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1 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 1 of 35 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIERI, on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION AND OTHER 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), PCI 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/A), 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

2 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 2 of 35 TABLE OF CONTENTS INTRODUCTION... 1 BACKGROUND... 1 PROPOSED CLASS AND SUBCLASS DEFINITION... 7 ARGUMENT... 9 I. WARN Claims are Especially Appropriate for Class Certification... 9 II. Class Certification is Appropriate at this Time and in a Bankruptcy Case III. Merits Based Inquiries are Limited at this Stage IV. The Proposed Classes Satisfy the Requirements of Rule A. The Proposed Classes Meets the Requirements of Fed. R. Civ. P. 23(a) The Numerosity Requirement is Satisfied Questions of Law and Fact Are Common to All Members of the Proposed Class and the Claims of the Class Representative are Typical of Those of the Class Plaintiffs Will Fairly and Adequately Protect the Interests of the Class B. The Proposed Class Meets the Requirements of Rule 23(b)(3) V. The Court Should Appoint the Undersigned Class Counsel VI. The Court Should Appoint Plaintiffs as Class Representatives VII. The Form and Manner of Service of Notice is Proper VIII. The First-Filed Rule Warrants Dismissal or Stay of the Duplicative Massey Action CONCLUSION i

3 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 3 of 35 Cases TABLE OF AUTHORITIES Page(s) Adam v. Jacobs, 950 F.2d 89 (2d Cir. 1991)...26 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...12, 16 Applegate v. Formed Fiber Technologies, LLC, No. 10 CV GZS, 2012 WL (D. Me. July 27, 2012)...10 In re Barney s, Inc., 206 B.R. 336 (Bankr. S.D.N.Y. 1997)...26 Bd. of Trustees of the AFTRA Ret. Fund v. JPMorgan Chase Bank, N.A., 269 F.R.D. 340 (S.D.N.Y. 2010)...9 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998)...10 Bourlas v. Davis Law Associates, 237 F.R.D. 345 (E.D.N.Y. 2006)...16, 23 Butler v. Suffolk County 289 F.R.D. 80 (E.D. N.Y. 2013)...8 Casale v. Kelly, 257 F.R.D. 396 (S.D.N.Y. 2009)...8 Cashman v. Dolce Int'l/Hartford, Inc., 225 F.R.D. (D. Conn. 2004)... passim Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)...25 Conn v. Dewey & LeBoeuf LLP, 487 B.R. 169 (Bankr. S.D.N.Y. 2013)...10 In re Connaught Grp., Ltd., 491 B.R. 88 (Bankr. S.D.N.Y. 2013)...10, 13, 14 Curtis v. Citibank, N.A., 226 F.3d 133,138 (2d Cir. 2000)...24 ii

4 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 4 of 35 Day v. Celadon Trucking Servs., Inc., 827 F.3d 817 (8th Cir. 2016)...9 In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992)...16 Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968), cert. denied, 417 U.S. 156 (1974)...16, 17 Finnan v. L.F. Rothschild & Co., 726 F. Supp. 460 (S.D.N.Y. 1989)...10 First City Nat l Bank and Trust Co. v. Simmons, 878 F.2d 76 (2d Cir.1989)...26 Flores v. Anjost Corp., 284 F.R.D. 112 (S.D.N.Y. 2012)...22 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982)...14 Grimmer v. Lord, Day & Lord, 937 F. Supp. 255 (S.D.N.Y. 1996)...10 Guippone v. BH S & B Holdings LLC, 09 Civ. 1029(CM), 2011 WL (S.D.N.Y. Mar. 30, 2011)... passim Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654 (S.D.N.Y. 1997)...25 James v. AT & T Corp., 334 F. Supp. 2d 410 (S.D.N.Y. 2004)...24, 25, 26 Lundquist v. Sec. Pac. Auto. Fin. Servs. Corp., 993 F.2d 11 (2d Cir.1993)...8 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir.1997)...16 In re MF Global Holdings, Ltd. 464 B.R. 619 (Bankr. S.D.N.Y. 2012)...21, 26 In re MF Global Inc., 512 B.R. 757 (Bankr. S.D.N.Y. 2014)...11 Morency v. Village of Lynbrook, 1 F.Supp.3d 58 (E.D.N.Y. 2012)...25 iii

5 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 5 of 35 Naula, et al. v. Rite Aid of New York, 2010 WL (S.D.N.Y. March 23, 2010)...27 Nolan v. Reliant Equity Investors, LLC, 3:08 CV 62, 2009 WL (N.D. W.Va. Aug. 10, 2009)...18 In re Partsearch Technologies, Inc., 453 B.R. 84 (Bankr. S.D.N.Y. 2011)...12, 13, 17 In re PE Corp. Securities Litig., 228 F.R.D. 102 (D. Conn. 2005)...19 In re Pfizer Inc. Sec. Litig., 282 F.R.D. 38 (S.D.N.Y. 2012)...8 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)...19 Pinsker v. Borders, 465 B.R. 365 (Bankr. S.D.N.Y. 2012)...17 Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346 (E.D.N.Y. 2011)...18 Rivera v. Bowen, 664 F.Supp. 708 (S.D.N.Y.1987)...25 Robidoux v. Celani, 987 F.2d 931 (2d Cir.1993)...8, 12 Romer v. La Revise Associates, LLC, 58 F.Supp.3d 411 (S.D.N.Y. 2014)...23 Shepherd v. ASI, Ltd., 295 F.R.D. 289 (S.D. Ind. 2013)...14 In re Sumitomo Copper Litig., 194 F.R.D. 480 (S.D.N.Y. 2000)...19 In re Transcare Corp., 522 B.R. 69 (Bankr. S.D.N.Y. 2016)...21, 24, 25, 26 Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 194 L. Ed. 2d 124 (2016)...11, 18 Wal-Mart Stores, Inc., v. Visa USA Inc. (In re Visa Check/MasterMoney Antitrust Litig.), 280 F.3d 124 (2d Cir. 2001)...18 iv

6 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 6 of 35 Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1983)...23 Statutes 29 U.S.C. 2101(a)(1) U.S.C. 2101(a)(5) U.S.C. 2102(a) U.S.C U.S.C. 2104(a)(5)...10 Worker Adjustment and Retraining Notification Act 29 U.S.C et seq... passim Other Authorities Brad Plummer, U.S. Nuclear Comeback Stalls as Two Reactors are Abandoned, The New York Times, July 31, Fed. R. Bankr. P Fed. R. Civ. P passim Fed. R. Civ. P. 23(a)... passim Fed. R. Civ. P. 23(a)(1)...12, 13 Fed. R. Civ. P. 23(a)(2)...13 Fed. R. Civ. P. 23(a)(3)...13 Fed. R. Civ. P. 23(a)(4)...16, 17 Fed. R. Civ. P. 23(b)...11 Fed. R. Civ. P. 23(b)(3)...18, 19, 21, 22 Fed. R. Civ. P. 23(c)...10 Fed. R. Civ. P. 23(c)(1)(A)...10 Fed. R. Civ. P. 23(c)(2)(B)...22, 23 Fed. R. Civ. P. 23(c)(3)...23 v

7 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 7 of 35 Fed. R. Civ. P. 23(c)(5)...8 Fed. R. Civ. P 23(d)...8 vi

