Lawsuit Filed Against Slutty Vegan' Founder Pinky Cole - Response

Case 1:22-cv-04498-JPB Document 13 Filed 01/11/23 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MORGAN GEORGIA,
individually and on behalf of
others similarly situated,
Plaintiff, Case Number: 1:22-CV-04498-JPB
v.
BAR VEGAN LLC, AARON

MATTISON, JASON CRAIN,
AND AISHA “PINKY” COLE
Defendant.
/
DEFENDANTS’ANSWER AND AFFIRMATIVE DEFENSES TO

COLLECTIVE ACTION COMPLAINT
COMES NOW Defendants, BAR VEGAN LLC (“Bar Vegan”), AARON
MATTISON, JASON CRAIN, and AISHA “PINKY” COLE (collectively,
“Defendants”), by and through the undersigned counsel, file this Answer and
Affirmative Defenses (“Answer”) to Plaintiff’s Collective Action Complaint
(“Complaint”) by responding to the specifically numbered allegations and then
raising its affirmative defenses.
NATURE OF THE ACTION
1. Defendants admit the Complaint is styled as a collective action for
unpaid minimum and overtime wages pursuant to the Fair Labor
Standards Act, 29 U.S.C. Sec. 201 et seq. (“FLSA”). Defendants deny
4863-1911-1748.4
violating the FLSA in relation to Plaintiff’s employment and any
purported similarly situated current and former employees, as well as
any remaining allegations set forth in Paragraph 1 of the Complaint.
2. Defendants deny the allegations of Paragraph 2.
3. Defendants admit Bar Vegan treats Named Plaintiff as a tipped
employee. Defendants deny the remaining allegations of Paragraph 3.
5. Defendants admit Named Plaintiff seeks to represent a proposed
collective class of individuals employed by Bar Vegan as servers and
bartenders who worked at a restaurant called Bar Vegan in Atlanta,
Georgia within the three year period preceding the filing of the
Complaint. Defendants deny that adjudication as a collective class is
proper as well as any remaining allegations of Paragraph 5.
THE PARTIES
6. Defendants admit that Bar Vegan is a foreign limited liability
company, and operates a restaurant and bar of the same name.
Defendants deny the remaining allegations in Paragraph 6.
7. Defendants admit the allegations of Paragraph 7.
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11. Defendants admit Named Plaintiff Morgan Georgia (“Named
Plaintiff”) has worked as a bartender for Bar Vegan. Defendants deny
the remaining allegations on Paragraph 11.
12. Defendants are without sufficient information to either admit or deny
the allegations of Paragraph 12, and on that basis denies the same.
13. Defendants are without sufficient information to either admit or deny
the allegation that other servers and bartenders are interested in joining
this action, and on that basis deny the same. Defendants deny any
remaining allegations of Paragraph 13, including specifically that other
servers and bartenders are similarly situated and that collective class
adjudication would be proper.
14. Defendants admit that Amber Abney works as a server for Bar Vegan.
Defendants are without sufficient information to admit or deny the
remaining allegations of Paragraph 14, and on that basis deny the same.
15. Defendants admit that Kandus LeBlanc works as a server for Bar
Vegan. Defendants are without sufficient information to admit or deny
the remaining allegations of Paragraph 15, and on that basis deny the
same.
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4863-1911-1748.4
JURISDICTION AND VENUE
16. Defendants admit Named Plaintiff’s claims raise questions of federal
law and on that basis Named Plaintiff seeks to invoke the jurisdiction
of this Court.
17. Defendants admit venue is proper in the Atlanta Division of the United
States District Court for the Northern District of Georgia pursuant to 28
U.S.C. Sec. 1391(b) and Local Rule 3.1(B). Defendants deny the
remaining allegations of Paragraph 17.
DEFENDANTS ARE COVERED BY THE FLSA
22. Defendants admit Bar Vegan employs two or more individuals who sell
goods. Defendants deny the remaining allegations of Paragraph 22.
25. Defendants admit Bar Vegan employees handle and use cleaning
supplies, computers, telephones, and food and beverage products while
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4863-1911-1748.4
performing their job duties. Defendants deny the remaining allegations
of Paragraph 25.
DEFENDANTS EMPLOYED THE PLAINTIFFS
28. Defendants admit that Bar Vegan employed Named Plaintiff.
Defendants deny the remaining allegations of Paragraph 28, including
specifically that other Bar Vegan employees are similarly situated to
Named Plaintiff, which is how Named Plaintiff defines “Plaintiffs” in
Paragraph 2 the Complaint.
29. Defendants admit Bar Vegan has the authority to hire and fire Named
Plaintiff and other individuals it employed/employs. Defendants deny
the remaining allegations of Paragraph 29.
30. Defendants deny the allegations of Paragraph 30, including specifically
that other Bar Vegan employees are similarly situated to Named
Plaintiff, which is how Named Plaintiff defines “Plaintiffs” in
31. Defendants admit Bar Vegan prepared and disseminated an employee
handbook to Named Plaintiff setting forth employment policies
applicable to Bar Vegan employees. Defendants deny the remaining
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4863-1911-1748.4
allegations of Paragraph 31, including specifically that other Bar Vegan
employees are similarly situated to Named Plaintiff, which is how
Named Plaintiff defines “Plaintiffs” in Paragraph 2 the Complaint.
32. Defendants admit Bar Vegan has authority to modify employment
policies applicable to Named Plaintiff. Defendants deny the remaining
allegations of Paragraph 32, including specifically that other Bar Vegan
employees are similarly situated to Named Plaintiff, which is how
Named Plaintiff defines “Plaintiffs” in Paragraph 2 the Complaint.
33. Defendants deny the allegations of Paragraph 33, including specifically
that other Bar Vegan employees are similarly situated to Named
Plaintiff, which is how Named Plaintiff defines “Plaintiffs” in
34. Defendants admit Bar Vegan maintains the employment records, such
as time and pay records, for Named Plaintiff. Defendants deny the
remaining allegations of Paragraph 34, including specifically that other
Bar Vegan employees are similarly situated to Named Plaintiff, which
is how Named Plaintiff defines “Plaintiffs” in Paragraph 2 the
Complaint.
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4863-1911-1748.4
FACTUAL ALLEGATIONS CONCERNING PLAINTIFFS’

