesar Enterprises, Inc., which in
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`turn licenses them to LITTLE CAESARS franchisees.
`
`3.
`
`Defendant Big Papa’s Dough Company, LLC is a Missouri limited
`
`liability company with a principal place of business in Potosi, Missouri. Big Papa’s
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`owned and operated one LITTLE CAESARS franchise located in Potosi (Store No.
`
`3301-0001), pursuant to a Franchise Agreement with Little Caesar. The members of
`
`Big Papa’s are Defendants Timothy Glore, Jamie Glore, and Connie Inman, each a
`
`citizen and resident of Missouri. No member of Big Papa’s is a citizen of Michigan.
`
`4.
`
`Defendant Timothy Glore is a natural person and a citizen and resident
`
`of the State of Missouri. He is an owner of Big Papa’s and personally guaranteed its
`
`obligations under its Franchise Agreement with Little Caesar pursuant to an
`
`executed personal guarantee.
`
`5.
`
`Defendant Jamie Glore is a natural person and a citizen and resident of
`
`the State of Missouri. She is an owner of Big Papa’s and personally guaranteed its
`
`obligations under its Franchise Agreement with Little Caesar pursuant to an
`
`executed personal guarantee.
`
`6.
`
`Defendant Connie Inman is a natural person and a citizen and resident
`
`of the State of Missouri. She is an owner of Big Papa’s and personally guaranteed
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`its obligations under its Franchise Agreement with Little Caesar pursuant to an
`
`executed personal guarantee.
`
`
`
`3
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`7.
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`Defendants Big Papa’s Dough Company, LLC, Timothy Glore, Jamie
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`Glore, and Connie Inman are collectively referred to as “Big Papa’s.”
`
`JURISDICTION AND VENUE
`
`8.
`
`This Court has jurisdiction pursuant to §§ 34(a) and 39 of the Lanham
`
`Act, 15 U.S.C. §§ 1116 & 1121; and 28 U.S.C. §§ 1331, 1332, 1338, & 1367(a). The
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`amount in controversy exceeds $75,000, exclusive of interest and costs, and no
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`defendant shares a state of citizenship with any plaintiff.
`
`9.
`
`This Court has in personam jurisdiction over Defendants because they
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`conduct business in this district and the events giving rise to Little Caesar’s claims
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`occurred in this district.
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`10. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and the
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`venue provision contained in the parties’ Franchise Agreement.
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`BACKGROUND FACTS
`
`Little Caesar
`
`11. Plaintiff Little Caesar Enterprises, Inc. is the franchisor of the LITTLE
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`CAESARS System.
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`12. Plaintiff LC Trademarks, Inc. owns numerous federal registrations for
`
`the mark “LITTLE CAESARS” and related marks. Among those registrations are
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`Registration Nos. 2036763, 2028607, 2259637, 3904450, 3925216, and others. Each
`
`of these registrations is in full force and effect.
`
`
`
`4
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`13. Plaintiff Little Caesar Enterprises, Inc. has the exclusive license to use
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`and to license others to use the LITTLE CAESARS marks and trade name and has
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`used them at all times relevant to this action to identify its restaurants and the pizza
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`and other products associated with those restaurants.
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`14. The trade dress of LITTLE CAESARS restaurants includes the signage,
`
`lettering style, color scheme, exterior appearance, floor plans, and décor (including,
`
`without limitation, menu boards, display racks, and servers’ uniforms) that are
`
`featured at the restaurants operated by LITTLE CAESARS franchisees.
`
`15. The LITTLE CAESARS
`
`trade dress consists of arbitrary
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`embellishments primarily adopted for the purpose of identification and individuality,
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`and is nonfunctional.
`
`16. The LITTLE CAESARS trademarks and trade dress are utilized in
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`interstate commerce.
`
`The Parties’ Rights And Obligations Under The Franchise Agreement
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`17. Big Papa’s was formerly licensed to use the LITTLE CAESARS
`
`trademarks, trade name, trade dress, and business system in accordance with the
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`terms of its Franchise Agreement with Little Caesar.
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`18. Among those terms was the obligation to comply with Little Caesar’s
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`recordkeeping and reporting requirements, including but not limited to the
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`obligations to:
`
`
`
`5
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.6 Filed 10/28/21 Page 6 of 18
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`a.
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`Prepare and preserve for at least four years, complete and
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`accurate books, records, and accounts in accordance with generally accepted
`
`accounting principles and in the form and manner prescribed by Little Caesar.
