mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 1 of 26 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

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1 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 1 of 26 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re : Chapter 11 : WESTINGHOUSE ELECTRIC : Case No (MEW) COMPANY, LLC, et al., 1 : : Debtors. : Elton Massey, et al., : on behalf of themselves and all : others similarly situated, : Plaintiffs, : Adv. Pro. No (MEW) v. : Westinghouse Electric Company, LLC, : et al., : Defendants. : Kent Gladden, et al., : on behalf of themselves and all : others similarly situated, : Plaintiffs, : Adv. Pro. No (MEW) v. : Westinghouse Electric Company, LLC, : et al., : Defendants. : PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION AND RELATED RELIEF 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates, LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCU Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A0, WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania PHIL v.1

2 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 2 of 26 TABLE OF CONTENTS I. INTRODUCTION...1 II. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY...2 A. Facts...2 B. Relevant Procedural History...4 III. ARGUMENT...7 A. Rule 23 Standard The Proposed Class Meets Rule 23(a) s Requirements...7 a. The Proposed Class Meets the Numerosity Requirement...7 b. Questions of Law and Fact Are Common to the Class and the Class Representative Claims are Typical of the Class...9 c. The Class Representatives Fairly and Adequately Represent the Interests of The Class...11 d. Proposed Class Counsel is Not Only Qualified to Represent the Interests of the Class, But is The Most Well-Suited To Do So...12 e. This Court Should Exercise its Authority to Dismiss or Stay the Fleetwood/Gladden Action or, in the Alternative, Consolidate it With the Instant Action and Appoint Proposed Class Counsel as Lead Class Counsel The Proposed Class Satisfies Rule 23(b)(3) s Criteria...17 B. The Court Should Approve the Form and Manner of the Proposed Notice of the Settlement...19 IV. CONCLUSION...20 PHIL v.1 i

3 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 3 of 26 CASES Guippone v. BH S & B Holdings LLC, (CM), 2011 WL (S.D.N.Y. Mar. 30, 2011) ii PHIL v.1 TABLE OF AUTHORITIES Page(s) Amchem v. Windsor, 521 U.S. 591 (1997)... 7, Assif v. Titleserv, Inc., 288 F.R.D. 18 (E.D.N.Y. 2012) Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994)...10 Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006)...10 Casale v. Kelly, 257 F.R.D. 396 (S.D.N.Y. 2009)...8 In re Cmty. Bank of N. Va., 418 F.3d 277 (3d Cir. 2005)...7 Cruz v. Robert Abbey, Inc., 778 F. Supp. 605 (E.D.N.Y. 1991) Curtis v. Citibank, N.A., 226 F.3d 133 (2d Cir. 2000)...17 D Alauro v. GC Servs., 168 F.R.D. 451 (E.D.N.Y. 1996)...9 Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006)...12 Finnan v. L.F. Rothschild & Co., Inc., 726 F. Supp. 460 (S.D.N.Y.1989)...8 Gates v. Rohm & Hass Co., 248 F.R.D. 434 (E.D. Pa 2008) In re US Foodservice Inc. Pricing Lit., 729 F.3d

4 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 4 of 26 In re J.P. Morgan Stable Value Fund ERISA Lit., No. 12-CV-2548 (VSB), 2017 WL (S.D.N.Y. Mar. 31, 2017) Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3 (2d Cir. 2015)...10 Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990)...17 Kaplan v. SAC Capital Advisors, LP, 146 F. Supp.3d 588 (S.D.N.Y. 2015)...8 Murphy v. LaJaunie, No. 13 CV 6503 RJS, 2015 WL (S.D.N.Y. July 24, 2015)...8 Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001)...8 Patrowicz v. TransamericaHomeFirst, Inc., 359 F. Supp.2d 140 (D. Conn. 2005)...20 Pearson v. Component Technology Corp., 247 F.3d 471 (3d Cir. 2001)...6, 17 Presser v. Key Food Stores Co-op., Inc., 218 F.R.D. 53 (E.D.N.Y. 2003)...7 Powers v. Lycoming Engines, 245 F.R.D. 226 (E.D. Pa. 2007) In re Partsearch Techs., Inc., 453 B.R. 84 (Bankr. S.D.N.Y. 2011)... 1, 8-9 Ramirez v. Riverbay Corp., 39 F. Supp.3d 354 (S.D.N.Y. 2014)...9 Roach v. TL Cannon Corp., 778 F.3d 401 (2d Cir. 2015)...7 Robidous v. Celani, 987 F.2d 931 (2d Cir. 1993)...8 Rodriguez v. It s Just Lunch, Intern., 300 F.R.D. 125 (S.D.N.Y. 2014) Shahrir v. Smith & Wollensky Restaurant, Inc., 659 F.3d 234 (2d Cir. 2011)...18 PHIL v.1 iii