COMPENSATION
36. Defendants admit Bar Vegan operates as a restaurant in Atlanta,
Georgia. Defendants deny the remaining allegations of Paragraph 36.
37. Defendants admit Named Plaintiff works for Bar Vegan as an hourly
paid bartender. Defendants deny the remaining allegations of
Paragraph 37.
38. Defendants admit Named Plaintiff has worked for Bar Vegan as a
bartender since March 2020. Defendants deny the remaining
allegations of Paragraph 38.
39. Defendants admit Bar Vegan customers leave discretionary tips.
Defendants deny the remaining allegations of Paragraph 39.
40. Paragraph 40 constitutes a legal conclusion to which no response is
required, and on that basis Defendants deny the allegations therein.
41. Defendants admit Bar Vegan classifies certain employees as tipped
employees and takes a tip credit. Defendants deny the remaining
42. Defendants admit Bar Vegan pays Named Plaintiff $2.13 per hour as a
result of the tip credit it takes. Defendants deny the remaining
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4863-1911-1748.4
DEFENDANTS FAIL TO PROVIDE LEGALLY SUFFICIENT NOTICE OF

THE TIP CREDIT
required, and on that basis Defendants deny the same.
required, and on that basis Defendants deny the same, including
specifically the allegation that Bar Vegan does not provide proper
notice to tipped employees for whom its applies a tip credit.
DEFENDANTS DO NOT PERMIT PLAINTIFFS TO KEEP THEIR TIPS
8
4863-1911-1748.4
9
4863-1911-1748.4
COUNT 1: VIOLATION OF THE FLSA
69. Defendants deny the allegations of Paragraph 69, including that
collective class adjudication is proper.
10
4863-1911-1748.4
COUNT 2: WILLFUL VIOLATION OF THE FLSA
75. Defendants admit that Bar Vegan made use of a tip credit for tipped
employees. Defendants deny the remaining allegations of Paragraph
75, including that collective class adjudication is proper.
78. Defendants admit Named Plaintiff’s hourly rate at Bar Vegan is $2.13
per hour. Defendants deny the remaining allegations of Paragraph 78.
11
4863-1911-1748.4
81. Paragraph 81 of the Complaint constitutes a legal conclusion to which
no response is required, and on that basis denies the same.
In response to the Demand for Judgment following Paragraph 86, Defendants
deny that Named Plaintiff is entitled to relief under the FLSA, or to any other relief
from Defendants whatsoever, and specifically denies that Named Plaintiff is entitled
to any of the relief sought under subparagraphs I through IX in the Demand for
Judgment section of the Complaint.
Any allegations of the Complaint not heretofore answered, responded to,
qualified, admitted or denied, are here and now denied.