8 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 8 of 35 INTRODUCTION On behalf of themselves and the putative class of terminated employees, Plaintiffs Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri ( Plaintiffs ) submit this motion for class certification pursuant to Fed. R. Civ. P. 23 and Fed. R. Bankr. P. 7023, for an order: (a) certifying a class as defined below; (b) appointing Outten & Golden LLP ( O&G ), Lankenau & Miller LLP and The Gardner Firm, P.C. as Class Counsel; (c) appointing Plaintiffs as the Class Representatives; (d) approving the form and manner of Notice, and (e) granting any other appropriate relief. In support of their motion, Plaintiffs submit this memorandum of law along with their supporting declarations (Exhibit A, Declaration of Kent Gladden; Exhibit B, Declaration of Andrew Fleetwood, and Exhibit C, Declaration of Rodney Cavalieri), along with the declarations of proposed Class Counsel, Jack A. Raisner ( Raisner Dec. )(Exhibit D), and Mary E. Olsen ( Olsen Dec. )(Exhibit E), as well as a proposed notice to the class and proposed order which are attached hereto as Exhibits F and G, respectively. Plaintiffs further request that this Court dismiss the action titled Massey v. Westinghouse Electric Company, LLC, et al, Adv. Proc. No (MEW) or in the alternative, consolidate it with the instant action. BACKGROUND The V.C. Summer nuclear reactor construction was an ambitious project spearheaded by two South Carolina utilities, SCANA, an energy-based holding company and its principal subsidiary, South Carolina Electric & Gas Company (together SCANA ). The goal was to enhance SCANA s nuclear energy generating business by adding two new nuclear reactors to the site. These reactors would be the first nuclear reactors built in the United States in 30 years, and would feature advanced technology developed by Debtor Westinghouse Electric Company LLC. ( WEC ). The V.C. Summer Nuclear Reactor construction site was located in Jenkinsville, South Carolina (the Facility ). (Exh. 5 to Raisner Dec., 6).

9 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 9 of 35 WEC was the prime contractor retained by SCANA. WEC provided the proprietary designs for its new, AP-1000 reactor and about 100 of its own engineers and specialists with the know-how to build, operate and maintain the reactor. WEC also was responsible for contracting with construction companies who would provide the bulk of the thousands of skilled workers, including engineers and craft (manual laborers) needed to carry out the construction. Beginning in January 1, 2016, the employees of those subcontracted companies were merged into various sub-entities of WEC. Two WEC subsidiaries absorbed into their own ranks most of these ex-contractor employees. Defendants WECTEC Global Project Services, Inc. ( WECTEC GPS ) absorbed about 750 employees (from Chicago Bridge and Iron, Inc.) and WECTEC Staffing Services, LLC ( WECTEC Staffing ) absorbed over 100 employees (from System One). When added to original group of over 100 WEC employees, the number of employees working at the Facility for WEC entities was approximately 1,000 in (Exh. 5 to Raisner Dec., 22). The employees were not grouped by entity in any meaningful way in carrying out the construction. As detailed in the Amended Complaint and Plaintiffs Declarations, the designation of workers as employees of certain entities made no functional difference in the operations of the Facility; employees were hired, assigned duties, directed controlled and evaluated by the Defendants managers, irrespective of these various corporate designations. (Exh.B,and C)(Exh. 5 to Raisner Dec., 22-28). The nominal entities with which employees were associated played no role and had no importance in actual management or operations of the Facility. (Exh. B and C) (Exh. B, 18). The organization of the workforce at the Facility was structured solely around functionality. (Exh. C, 23). Defendants filled positions with the persons best qualified to do what needed to get done, regardless of their entity designations. (Exh. 5 to Raisner Dec., 35-36). Although the bands of job skills of the WEC 2

10 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 10 of 35 employees were generally of a higher order than the WECTEC GPS employees, due to the premerger legacy, WECTEC Staffing employees spanned many levels. Any employee of one entity might be the supervisor of an employee of another level. The project was riddled with delays and cost overruns. In late July 2017, with the project less than 40 percent built and projected to cost more than twice the initial estimate, SCANA cancelled the project and ordered it shut down, putting up to 6,000 people out work. 2 (Exh. 5 to Raisner Dec., 51). This instruction applied in the same manner to all employees and made no distinctions between employees based on whether they were designated by one Westinghouse name or another. (Exh. 5 to Raisner Dec., 52). On July 31, 2017, or within 30 days thereafter, Defendants terminated the employees at the Facility, including Plaintiffs Kent Gladden and Andrew Fleetwood, and Rodney Cavalieri, and about 1,000 others. (Exh. A, 4, 7) (Exh. B, 4, 16) (Exh. C, 3, 9) (Exh. 5 to Raisner Dec., 9, 51, 53). Before they were terminated, Plaintiff Gladden was nominally employed by Westinghouse Electric Company LLC ( WEC LLC )(Exh. 5 to Raisner Dec., 6), Plaintiff Fleetwood was nominally employed by WECTEC LLC, and/or WECTEC Global Project Services Inc., and/or Stone & Webster Services LLC (Exh. 5 to Raisner Dec., 7), and Cavalieri was nominally employed by WECTEC Staffing Services Inc. (Exh. A, 7)(Exh. B, 10) (Exh. 5 to Raisner Dec., 8). The Plaintiffs, regardless of their nominal employer, were jointly- or singly employed by WEC. (Exh. 5 to Raisner Dec., 6, 7, 8). 2 Brad Plummer, U.S. Nuclear Comeback Stalls as Two Reactors are Abandoned, The New York Times, July 31,

11 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 11 of 35 On August 10, 2017, Plaintiffs Gladden and Fleetwood filed two separate WARN Adversary Proceeding Complaints in this Court alleging that the terminations on July 31 st were carried out without 60 days advance notice as required by the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. ( WARN Act ) Gladden v. Westinghouse Electric Company, LLC, Adv. Proc. No (MEW) (D.I.1) (the Gladden Complaint or Gladden Action ) (attached as Exhibit 2 to Raisner Dec.) and Fleetwood v. WECTEC et al. Fleetwood Complaint or Fleetwood Action ) Adv. Proc. No (MEW) (D.I.1)(attached as Exhibit 1 to Raisner Dec.). On December 27, 2017, the Court ordered the administrative consolidation of the Gladden and Fleetwood Adversary Proceedings, along with a third adversary proceeding filed on November 9, 2017, based on the same events with near-identical claims, titled Massey v. Westingthouse Electric Company, LLC, et al, Adv. Proc. No (MEW) (D.I. 1) (the Massey Complaint or Massey Action ) (attached as Exhibit 3 to Raisner Dec.), (Adv. Proc. No , D.I. 10, 12) (Adv. Proc. No , D.I. 9, 12) (the Amended Complaint )(Exh. 5 to Raisner Dec.). January 19, 2018, the Gladden and Fleetwood Plaintiffs filed an Amended Complaint substantively consolidating their WARN actions and adding several defendant-debtor entities. Also added is plaintiff-putative class representative, Rodney Cavalieri, the former Director of Project Management who was one of WEC s top-ranked managers over the Facility construction, and was nominally employed by WECTEC Staffing. (Exh. B, 10)(Exh. 5 to Raisner Dec., 8) The Amended Complaint alleges that Defendants employed more than 100 employees who worked at least 4,000 hours per week ad that Defendants effected mass layoffs or plant closings that resulted in the loss of employment for at least 50 employees and at least 33% of 4

12 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 12 of 35 the workforce, excluding part-time employees, as defined by the WARN Act. (Exh. 5 to Raisner Dec., 70, 72, 73). It further alleges that Plaintiffs and the other similarly situated former employees were terminated on or about July 31, 2017, were discharged without cause; that all of these former employees, as well as other employees who suffered a loss of employment as the reasonably foreseeable consequence of the mass layoffs or plant closings are affected employees, as defined by 29 U.S.C. 2101(a)(5), that these former employees did not receive from Defendants 60 days advance written notice as required by the WARN Act; and that Defendants failed to pay them wages and fringe benefits, as required by the WARN Act. (Exh. 5 to Raisner Dec., 74-79). The Amended Complaint also alleges that Defendants violated the South Carolina state law for failing to pay unpaid wages under the South Carolina Payment of Wages Act and -50.(Exh. 5 to Raisner Dec., 81-82). 3 The Amended Complaint clarifies the allegation that Fleetwood s nominal employer was WECTEC Global Project Services, Inc. The Amended Complaint also adds smaller WEC subentity debtors, WEC Carolina Energy Solutions, Inc. or WEC Carolina Energy Solutions, LLC (together CES ). (Exh. 5 to Raisner Dec., 18, 19). The Amended Complaint contains details regarding how Defendants acted as a single employer in carrying out operations at the Facility. (Exh. 5 to Raisner Dec., 28-50, 55, 61(d)). 3 The Plaintiffs do not move for class certification with respect to the Second Cause of Action - Unpaid Wages Claims, South Carolina at this time. Plaintiffs understand that Defendants have endeavored to pay these claim since the filing of the original Complaints. To the extent any such claims have not been paid, Plaintiffs reserve the right to file a proof of claim or request that the Adversary Proceeding in this matter be deemed an informal proof of claim for such amounts, and to seek class certification on behalf of such claimants to secure such amounts, if necessary. See, In re Connaught Grp., Ltd., 491 B.R. 88, 94 (Bankr. S.D.N.Y. 2013). 5

