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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

RYAN WASHINGTON; IAN INGRAM; and TATYANA BROWN, on behalf of themselves and others similarly situated, Plaintiffs, v. METROTAINMENT CAFES, LLC, POLITICAL CONCEPTS, LLC, JEFFREY LANDAU, and AMY LANDAU, Defendants.

CASE NO. 1:14-CV-02888-AT JURY DEMAND

ANSWER AND AFFIRMATIVE DEFENSES

COME NOW Metrotainment Cafes, LLC (“Metrotainment”), Political

Concepts, LLC (“Political Concepts”), Jeffrey Landau (“Jeffrey Landau”), and

Amy Landau (“Amy Landau”), Defendants in the above-styled action, and

respectfully file this Answer and Affirmative Defenses to Plaintiffs’ Complaint,

showing the Court as follows:

FIRST DEFENSE

Plaintiffs’ Complaint fails to state a claim upon which relief can be

granted.

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SECOND DEFENSE

Some or all of Plaintiffs’ claims, in whole or in part, may be barred by

the applicable statute of limitations.

THIRD DEFENSE

Some or all of Plaintiffs’ claims may be barred by the doctrine of accord

and satisfaction.

FOURTH DEFENSE

Some or all of Plaintiffs’ claims may be barred by the defense of

payment.

FIFTH DEFENSE

Some or all of Plaintiffs’ claims may be subject to the defenses of set-off

and recoupment.

SIXTH DEFENSE

Some or all of Plaintiffs’ claims may be barred by the de minimus

doctrine.

SEVENTH DEFENSE

As and for an additional defense, Defendants state that Defendants

Metrotainment, Jeffery Landau, and Amy Landau are not “employers” under

the Fair Labor Standards Act (the “FLSA”), nor did they employ Plaintiffs in

any capacity.

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EIGHTH DEFENSE

As and for an additional defense, Defendants state that Defendant

Political Concepts paid to Plaintiffs all amounts due and owing during the

applicable period pursuant to applicable law, including state and federal

employment and labor laws.

NINTH DEFENSE

As and for an additional defense, Defendants state that Defendant

Political Concepts compensated Plaintiffs in good faith on its reasonable belief

that its method of compensation was lawful and in conformity with, and in

reliance on, written administrative regulations, orders, ruling, or interpretations

of the Administrator of the Wage and Hour Division of the Department of

Labor, other federal agencies, or the courts.

TENTH DEFENSE

As and for an additional defense, Defendants state that Plaintiffs are not

entitled to recover any liquidated damages because any alleged acts or

omissions by Defendants were undertaken or made in good faith, and

Defendants had reasonable grounds for believing that their acts or omissions did

not violate the FLSA.

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ELEVENTH DEFENSE

As and for an additional defense, Defendants state that Plaintiffs were

properly paid for all time worked.

TWELFTH DEFENSE

As and for an additional defense, Defendants state that Plaintiffs were

employed by Defendant Political Concepts as tipped employees and were

notified in advance that Defendant Political Concepts elected to use the tip

credit in order to bring Plaintiffs’ hourly wages to the required minimum hourly

rate.

THIRTEENTH DEFENSE

As and for an additional defense, Defendants state that they did not act in

bad faith or in willful violation of any law or regulation.

FOURTEENTH DEFENSE

As and for an additional defense, Defendants state that this action cannot

be maintained as a collective action because the requirements for such an action

cannot be maintained under the facts pleaded or to be proved.

FIFTEENTH DEFENSE

As and for an additional defense, Defendants state that this action cannot

be maintained as a collective action because the allegations, facts and defenses

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relating to Plaintiffs and the purported collective action members, separately

and individually, will not support a collective action.

SIXTEENTH DEFENSE

As and for an additional defense, Defendants state that this action cannot

be maintained as a collective action because Plaintiffs are not adequate

representatives for the proposed collective action members.

SEVENTEENTH DEFENSE

As and for an additional defense, Defendants state that the certification of

this matter as a collective action will violate Defendants’ constitutional rights to

due process of law.

EIGHTEENTH DEFENSE

Should the Court certify this matter as a collective action, Defendants

reserve their rights to assert each of these defenses and affirmative defenses

against each person filing a consent to join this action.

NINETEENTH DEFENSE

As and for an additional defense, Defendants respond to the specific

numbered paragraphs of Plaintiffs’ Complaint as follows:

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Nature of the Action

1.