12
4863-1911-1748.4
AFFIRMATIVE AND OTHER DEFENSES
First Defense
The Complaint, and each of its purported causes of action, fails to state a claim
upon which relief can be granted.
Second Defense
Named Plaintiff’s claims and the claims of others allegedly similarly situated
are barred, in whole or in part, by the applicable statute of limitations.
Third Defense
Named Plaintiff’s claims and the claims of others allegedly similarly
situated are barred, in whole or in part, because Named Plaintiff and others
allegedly similarly situated have not sustained any injury or damage by reason of
any act or omission of Defendants.
Fourth Defense
situated are barred, in whole or in part, by the doctrines of waiver, consent,
estoppel, laches, and/or unclean hands.
Fifth Defense
Named Plaintiff’s FLSA collective class is inappropriate because material
disparities among purported class members would require individual adjudications
and mini-trials, making a class unmanageable and unfair.
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4863-1911-1748.4
Sixth Defense
Named Plaintiff is not similarly situated to the corresponding proposed
FLSA collective class members (nor to each other), and thus collective class
adjudication under the FLSA is impermissible.
Seventh Defense
situated fail, in whole or in part, based on all applicable statutory exemptions,
exclusions, exceptions, off-sets, set-offs, and/or credits under the FLSA.
Eighth Defense
To the extent that Named Plaintiff and others allegedly similarly situated
were paid compensation beyond that to which they were entitled while employed
by Bar Vegan, such additional compensation would satisfy, in whole or in part, any
alleged claim for unpaid minimum wages and/or overtime or other monetary relief.
Ninth Defense
Defendants alleged failure to pay Named Plaintiff and others allegedly
similarly situated minimum and/or overtime wages, if any, was in good faith
and/or in conformity with and in reliance upon an administrative regulation, order,
ruling, approval, interpretation, administrative practice, and/or enforcement policy
of the Wage and Hour Division of the United States Department of Labor.
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4863-1911-1748.4
Tenth Defense
If Defendants’ alleged failure to pay minimum and/or overtime wages, if
any, was unlawful, Named Plaintiff and other allegedly similarly situated have not
demonstrated and cannot demonstrate facts sufficient to warrant an award of full
liquidated damages under the FLSA.
Eleventh Defense
Named Plaintiff and others allegedly similarly situated cannot establish that
Defendants engaged in willful conduct within the meaning of the FLSA and thus
this matter is subject to a two-year statute of limitations period. Any claims
brought outside the applicable statute of limitations period are time-barred.
Twelfth Defense
Assuming, arguendo, that Named Plaintiff and/or others allegedly similarly
situated is/are entitled to any minimum wage and/or overtime compensation, any
time spent in any noncompensable preliminary or postliminary activities and any
time spent on non-compensable activities must be excluded from compensable
hours of work.
Thirteenth Defense
Named Plaintiff and the others allegedly similarly situated are not entitled to
both prejudgment interest and liquidated damages under the FLSA.
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4863-1911-1748.4
Fourteenth Defense
The purported claims asserted on behalf of members of the putative FLSA
collective class, are barred as to those individuals who do not give their consent in
writing to become party plaintiffs and/or whose express written consent is not filed
with the Court.
Fifteenth Defense
Named Plaintiff and the others allegedly similarly situated failed to mitigate
any claimed damages (which are expressly denied) by complying with the Bar
Vegan’s policies and internal procedures. Stated another way, any purported
damages that were suffered were avoidable consequences resulting from the
misconduct of Plaintiffs and members of the putative FLSA collective class.
Sixteenth Defense
Named Plaintiff and others allegedly similarly situated cannot establish
factual and/or legal basis for individual liability against Defendants Aaron
Mattison, Jason Crain, and/or Aisha “Pinky” Cole.
WHEREFORE, Defendants respectfully request that the Court:
I. Dismiss the Complaint with prejudice;
II. Award Defendants reasonable attorneys’ fees, costs, and expenses incurred in
defending against the claims set forth in the Complaint, to the extent permitted by
law; and
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4863-1911-1748.4
III. Award any other relief the Court deems just and equitable.
Dated this 11th day of January 2023.
/s/ Leonard V. Feigel

Leonard V. Feigel, Esq.1
FL Bar No. 0027752
Email: [email protected]
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, FL 32202-5017
Telephone: 904.359.2000
Facsimile: 904.359.8700
John Litchfield, Esq.2

IL Bar No. 6299351
Foley & Lardner LLP
321 North Clark Street
Suite 3000
Chicago, IL 60654-4762
Telephone: 312.832.4500
Facsimile: 312.832.4700
Kenneth G. Menendez, Esq.