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`(Franchise Agreement § 11.1.)
`
`b.
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`Provide Little Caesar with copies of financial statements
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`showing the results of the operations of its LITTLE CAESARS franchise, within
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`sixty days of the end of each fiscal year of the restaurant, in addition to state and
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`federal tax returns related to its operation of its LITTLE CAESARS franchise, within
`
`five days of their filing. (Id. § 11.2.)
`
`c.
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`Provide Little Caesar, on forms and in the manner prescribed by
`
`Little Caesar: (i) weekly reports of gross sales; (ii) financial statements on a quarterly
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`basis, within thirty days after the end of each quarter; and (iii) such other data and
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`information regarding the operation of its LITTLE CAESARS franchise as Little
`
`Caesar may require, within the time frames established by Little Caesar. (Id. § 11.3.)
`
`d.
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`Provide Little Caesar, for review or auditing, such additional
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`forms, sales reports, records, information, and data as Little Caesar may reasonably
`
`request, on the forms and in the manner as are reasonably requested by Little Caesar.
`
`(Id. § 11.4.)
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`19. Furthermore, Big Papa’s agreed that Little Caesar had the right to audit
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`the books and records of its LITTLE CAESARS franchise at any time. (Id. § 11.5.)
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`
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`6
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`20. Big Papa’s agreed that the failure to comply with the terms of the
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`Franchise Agreement would constitute a default under the Agreement and that Little
`
`Caesar had the right to terminate the Agreement if Big Papa’s failed to cure a default
`
`within the time required under the Agreement. (Id. § 13.3.)
`
`21. Big Papa’s agreed that under certain circumstances Little Caesar had
`
`the right to immediately terminate the Franchise Agreement without providing an
`
`opportunity to cure, including if Big Papa’s:
`
`a.
`
`Refused to permit Little Caesar to inspect its books and records
`
`pursuant to Little Caesar’s right to do so under the Franchise Agreement (id.
`
`§ 13.2.19); or
`
`b.
`
`Breached any material term of the Franchise Agreement that was
`
`not by its nature curable, or that went to the essence of the Agreement (id.
`
`§ 13.2.22).
`
`22. Furthermore, under the terms of the Franchise Agreement, Big Papa’s
`
`agreed that its right to use Little Caesar’s proprietary marks was limited to uses
`
`authorized by the Franchise Agreement, and that “any unauthorized use thereof shall
`
`constitute an infringement.” (Id. § 7.2.5.)
`
`23.
`
`It agreed that it would use Little Caesar’s proprietary marks, including
`
`but not limited to Little Caesar’s trademarks, trade names, service marks, logos,
`
`emblems, trade dress, and other indicia of origin, “only in the manner authorized and
`
`
`
`7
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`permitted by Little Caesar.” (Id. § 7.2.1.)
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`24. Big Papa’s was permitted to use Little Caesar’s proprietary marks only
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`in accordance with the LITTLE CAESARS System and the related standards and
`
`specifications, which “underlie the goodwill associated with and symbolized by the
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`[p]roprietary [m]arks.” (Id. § 7.1.3.)
`
`25. And it agreed that, during the term of the Franchise Agreement and after
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`termination, it would not take any action “which may tend to derogate or jeopardize
`
`Little Caesar’s interest” in Little Caesar’s proprietary marks. (Id. § 7.3.2.) Big Papa’s
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`also covenanted not to “do or perform any other act injurious or prejudicial to the
`
`goodwill associated with the [p]roprietary [m]arks” and the LITTLE CAESARS
`
`System. (Id. § 15.2.1.)
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`Defendants’ Post-Termination Obligations
`
`26. Big Papa’s agreed that, in the event that its Franchise Agreement were
`
`terminated, it would “immediately cease to operate” the restaurant and would not
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`thereafter, directly or indirectly, “represent to the public or hold itself out as a present
`
`or former franchisee of Little Caesar.” (Franchise Agreement § 14.1.)
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`27.
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`In addition, it agreed that it would immediately and permanently cease
`
`to use, in any manner whatsoever, any products, ingredients, trade secrets,
`
`confidential methods, procedures, and techniques associated with the LITTLE
`
`CAESARS System and/or proprietary marks. (Id. § 14.2.)
`
`
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`8
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`28.
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`It also agreed to return to Little Caesar all of Little Caesar’s confidential
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`manuals and other confidential information. (Id. § 14.9.)