Defendants admit that Plaintiffs purport to bring this action on behalf of

themselves and others similarly situated under the FLSA. Defendants deny that

they engaged in any illegal or unlawful conduct with respect to Plaintiffs’

employment. Defendants further deny that Plaintiffs or any purported collective

action members are entitled to additional compensation, either in the form of

minimum wages, overtime premium wages or liquidated damages. Defendants

further deny that Plaintiffs adequately represent any purported class of similarly

situated persons for the purposes of the FLSA. Defendants deny the remaining

allegations contained within Paragraph 1 of Plaintiffs’ Complaint.

Jurisdiction and Venue

2.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 2 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 2 of Plaintiffs’ Complaint.

3.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 3 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 3 of Plaintiffs’ Complaint.

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Parties

4.

Defendants admit the allegations contained within Paragraph 4 of

Plaintiffs’ Complaint.

5.

Defendants admit the allegations contained within Paragraph 5 of

Plaintiffs’ Complaint.

6.

Defendants admit the allegations contained within Paragraph 6 of

Plaintiffs’ Complaint.

7.

Defendants admit the allegations contained within Paragraph 7 of

Plaintiffs’ Complaint.

8.

Defendants admit the allegations contained within Paragraph 8 of

Plaintiffs’ Complaint.

9.

Defendants admit the allegations contained within Paragraph 9 of

Plaintiffs’ Complaint.

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10.

In response to Paragraph 10 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Amy Landau is the registered agent of Defendant Political

Concepts. Defendants deny the remaining allegations contained within

Paragraph 10 of Plaintiffs’ Complaint.

11.

Defendants admit the allegations contained within Paragraph 11 of

Plaintiffs’ Complaint.

12.

In response to Paragraph 12 of Plaintiffs’ Complaint, Defendants admit

only that Plaintiffs were employed by Defendant Political Concepts at various

times within the three years preceding the instant action. Defendants expressly

deny that Defendants Metrotainment, Jeffrey Landau or Amy Landau ever

employed Plaintiffs. Defendants deny the remaining allegations contained

within Paragraph 12 of Plaintiffs’ Complaint.

13.

In response to Paragraph 13, Defendants admit only that Exhibits 1-3 to

Plaintiffs’ Complaint purport to contain Plaintiffs’ written consent to join this

action. Defendants expressly deny that any collective action is proper and

further deny that Plaintiffs are appropriate representatives for any such

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collective action members. Defendants deny the remaining allegations

contained within Paragraph 13 of Plaintiffs’ Complaint.

Factual Allegations Showing that Defendants are Joint Employers

14.

In response to Paragraph 14 of Plaintiffs’ Complaint, Defendants admit

only that Plaintiffs were employed by Defendant Political Concepts at various

times within the three years preceding the instant action. Defendants expressly

deny that Defendants Metrotainment, Jeffrey Landau or Amy Landau ever

employed Plaintiffs. Defendants neither admit nor deny the legal conclusions

contained within Paragraph 14 of Plaintiffs’ Complaint. Defendants deny any

remaining factual allegations contained within Paragraph 14 of Plaintiffs’

Complaint.

15.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 15 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 15 of Plaintiffs’ Complaint.

16.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 16 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 16 of Plaintiffs’ Complaint.

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17.

In response to Paragraph 17 of Plaintiffs’ Complaint, Defendants admit

only that “Joe’s on Juniper” (“Joe’s”) is a trade name used by Defendant

Political Concepts to refer to the restaurant located at 1049 Juniper Street, NE,

Atlanta, Georgia 30309. Defendants expressly deny that Defendants

Metrotainment, Jeffrey Landau or Amy Landau use the trade name. Defendants

deny the remaining factual allegations contained within Paragraph 17 of

Plaintiffs’ Complaint.

18.

In response to Paragraph 18 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Political Concepts employed Plaintiffs to work at Joe’s.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 18 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 18 of Plaintiffs’ Complaint.

19.

In response to Paragraph 19 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Political Concepts employed Plaintiffs to work at Joe’s.

Defendants neither admit nor deny the legal conclusions contained within

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Paragraph 19 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 19 of Plaintiffs’ Complaint.

20.

Defendants deny the allegations contained within Paragraph 20 of

Plaintiffs’ Complaint.

21.

Defendants deny the allegations contained within Paragraph 21 of

Plaintiffs’ Complaint.

22.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 22 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 22 of Plaintiffs’ Complaint.

23.

Defendants deny the allegations contained within Paragraph 23 of

Plaintiffs’ Complaint.

24.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 24 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 24 of Plaintiffs’ Complaint.

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25.

Defendants admit the allegations contained within Paragraph 25 of

Plaintiffs’ Complaint.

26.

Defendants admit the allegations contained within Paragraph 26 of

Plaintiffs’ Complaint.