5 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 5 of 26 Siler v. Landry s Seafood House-N.C., Inc., No , 2014 WL (S.D.N.Y. June 30, 2014)...8 In re Spring Ford Indus., Inc., No (DWS), 2004 WL (Bankr. E.D. Pa. Jan. 20, 2004)...1 Thielmann, et al. v. MF Global Holdings, Ltd., 464 B.R. 619 (Bankr. S.D.N.Y. 2012)... Passim In re US Foodservice Inc. Pricing Lit., 729 F.3d 108 (2d Cir. 2013)...19 In re W.R. Grace & Co., 389 B.R. 373 (Bankr. D. Del. 2008)...8 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)...10 Weekes-Walker v. Macon Cty. Greyhound Park, Inc., 281 F.R.D. 520 (M.D. Ala. 2012)...9 STATUTES Section 2101(a)(5) of the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq.... Passim OTHER AUTHORITIES FED. R. CIV. P. 23(a)... Passim Fed. R. Civ. P. 42(a)(2) and (3)...18 Rule 7023 of the Federal Rules of Bankruptcy Procedure...5 Rule 7042 of the Federal Rules of Bankruptcy Procedure...17 Rule 23(b)(3) of the Federal Rules of Civil Procedure...5, 7, 19 Rule 23(c)(2)(B) Rule 23(c)(5)...9 PHIL v.1 iv

6 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 6 of 26 I. INTRODUCTION Elton Massey, Kirt Hurlburt, Patricia Adams, John Jennings, Johnnie Hall, and Katrina Baker (collectively, Massey Plaintiffs ), move this Court for an order: (a) certifying a Class (defined below) pursuant to the Federal Rules of Civil Procedure Rule 23 ( Rule 23 ) and Bankruptcy Rule 7023 ( Bankruptcy Rule 7023 ); 2 (b) appointing Klehr Harrison Harvey Branzburg LLP ( Klehr Harrison ) as Lead Class Counsel, and Gaffney Lewis & Edwards ( Gaffney Lewis ) and Yarborough Applegate LLC ( Yarborough Applegate ) as co-class Counsel (collectively referred to as Proposed Class Counsel ); (c) appointing the Massey Plaintiffs as Class Representatives; (d) approving the form and manner of Notice to the Class of this class action; and (e) granting such other and further relief as this Court deems proper. The class would be comprised of the Massey Plaintiffs and all similarly situated employees who were nominally employed 3 by debtors, Westinghouse Electric Company, LLC ( WEC or Westinghouse ), WECTEC LLC ( WECTEC LLC ), WECTEC Staffing Services, Inc. ( WECTEC Staffing ), and WECTEC Global Project Services, Inc. (f/k/a CB&I Stone & Webster, Inc.) 4 ( WECTEC Global ) (collectively, Defendants ), and of Fluor Corporation, Fluor Enterprises, Inc. and/or Fluor Daniel Maintenance Services, Inc. (collectively, Fluor ), which employees: (1) worked at or reported to the Virgil C. Summer Nuclear Station, located at 2 Rule 7023 provides that Rule 23 applies in adversary proceedings and courts have granted class certification in adversary proceedings on many occasions. See e.g., Thielmann, et al. v. MF Global Holdings, Ltd., 464 B.R. 619 (Bankr. S.D.N.Y. 2012) (MF Global ); In re Partsearch Techs., Inc., 453 B.R. 84 (Bankr. S.D.N.Y. 2011); In re Spring Ford Indus., Inc., No (DWS), 2004 WL , at *2 (Bankr. E.D. Pa. Jan. 20, 2004). 3 The term nominal when used to refer to employment is used herein to indicate the entity by which a plaintiff believes he/she may have been primarily employed and/or the entity by which he/she was told he/she was employed. The term is not intended to indicate the only entity by which a plaintiff, in fact, was employed under the WARN Act. 4 On December 13, 2017, WECTEC Global Project Services, Inc. changed its corporate name to Stone & Webster, Inc., by filing a copy of an Amendment to its Articles of Incorporation with the Louisiana Secretary of State. See mew, Doc. No On February 5, 2018, WECTEC Global filed a motion seeking an order from this Court approving the name change. Id. For clarity and to conform with the abbreviations used in the Complaint, however, the Massey Plaintiffs will continue to refer to WECTEC Global Project Services, Inc. herein as WECTEC Global. PHIL v.1 1

7 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 7 of Highway 213 Jenkinsville, South Carolina ( VC Summer Location ), until their employment was terminated without cause on their part, on or about July 31, 2017, or within 30 days of that date, in anticipation of or as the reasonably expected consequence of the mass layoffs or plant closings ordered by Defendants at the VC Summer Location on or about July 31, 2017, and who are affected employees within the meaning of the Section 2101(a)(5) of the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. (the WARN Act ) (the Class ); and (2) have not filed a timely request to opt-out of the Class. This Court should grant class certification because it will serve the interests of judicial economy and of the Class members and because the proposed Class meets the requirements of Rule 23 and Bankruptcy Rule II. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY A. Facts In or about May 2008, South Carolina Electric & Gas Company ( SCE&G ), for itself and as agent for South Carolina Public Service Company LLC, on the one hand, and a consortium of CB&I Stone & Webster, Inc. ( S&W ) and WEC, on the other hand, entered into an Engineering, Procurement and Construction Agreement, to, among other things, design, procure, construct and test nuclear reactors at two separate sites the VC Summer Location and the Allen W. Vogtle Electric Generating Plant near Augusta, Georgia. See Complaint, 22. SCE&G and SCANA Corporation ( SCANA ) own the VC Summer Location. Id. at 24. S&W was the nuclear engineering company responsible for physically constructing the plant, while Defendants (and, upon information and belief, other WEC affiliates) were responsible for designing, manufacturing and procuring the nuclear reactor, steam turbines and generators at the VC Summer Location. Id. at 25. PHIL v.1 2