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`29. Big Papa’s agreed that, upon termination of the Franchise Agreement,
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`it would not use “any designation of origin or description or representation which
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`falsely suggests or represents an association or connection with Little Caesar.” (Id
`
`§ 14.5.)
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`30. And it agreed to take any actions necessary to cancel any assumed name
`
`or equivalent registration that contains the LITTLE CAESARS Proprietary Marks,
`
`as the term is defined in the Franchise Agreement, and to furnish evidence of
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`compliance within thirty days after the termination of the Agreement. (Id. § 14.3.)
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`31. Under the Franchise Agreement, Big Papa’s agreed that, upon
`
`termination, Little Caesar would have the option to purchase any or all of the
`
`furnishings, equipment, signs, fixtures, or supplies related to the operation of its
`
`franchised restaurant. In addition, it agreed to assign to Little Caesar, at its request,
`
`any interests it had in any lease for the restaurant premises. (Id. §§ 14.4, 14.10.)
`
`32. Big Papa’s also agreed to a reasonable post-termination covenant
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`against competition, which states that it may not, directly or indirectly, for itself or
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`through, on behalf of, or in conjunction with any person, persons, or legal entity
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`“own, maintain, advise, operate, engage in, be employed by, make loans to, or have
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`any interest in or relationship or association with a business which is a quick or fast
`
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`9
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`service restaurant engaged in the sale of pizza, pasta, sandwiches, chicken wings,
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`and/or related products,” for a continuous uninterrupted period of one year following
`
`the termination of the Franchise Agreement (or a final court order regarding the
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`same), in any Designated Market Area of any LITTLE CAESARS restaurant, and
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`for a continuous uninterrupted period of two years following the termination of the
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`Franchise Agreement (or a final court order regarding the same), in the Designated
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`Market Area(s) in which its former LITTLE CAESARS restaurant is located. (Id.
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`§ 15.3.) Big Papa’s further agreed that breaching this and any other covenants in the
`
`Franchise Agreement would cause Little Caesar irreparable injury for “which no
`
`adequate remedy at law may be available, and agree[d] to pay all court costs and
`
`attorneys’ fees incurred by Little Caesar in obtaining injunctive or other equitable
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`legal relief . . . .” (Id. § 15.4.)
`
`33.
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`It agreed that it would pay to Little Caesar and its affiliates all sums
`
`owed, and Little Caesar’s costs, expenses, and reasonable attorneys’ fees incurred
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`by reason of any default or termination of the Franchise Agreement, or the
`
`enforcement of Big Papa’s post-termination obligations. It also agreed to pay Little
`
`Caesar liquidated damages. (Id. §§ 14.6, 14.7, 14.8, 15.4, 23.9.)
`
`34. Pursuant to the personal guarantee attached as Exhibit A to the
`
`Franchise Agreement, Defendants Timothy Glore, Jamie Glore, and Connie Inman
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`agreed to be personally bound by the covenants and obligations of the Franchise
`
`
`
`10
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.11 Filed 10/28/21 Page 11 of 18
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`Agreement, including the obligation to pay Little Caesar and its affiliates and the
`
`obligation to comply with the post-termination covenant against competition.
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`Defendants’ Defaults Under Their Franchise Agreement
`And The Termination Of Their Franchise Agreement
`
`35. Beginning in mid-2018, Big Papa’s failed to submit its quarterly
`
`financial statements within thirty days after the end of the quarter as required by its
`
`Franchise Agreement.
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`36. By April 2021, Big Papa’s had failed to submit its quarterly financial
`
`statements for the final two quarters of 2018 and failed to submit any quarterly
`
`financial statements for 2019 or 2020. On April 12, 2021, Little Caesar notified Big
`
`Papa’s that it was in default of its Franchise Agreement and that its Franchise
`
`Agreement would be terminated unless Big Papa’s produced its outstanding 2018,
`
`2019, and 2020 financial statements within thirty days.
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`37. Big Papa’s did not produce any of the financial statements requested.
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`Accordingly, by Notice of Default and Notice of Franchise Agreement Termination
`
`dated June 7, 2021, Little Caesar informed Big Papa’s that the Franchise Agreement
`
`would be terminated at the conclusion of the notice period required by law.