13 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 13 of 35 On November 9, 2017, the law firm Klehr Harrison filed a WARN adversary proceeding, styled Massey v. Westinghouse Electric Company, LLC, WECTEC LLC, WECTEC Staffing Services, LLC, and WECTEC Global Project Services, Inc., mew D.I The thirdfiled Massey Complaint essentially mirrors the original Gladden and Fleetwood Complaints, and their Amended Complaint in its substantive allegations. In related litigation, on August 8, 2017, Outten & Golden, filed a separate WARN Act action against SCANA and SCE&G (together, SCANA ), and Westinghouse subcontractor, Fluor Corp., based in large part on SCANA s order to shutdown the Facility on July 31 st. That action, titled Pennington v. Fluor Enterprises, Inc., et al., Case No (JMC)(D.S.C.) (D.I. 1) (attached as Exhibit 4 to Raisner Dec.) (the Pennington Complaint or Pennington Action ), describes how SCANA was involved in the operations at the Facility. The Pennington Complaint was filed as a class action on behalf of all affected Facility employees. Ten days after Outten & Golden filed the Pennington Action, the Klehr Harrison (the counsel in the Massey Complaint, above) filed a narrower, but otherwise duplicate suit against only the Fluor Corp. along with several other counsel, styled as Butler, et al. v. Fluor Corporation and Fluor Enterprises, Inc., 17-cv JMC (D.S.C.) (the Butler Action ). The Butler Action did not seek to represent any Westinghouse employees, nor sued the SCANA. Butler Counsel sought for appointment as interim class counsel, but it was denied. On October 25, 2017, Pennington amended his Complaint to add WEC employee Timothy Lorentz as a plaintiff-putative class representative of all WEC and WEC-entity employees affected by the July 31, 2017 shut down against Defendants SCANA/SCE&G. Case No 17-cv (JMC)(D.S.C.)(D.I. 41) (attached as Exhibit 6 to Raisner Dec.) It contains details of the employment structure affecting more than 1,000 workers at the Facility, including 6

14 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 14 of 35 the division of manual labor, construction work, engineering, supervision, project controls, scheduling and other tasks that were performed by a consortium of corporate entities, including Debtors (Exh. 4 to Raisner Dec., 46-54). The proposed Class definition is: PROPOSED CLASS AND SUBCLASS DEFINITION All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class. The proposed class definition is intended to encompass all of the WEC entity employees of the Facility affected by its shutdown as a single group, with a class representative for each of the three main sub-constituencies: WEC, WECTEC GPS, and WECTEC Staffing. To the extent subclasses for these sub-groups would be necessary or beneficial for management purposes, Plaintiffs would specify three potential subclasses in the definition as follows: All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class, including, as potential subclasses those who were nominally employed by (a) Westinghouse Electric Company, LLC; (b) WECTEC Global Project Services Inc. or (c) WECTEC Staffing Services LLC. 7

15 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 15 of 35 Those subclasses may be formed now, or later, if warranted. Although the Amended Complaint speaks of a single class of employees who were affected employees of the shutdown, the Court is not bound by the class definition proposed in the complaint, Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir.1993), and is empowered under [Rule 23(c)(5)] to carve out an appropriate class including the construction of subclasses, Lundquist v. Sec. Pac. Auto. Fin. Servs. Corp., 993 F.2d 11, 14 (2d Cir.1993); In re Pfizer Inc. Sec. Litig., 282 F.R.D. 38, 54 (S.D.N.Y. 2012); Butler v. Suffolk County 289 F.R.D. 80, 98 (E.D. N.Y. 2013). Rule 23 sets forth two formats for the court to manage a class action with two groups formal subclasses and case management subclasses. A case-management subclass is a convenience subclass made for particular litigation purposes. Casale v. Kelly, 257 F.R.D. 396, , 415 (S.D.N.Y. 2009) citing Newberg 7:33 (4th ed.). A case-management subclass may be created to expedite resolution of the case by segregating a distinct legal issue that is common to some members of the existing class. Id. at 409. Case-management subclasses are an appropriate procedural innovation under Rule 23(d), when there is no actual conflict among class members in the underlying claims common to the entire class. Id. at When the subclassification [is] appropriate under Rule 23(d), it is created without formally designating it as a Rule 23 subclass. Id. at 409. It is therefore unnecessary to evaluate it under Rule 23[(a)] for commonality, numerosity, typicality, and adequacy of representation. Id. If however there is a conflict between the class and subclasses, formal certification of subclasses pursuant to Rule 23(c)(5) is the proper solution. Id. at 409 (formal subclasses should be certified if a court discerns a conflict among members of a proposed class or class members assert divergent claims based on non-overlapping factual circumstances, harms, and systemic failures.) (citations omitted). That is, Rule 23(c)(5) authorizes the Court to certify 8

16 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 16 of 35 formal subclasses to alleviate any discerned conflicts of interest. Bd. of Trustees of the AFTRA Ret. Fund v. JPMorgan Chase Bank, N.A., 269 F.R.D. 340, 354 n. 138 (S.D.N.Y. 2010) citing Rule 23(c)(5) and Advisory Committee Note on Subdivision (d). Here, there is no actual conflict that is presented by the proposed subclasses. All of the employees will rely to the extent necessary on common proof that Defendants were their employer. Plaintiffs evidence satisfies a single Rule 23 class but they would not oppose convenience subclasses to efficiently manage any issue that might separate them based on their nominal employer: one subclass would comprise former employees of Defendant WEC at the Facility and the two other subclasses would comprise WEC s directly owned entities: WECTEC Global Project Services Inc. and WECTEC Staffing Services LLC. Each group can easily satisfy all the Rule 23 prerequisites of a class standing alone. In the event that a conflict arises, the Court institute the subclass division. ARGUMENT I. WARN Claims are Especially Appropriate for Class Certification The WARN Act provides a simple mandate: before instituting a plant closing or mass layoff, an employer must provide sixty days written notice to employees and to relevant local government entities. See 29 U.S.C. 2102(a). A covered employer is one that employs at least 100 full-time employees. See 29 U.S.C. 2101(a)(1). The WARN Act itself contemplates class-action adjudication. Day v. Celadon Trucking Servs., Inc., 827 F.3d 817, 833 (8th Cir. 2016) citing 29 U.S.C. 2104(a)(5) ( A person seeking to enforce such liability... may sue either for such person or for other persons similarly situated, or both, in any district court of the United States... (emphasis added in the opinion). 9

