1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LISA PIAZZA,individually and on )

behalf of all others similarly )

situated, )

)

Plaintiff, )

) No. 20 C 3187

vs. ) Chicago, Illinois

) June 7, 2023

NEW ALBERTSONS, INC.; JEWEL FOOD) 3:00 p.m.

STORES, INC.; and AMERICAN DRUG )

STORES, LLC d/b/a JEWEL-OSCO, )

)

Defendants. )

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE SHEILA M. FINNEGAN

APPEARANCES:

For the Plaintiff: CONWAY LEGAL, LLC

1700 Market Street

Suite 1005

Philadelphia, Pennsylvania 19103

BY: MR. JASON CONWAY

LEVIN SEDRAN & BERMAN LLP

510 Walnut Street

Suite 500

Philadelphia, Pennsylvania 19106

BY: MR. DANIEL LEVIN

For the Defendants: LITTLER MENDELSON, P.C.

321 North Clark Street

Suite 1100

Chicago, Illinois 60654

BY: MS. JENNIFER SCHILLING

MS. KERRI FECZKO

Official Court Reporter: JENNIFER COSTALES, CRR, RMR, CRC

219 S. Dearborn St., Room 2342

Chicago, Illinois 60604

(312) 435-5895

jenny.uscra@yahoo.com

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 1 of 18 PageID #:4670
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:13:49

03:14:03

03:14:12

03:14:23

03:14:41

2

(Proceedings via Webex)

THE COURT: All right. Mr. White, please call the

case.

THE COURTROOM DEPUTY: Case 20 CV 3187, Lisa Piazza

versus New Albertsons, Inc., et al.

THE COURT: Good afternoon. This is Judge Finnegan.

Could plaintiff's counsel please say your names.

MR. CONWAY: Good afternoon, Judge. Jason Conway.

MR. LEVIN: Good afternoon, Your Honor. Daniel

Levin.

THE COURT: And counsel for defendant, please say

your names.

MS. SCHILLING: Good morning, Your Honor. Jennifer

Schilling for defendants.

And Keri Feczko is on the phone. She was not able to

get in on Zoom because of a block.

MS. FECZKO: Good afternoon, Your Honor.

THE COURT: Good afternoon.

As you know, I set this for a quick hearing on

defendants' emergency motion for a stay of litigation and

emergency hearing regarding plaintiff's counsel, Jason

Conway's potential witness tampering and fraudulent

representations regarding interrogatory verifications filed on

June 2nd, docket 176.

I've already granted Mr. Conway's request to file a

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 2 of 18 PageID #:4671
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:14:56

03:15:10

03:15:25

03:15:39

03:15:48

3

response, and that will be filed on June 9th.

Let me ask defense counsel, are you seeking a date

for reply?

MS. SCHILLING: Yes, Your Honor.

THE COURT: And when do you propose to file that?

MS. SCHILLING: Well, I suppose it depends on if

there is a stay because we have a lot of depositions next

week. If those depositions aren't going forward, we would

need a week. If we are, reviewing depositions and try to

reply to that, we would need more time.

THE COURT: What is plaintiff's position on the

request for a stay of litigation pending a ruling on this

motion?

MR. CONWAY: Your Honor, we already have depositions

that took place last week. We had five that were canceled

this week. We have four on the books for next week. We have

some we're scheduling the week after. And I am set to take

four defendant depositions at the end of June.

THE COURT: All right. You said that really quickly.

So let's go back over it.

Five depositions -- I'm not worried about the ones

that were taken. Five were canceled for this week.

MR. CONWAY: Yes.

THE COURT: And then what is to follow that's already

scheduled?

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 3 of 18 PageID #:4672
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:16:04

03:16:14

03:16:34

03:16:54

03:17:15

4

MR. CONWAY: Four for next week. We have proposed

dates the following week, Your Honor, to defendants.

The last week in June we have four depositions of

defendants' managers already scheduled and on the books.

THE COURT: And the depositions scheduled and

canceled for this week, are those opt-ins?

MR. CONWAY: Yes.

THE COURT: And the four for next week, are those

opt-ins?

MR. CONWAY: Yes. And the following week that we're

attempting to schedule are also opt-in depositions, Your

Honor.