8 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 8 of 26 In October 2015, after significant cost overruns on the project at the VC Summer Location (the VC Summer Project ), WEC formed WECTEC Global to acquire S&W from S&W s parent, Chicago Bridge & Iron Company ( CB&I ). Id. at 27. Following this acquisition, WEC transferred many of S&W s non-craft employees to their nominal employers - WECTEC, WECTEC Global, and/or WECTEC Staffing - and WEC continued to maintain its direct employees on-site at the VC Summer Location. Id. at 28. At or about the same time WEC and WEC Global acquired S&W, WEC also entered into a Subcontractor Agreement with Fluor. Id. at 29. Upon information and belief, Fluor took over from S&W the primary responsibility for construction and assumed the role as nominal employer for many of the S&W craft employees (i.e., manual labor construction employees), as well as other former S&W employees. Id. On March 29, 2017, WEC and a number of its affiliates, including the other Defendants (collectively referred to as the Debtors ), commenced voluntary cases under Chapter 11 of the Bankruptcy Code. Id. at 38. Debtors continued to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Code. Id. Debtors estates are being jointly administered. Id. As alleged in the Complaint and supported by the attached Declarations of plaintiffs Elton Massey, Patricia Adams, and John Jennings attached as Exhibits A, B, and C, respectively, Defendants, during the relevant time period, acted as a single employer under the WARN Act with respect to the Massey Plaintiffs and the other individuals nominally employed by a defendant and/or Fluor at the VC Summer Location. On July 31, 2017, SCANA and SCE&G announced that it was abandoning the VC Summer Project. Id. at 40. On that same day, Defendants and Fluor terminated virtually all of PHIL v.1 3

9 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 9 of 26 their nominal employees who worked at the VC Summer Location (which consisted of approximately 600 and 4,000 individuals, respectively). Id. at 41. The Massey Plaintiffs were among those terminated. At the time, Defendants employed more than 100 employees who worked at least 4,000 hours per week within the United States. Id. at 75. The terminations that occurred on or within 30 days of July 31, 2017, were without cause and were a reasonable foreseeable consequence of the mass layoffs or plant closings (as those terms are defined under the WARN Act) at a facility where the Massey Plaintiffs and the proposed Class members worked, which resulted in the loss of employment for at least 50 employees. Id. at The Massey Plaintiffs did not receive 60 days written notice pursuant to the WARN Act, nor, upon information and belief, did any of the other former employees of Defendants and Fluor who were terminated on or about July 31, Id.; see also Exs. A, B and C. The Massey Plaintiffs do not have any conflicts of interest between themselves or with any other Class member. See Exs. A, B and C. After their terminations, the Massey Plaintiffs retained Proposed Class Counsel as counsel to represent them concerning their WARN Act claims which are typical of the Class claims. Id. As alleged in the Complaint, the proposed Class is so numerous as to render joinder of all members impracticable; factual and legal questions are common to all members of the Class; the Massey Plaintiffs claims are typical of the Class; the Massey Plaintiffs will fairly and adequately protect the interests of the Class; and the proposed Class meets the requirements of Rule 23(b)(3) of predominance and superiority. Id. at Also, as shown in the attached Declaration of Charles A. Ercole ( Ercole Decl. ) and explained in more detail below, Proposed Class Counsel is especially qualified to represent the interests of the Class. B. Relevant Procedural History PHIL v.1 4

10 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 10 of 26 On September 6, 2017, plaintiffs Johnnie Hall and John Jennings filed a class proof of claim (claim number 3123) in bankruptcy case number , against WECTEC Staffing. Also on September 6, 2017, Kirt Hurlburt and Patricia Adams filed a class proof of claim (class number 3124) in bankruptcy case number , against WECTEC LLC. On November 9, 2019, the Massey Plaintiffs, in the above-captioned matter, filed a Class Action Adversary Complaint against Defendants pursuant to Rules 23(a), (b)(1)(b) and 23(b)(3) of the Federal Rules of Civil Procedure, made applicable by Bankruptcy Rule 7023, on behalf of themselves and the proposed Class. For these WARN Act claims, the Massey Plaintiffs, on their behalf and on behalf of all similarly situated individuals, seek to recover 60 days wages and benefits pursuant to the WARN Act from Defendants. These claims, as well as the claims of all similarly situated individuals, are entitled to administrative wage priority status pursuant to United States Bankruptcy Code 503(b)(1)(A)(i) and (ii). The Complaint was brought against not only Westinghouse and WECTEC LLC, but also against WECTEC Global and WECTEC Staffing. The Complaint contains detailed allegations, in dozens of paragraphs, supporting the basis for suing all four defendants under the single employer theory under WARN. See Pearson v. Component Technology Corp., 247 F.3d 471, 496 (3d Cir. 2001). In addition to the above-captioned matter, two other WARN Act adversary complaints were filed on August 10, 2017, the first-filed being the one captioned as Gladden v. Westinghouse Electric Company, Adv. Pro. No (MEW) ( Gladden ), and the later one being captioned as Fleetwood, et al. v. WECTEC LLC and Stone & Webster Services LLC, Adv. Pro. No (MEW) ( Fleetwood ). Mr. Gladden alleged in his complaint that he was an employee of only defendant Westinghouse. Mr. Fleetwood contended that he was an employee of WECTEC LLC and Stone & Webster Services, LLC, but the only factual allegation he PHIL v.1 5