`
`38. The June 7 Notice of Default and Notice of Franchise Termination
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`informed Big Papa’s that Little Caesar would not enforce the termination by itself,
`
`but instead would submit the matter to a court for judicial enforcement. Big Papa’s
`
`
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`11
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.12 Filed 10/28/21 Page 12 of 18
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`elected to continue to operate its franchise pending judicial enforcement of the
`
`termination.
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`39. Big Papa’s continues to operate its LITTLE CAESARS franchise, in
`
`violation of its post-termination obligations.
`
`40. Big Papa’s has also committed additional defaults of its Franchise
`
`Agreement, by failing to provide quarterly financial statements for the first two
`
`quarters of 2021.
`
`41. Big Papa’s actions have caused and continue to cause monetary damage
`
`and irreparable harm to Little Caesar, including harm to Little Caesar’s reputation
`
`and goodwill.
`
`COUNT I
`Breach of Contract
`
`42. The allegations of paragraphs 1 through 41 are hereby incorporated by
`
`reference.
`
`43. The conduct described in this Complaint constitutes material breaches
`
`of the contractual provisions of the Franchise Agreement cited herein, including the
`
`post-termination obligations.
`
`44. These breaches constitute good cause for terminating the Franchise
`
`Agreement.
`
`45. As a direct and proximate result of these actions, Little Caesar has
`
`suffered and is continuing to suffer irreparable injury, and has incurred and is
`
`
`
`12
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.13 Filed 10/28/21 Page 13 of 18
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`continuing to incur monetary damages in an amount that has yet to be determined.
`
`COUNT II
`Trademark Infringement
`
`46. The allegations of paragraphs 1 through 45 are hereby incorporated by
`
`reference.
`
`47. The use in commerce of Little Caesar’s trademarks and trade names by
`
`the Defendants outside the scope of the Franchise Agreement and without Little
`
`Caesar’s consent is likely to confuse or deceive the public into believing, contrary
`
`to fact, that the unauthorized activities of the Defendants are licensed, franchised,
`
`sponsored, authorized, or otherwise approved by Little Caesar. Such unauthorized
`
`use of Little Caesar’s trademarks and trade names infringes its exclusive rights in its
`
`trademarks under § 32 of the Lanham Act, 15 U.S.C. § 1114, and applicable state
`
`law.
`
`48. The acts of the Defendants were and are being done knowingly and
`
`intentionally to cause confusion, or to cause mistake, or to deceive.
`
`49. As a direct and proximate result of the Defendants’ actions, Little
`
`Caesar has suffered and is continuing to suffer irreparable injury, and has incurred
`
`and is continuing to incur monetary damages in an amount that has yet to be
`
`determined.
`
`
`
`
`
`
`
`13
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.14 Filed 10/28/21 Page 14 of 18
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`COUNT III
`Unfair Competition
`
`50. The allegations of paragraphs 1 through 49 are hereby incorporated by
`
`reference.
`
`51. The use in commerce of Little Caesar’s trademarks, trade names, and
`
`trade dress by the Defendants outside the scope of the Franchise Agreement and
`
`without the consent of Little Caesar is likely to cause confusion, or to cause mistake,
`
`or to deceive as to the origin, sponsorship, or approval of their goods, services, or
`
`commercial activities. Such unauthorized use of Little Caesar’s trademarks and trade
`
`names violates § 43 of the Lanham Act, 15 U.S.C. § 1125(a), and applicable state
`
`law.
`
`52. The acts of the Defendants were and are being done knowingly and
`
`intentionally to cause confusion, or to cause mistake, or to deceive.
`
`53. As a direct and proximate result of the Defendants’ actions, Little
`
`Caesar has suffered and is continuing to suffer irreparable injury, and has incurred
`
`and is continuing to incur monetary damages in an amount that has yet to be
`
`determined.
`
`COUNT IV
`Trade Dress Infringement
`
`54. The allegations of paragraphs 1 through 53 are hereby incorporated by
`
`reference.
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`
`
`14
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.15 Filed 10/28/21 Page 15 of 18
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`55. The Defendants’ restaurant is identified by signs, exterior appearance,
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`packaging, containers, and other items on which the LITTLE CAESARS proprietary
`
`marks appear in the same distinctive style and color scheme as Little Caesar uses for
`
`the pizza restaurants operated by Little Caesar’s licensees.