THE COURT: Okay. Well, what I'm going to do, I'm

not going to grant the stay necessarily until there is a

ruling. I will grant a stay for this week. I would like to

see the response, and then I will decide next steps.

So I will allow a reply to be filed within, let's

say, seven days after the response is filed, unless you want

to file it sooner. That's up to you.

So the response is going to be filed by June 9th as

requested by Mr. Conway.

And then I would get a reply, do you want to file

it -- maybe you could file it by the 14th. Is that possible?

MS. SCHILLING: Judge, I don't think so. My son is

having surgery tomorrow, and so I don't think that's possible.

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 4 of 18 PageID #:4673
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:17:33

03:17:49

03:18:03

03:18:17

03:18:35

5

We really would need a week.

THE COURT: The reason I said that is that I'm out of

town the week of the 19th on vacation. So I can't have a

hearing right away. But I hate to put this whole thing on

hold.

Mr. Conway, are you the only lawyer handling these

depositions? Is this something where Mr. Levin could step in?

MR. CONWAY: Mr. Levin has been also stepping in with

depositions, and we are covering them, and he can cover them.

MR. LEVIN: Yes, I can.

THE COURT: You can kind of step out of this at least

in terms of having any interactions with opt-ins, and

Mr. Levin could handle the ones that are going forward.

That's something that is doable?

MR. CONWAY: For next week, Your Honor?

THE COURT: Well, until I, you know, read these

briefs and figure out what I'm going to do next.

MR. CONWAY: I'm happy to --

MS. SCHILLING: If I may? So if we cancel the

depositions for next week so that we can brief, there are no

opt-in depositions scheduled after that. And while Mr. Conway

says he's trying to schedule them, it's not possible because

we need to produce ESI to him two weeks before the deps, and

that's less than two weeks. So there is no way we could

schedule additional opt-in deps at this time for the following

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 5 of 18 PageID #:4674
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:18:52

03:19:04

03:19:17

03:19:31

03:19:46

6

week. The earliest we could do would be the week of the 26th,

but we have corporate deps that week.

So we're really looking at early July to meet our ESI

deadlines to Mr. Conway per our prior agreement to get any

more opt-ins on the books other than what's scheduled for next

week. My understanding --

THE COURT: Mr. Conway, would you agree with that, or

what's your response?

MR. CONWAY: I believe we have proposed some opt-in

deposition dates to defense counsel. We haven't got any on

the books for that following week, Your Honor. We agree that

there is at least the two-week period to produce ESI.

At this stage if there are no extra depositions

booked for that third week, Your Honor, then Mr. Levin, if

he's able, will handle next week's opt-in depositions.

MR. LEVIN: Your Honor, to answer your question, I

can step in to --

THE COURT: Have you had any communications with any

of the opt-ins? I'm concerned about what at least one opt-in

had said was communicated to him. I recognize that may be

disputed. But are you -- you haven't been talking to the

opt-ins directly?

MR. LEVIN: My office has been. My paralegal at our

office has been helping the opt-ins with discovery.

THE COURT: And has she had any communications, for

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 6 of 18 PageID #:4675
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:20:06

03:20:28

03:20:37

03:20:53

03:21:11

7

example, with the opt-in who is the one who said he was

threatened or felt threatened, that is, Timothy Lindberg?

Because there is reference in his email to, you know, the

legal team in addition to Mr. Conway. Do you know whether

your paralegal has any involvement in communicating with him?

MR. LEVIN: We searched our email. We have one email

and no diaried calls with Mr. Lindberg, our office.

And the email was, you know, without disclosing

attorney-client privilege, but it was just a very formal email

about discovery.

THE COURT: Okay.

MS. SCHILLING: Judge, if I may just add one concern?

Is that okay?

THE COURT: Yes.

MS. SCHILLING: Going forward with opt-in

depositions, we had to -- and they either say they don't

recall reviewing the interrogatories or they were emailed to

them. One individual said he destroys all of his emails.

So to proceed with opt-in depositions without having

the Judge to review our request that we have proof that they

were actually reviewed, we know the verifications were false,

but we would have to go forward and take depositions. We have

one chance. And to not have the evidence that these witnesses

are saying they may or may not have reviewed them and received

them in email, so it would really prejudice us to have to take

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 7 of 18 PageID #:4676
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:21:26

03:21:41

03:21:59

03:22:16

03:22:32

8

opt-in depositions without having that issue resolved if they

ever even reviewed, signed or approved their interrogatories

per your motion to compel.