11 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 11 of 26 asserted to justify suing the latter entity was that WECTEC LLC employees were paid by the Stone & Webster Services, LLC entity. Two and a half months after the Massey Plaintiffs filed their Complaint, Mr. Gladden and Mr. Fleetwood filed a somewhat more detailed complaint than they had filed before ( Gladden/Fleetwood Action ), which complaint consolidated the Gladden and Fleetwood actions. Also, Mr. Gladden and Mr. Fleetwood finally sued the two additional defendants the Massey Plaintiffs already had sued, WECTEC Staffing and WECTEC Global. Mr. Gladden, Mr. Fleetwood, and an added plaintiff who was nominally employed by WECTEC Staffing - Rodney Cavalieri - supported adding WECTEC Staffing and WECTEC Global based on substantially the same facts and legal premises the Massey Plaintiffs asserted, i.e, that Westinghouse and WECTEC LLC had de facto control over the other Westinghouse entities at the VC Summer Location and their employees, 5 that the other Pearson factors existed, and that the Westinghouse entity by whom a person was nominally employed did not seem to correlate to the duties and responsibilities they had. Ercole Decl. 17. Even when considering the Gladden/Fleetwood Action, it is clear that Proposed Class Counsel here is best suited to represent the putative Class in this matter, for the reasons explained in more detail below. Given this, the Massey Plaintiffs move for an order from this Court dismissing or staying the Gladden/Fleetwood Action in favor of the instant action or 5 The Gladden/Fleetwood Action also includes WEC Carolina Energy Solutions, Inc. and WEC Carolina Energy Solutions, LLS as defendants, but these entities purportedly nominally employed only less than employees at the VC Summer Location (thus, individually or together, they may not even have been subject to the WARN Act based on the number of employees) and those employees, in any event, allegedly were jointly employed by Westinghouse and WECTEC LLC (defendants included in the Massey complaint). Also, the Gladden/Fleetwood action adds no further allegations justifying suing Stone & Webster Services LLC except that it is wholly-owned by its managing member, WECTEC Global. PHIL v.1 6

12 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 12 of 26 consolidating these cases and appointing Klehr Harrison, Gaffney Lewis and Yarborough Applegate as Class Counsel. 6 III. ARGUMENT A. Rule 23 Standard To obtain class certification, plaintiffs must satisfy all of the requirements of Rule 23(a) and at least one provision of Rule 23(b). Roach v. TL Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015); Presser v. Key Food Stores Co-op., Inc., 218 F.R.D. 53, 57 (E.D.N.Y. 2003). Subdivisions (a) and (b) of Rule 23 focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class Representatives. Amchem v. Windsor, 521 U.S. 591, 621 (1997). To be certified, a class must satisfy the four requirements of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. FED. R. CIV. P. 23; In re Cmty. Bank of N. Va., 418 F.3d 277, 302 (3d Cir. 2005); In re BGI, Inc., 465 B.R. 365, (S.D.N.Y. 2012). In this case, the class also must satisfy the requirements of Rule 23(b)(3), the customary vehicle for damage actions. Cmty. Bank of N. Va., 418 F.3d at 302. For a class to be certified under Rule 23(b)(3): the court must find that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3); see also Roach, 778 F.3d at The Proposed Class Meets Rule 23(a) s Requirements a. The Proposed Class Meets the Numerosity Requirement 6 As explained in more detail below, the Court has a great deal of discretion to do whatever is in the best interests of the Class. In addition to staying or dismissing the Gladden/Fleetwood Action, the Court has the option to order the Gladden/Fleetwood and Massey adversaries to all be consolidated and appoint all counsel as co-class counsel to work together like counsel did in MF Global, as more specifically explained below. PHIL v.1 7

13 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 13 of 26 Numerosity requires a finding that the putative class is so numerous that joinder of all members is impracticable. Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 182 (3d Cir. 2001). There is no single magic number satisfying the numerosity requirement. Siler v. Landry s Seafood House-N.C., Inc., No , 2014 WL , at 2 (S.D.N.Y. June 30, 2014) (citing Bruce v. Christian, 113 F.R.D. 554, 556 (S.D.N.Y.1986)). However, courts in the Second Circuit have found numerosity in classes far smaller than the proposed Class here. See Robidous v. Celani, 987 F.2d 931, (2d Cir. 1993) (finding numerosity for class no larger than 133 individuals); In re Partsearch Techs., Inc., 453 B.R. 84, (S.D.N.Y. 2011) (joinder impracticable when WARN class of 192 individuals); Finnan v. L.F. Rothschild & Co., Inc., 726 F. Supp. 460, 465 (S.D.N.Y. 1989) (citing 29 U.S.C. 2101(a)(1)) (finding numerosity met with class size of 127 employees); Cruz v. Robert Abbey, Inc., 778 F. Supp. 605, 612 (E.D.N.Y. 1991) (WARN class of 114 persons was numerous). Also, [i]mpracticability does not mean impossibility but only the difficulty or inconvenience of joining all members of the class. In re W.R. Grace & Co., 389 B.R. 373, (Bankr. D. Del. 2008). The proposed Class here consists of about 4,600 individuals who were employed by Defendants under the WARN Act. About 600 people were nominally employed by a Defendant and about 4,000 people were nominally employed by non-defendant, Fluor. 7 This Class meets 7 While the Massey Plaintiffs seek the certification of one class, Rule 23(c)(5) allows this Court to create subclasses, either for case management purposes or formally, if the Court determines that there is a conflict between the class members. Fed. R. Civ. P. 23(c)(5); see also Ramirez v. Riverbay Corp., 39 F. Supp.3d 354, 362 (S.D.N.Y. 2014) (creating subclasses to account for difference in legal theories); Casale v. Kelly, 257 F.R.D. 396, (S.D.N.Y. 2009). That said, at this stage, the Court should not weigh or determine the merits of plaintiffs claims unrelated to a Rule 23 requirement. Kaplan v. SAC Capital Advisors, LP, 146 F. Supp.3d 588, 589 (S.D.N.Y. 2015); Murphy v. LaJaunie, No. 13 CV 6503 RJS, 2015 WL , at *3 (S.D.N.Y. July 24, 2015) (internal citations omitted) ( Although the Rule 23 analysis may overlap with merits issues, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement. The only question at the class certification stage is whether plaintiffs may pursue those claims on behalf of a class of similarly situated persons, or whether they must do so as individuals. ). Further, [a]lthough plaintiffs have the burden of demonstrating compliance with PHIL v.1 8