GA Bar No: 502045
Freeman Mathis & Garry, LLP
100 Galleria Parkway, Suite 1600
Atlanta, GA 30339
Telephone:770.818.0000
Attorneys for Defendants
1
Admitted Pro Hac Vice
2
Will be seeking Pro Hac Vice
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4863-1911-1748.4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 11, 2023, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system which will send
a notice of electronic filing to all counsel of record as follows:
M. Travis Foust
Dustin L. Crawford
Parks, Chesin & Walbert, P.C.
75 14th Street, N.E., 26th Floor
Atlanta, Georgia 30309
Telephone: 404.873.8000
Facsimile: 404-873-8050
[email protected]
[email protected]
Attorneys for Plaintiff, Morgan Georgia
/s/ Leonard V. Feigel

Attorney
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4863-1911-1748.4

Lawsuit Filed Against Slutty Vegan' Founder Pinky Cole - Response

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Case 1:22-cv-04498-JPB Document 13 Filed 01/11/23 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

Plaintiff, Case Number: 1:22-CV-04498-JPB

BAR VEGAN LLC, AARON

DEFENDANTS’ANSWER AND AFFIRMATIVE DEFENSES TO

MATTISON, JASON CRAIN, and AISHA “PINKY” COLE (collectively,

Affirmative Defenses (“Answer”) to Plaintiff’s Collective Action Complaint

(“Complaint”) by responding to the specifically numbered allegations and then

raising its affirmative defenses.

NATURE OF THE ACTION

1. Defendants admit the Complaint is styled as a collective action for

unpaid minimum and overtime wages pursuant to the Fair Labor

Standards Act, 29 U.S.C. Sec. 201 et seq. (“FLSA”). Defendants deny

violating the FLSA in relation to Plaintiff’s employment and any

purported similarly situated current and former employees, as well as

any remaining allegations set forth in Paragraph 1 of the Complaint.

2. Defendants deny the allegations of Paragraph 2.

3. Defendants admit Bar Vegan treats Named Plaintiff as a tipped

employee. Defendants deny the remaining allegations of Paragraph 3.

4. Defendants deny the allegations of Paragraph 4.

5. Defendants admit Named Plaintiff seeks to represent a proposed

collective class of individuals employed by Bar Vegan as servers and

bartenders who worked at a restaurant called Bar Vegan in Atlanta,

Complaint. Defendants deny that adjudication as a collective class is

proper as well as any remaining allegations of Paragraph 5.

6. Defendants admit that Bar Vegan is a foreign limited liability

company, and operates a restaurant and bar of the same name.

Defendants deny the remaining allegations in Paragraph 6.

7. Defendants admit the allegations of Paragraph 7.

8. Defendants deny the allegations of Paragraph 8.

9. Defendants deny the allegations of Paragraph 9.

10. Defendants deny the allegations of Paragraph 10.

11. Defendants admit Named Plaintiff Morgan Georgia (“Named

Plaintiff”) has worked as a bartender for Bar Vegan. Defendants deny

the remaining allegations on Paragraph 11.

12. Defendants are without sufficient information to either admit or deny

13. Defendants are without sufficient information to either admit or deny

remaining allegations of Paragraph 13, including specifically that other

adjudication would be proper.

Defendants are without sufficient information to admit or deny the

Vegan. Defendants are without sufficient information to admit or deny

JURISDICTION AND VENUE

16. Defendants admit Named Plaintiff’s claims raise questions of federal

States District Court for the Northern District of Georgia pursuant to 28

remaining allegations of Paragraph 17.

18. Defendants admit the allegations of Paragraph 18.

19. Defendants admit the allegations of Paragraph 19.

DEFENDANTS ARE COVERED BY THE FLSA

20. Defendants admit the allegations of Paragraph 20.

21. Defendants admit the allegations of Paragraph 21.

goods. Defendants deny the remaining allegations of Paragraph 22.

23. Defendants deny the allegations of Paragraph 23.

24. Defendants deny the allegations of Paragraph 24.

supplies, computers, telephones, and food and beverage products while

performing their job duties. Defendants deny the remaining allegations

26. Defendants admit the allegations of Paragraph 26.

27. Defendants deny the allegations of Paragraph 27.

DEFENDANTS EMPLOYED THE PLAINTIFFS

28. Defendants admit that Bar Vegan employed Named Plaintiff.

Defendants deny the remaining allegations of Paragraph 28, including

specifically that other Bar Vegan employees are similarly situated to

Named Plaintiff, which is how Named Plaintiff defines “Plaintiffs” in

Paragraph 2 the Complaint.