MR. CONWAY: Your Honor, if I may respond?

THE COURT: Yes.

MR. CONWAY: We've had one plaintiff and two opt-ins

deposed. Defendants' counsel at length has questioned each

about the discovery responses, their participation in the

discovery, and having reviewed that and verified the discovery

responses. Each has answered yes.

THE COURT: All right. Well, what did

Mr. Lindberg -- he hasn't been deposed yet?

MR. CONWAY: No. He was --

THE COURT: He hasn't. But did he ever, did he

indicate that he did not receive or review? Because he gave

supplemental, allegedly gave supplemental discovery responses.

I don't know if anyone has the answer to that

question.

MR. CONWAY: On that, Your Honor, we've cut all

communications with Mr. Lindberg at this time given the

seriousness of the allegations that he's raised. So I haven't

circled back with him on any communications.

We have looked internally at the communications that

we have had via phone and email, and we know that at least in

July of last year he did verify his initial discovery

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 8 of 18 PageID #:4677
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:22:47

03:23:05

03:23:28

03:23:45

03:24:02

9

responses, and we have emails on that.

There is some communication with him via phone, but

we're uncertain whether he actually reviewed them prior to

them being served.

THE COURT: But your position is, putting aside the

DocuSign issue about how those verifications were provided,

and I assume I am going to get very detailed information from

you in an affidavit about what happened there, it is going to

be your position, I'm assuming, but correct me if I am wrong,

that you did not -- that each of these individual's opt-ins,

you provided them with their supplemental, you know, their

request and actually had communications with them where the

information for the supplemental interrogatory answers that

were provided or original, if it was original, if that

information came from them, it is not something where you just

put it in a document and they never gave you that information?

MR. CONWAY: That's correct, Your Honor. With the

exception that we've confirmed with Mr. Lindberg's

supplemental responses, either my office or Mr. Levin's office

had communications with the opt-ins, and they were able to

review them or we discussed that with them over the phone

before we served them.

THE COURT: So your position is going to be you did

not provide answers to any discovery requests without getting

the information confirming it whether by the phone or by email

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 9 of 18 PageID #:4678
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:24:17

03:24:31

03:24:45

03:24:58

03:25:11

10

with the opt-ins?

MR. CONWAY: Yes, that's correct, Your Honor. The

information that defendants have sought is very specific to

them, and we just wouldn't know that information without

speaking with them.

MS. SCHILLING: Judge, this is brand-new information.

Mr. Conway has represented to us in many of our meet and

confers on the DocuSign that he emailed each and every one of

these with their responses, they reviewed their responses and

they emailed them back.

When we asked a few opt-ins last week whether or not

that happened, one opt-in said, I don't recall. The other

opt-in said it may have happened, but if it did, he destroyed

his email.

So that's why part of our emergency motion is,

whether it's in camera or redacted for privilege, proof that

these were actually sent to the opt-ins for review and

returned via email, which is what Mr. Conway has said all

along.

Now to shift and say that there is going to be no

record of it and it was by telephone makes this even more

concerning, Your Honor.

And we recently learned this week that Mr. Conway has

allegedly engaged in this same behavior before another court

and has a special master and other sanctions before him. We

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 10 of 18 PageID #:4679
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:25:25

03:25:43

03:26:00

03:26:16

03:26:28

11

think this really needs to be reviewed and investigated before

we take more opt-in depositions.

MR. CONWAY: Your Honor, on that point, I've not been

sanctioned in any court. I had one case recently where it was

very contentious and a special master was ordered to be

overseeing discovery. That's it, Your Honor. I've never been

sanctioned. I've never been alleged to have tampered with any

witness, let alone a current client whom defendants procured a

statement from. So that's completely and utterly false.

These allegations have been asked by defense counsel

at each of the depositions to date about their involvement in

discovery. I think we've been very frank and indicated that

these individuals have either reviewed them, we've spoken to

them. We are not in possession of any of the information that

is included in them. It would need to come from them.

They're very specific interrogatory and document requests.