14 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 14 of 26 the numerosity requirement and joinder of all Class Members is impractical. Gates v. Rohm & Hass Co., 248 F.R.D. 434, 440 (E.D. Pa 2008) (finding that two classes made up of 400 and 1,000, respectively, satisfied the numerosity requirement); see also Weekes-Walker v. Macon Cty. Greyhound Park, Inc., 281 F.R.D. 520, (M.D. Ala. 2012) (numerosity existed for WARN class of 2,000 people, divided into three sub-classes). 8 Accordingly, the Court should find that the numerosity requirement has been satisfied. b. Questions of Law and Fact Are Common to the Class and the Class Representative Claims are Typical of the Class For a class to be certified, there must be at least one question of law or fact common to the Class. FED. R. CIV. P. 23(a)(2); D Alauro v. GC Servs., 168 F.R.D. 451, 456 (E.D.N.Y. 1996). The commonality threshold is low, Powers v. Lycoming Engines, 245 F.R.D. 226, 236 (E.D. Pa. 2007), and does not require that all of the questions of law and fact raised by the dispute be completely common among class claimants. In re Partsearch Techs., Inc., 453 B.R. at 94. What is required is that the common questions concern the core of the claims alleged. Id. Further, the existence of individual facts and circumstances will not defeat commonality so long as the Class Members allege harm under the same legal theory. See Cruz, 778 F. Supp. at 612 ( [C]ertification of a class under Rule 23 is usually warranted when individual wrongs are alleged to have been pursuant to a common plan ) (quoting Cullen v. Margiotta, 811 F.2d 698, 733 (2d Cir. 1987)). Even where defenses might exist only as to particular individuals, commonality may exist. Guippone v. BH S & B Holdings LLC, (CM), 2011 WL concerning the propriety of class certification should be resolved in favor of class certification. In re J.P. Morgan Stable Value Fund ERISA Lit., No. 12-CV-2548 (VSB), 2017 WL , at *5 (S.D.N.Y. Mar. 31, 2017) (citing In re Alstom SA Sec. Litig., 253 F.R.D. 266, 275 (S.D.N.Y. 2008)). 8 Although Rule 23 does not explicitly require that the proposed Class be ascertainable, it is axiomatic that this must be the case before a class can be certified. See Ramirez, 39 F. Supp.3d at The Class here is ascertainable because the information necessary to determine which individuals were nominally employed by each defendant and by non-defendant Fluor, and were terminated on or about July 31, 2017, are, upon information and belief, ascertainable from the personnel records maintained by the companies. PHIL v.1 9

15 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 15 of , at *5 (S.D.N.Y. Mar. 30, 2011). As the United States Supreme Court explained, [w]hat matters to class certification... is not the raising of common questions even in droves but, rather the capacity of classwide proceeding to generate common answers apt to drive the resolution of the litigation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (emphasis in original); Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3, 6 (2d Cir. 2015). Relatedly, typicality requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member s claim arises from the same course of events.... In re JP Morgan Stable Value Fund ERISA Lit., 2017 WL , at * 7 (quoting Century States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 245 (2d Cir. 2007)); see also FED. R. CIV. P. 23(a)(3); Beck v. Maximus, Inc., 457 F.3d 291, 293 (3d Cir. 2006) (explaining, To evaluate typicality for purposes of class certification, courts ask whether the Class Claimants claims are typical, in common-sense terms, of the class, thus suggesting that they incentives of the plaintiffs are aligned with those of the class. ). Typicality requires a strong similarity of legal theories to ensure that the class Representatives pursuit of their own goals will work to benefit the entire class. Powers, 245 F.R.D. at 236. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory. Beck, 457 F.3d at (quoting Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994); Rodriguez v. It s Just Lunch, Intern., 300 F.R.D. 125, 136 (S.D.N.Y. 2014) ( When it is alleged that the same unlawful conduct... affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims. ). PHIL v.1 10