17 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 17 of 35 The WARN Act provides a cause of action for any employee who suffers a covered employment loss without having received the statutorily-required notice. See 29 U.S.C Notably, Congress gave WARN Act plaintiffs the right to bring representative actions to enforce the Act: A person seeking to enforce such liability may sue either for such person or for other persons similarly situated, or both, in any district court of the United States. 29 U.S.C. 2104(a)(5). WARN Act claims have been recognized and certified by Courts in the Southern District of New York as being particularly amenable to class litigation. Finnan v. L.F. Rothschild & Co., 726 F. Supp. 460, 465 (S.D.N.Y. 1989); In re Connaught Grp., Ltd., 491 B.R. 88, (Bankr. S.D.N.Y. 2013); Guippone v. BH S & B Holdings LLC, 09 Civ. 1029(CM), 2011 WL , at *2 (S.D.N.Y. Mar. 30, 2011); Conn v. Dewey & LeBoeuf LLP, 487 B.R. 169, 179 n. 8 (Bankr. S.D.N.Y. 2013) (collecting cases); Grimmer v. Lord, Day & Lord, 937 F. Supp. 255 (S.D.N.Y. 1996) ( [T]he WARN Act provisions lend themselves to class action because they provide for limited recovery. ). II. Class Certification is Appropriate at this Time and in a Bankruptcy Case The proper time for the court to consider class certification is early in the case indeed, it is mandated. See Fed. R. Civ. P. 23(c)(1)(A) ( At an early practicable time after a person sues or is sued as a class representative the court must determine by order whether to certify the action as a class action. ) (emphasis added). Deciding class certification early lets the parties know what is at stake in the case. See Bennett v. Schmidt, 153 F.3d 516, 520 (7th Cir. 1998) ( Everyone (including the putative class members) is entitled to know promptly whose interests are on the line. ). Rule 23(c) s purpose is to give a clear definition of the parameters of the class, to outline the claims involved in the class action, and to apprise the defendant of its potential liability as soon as practicable. 10

18 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 18 of 35 A denial of class certification, on the other hand, invites a multiplicity of activity that Rule 23 was designed to avoid and jeopardizes the efficient and orderly administration of the estate by inter alia, opening up the possibility that a new bar date will be needed for WARN claimants. In re MF Global Inc., 512 B.R. 757, (Bankr. S.D.N.Y. 2014) ( The principal consideration must be the effect of the class certification on the administration of the estate. ) (quoting The Connaught Grp., Ltd. (In re The Connaught Grp., Ltd.), 491 B.R. 88, 98 (Bankr. S.D.N.Y. 2013)). As there are two WARN Act complaints related to the shutdown of July 31 st, it is in the interests of efficiency, effective case management and conservation of the Debtors resources that a class be certified now in the Gladden Action with its putative Class Representatives who represent the broadest swath of WEC employees, and three highly experienced putative Class Counsel firms, one of which (Outten & Golden) represents the only WEC employee to step forward to represent all WEC employees in the District Court of South Carolina WARN litigation against the SCANA owners. III. Merits Based Inquiries are Limited at this Stage Merits-based inquiries are very limited at the class certification stage. As to any contention that class certification be denied due to a failure of proof as to an element of the plaintiffs cause of action courts should engage that question as a matter of summary judgment, not class certification. Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047, 194 L. Ed. 2d 124 (2016) (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 107 (2009). IV. The Proposed Classes Satisfy the Requirements of Rule 23 Class certification requires a two-step inquiry. First, Plaintiffs must satisfy the four prerequisites of Fed. R. Civ. P. 23(a), then at least one of the subsections of Rule 23(b). Here Plaintiff satisfies the subsection 23(a) requirements and those of subsection 23(b)(3). 11

19 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 19 of 35 A. The Proposed Classes Meets the Requirements of Fed. R. Civ. P. 23(a) Fed. R. Civ. P. 23(a) requires a showing of the following in order to certify a class: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Cashman, 225 F.R.D. at The Numerosity Requirement is Satisfied Federal Rule of Civil Procedure 23(a)(1), requires that the class sought to be certified be so numerous that joinder of all members is impracticable. Cashman, 225 F.R.D. at 91 (finding numerosity for WARN class of 117 former employees); Guippone v. BH S&B Holdings LLC, 2011 WL , at *4 (S.D.N.Y. Mar. 30, 2011) ( [j]oinder need not be impossible ) (citing Grimmer v. Lord, Day & Lord, 937 F.Supp. 255 (S.D.N.Y. 1996)). No specific number is needed to maintain a class action, but Courts in the Second Circuit presume that joinder is impracticable where the prospective class consists of 40 members or more. Robidoux v. Celani, 987 F.2d 931, (2d Cir. 1993); In re Partsearch Technologies, Inc., 453 B.R. 84, (Bankr. S.D.N.Y. 2011) (holding 192 WARN class members sufficiently large to make joinder impracticable). Where, as here, the members of the proposed class have limited financial resources and the size of their individual claims make individual suits financially unfeasible, those factors cut in favor of a determination that the numerosity requirement has been satisfied. See Cashman, 225 F.R.D. at 91. Individually, the class members claims are negative value claims because the cost of litigating each one separately exceeds the potential recovery. Solo WARN actions are neither economical nor feasible. Hence, WARN claims are virtually never brought absent a class action. [P]roceeding individually would likely be impractical for individual members because each holds a relatively small claim. In such circumstances, as with those before the Court, the 12

20 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 20 of 35 class action device is frequently superior to individual actions. In re Partsearch Technologies, Inc., 453 B.R. at 97 (certifying WARN class). Here, Plaintiffs have a combined WARN claim for approximately $121,000 not including benefits. (Exh. A, B and C). Because of the small size of their claims compared to the complexity of litigating against multiple debtors, their current financial situation, and the cost of litigation and attorneys fees, they are unable to pursue their claims individually. They also believe that the other former employees of Defendants who were terminated on or about July 31, 2017 are similarly situated and unable to pursue their rights under the WARN Act and for unpaid wages except through a class action. The proposed class includes approximately 1,000 former employees of Defendants. Joinder of that number of litigants is entirely impracticable. Moreover, no Plaintiffs nor those similarly situated would be able to pursue their claims as sole litigants because they would be negative value claims if brought alone. Accordingly, Plaintiffs satisfy the numerosity requirement of Fed. R. Civ. P. 23(a)(1). 2. Questions of Law and Fact Are Common to All Members of the Proposed Class and the Claims of the Class Representative are Typical of Those of the Class The commonality requirement requires the existence of at least one question of law or fact common to the Class. Fed. R. Civ. P. 23(a)(2). It is so similar to the typicality requirement that they are often combined. Typicality requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). The commonality and typicality requirements are fairly easily met in an action brought under the WARN Act. Cashman, 225 F.R.D. at 92. See also, In re Connaught Grp., Ltd., 491 B.R. at 94 ( The commonality and typicality requirements tend to merge as they are subject to similar 13

21 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 21 of 35 considerations ) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997)); see also, Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13 (1982). The commonality factor is satisfied if there is at least one issue common to the class, and the typicality factor is usually satisfied when the representative plaintiffs are subject to the same policies as the putative class members. Cashman, 225 F.R.D. at 91. Typicality is satisfied when each class member s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant s liability. Id. (citing Presser v. Key Food Stores Co-op., Inc., 218 F.R.D. 53, 58 (E.D.N.Y. 2003) (finding that a WARN Act plaintiff met the commonality and typicality requirements)). In Guippone v. BH S&B Holdings LLC, the Court found the plaintiff and proposed class were united by the common legal question of whether the employer complied with the statutory notice requirements of WARN. No. 09 CIV CM, 2011 WL , at *5. The common issues in this WARN case satisfy the commonality requirement because they show that Defendant ha[s] engaged in standardized conduct towards members of the proposed class. Shepherd v. ASI, Ltd., 295 F.R.D. 289, 297 (S.D. Ind. 2013) (certifying WARN class despite claims that a broad swath fell outside the WARN Act s protection) (citing Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998)). Typicality should be determined with reference to the company s actions, not with respect to particularized defenses it might have against certain class members. As in Cashman and Connaught, aside from damages, the Class Members here have precisely the same legal claims as Plaintiffs. Cashman, 225 F.R.D. at 92 ( The commonality and typicality requirements are fairly easily met in an action brought under the WARN Act ); In re Connaught Grp., Ltd., 491 B.R. at 95 ( Furthermore, the Plaintiffs claims are typical because she alleges that, like the 14