THE COURT: Let me just ask this, are you going to

have emails with your clients showing that you emailed the

document request to them or the discovery request to them as

you apparently said you had done?

MR. CONWAY: I know that we do have many emails with

that, Your Honor, yes. And we've had calls, and we can

document the calls and those emails.

THE COURT: All right. Well, I'll grant a short

extension of time or stay. It sounds like defense counsel has

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 11 of 18 PageID #:4680
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:26:49

03:27:10

03:27:25

03:27:37

03:27:52

12

a child who is getting surgery, so it would be difficult to go

ahead. There is also ESI that has to be done.

You know, obviously these are serious allegations. I

don't know if they're valid or not, and I don't know what the

remedy would be that would be given. So I hate to delay the

case.

It sounds like what defendants will ultimately be

seeking is a sanctions payment of attorneys' fees. But

obviously you can't punish, you know, Ms. Piazza if assuming

Mr. Conway engaged in this conduct.

So you are saying you really don't want to go forward

with the depositions because you might learn that they haven't

actually answered the discovery, and so once you know that

they actually did answer the discovery, then it would make

sense for you to go ahead and depose them. But you don't want

to go forward until you confirm that they have indeed answered

the discovery.

MS. SCHILLING: So, Your Honor, I think it's a few

things. You obviously had a very long motion to compel and

were very strict in your orders for any verifications.

We still are unclear as to how on 20 occasions

Mr. Conway attached false verifications and represented in

oral arguments before you that he did get these supplemental

verifications.

THE COURT: That's all a different matter. You're

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 12 of 18 PageID #:4681
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:28:01

03:28:20

03:28:36

03:28:50

03:29:05

13

talking about Mr. Conway.

MS. SCHILLING: Right.

THE COURT: What he may have done. Why does the

stay -- you know, you don't want him involved, I get that, if

he was involved. But you're not suggesting that the lawsuit

gets dismissed that Ms. Piazza filed, even if Mr. Conway, you

know, for example, gave false DocuSign verifications, and

maybe the information came from the clients, but they didn't

do the DocuSign verification.

MS. SCHILLING: Right, Your Honor. So the remedy was

seeking per the investigation, first of all, whether or not

Mr. Conway is an appropriate representative for the opt-in

class or if he needs to be recused, whether or not his pro hac

vice needs to be reviewed and if he's fit to appear before

this Court given the misrepresentations, and whether or not

there is more concern of other things that have been said to

opt-ins.

We have 12 of our current employees who have decided

not to proceed with this case. We obviously can't talk to

them, but that's almost 50 percent of the opt-ins have decided

they don't want to proceed.

And given this shocking information from Mr. Lindberg

and what we found in the public docket in the Colorado case,

there was another opt-in who made the exact same

allegations --

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 13 of 18 PageID #:4682
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:29:18

03:29:30

03:29:45

03:30:05

03:30:23

14

THE COURT: All right. I don't want to hear your

argument. But if other counsel were to proceed with the

litigation while this investigation or, you know, ruling is

under advisement, I don't know why that couldn't happen. Do

you?

MS. SCHILLING: Only to the extent, Your Honor, that

we'd like to be able to have clarity before we take those

depositions if they did receive the interrogatories rather

than just the "I don't know." We'd like some verification

through Mr. Conway and Mr. Levin's office that they were sent.

And we'd like to be able to ask them questions about contact,

not what was said, but how many times and dates they've been

in contact with Mr. Conway's office.

THE COURT: All right. I will ask that the response

be very specific about the communications. And if you can,

just attach documents. Obviously you would redact any

communications, but, you know, some of it is irrelevant, would

not be privileged. And if necessary, you could provide some

of that in camera if you can do it faster and you want to do

it that way.

But that way I could at least -- potentially we could

resume the litigation even if Mr. Conway is sidelined while

the rest of this goes forward, because those opt-ins could be

deposed if we know that they actually saw the interrogatory,

they communicated back, maybe they didn't personally sign it,

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 14 of 18 PageID #:4683
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:30:40

03:31:08

03:31:30

03:32:01

03:32:21

15

and that can be explored at their deposition, but they did

receive it and communicate back information.

So be very specific in your responses about that.