16 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 16 of 26 Here, fundamental issues of law and fact are common to all of the Class Members, including those concerning whether the Class Members were part of a plant closing or mass layoff, whether a sufficient number of them suffered an employment loss under the WARN Act, and whether Defendants have an affirmative defense to not providing a WARN notice. The Massey Plaintiffs have alleged facts that reveal that hundreds of individuals nominally employed by Defendants, and thousands of employees nominally employed by Fluor, were terminated on the same day and in the same manner without the 60-days advanced notice to which they were entitled under WARN. Also, it is expected that discovery will reveal that the common question of whether Defendants acted as a single employer of the Class also will generate common answers based on objective facts concerning whether Defendants had common ownership, had common officers and directors, shared personnel policies, had a dependency of operations, and ultimately implemented the policy to terminate the Class Members on July 31, 2017, without providing WARN notice. Thus, the commonality requirement is met here. Also, on typicality, the Massey Plaintiffs do not allege that they were singled out in terms of Defendants common ownership, common officers and directors, unity of personnel policies, dependency of operations, and/or the decision to terminate them on July 31, 2017, at the same time in the same manner. Rather, they suffered harm as a result of the same conduct that allegedly injured the absentee Class Members - - being terminated without WARN notice. Accordingly, the Court should find that the typicality requirement is met as well. c. The Class Representatives Fairly and Adequately Represent the Interests of The Class With respect to adequacy of the class representatives, [a]dequacy is twofold: the proposed class representative[s] must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members. PHIL v.1 11

17 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 17 of 26 Rodriguez, 300 F.R.D. at 137; see also FED. R. CIV. P. 23(a)(4); Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). Here, the Massey Plaintiffs will fairly and adequately represent the interests of the Class because they have vigorously pursued the claims of the Class. Also, they have no interests antagonistic to the other members of the Class and were harmed in the same way that the other approximately 600 Westinghouse nominal employees and 4,000 Fluor nominal employees were harmed, i.e., they were terminated by Defendants in a mass layoff under the WARN Act without being given 60 days advanced notice as required by the Act. See Exs. A, B and C. d. Proposed Class Counsel is Not Only Qualified to Represent the Interests of the Class, But is The Most Well-Suited To Do So Regarding Proposed Class Counsel, they are especially qualified to serve as Class Counsel here. As more specifically explained in the attached Declaration from Charles A. Ercole ( Ercole Decl. ), Proposed Class Counsel has been retained directly by the Massey Plaintiffs, as well as by about 420 others to date, 9 to assert WARN Act claims arising from the abrupt termination of their employees from the V.C. Summer Location, without cause, on or about July 31, 2017, without providing 60 days advance written notice of the terminations as required by the WARN Act. Ercole Decl., 5. Also, Klehr Harrison has a demonstrated and well-established bankruptcy and WARN practice in which Klehr Harrison has litigated successfully on behalf of thousands of employees and served as lead counsel in numerous employment class action lawsuits. Id. at 6, Many of these cases have led to significant decisions in WARN Act law, including those concerning single employer and alter ego liability, as well as the liquidating fiduciary 9 Proposed Class Counsel regularly receives calls from employees who were terminated at the VC Summer Location seeking to retain Proposed Class Counsel. Accordingly, Proposed Class Counsel expects that the number of those who have directly retained them to date will increase even after the filing of the Motion for Class Certification. PHIL v.1 12

18 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 18 of 26 defense. Id. at 7-8. Gaffney Lewis and Yarborough Applegate bring extensive experience to assist in pursuing the WARN Act claims here. Both firms have extensive class action and/or employment law experience, already have developed relationships with hundreds of putative class members. Id. at 4. In particular, Proposed Class Counsel has invested significant time and effort into pursuing the claims of the proposed Class. Id. at 21. Specifically, within a week of the terminations from the VC Summer Location on July 31, 2017, they met with approximately 800 individuals who had been terminated there. See Id. Also, Proposed Class Counsel s staff fielded over 1,500 telephone calls and s in response to the massive layoffs and the crisis they created. Id. What is more, throughout the bankruptcy filing, including after the Massey Plaintiffs filed the instance action, Proposed Class Counsel has been monitoring closely the filings in the Westinghouse bankruptcy, press releases and other public statements and from these sources has compiled additional facts to support the Massey Plaintiffs WARN claims against Defendants. Id. at 22. Further, Proposed Class Counsel has been pursuing WARN claims against Fluor directly in the District Court in South Carolina. Id. at 23. On August 17, 2017, Proposed Class Counsel filed a WARN Act Class Action Complaint on behalf of their clients, Lawrence Butler, Lakeisha Darwin, Darron Eigner, Jr., Bernard A. Johnson, and Jimi Che Sutton (collectively, the Butler Plaintiffs ), against Fluor Corporation and Fluor Enterprises, Inc. (the Butler Action ). Id. Also currently pending in the South Carolina court is a WARN Act complaint filed against Fluor and SCANA by plaintiff Harry Pennington, Case No JMC (the Pennington Action ), who is represented only by one of the firms representing the plaintiffs in the Gladden/Fleetwood PHIL v.1 13