27.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 27 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 27 of Plaintiffs’ Complaint.

28.

Defendants admit the allegations contained within Paragraph 28 of

Plaintiffs’ Complaint.

29.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 29 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 29 of Plaintiffs’ Complaint.

30.

Defendants admit the allegations contained within Paragraph 30 of

Plaintiffs’ Complaint.

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31.

Defendants expressly deny that Defendant Jeffrey Landau controls,

determines or directs any activity for or on behalf of Defendant Metrotainment,

as Defendant Metrotainment does not own or operate any restaurants.

Defendants deny the remaining allegations contained within Paragraph 31 of

Plaintiffs’ Complaint.

32.

Defendants expressly deny that Defendant Jeffrey Landau controls,

determines or directs any activity for or on behalf of Defendant Metrotainment,

as Defendant Metrotainment does not own or operate any restaurants.

Defendants admit the remaining allegations contained within Paragraph 32 of

Plaintiffs’ Complaint.

33.

Defendants deny the allegations contained within Paragraph 33 of

Plaintiffs’ Complaint.

34.

Defendants admit the allegations contained within Paragraph 34 of

Plaintiffs’ Complaint.

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35.

Defendants admit the allegations contained within Paragraph 35 of

Plaintiffs’ Complaint.

36.

In response to Paragraph 36 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants admit the

remaining allegations contained within Paragraph 36 of Plaintiffs’ Complaint.

37.

Defendants admit the allegations contained within Paragraph 37 of

Plaintiffs’ Complaint.

38.

In response to Paragraph 38 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Amy Landau is the registered agent of Defendant Political

Concepts. Defendants deny the remaining allegations contained within

Paragraph 38 of Plaintiffs’ Complaint.

39.

Defendants deny the allegations contained within Paragraph 39 of

Plaintiffs’ Complaint.

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40.

Defendants deny the allegations contained within Paragraph 40 of

Plaintiffs’ Complaint.

41.

Defendants admit the allegations contained within Paragraph 41 of

Plaintiffs’ Complaint.

42.

Defendants deny the allegations contained within Paragraph 42 of

Plaintiffs’ Complaint.

43.

Defendants deny the allegations contained within Paragraph 43 of

Plaintiffs’ Complaint.

44.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 44 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 44 of Plaintiffs’ Complaint.

45.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 45 of Plaintiffs’ Complaint. Defendants deny any remaining factual

allegations contained within Paragraph 45 of Plaintiffs’ Complaint.

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Factual Allegations in Support of Plaintiffs’ Claims

46.

In response to Paragraph 46 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Political Concepts operates Joe’s. Defendants deny the

remaining allegations contained within Paragraph 46 of Plaintiffs’ Complaint.

47.

Defendants admit the allegations contained within Paragraph 47 of

Plaintiffs’ Complaint.

48.

Defendants admit the allegations contained within Paragraph 48 of

Plaintiffs’ Complaint.

49.

Defendants admit the allegations contained within Paragraph 49 of

Plaintiffs’ Complaint.

50.

In response to Paragraph 50 of Plaintiffs’ Complaint, Defendants admit

only that restaurant customers typically leave discretionary gratuities for the

benefit of their servers, including Plaintiffs. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

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for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 50 of Plaintiffs’ Complaint.

51.

In response to Paragraph 51, Defendants admit only that certain

employees of Defendant Political Concepts track their hours, sales and food

orders using a computerized point of sale system. Defendants expressly deny

that Plaintiffs adequately represent any purported class of similarly situated

persons for the purposes of the FLSA. Defendants deny the remaining

allegations contained within Paragraph 51 of Plaintiffs’ Complaint.

52.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 52 of

Plaintiffs’ Complaint.

53.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 53 of

Plaintiffs’ Complaint.

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54.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 54 of

Plaintiffs’ Complaint.

55.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 55 of

Plaintiffs’ Complaint.

56.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 56 of

Plaintiffs’ Complaint.

57.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 57 of

Plaintiffs’ Complaint.

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58.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 58 of

Plaintiffs’ Complaint.

59.

Defendants expressly deny that Plaintiffs adequately represent any

purported class of similarly situated persons for the purposes of the FLSA.

Defendants deny the remaining allegations contained within Paragraph 59 of

Plaintiffs’ Complaint.

60.

Defendants deny the allegations contained within Paragraph 60 of

Plaintiffs’ Complaint.

61.

In response to Paragraph 60 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Political Concepts sometimes utilizes a “tip pool” system to

reward team members who do not receive tips. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 61 of Plaintiffs’ Complaint.

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Count One: Willful Failure to Pay Tipped Employees at the Minimum Wage

62.