`
`56. The Defendants’ use of trade dress that is identical or confusingly
`
`similar to the LITTLE CAESARS trade dress outside the scope of the Franchise
`
`Agreement constitutes a false designation of the origin of the Defendants’ restaurant,
`
`which is likely to cause confusion, or to cause mistake, or to deceive the public as to
`
`the affiliation, connection, or association of their restaurant with the LITTLE
`
`CAESARS restaurants operated by Little Caesar’s licensees. Such adoption of Little
`
`Caesar’s trade dress violates § 43 of the Lanham Act, 15 U.S.C. § 1125, and the
`
`common law.
`
`57. The Defendants’ acts were and are being done knowingly and
`
`intentionally to cause confusion, or to cause mistake, or to deceive.
`
`58. As a result of the Defendants’ actions, Little Caesar has suffered and is
`
`continuing to suffer irreparable injury, and has incurred and is continuing to incur
`
`monetary damages in an amount that has yet to be determined.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs pray that this Court:
`
`A.
`
`Enter a declaratory judgment holding that Defendants’ conduct violated
`
`
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`15
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.16 Filed 10/28/21 Page 16 of 18
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`the terms of the Franchise Agreement and constitutes good cause for terminating the
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`Franchise Agreement;
`
`B.
`
`Enter an injunctive order ratifying and enforcing the termination of the
`
`Franchise Agreement as of the effective date of Little Caesar’s Notice of Franchise
`
`Agreement Termination, or as otherwise provided by applicable law;
`
`C.
`
`Enter an order enjoining Defendants, and all those acting by, through,
`
`or in concert with them, by preliminary and permanent injunction, from using the
`
`LITTLE CAESARS trademarks, trade names, and trade dress, and from otherwise
`
`engaging in unfair competition with Little Caesar;
`
`D.
`
`Enter an injunctive order directing Defendants, and all those acting by,
`
`through, or in concert with them, to comply with all applicable post-termination
`
`obligations as provided in the Franchise Agreement, including but not limited to
`
`promptly paying all sums owed to Little Caesar and its affiliates, complying with the
`
`post-termination noncompete, complying with any request from Little Caesar to
`
`purchase any equipment or other assets of the franchise, and taking all steps to
`
`transfer their leasehold interests in the franchise to Little Caesar or its designee in
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`the event that Little Caesar elects to exercise any rights it or any of its affiliates or
`
`subsidiaries might have in such interests;
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`E. Award Plaintiffs judgment against Defendants for the damages
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`Plaintiffs have sustained and the profits Defendants have derived as a result of their
`
`
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`16
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.17 Filed 10/28/21 Page 17 of 18
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`trademark infringement, trade dress infringement, and unfair competition, assessing
`
`such damages in a separate accounting procedure, and then trebling those damages
`
`in accordance with Section 35 of the Lanham Act, 15 U.S.C. § 1117;
`
`F.
`
`Enter judgment in favor of Plaintiffs for the damages they have
`
`suffered, including liquidated damages as provided for by the Franchise Agreement,
`
`as a result of Defendants’ conduct, plus prejudgment interest allowed by law;
`
`G. Award Plaintiffs their costs and attorneys’ fees incurred in connection
`
`with this action, pursuant to the Franchise Agreement and Section 35 of the Lanham
`
`Act, 15 U.S.C. § 1117, including the costs incurred in conducting any and all
`
`necessary inspections; and
`
`H. Award Plaintiffs such other relief in its favor as this Court may deem
`
`just and proper.
`
`
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`17
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`Case 2:21-cv-12531-SFC-APP ECF No. 1, PageID.18 Filed 10/28/21 Page 18 of 18
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`
`
`Dated: October 28, 2021
`
`
`
`
`
`
`
`
`/s/Larry J. Saylor
`
`Larry J. Saylor (P28165)
`Kimberly A. Berger (P56165)
`MILLER, CANFIELD, PADDOCK
` & STONE P.L.C.
`150 West Jefferson Avenue, Suite 2500
`Detroit, Michigan 48226
`Telephone: (313) 496-7986
`Facsimile: (313) 496-8454
`Saylor@millercanfield.com
`Berger@millercanfield.com
`
`Robert L. Zisk (admitted in E.D. Mich.)
`Justin L. Sallis (admitted in E.D. Mich.)
`LATHROP GPM LLP
`The Watergate
`600 New Hampshire Avenue, N.W. – Suite 700
`Missouri, D.C. 20037
`Telephone: (202) 295-2200
`Facsimile: (202) 295-2250
`robert.zisk@lathropgpm.com
`justin.sallis@lathropgpm.com
`
`Attorneys for Plaintiffs
`
`