19 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 19 of 26 Action, Outten & Golden ( O&G ). Id. In South Carolina, Proposed Class Counsel and O&G filed motions relating to class certification in the Butler Action and the Pennington Action. Id. at 24. After oral argument on those motions, the Honorable J. Michelle Childs, denied the Butler Plaintiffs motion without prejudice in light of pending motions to dismiss in both actions. Specifically, Fluor moved to dismiss the Butler Action solely on the basis that it was not the first WARN Act complaint filed against it, and SCANA moved to dismiss the WARN Act claims against it in the Pennington Action on the ground that Pennington did not sufficiently allege single employer liability against SCANA. Id. The hearing on those motions occurred on February 14, If the court in South Carolina denies Fluor s motion, Proposed Class Counsel s representation there of individuals who were nominally employed by Fluor will prove helpful to Proposed Class Counsel in pursuing the claims here. Moreover, while the Fleetwood/Gladden Action has been brought by talented lawyers who also have significant experience in the WARN Act, Proposed Class Counsel: (a) has been retained by more former employees than the Gladden/Fleetwood counsel combined; (b) is very experienced in WARN Act litigation; and (c) is the best suited to represent the putative Class in this matter. Id. at 17. To be sure, O&G and Lankenau Miller previously recognized Klehr Harrison s capabilities even in the most complicated WARN Act litigations. See Id. at 13. For example, in two of the more difficult WARN Act litigations, which involved both Klehr Harrison and O&G, In re Qimonda N. Am., Adv. Pro. No (Bankr. D. Del. 2009) and MF Global, Klehr Harrison did the vast majority of the legal work to bring these cases to successful ends. 10 Id. Not only is Qimonda perhaps the largest WARN Act recovery in history (about $35,000,000, but it involved complex single employer claims against related North American 10 Klehr Harrison's lodestar value at the time of settlement approval in Qimonda was $1,600,000 and the time O&G had committed to the case was less than $300,000. Id. PHIL v.1 14

20 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 20 of 26 entities as well as European parent corporations. It also involved litigation in both district and bankruptcy courts in Delaware and Virginia. Similarly in MF Global, O&G and Lankenau Miller teamed-up with Klehr Harrison during four years of hotly contested litigation with more than a dozen depositions and extensive motion and appellate practice. Id. at 14; see also Transcript of January 19, 2012 hearing in Theilmann, et al. v. MF Global Finance USA, Inc., et al., Adv. Pro. No mg (Bankr. S.D.N.Y.), at 77:23-78:25, 83:4-10, attached hereto as Exhibit E. In that case, the Honorable Martin Glenn specifically noted that each of these firms has specific skills that would benefit the putative class in that action. MF Global, 464 B.R. at 626. O&G even has agreed that Klehr Harrison would take the lead in co-counsel situations in other cases beyond Qimonda and MF Global, including in Hoboken Wood Flooring, No. 2:07-cv (D.N.J. 2009) and Excel Storage Prods., Adv. Pro. No. 5:10-ap (Bankr. M.D. Pa. 2010). Ercole Decl., 16. Moreover, while the Massey Plaintiffs were not the first to file a WARN Act adversary complaint in the Westinghouse bankruptcy, this should not weigh against them or Proposed Class Counsel. Id. at 17. Proposed Class Counsel waited to file only because they were spending considerable necessary time thoroughly investigating the facts which gave rise to the WARN claim against Defendants. Id. This is evident when comparing the Complaint in the instant action with the Complaints in Gladden and Fleetwood. Neither Gladden nor Fleetwood included claims against WECTEC Staffing or WECTEC Global and neither complaint included detailed allegations supporting a single employer theory of liability. Id.; see also fn. 5, supra. The Massey Plaintiffs Complaint, on the other hand, contains detailed factual allegations supporting their theory that all of the Defendants employed the proposed Class as a single employer. Id. at 17. Moreover, the Massey Plaintiffs have alleged claims against Defendants PHIL v.1 15

21 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 21 of 26 also for their role in the termination of those approximately 4,000 individuals who were nominally employed by non-defendant Fluor. To date, neither Gladden nor Fleetwood has done that. Id. at 19. In addition, it was not until two months after the Massey Plaintiffs filed their detailed Complaint that Gladden and Fleetwood filed a somewhat more detailed complaint than they had filed before. Id. at 20. This Complaint, however, included as defendants two Westinghouse entities the Massey Plaintiffs already had sued and two other entities that collectively may not even be covered by the WARN Act given the number of employees they had. See id.; see also fn. 5, supra. Importantly, it also asserted facts and legal theories that were substantially the same as those the Massey Plaintiffs already had asserted, i.e, that Westinghouse and WECTEC LLC had de facto control over the other Westinghouse entities at the VC Summer Location and their employees, that the other Pearson factors existed, and that the Westinghouse entity by whom a person was nominally employed did not seem to effect the duties and responsibilities they had. Ercole Decl., 20. Given the foregoing, Proposed Class Counsel adequately has demonstrated its substantial knowledge and experience in the substantive and procedural legal issues present in this litigation, as required by Rule 23, as well as its dedication to zealously pursuing the claims on behalf of the Class. It also has shown that it is the best suited to represent the Class. e. This Court Should Exercise its Authority to Dismiss or Stay the Fleetwood/Gladden Action or, in the Alternative, Consolidate it With the Instant Action and Appoint Proposed Class Counsel as Lead Class Counsel The Court has the authority to decide whether to dismiss or stay the Fleetwood/Gladden Action in favor of the above-captioned action or consolidate it with the instant action and appoint Proposed Class Counsel as Lead Counsel. The authority arises from the Court s power to PHIL v.1 16