In response to Paragraph 62 of Plaintiffs’ Complaint, Defendants admit

only that Defendant Political Concepts paid Plaintiffs hourly wages of $2.13

and claimed a tip credit for the balance of the required minimum hourly wage

of $7.25, all in accordance with the FLSA. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 62 of Plaintiffs’ Complaint.

63.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 63 of Plaintiffs’ Complaint. Defendants expressly deny that Plaintiffs

adequately represent any purported class of similarly situated persons for the

purposes of the FLSA. Defendants deny any remaining factual allegations

contained within Paragraph 63 of Plaintiffs’ Complaint.

64.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 64 of Plaintiffs’ Complaint. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

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for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 64 of Plaintiffs’ Complaint.

65.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 65 of Plaintiffs’ Complaint. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 65 of Plaintiffs’ Complaint.

66.

Defendants neither admit nor deny the legal conclusions contained within

Paragraph 66 of Plaintiffs’ Complaint. Defendants expressly deny that

Plaintiffs adequately represent any purported class of similarly situated persons

for the purposes of the FLSA. Defendants deny the remaining allegations

contained within Paragraph 66 of Plaintiffs’ Complaint.

67.

In response to Paragraph 67 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 67 of Plaintiffs’ Complaint.

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68.

In response to Paragraph 68 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 68 of Plaintiffs’ Complaint.

69.

Defendants deny the allegations contained within Paragraph 69 of

Plaintiffs’ Complaint.

70.

Defendants deny the allegations contained within Paragraph 70 of

Plaintiffs’ Complaint.

71.

In response to Paragraph 71 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 71 of Plaintiffs’ Complaint.

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Count Two: Willful Failure to Compensate Tipped Employees

at the Overtime Premium Rate

72.

In response to Paragraph 72 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 72 of Plaintiffs’ Complaint.

73.

In response to Paragraph 73 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 73 of Plaintiffs’ Complaint.

74.

In response to Paragraph 74 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 74 of Plaintiffs’ Complaint.

75.

In response to Paragraph 75 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

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similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 75 of Plaintiffs’ Complaint.

76.

Defendants deny the allegations contained within Paragraph 76 of

Plaintiffs’ Complaint.

77.

Defendants deny the allegations contained within Paragraph 77 of

Plaintiffs’ Complaint.

78.

In response to Paragraph 78 of Plaintiffs’ Complaint, Defendants

expressly deny that Plaintiffs adequately represent any purported class of

similarly situated persons for the purposes of the FLSA. Defendants deny the

remaining allegations contained within Paragraph 78 of Plaintiffs’ Complaint.

79.

To the extent not expressly admitted herein, Defendants deny each and

every remaining factual allegation contained within Plaintiffs’ Complaint.

Demand for Jury Trial

80.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure,

Defendants demand a jury trial for all issues so triable.

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WHEREFORE having fully responded to Plaintiffs’ Complaint,

Defendants respectfully pray that Plaintiffs’ Complaint be dismissed in its

entirety, that Defendants be awarded all costs and expenses, including

attorney’s fees incurred in the defense of this action, and that they receive such

other and further relief as this Court deems just and proper.

This 2nd day of October, 2014.

/s/ Shannan F. Oliver F. Skip Sugarman Georgia Bar No. 690773 (ssugarman@bloom-law.com) Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com) BLOOM SUGARMAN EVERETT, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306-4265 Tel: (404) 577-7710 Fax: (404) 577-7715

Attorneys for Defendants

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CERTIFICATE OF COUNSEL

Pursuant to Local Rule 7.1(D), I hereby certify that I have prepared the

foregoing ANSWER AND AFFIRMATIVE DEFENSES in compliance with

Local Rule 5.1 in Times New Roman 14-point font.

This 2nd day of October, 2014.

/s/ Shannan F. Oliver Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com)

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CERTIFICATE OF SERVICE

I hereby certify that on October 2, 2014, I electronically filed the foregoing ANSWER AND AFFIRMATIVE DEFENSES with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record:

John L. Mays, Esq. (john@maysandkerr.com) MAYS & KERR LLC 235 Peachtree Street, NE North Tower - Suite 202 Atlanta, GA 30303

This 2nd day of October, 2014.

/s/ Shannan F. Oliver Shannan F. Oliver Georgia Bar No. 275393 (soliver@bloom-law.com)

BLOOM SUGARMAN EVERETT, LLP 977 Ponce de Leon Avenue, NE Atlanta, GA 30306-4265 Tel: (404) 577-7710 Fax: (404) 577-7715 Attorneys for Defendants

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