Hold on. Let me just look at my notes and see if

there was anything else I wanted to --

And so just to be more specific on what I would want

to see in Mr. Conway's affidavit and with attachments, did he

or someone from the plaintiff's firms send the supplemental

discovery to the opt-ins and, you know, that would show the

date, the time, the format, any evidence that these opt-ins

actually responded to the inquiry, and if so date, time,

format.

If it's a communication in writing, that's great. If

there is no communication in writing, what, you know, evidence

do you have to just show, other than our asking them, and they

may not remember whether they saw this and gave the

information. And then, of course, you are going to address

the verifications.

Let me do this, I'm going to set a date then, the

response will be filed a week after -- the reply will be filed

a week after the response, and then I'll set a hearing. I'm

going to want to review those. It may be that I need

additional information at that time. I will look at these,

even though I'm going to be on vacation, and I can communicate

with my staff to get an order entered. I'm obviously not

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 15 of 18 PageID #:4684
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:32:41

03:32:52

03:33:13

03:33:23

03:33:37

16

going to hold a hearing while I'm on vacation. But I will be

back on the 26th.

All right. So reply will be due June 16.

Is there anything else we need to take up at this

time?

MS. SCHILLING: Judge, I just needed clarity. So do

we have a stay on the depositions for now and we're not

proceeding and we're going to wait for further clarification

after this briefing?

THE COURT: You do. I may lift that stay after I

see, you know, what's filed by Mr. Conway or plaintiff,

depending on whether there is documentation that's very

persuasive that the opt-ins actually reviewed and provided

those discovery responses, because then I think we want to

move ahead with those.

MR. CONWAY: And, Your Honor, the depositions at the

end of the month that are scheduled of defendants' managers,

are they proceeding?

THE COURT: Well, you're not proceeding with anything

personally until we get -- but yes.

MR. CONWAY: I understand.

THE COURT: Unless there is some issue with other

counsel from the other firms, I don't see why those wouldn't

go forward.

Anything else anybody wants to ask?

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 16 of 18 PageID #:4685
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:33:55

03:34:13

03:34:30

03:34:46

03:35:03

17

All right. So you'll look for an order from me

after -- I may enter an order after the 9th depending on what

I see. I might want additional information or I may have some

views. I potentially could even set a hearing next week after

I review what you file on the 9th. I don't know.

But I will give defendants until the 16th to file the

reply and then I will enter some further order.

MR. CONWAY: Your Honor, if I may? On the witness

tampering issue, what's compounded that is defendants have

inputted or sort of produced an affidavit from a district

manager, and there is also reference to an individual I

deposed, a 30(b)(6). Those individuals would have relevant

information about communications with Mr. Lindberg and

potentially would go to issues that we would use in responding

to these allegations.

We would like to depose those two individuals on what

they know, when they spoke with Mr. Lindberg, and if they

actually received any legal advice from counsel to obtain this

unsolicited or procured the statement from him.

THE COURT: Put that in your response. I'm not going

to allow you to do that now. You can talk to -- you know, you

know what you did, so you can respond based on that.

Obviously there may be some further discovery if a hearing is

done. Maybe a special master will be involved. I don't know.

But put it in your response what you are requesting. But

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 17 of 18 PageID #:4686
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

03:35:19

03:35:27

18

you're filing something by Friday just based on your affidavit

and your own documents. And then I'll take under advisement

anything you request in the way of other discovery in your

response.

MR. CONWAY: Yes. Nothing further.

THE COURT: All right. Thank you everyone. Have a

good afternoon.

MR. LEVIN: Thank you, Your Honor.

MR. CONWAY: Okay.

MS. SCHILLING: Thank you.

(Proceedings concluded)

C E R T I F I C A T E

I, Jennifer S. Costales, do hereby certify that the

foregoing is a complete, true, and accurate transcript of the

proceedings had in the above-entitled case before the

Honorable SHEILA FINNEGAN, one of the judges of said Court, at

Chicago, Illinois, on June 7, 2023.

/s/ Jennifer Costales, CRR, RMR, CRC

Official Court Reporter

United States District Court

Northern District of Illinois

Eastern Division

Case: 1:20-cv-03187 Document #: 180 Filed: 06/08/23 Page 18 of 18 PageID #:4687