22 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 22 of 26 control disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants. MF Global, 464 B.R. at 623 (quoting Lester-Krebs, Inc. v. Geffen Records, Inc., No , 1985 WL 4270, at *2 (S.D.N.Y. Dec. 4, 1985); see also Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). Rule 42 of the Federal Rules of Civil Procedure, made applicable in adversary proceedings by Rule 7042 of the Federal Rules of Bankruptcy Procedure, states, in pertinent part: If actions before the court involve a common question of law or fact, the court may... consolidate the actions, or issue any other orders to avoid necessary cost or delay. Fed. R. Civ. P. 42(a)(2) and (3). Also, the Court must consider whether: the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses, and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single trial, multiple-trial alternatives. Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) (citing Hendrix v. Raybestos- Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985)). When determining whether to dismiss a second suit, a court must consider the equities of the situation when exercising its discretion. MF Global, 464 B.R. at 623 (citing Curtis, 226 F.3d at 138). Here, for all of the reasons explained above in Sections II.B. and III.A.1.d, the equities of the situation call for a dismissal or staying of the Fleetwood/Gladden Action or, at the least, a consolidation of that action with the instant action, with Proposed Class Counsel being appointed Lead Class Counsel. 2. The Proposed Class Satisfies Rule 23(b)(3) s Criteria Common questions of law and fact predominate over the individual issues. Predominance tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation. Amchem, 521 U.S. at ; Assif v. Titleserv, Inc., 288 F.R.D. 18, 25 PHIL v.1 17

23 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 23 of 26 (E.D.N.Y. 2012). Thus, this requirement is satisfied if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. Assif, 288 F.R.D. at 25. Similarly, individualized damages calculations do not defeat predominance, provided, again, that the common questions predominate over any individualized damages issues. Shahrir v. Smith & Wollensky Restaurant Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011) (citing In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001) ( Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues. ). Applying this test, predominance exists here. All of the claims arise from Defendants failure to provide 60 days written notice in violation of the WARN Act when Defendants terminated the Massey Plaintiffs and all others similarly situated on July 31, Also, any damages may be calculated using the same or similar formula using each class member s wage rate and number of days he/she was deprived of WARN notice. Accordingly, the Court should find that the predominance requirement is met. Rule 23(b)(3) also requires a determination that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. FED. R. CIV. P. 23(b)(3). Rule 23(b)(3) class actions can be superior precisely because they facilitate the redress of claims where the costs of bringing individual actions outweigh the expected recovery. In re US Foodservice Inc. Pricing Lit., 729 F.3d 108, 130 (2d Cir. 2013); see also Amchem, 521 U.S. at 617. Rule 23 sets forth several factors relevant to the superiority inquiry: (A) the class members interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against PHIL v.1 18

24 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 24 of 26 class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular form; and (D) the likely difficulties in managing a class action. FED. R. CIV. P. 23(b)(3); In re US Foodservice Inc. Pricing Lit., 729 F.3d at 130 n.15. Here, a class action is superior to individual actions. First, the amount of each Class Member s claim is expected to be relatively small. By way of example, the Class Representatives claims are believed to be no more than $25,000 each, and, in most cases, much less than that amount. See Exs. A, B and C. Individually, there is little incentive in controlling the prosecution of separate actions. See Amchem, 521 U.S. at 617 ( The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone s (usually an attorney s) labor. ) (quotation and citation omitted). Further, it is appropriate that all the claims against the Defendants arising from the Class Representatives allegations should be concentrated in this Court. In addition, determining the claims of some Class Members, but not all, could prejudice the claims of the remaining Class Members. Accordingly, the Court should find that the superiority element is met. Based on the foregoing, the Court should certify the Class, appoint Massey, Hurlburt, Adams, Jennings, Hall, and Baker as the Class Representatives and appoint Klehr Harrison as Lead Class Counsel, and Gaffney Lewis and Yarborough Applegate as Class Counsel. B. The Court Should Approve the Form and Manner of the Proposed Notice of the Settlement Rule 23(c)(2)(B) provides: For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly PHIL v.1 19

25 mew Doc 19 Filed 02/15/18 Entered 02/15/18 21:19:48 Main Document Pg 25 of 26 FED. R. CIV. P. 23(c)(2)B). and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude form the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and, (vii) the binding effect of a class judgment on members under Rule 23(c)(3). The proposed Class Notice and Opt-Out Notice Form, which are attached hereto as Exhibit F, will be served by Class Counsel upon each Class Member by mail to each Class Member s last known address according to Defendants books and records. Such service is appropriate. Patrowicz v. TransamericaHomeFirst, Inc., 359 F. Supp.2d 140, 153 (D. Conn. 2005); Prudential, 148 F.3d at 327 (holding that mailings to last known addresses of class members and publication in national newspapers sufficient to provide notice to large, multi-state class). Class Counsel proposes to make service ten business days following entry of the order certifying the Class. The Class Notice includes each of the facts required by Rule 23(c)(2)(B). IV. CONCLUSION The Massey Plaintiffs respectfully request the Court to enter Orders: (i) granting the Motion in its entirety; (ii) certifying the Class; (iii) appointing Class Counsel and Class Representatives; (iv) approving the form and manner notice of the Class Notice; and (v) granting PHIL v.1 20