22 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 22 of 35 approximate 100 members of the class, she is a former employee of Connaught who was a victim of the mass layoff effected on or about January 30, 2012, without the requisite WARN Act notice. ). Plaintiffs claim that they and the other Class Members were terminated as part of a common plan stemming from the shutdown of the V.C. Summer Nuclear Station and cancellation of the project. Specifically, the factual and legal questions stem from a common core of facts regarding Defendants actions and a common core of legal issues regarding every Class Member s rights, as follows: whether (a) Defendants employed more than 100 employees as a single employer ; (b) all the Class Members are protected by the WARN Act; (c) the Class Members were employees of Defendants who worked at or reported to the Facilities; (d) Defendants discharged the Class Members within 30 days of July 31, 2017 in connection with the mass layoffs or plant closing or as their reasonably foreseeable result of the mass layoffs or plant closing; (e) the Class Members were affected employees, (f) Defendants terminated the employment of the Class Members without cause; (g) Defendants terminated the employment of the Class Members without giving them at least 60 days prior written notice as required by the WARN Act; (h) Defendants failed to pay the Class Members 60 days wages and benefits; and (i) Defendants failed to pay the Class Members all of their wages owed upon termination. All of these legal and factual issues are common to the Class. The terminations of Plaintiffs and the Class Members resulted from the same course of events that led to their termination on or about July 31, Hence, they all suffered the same type of injury. Defendants failure to comply with the requirements of the WARN Act represents a single course of conduct resulting in injury to all Class Members, including Plaintiffs. The legal theory 15

23 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 23 of 35 upon which Plaintiffs proceed make them typical of the Class. Thus, Plaintiffs satisfy the commonality and typicality requirements of Rule 23(a). 3. Plaintiff Will Fairly and Adequately Protect the Interests of the Class Federal Rule of Civil Procedure 23(a)(4) provides that a class action is maintainable only if the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). This element requires a two-step analysis. First, the court must determine whether the named class representatives have interests that are free from conflicts of interest with the class they seek to represent. Amchem Prods v. Windsor, 521 U.S. 591, 625 (1997). Second, the court must find that the class would be represented by qualified counsel. Bourlas v. Davis Law Associates, 237 F.R.D. 345, 352 (E.D.N.Y. 2006); Marisol A. ex.re. v. Guliani, 126 F.3d 372, 378 (2d Cir. 1997); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968), cert. denied, 417 U.S. 156 (1974). The first element of Rule 23(a)(4) is met in this case because, as set forth above, there is no divergence between the interests of the proposed Class Representatives and the Class. Here, they all have a united, unqualified interest in proving Plaintiffs allegations that Defendants violated the WARN Act. There is no reason to suspect the class representatives have filed this suit for an ulterior motive or that, as former employees who were terminated in good standing, they are not honest and trustworthy people. Guippone, 2011 WL , at *7 (adequacy of proposed class representative met because no divergence exists between the interests of the proposed Class Representative and the interests of the Class as a whole. Guippone's interest is exactly the same as that of any other employee who was entitled to WARN Act notice. ); Cashman, 225 F.R.D. at 93 (proposed class representative satisfies adequacy requirement where 16

24 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 24 of 35 it seems apparent from the Amended Complaint that Ms. Lee's interests in this litigation are congruent with those of the class members. ) The second element of Rule 23(a)(4) is met because Plaintiffs counsel are qualified, experienced and generally able to conduct the proposed litigation. Eisen, 391 F.2d at 562; see e.g., Guippone, 2011 WL , at *7 (finding Outten & Golden qualified to act as WARN class counsel because [t]he firm is well known to the court and has the requisite experience to prosecute a WARN Act case on behalf of the class. ); Pinsker v. Borders, 465 B.R. 365, 376 (Bankr. S.D.N.Y. 2012) ( Additionally, Lankenau & Miller and The Gardner Firm, PC ( Class Counsel ) are experienced in WARN Act class action litigation. These two firms have handled approximately seventy similar class action suits...recently, Class Counsel successfully represented WARN Act plaintiffs before this Court in In re Partsearch Techs., Inc., 453 B.R. 84 ). Proposed Class Counsel, Outten & Golden, Lankenau & Miller, LLP and The Gardner Firm, P.C. have each litigated WARN Actions for over a decade, including working cooperatively in some cases. Together, they will adequately protect the interests of the classes, as more fully described in the Raisner Declaration (Exh. D) and Olsen Declaration (Exh. E). If Massey Counsel had filed first, proposed Class Counsel here likely would have declined to file on top of them, given their qualifications. Here, however, the Massey Complaint was filed months afterwards and contains substantively the same allegations as those alleged in the Amended Complaint, here, so it is unnecessary to have two WARN actions running on parallel tracks. Proposed Class Counsel can and will adequately represent the interests of the Massey Plaintiffs. For all the foregoing reasons, all four prerequisites of Rule 23(a) for Class certification are met by the proposed class. 17

25 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 25 of 35 B. The Proposed Class Meets the Requirements of Rule 23(b)(3) Class Certification is proper under Rule 23(b)(3) where the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346, 359 (E.D.N.Y. 2011). The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)); Wal-Mart Stores, Inc., v. Visa USA Inc. (In re Visa Check/MasterMoney Antitrust Litig.), 280 F.3d 124, 136 (2d Cir. 2001). When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members. Tyson Foods, 136 S. Ct. at 1045 (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1778, pp (3d ed. 2005)). Generally, [i]f the liability issue is common to the class, common questions are held to predominate over individual ones. Nolan v. Reliant Equity Investors, LLC, 3:08 CV 62, 2009 WL , at *5 (N.D. W.Va. Aug. 10, 2009) (in WARN case, common issues predominate because of three questions: First, whether AB & C Group was subject to the requirements of the WARN Act. Second, whether the appropriate WARN notice was given. Third, whether the defendants are legally liable for the alleged violation. ). See also, Cashman, 225 F.R.D. at 95 (common issues predominate because [e]stablishing WARN Act liability turns on fairly 18

26 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 26 of 35 straightforward issues common to the entire class, including: whether Defendants are employer[s] under the Act; whether a mass layoff or plant closing took place on or about December 30, 2003; and, if so, whether Defendants gave the proper notice required by the Act. ). Considerations of judicial economy and efficiency are of high importance in determining superiority and, where, as here, determination of the common, predominant issues shared by the Class Members will dispose of the matter, class certification should be ordered. In re Sumitomo Copper Litig., 194 F.R.D. 480 (S.D.N.Y. 2000); In re PE Corp. Securities Litig., 228 F.R.D. 102, 110 (D. Conn. 2005) (efficiency and superiority requirement of Rule 23(b)(3) is satisfied where there is only one principal issue in the case). A class action is the superior method of resolving this dispute because many of the claims are small, making individual lawsuits impracticable. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985). In addition to the above criteria, Fed. R. Civ. P. 23(b)(3) sets forth four factors to guide the court s determination as to whether a class action is superior and whether issues of fact and law common to class members predominate over individual matters. They are: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Rule 23(b)(3). The same type of analysis shows predominance is met here. The questions of law or fact common to the members of the class predominate over any questions affecting only individual members. The major factual and legal questions facing the class include whether Defendants are a covered employer under the WARN Act, whether the terminations were related to a plant closing or mass layoffs, whether Defendants provided notice to terminated employees, whether 19

27 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 27 of 35 Defendants otherwise provided adequate compensation, and whether Defendants have any affirmative defenses applicable to the class. Each of these questions applies to the class as a whole. While the question of damages will have to be calculated on an individual basis, they are predicated on a finding of liability, and the calculation of such damages would be largely mechanical and formulaic. In Guippone, the Court found the class action device to be the superior means of adjudicating the dispute: [N]either Plaintiff nor any of the other Class Members has an interest in individually controlling the prosecution of separate actions. (See Decl. of Michael Guippone ) To Plaintiffs knowledge, no other litigation concerning the controversy has been commenced against Holdco. (See Decl. of Michael Guippone 13.) Concentrating any WARN litigation in a single class action will avoid multiple suits. Finally, the difficulties in managing this litigation as a class action are few: the Class Members can be easily identified; the potential liability of Defendants can be readily calculated; and there is but one combined course of conduct-that of Defendants-to examine and adjudicate. Guippone, 2011 WL , at *8. Here, concentrating the WARN and wage litigation in a class action will similarly avoid multiple suits and assist in efficient administration of the bankruptcy estate. The difficulties in managing this litigation as a class action are few: Class Members can be easily identified; the potential liability of Defendants can be readily calculated; and there is only one combined course of conduct that of Defendants to examine and adjudicate. The class members claims are each quite small, making individual lawsuits impracticable. See, Cashman, 225 F.R.D. at 95 ( requiring each of the 117 putative class members to establish Defendants liability in individual lawsuits would be intolerably onerous on the employees and would be inefficient for both Defendants and the courts. Finally, this class of putative plaintiffs will be reasonably easy 20

28 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 28 of 35 for class counsel to manage, considering that each putative Plaintiffs name and address likely can be obtained through Defendants payroll records. ). A class action is thus the superior method of adjudicating Plaintiffs and the proposed class s claims. It is clearly in the interest of judicial economy and efficiency to consolidate as many as several thousand potential claims into a single action, which will allow the myriad common questions of law and fact to be determined in one fell swoop, rather than by consideration in a haphazard and piecemeal fashion. Finally, it is superior for Plaintiffs and the proposed class to litigate this action as a class because their claims would not be economically viable if brought independently. For the foregoing reasons, Plaintiffs have satisfied both prongs of Rule 23(b)(3), predominance and superiority, and the class should be certified. V. The Court Should Appoint the Undersigned Class Counsel As shown in the Raisner Declaration and described above, Plaintiffs counsel has been actively and diligently prosecuting this action, expending attorney and paralegal time in furtherance of the litigation. Moreover, Plaintiffs are being represented by attorneys who are highly experienced in class action litigation and experienced in prosecuting WARN Act claims, having collectively been appointed Class Counsel in well over one hundred WARN actions, including ones filed in this Court. (See Raisner Dec., Exh. B)(Olsen Dec., Exh. E); In re TransCare Corp, 552 B.R. 69, (Bankr. S.D.N.Y. 2016); In re MF Global Holdings, Ltd. 464 B.R. 619 (Bankr. S.D.N.Y. 2012). Specifically, as described in the Raisner Declaration (Exh. D), proposed Class Counsel have joined together to consolidate their actions by filing one Amended Complaint, thus eliminating duplicative litigation. Proposed Class Counsel has shown the diligence and expertise necessary to guide this action efficiently and will continue to do so as Class Counsel. 21

29 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 29 of 35 VI. The Court Should Appoint Plaintiffs as Class Representatives Plaintiffs have been diligent in pursuing the class claim and working with counsel in initiating and prosecuting the action; they have no conflict of interest with each other or with other Class Members. All three Plaintiffs have and will fairly and adequately represent the interests of the Classes. Flores v. Anjost Corp., 284 F.R.D. 112, 130 (S.D.N.Y. 2012) (adequacy requirement of Rule 23 satisfied where Plaintiffs are familiar with, and are actively participating in, this litigation. ). Here, Plaintiffs have been actively involved in prosecuting this case, including spending considerable time working with counsel to describe the various corporate entities involved with the nuclear project at the Facility. They agreed to join together to streamline the litigation and will continue to do so as class representatives. (See Plaintiffs Dec., Exh. A, B, C). For these reasons, Plaintiffs counsel asks that Kent Gladden, Andrew Fleetwood, and Rod Cavalieri be appointed Class Representatives. VII. The Form and Manner of Service of Notice is Proper Plaintiffs further submit that service of the proposed Notice of Class Action by First Class Mail, postage prepaid, to each Class Member at the member s last known address as shown in the Defendants records is the best notice practicable under all the circumstances. (The proposed Notice is attached hereto as Exhibit F.) Fed. R. Civ. P. 23(c)(2)(B) mandates that for any class certified under Rule 23(b)(3), the Court must determine the best notice practicable under the circumstances, including individual notice to potential class members, and that the notice must concisely and clearly state in plain, easily understood language: the nature of the action, the definition of the class certified, the class claims, issues or defenses, that a class member may enter an appearance through counsel if the member so desired, 22

30 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 30 of 35 that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and the binding effect of a class judgment on class members under Rule 23(c)(3). Rule 23(c)(2)(B). See also Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1983). Although no rigid standards govern the form and contents of the notice, notice by mail is sufficient if it is reasonably calculated to apprise the interested parties of the pendency of the action and affords them an opportunity to object. Id. Individual mailings to each class member s last known address are appropriate. Guippone, 2011 WL , at *9; Bourlas v. Davis Law Associates, 237 F.R.D. 345, 356 (E.D.N.Y. 2006); Romer v. La Revise Associates, LLC, 58 F.Supp.3d 411, 419 (S.D.N.Y. 2014). Here, the contents of the proposed Notice are sufficient. The Notice summarizes in plain language the nature of the pending litigation, the Class definition, the issues, that complete information regarding the action is available upon request from Class Counsel, that any Class Member may opt-out, that if they do not opt-out, they will be bound by any judgment or settlement in the litigation, and that if they do not opt-out, they may appear by their own counsel. In short, the proposed Notice satisfies all the requirements of Rule 23(c)(2)(B). The names and addresses of all Class Members are contained in Defendants records. Once Plaintiffs have been provided with a class list and the addresses of Class Members, Plaintiffs counsel will mail the Notice of Class Action by First Class Mail, postage prepaid, to the last known address of each of the Class Members so that they will have at least 30 days from the date of the mailing to opt-out of the Class. Plainly, this is the best practicable notice under the circumstances. 23

31 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 31 of 35 VIII. The First-Filed Rule Warrants Dismissal or Stay of the Duplicative Massey Action The first-filed rule is a well-established legal doctrine intended to avoid duplicative litigation and conserve judicial resources. As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit. In re Transcare Corp., 522 B.R. 69 (Bankr. S.D.N.Y. 2016), citing Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d. Cir. 2000) (dismissing duplicative claims because [t]he power to dismiss a duplicative lawsuit is meant to foster judicial economy and the comprehensive disposition of litigation. ). In Transcare, a second plaintiff filed a class action adversary proceeding alleging WARN Act violations when an ambulance company owned by a private equity firm with numerous subsidiaries, holding companies and other entities filed for bankruptcy. In making the determination of whether to consolidate the cases or dismiss the later-filed case outright, the Transcare Court noted that courts look for substantial similarity in the claims, defendants and putative classes represented in each action. 552 B.R. at 78. The Transcare decision is consistent in the context of overlapping Rule 23 class actions when class action claimants bring the same action filed first by other class members where the second claims are fully encompassed by the first. James v. AT & T Corp., 334 F. Supp. 2d 410, (S.D.N.Y. 2004). As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit. Curtis v. Citibank, N.A., 226 F.3d 133,138 (2d Cir. 2000). The complex problems that can arise from multiple federal filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when exercising its discretion. Id. The power to dismiss a duplicative lawsuit is meant to foster judicial economy and the comprehensive disposition of litigation. Id. [T]hough no precise rule has evolved, the general principle is to avoid 24

32 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 32 of 35 duplicative litigation. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). It is not required that a later-filed complaint be identical in parties or claims to be dismissed as duplicative. In the two WARN actions before the TransCare Court, both purport to represent the same class of former employees, the defendants in both actions are nearly identical, and both complaints assert identical WARN Act claims. 522 B.R. at 77 (emphasis added). See also, Morency v. Village of Lynbrook, 1 F.Supp.3d 58, 62 (E.D.N.Y. 2012) (dismissing duplicative complaint where the interests of the parties in both the Sorrell and Morency matters are aligned as both Complaints are based on the same operative facts and include the same causes of action. ), (citing Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 664 (S.D.N.Y. 1997) (finding an action duplicative even though the later lawsuit named additional individual defendants)). In Howard, the Court explained that [f]or a second action to be duplicative, it is not necessary that the parties be identical. Rather, if the parties represent the same interests the court may determine the second action to be duplicative, Howard (citing The Haytian Republic, 154 U.S. 118, 124, 14 S.Ct. 992, , 38 L.Ed. 930 (1894)); see also Rivera v. Bowen, 664 F.Supp. 708, 710 (S.D.N.Y.1987) (because the avoidance of duplicative litigation is imperative, a second action may not be maintained where the allegations and prayer for relief are the same as in a prior action). In James v. AT & T Corp., the putative classes were composed of the same members, and were organized to vindicate the same rights. 334 F. Supp. 2d at The class representatives in the competing actions represented precisely the same interests, and each is a member of the putative class in both Leykin and James... [a]side from immaterial corrections, the claims in the Leykin and James complaints are identical. The court found the issues and 25

33 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 33 of 35 facts to be determined, the witnesses and evidence required, and the relief requested were exactly the same." Id. (citation omitted). Accordingly, the court found the dismissal of the second-filed, duplicative complaint was warranted. Bankruptcy courts have the discretion allowed to district courts to dismiss or stay duplicative actions courts in order to control their dockets therefore nothing prevents this Court from dismissing or abstaining from hearing the duplicative Greene case. In re Transcare, 522 B.R. at 77; In re MF Global Holdings, 464 B.R. at 623; In re Barney's, Inc., 206 B.R. 336, (Bankr. S.D.N.Y. 1997). The court should be sensitive about the cost of the professionals and other expenses in this case. WARN Plaintiffs and the other creditors ultimately bear the financial risk arising from defense expenses spent on litigating the WARN claims. Consistent with the concern of maximizing efficiency and minimizing costs, proposed Class Counsel has exercised appropriate caution with respect to working cooperatively with opposing counsel and will continue to exercise care in this regard. These objectives would be compromised if the Court gave the green light to class members to file and litigate separate adversaries that swell the ranks of professionals beyond necessity in the ongoing adversary proceeding. The first-to file rule underscores that need to maintain efficiency. [W]here there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience... or... special circumstances... giving priority to the second. First City Nat'l Bank and Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir.1989) (citations omitted). Deference to the first filing embodies considerations of judicial administration and conservation of resources. Id. at 80 (citations omitted). See, Adam v. Jacobs, 950 F.2d 89, 94 (2d Cir. 1991) ( we conclude that the district court erred by failing to transfer or dismiss this action. ). 26

34 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 34 of 35 Here, there can be no dispute that the Gladden and Fleetwood actions were the first filed actions, several months before the Massey Plaintiffs filed their Complaint. Although the Plaintiffs in this action are different from the Massey Plaintiffs, the class definitions asserted by both are the same. The claims and defendants are the same. There is no risk of prejudice to the Massey Plaintiffs (as they are encompassed within the putative class defined). Further, the claims bar date has not passed. There are no special circumstances here that support consolidation over dismissal or stay. 4 Thus, the Massey Action should be dismissed or stayed. If the Court determines that the Massey Complaint should not be dismissed or stayed, proposed Class Counsel requests that it be consolidated or otherwise proceed with the Gladden Complaint with proposed Class Counsel as Class Counsel for the entire certified Class. CONCLUSION For all the foregoing reasons, Plaintiffs respectfully request that this Court enter the Proposed Order (Exhibit G) granting the Motion for Class Certification and Related Relief. Dated: February 15, 2018 Respectfully submitted, By: /s/ Jack A. Raisner Jack A. Raisner René S. Roupinian OUTTEN & GOLDEN LLP 685 Third Avenue, 25 th Floor New York, New York P: (212) F: (646) jar@outtengolden.com rsr@outtengolden.com 4 In Naula, et al. v. Rite Aid of New York, 2010 WL at *1 (S.D.N.Y. March 23, 2010), the Court ordered a consolidation of two similar actions rather than dismissing or staying the second filed action. There, however, the plaintiffs in the second filed action successfully argued that the second filed action prevented the risk of prejudice to a group of employees not represented in the first action. Id. at *4. Importantly, defendants had already argued that the named class representative in the first filed suit lacked standing to assert claims on behalf of those represented in the second filed action. Id. Massey Plaintiffs cannot make the same showing here. Further, if the Court has any concerns in this regard, those could be addressed by staying the Massey Action until such time that a true risk of prejudice arises. 27

35 mew Doc 20 Filed 02/15/18 Entered 02/15/18 21:23:05 Main Document Pg 35 of 35 LANKENAU & MILLER, LLP Stuart J. Miller (SJM 4276) 132 Nassau Street, Suite 1100 New York, NY P: (212) F: (212) THE GARDNER FIRM, P.C. Mary E. Olsen (OLSEM4818) M. Vance McCrary (MCCRM4402) The Gardner Firm, P.C. 210 S. Washington Avenue Mobile, AL P: (251) F: (251) Attorneys for Plaintiffs and the putative class 28

36 mew Doc 20-1 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit A Pg 1 of 5 EXHIBIT A

37 mew Doc 20-1 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit A Pg 2 of 5 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMP ANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIER!, on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. DECLARATION OF KENT GLADDEN 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), PC! 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 (NIA), 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

38 mew Doc 20-1 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit A Pg 3 of 5 I, Kent Gladden, hereby declare the following under penalty of perjury: 1. I am a former employee of Westinghouse Electric Company, LLC ("WEC') and one of the named Plaintiffs in the above captioned class action suit for damages against Defendants to recover 60 days' pay and benefits under the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. (the "WARN Act"). 2. I make this declaration based upon my personal knowledge in support of Plaintiffs' Motion for Class Certification and Related Relief. 3. I am a resident of South Carolina. 4. I was employed by WEC from approximately April 2012 until July 31, At the time of my termination, which was without cause on my part, I was working as an Environmental Health and Safety Manager at the Virgil C. Summer Nuclear Reactor construction site located in Jenkinsville, South Carolina (the "Facility"). 6. At the time of my termination, I had a WEC ID number, and a Westinghouse.com address. 7. I do not know the exact number of employees who were terminated like me from the Facility on or aboutjuly 31, 2017, but I believe that it was at least 1,000, with the majority having been associated with a WECTEC entity. 8. I believe that information about the number of people terminated from their jobs from each particular Westinghouse entity is easily ascertained because it is contained in Debtor Defendants' business records. 9. I did not receive 60 days' advance written notice pursuant to the WARN Act, nor, to the best of my knowledge, did any of the other similarly situated former employees. I believe 2

39 mew Doc 20-1 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit A Pg 4 of 5 that my WARN rights, as well as the WARN rights of the other terminated employees were violated. I 0. I have not received any payments under the WARN Act since my separation from WEC. 11. I believe that Defendants are legally responsible for the termination of myself and similarly situated former employees of Debtor-Defendants. I am willing to represent all such former employees. I am not aware of any conflict of interest I would have representing a class that included similarly situated employees. 12. Following my termination, I retained the legal services oflankenau & Miller, LLP and The Gardner Firm, PC as my counsel to assert a WARN Act claim on my behalf, as well as a class claim on behalf of the other terminated employees. 13. Because the circumstances ofmy termination and lack of notice are the same as those of the other terminated employees, the factual and legal issues bearing on my WARN Act claim and the WARN Act claims of the other class members (except for damages) are the same. 14. I am eager and willing to prosecute this action on behalf of the other terminated employees. I have actively assisted and will continue to actively assist my counsel in the prosecution of this action. 15. My claim against Defendants under the WARN Act for 60 days' pay is approximately $18,000, not including benefits. The size of my claim, my financial situation, and the cost of attorneys' fees have left me unable to pursue this claim as a sole litigant. I believe that the other terminated employees are similarly situated and unable to pursue their rights individually under the WARN Act. 16. Lankenau & Miller, LLP and The Gardner Firm, PC have been vigorously prosecuting this action. I believe that these firms are well-qualified to serve as class counsel. 3

40 mew Doc 20-1 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit A Pg 5 of In view of the foregoing, I request that Plaintiffs' Motion for Class Certification and Related Relief be granted. 18. I declare under penalty of petjmy that the foregoing is true and correct to the best of my knowledge and belief. Executed on..?/'z//,:f' / ' Kent Gladden 4

41 mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 1 of 6 EXHIBIT B

42 DocuSign Envelope ID: A72F8F32-F9DA-4FCC-94CC-32D44E872DCD mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 2 of 6 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIERI, on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. DECLARATION OF ANDREW FLEETWOOD IN SUPPORT OF MOTION FOR CLASS CERTIFICATION AND RELATED RELIEF I, Andrew Fleetwood, hereby declare the following under penalty of perjury: 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), PCI 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/A), 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

43 DocuSign Envelope ID: A72F8F32-F9DA-4FCC-94CC-32D44E872DCD mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 3 of 6 1. I am a former employee of Defendants and the named Plaintiff in the above captioned class action suit for damages against Defendants to recover 60 days pay and benefits under the Worker Adjustment and Retraining Notification Act ( WARN Act ), 29 U.S.C et seq. (the WARN Act ). 2. I make this declaration based upon my personal knowledge in support of Plaintiffs Motion for Class Certification and Related Relief. 3. I am a resident of South Carolina. 4. I was employed by Defendants from approximately January 2010 until my termination on July 31, At the time of my termination, I was working as a Field Engineering Manager for Defendants at the VC Summer Nuclear Reactor construction site in Jenkinsville, South Carolina. 6. The basis on which I allege that I was employed by Defendants was that the words Stone & Webster Services, LLC appeared on my W-2 forms and direct deposit slips. 7. I generally understood that around January 1, 2016, Westinghouse absorbed the employees of construction contractors that it had engaged to build the Summer project. Stone & Webster Services, LLC had been one of those contractors. 8. I generally understood that Westinghouse had created WECTEC as a subsidiary into which those contractors would be absorbed into the Westinghouse group of companies. Among those contractors were Chicago Bridge & Ironworks CB&I, and Stone & Webster (which had already merged into CB&I by 2016). 9. I understand that WECTEC LLC is a parent of various WECTEC entities including WECTEC Global Project Services Inc., into which I and several hundred ex-contractor employees such as myself were absorbed. 2

44 DocuSign Envelope ID: A72F8F32-F9DA-4FCC-94CC-32D44E872DCD mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 4 of I do not recall being given any definitive indication of which particular WECTEC sub-entity I was associated, however, during my employment. 11. Some of the confusion as to which Westinghouse entity served as our immediate employer was due to the delay in rebranding. For example, the CB&I header on documents was removed and replaced with the WECTEC logo. I saw the WECTEC logo and name in other places, without any sub-division of WECTEC indicated. However, my pay stubs and W-2 never were rebranded to WECTEC or Westinghouse. Our hardhat stickers (which is the most common way for identifying the employees company) was never changed to reflect WECTEC: they continued to have both the Westinghouse and Fluor names on them. 12. I was given a Westinghouse ID number, and a Westinghouse.com address, not one associated with any WECTEC entity. 13. I was not to walk up to a person and tell whether he or she was an employee of WECTEC, Fluor, or Westinghouse. 14. It was unclear to me what any of significance the WECTEC names had but they certainly made no difference in terms of our work. 15. I filed my adversary proceeding against the two Westinghouse entities I could most readily associate with my own administrative designations: WECTEC and Stone & Webster. I did so with the hope, however, of holding responsible under the WARN Act those decision makers who treated the Westinghouse employees uniformly when dismissing them from the project on July 31, 2017, which was just as they treated them when operating the Summer project day-to-day. 3

45 DocuSign Envelope ID: A72F8F32-F9DA-4FCC-94CC-32D44E872DCD mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 5 of I do not know the exact number of Westinghouse and the its WECTEC entities employees who were terminated like me from the Debtor-Defendants, on July 31st, but I believe that it number is around 1,000, with the majority having been associated with a WECTEC entity. 17. I believe that information about the number of people terminated from their jobs from each particular Westinghouse entity is easily ascertained because it is contained in Debtor- Defendants business records. 18. I did not receive at least 60 days written notice pursuant to the WARN Act, nor, to the best of my knowledge, did any of the other similarly situated former employees. I believe that my WARN rights, as well as the WARN rights of the other terminated employees were violated. 19. I have not received any payments under the WARN Act since my separation from Westinghouse. Based on information and belief, some employees may have received some payments from the Debtor-Defendants after losing their jobs at the Summer project. These sums should be readily ascertainable from the Debtor-Defendants books and records. 20. I believe that Defendants are legally responsible for the termination of myself and similarly situated former employees of Debtor-Defendants. I am willing to represent all such former employees. I am not aware of any conflict of interest I would have representing a class that included similarly situated employees. 21. Following my termination, I retained the legal services of Outten & Golden LLP as my counsel to assert WARN claims on my behalf, as well as a class claim on behalf of the other terminated employees. 4

46 DocuSign Envelope ID: A72F8F32-F9DA-4FCC-94CC-32D44E872DCD mew Doc 20-2 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit B Pg 6 of Because the circumstances of my termination and lack of notice are the same as those of the other terminated employees, the factual and legal issues bearing on my WARN claim and the WARN claims of the other class members (except for damages) are the same. 23. I am eager and willing to prosecute this action on behalf of the other terminated employees. I have actively assisted and will continue to actively assist my counsel in the prosecution of this action. 24. My claim against Defendants under the WARN Act for 60 days pay is approximately $26,000, not including benefits. The size of my claim, my financial situation, and the cost of attorneys fees left me unable to pursue this claim as a sole litigant. I believe that the other terminated employees are similarly situated and unable to pursue their rights individually under the WARN Act. 25. Outten & Golden LLP has been vigorously prosecuting this action. I believe that the firm is well-qualified to serve as class counsel. 26. In view of the foregoing, I request that Plaintiffs Motion for Class Certification and Related Relief be granted. 27. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on Andrew Fleetwood 5

47 mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 1 of 9 Exhibit C

48 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 2 of 9 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIERI, on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. DECLARATION OF RODNEY CAVALIERI 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), PCI 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/A), 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

49 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 3 of 9 I, Rodney Cavalieri, hereby declare the following under penalty of perjury: 1. I make this declaration based upon my personal knowledge in support of Plaintiff s Motion for Class Certification and Related Relief. 2. I am a resident of Chattanooga, Tennessee. 3. I was employed by Westinghouse as Director of Project Management at the V. C. Summer Nuclear Reactor project in Jenkinsville, South Carolina ("Project" or Facility ) from July 2015 until my termination on July 31, I reported directly to Westinghouse's senior-most officer in charge of the Project site, Carl D. Churchman, the Project Director. 5. After January 1, 2016, all the various groups working at the Project, such as engineering, construction, procurement, and materials, reported up to Mr. Churchman. 6. I headed the Project Management Office which was responsible for setting the goals, priorities and schedules for all of the work done at the Project and in forcing the day-today work at the site to meet the goals that we set. 7. In terms of the work performed by the thousands of employees at the Project, I was regarded as Mr. Churchman s representative and second-in-command, responsible for managing the overall day-to-day operations. 8. In addition to my responsibility for operations, I along with Mr. Churchman, presented the regular updates, performance reports, and progress projections regarding the Project to the chief officers of Westinghouse Electric Company LLC. 9. There were approximately 1,000 employees at the Project at any given time in 2017 who were affiliated with a Westinghouse company. Roughly of them had an 2

50 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 4 of 9 affiliation with a WECTEC company around with WECTEC Global Project Services, LLC ( WECTEC GPS ) and around 100 with WECTEC Staffing Services, LLC. 10. Of the 1,000 or so, approximately employees had a company affiliation with Westinghouse Electric Company, LLC ( WEC ). 11. A smaller number of employees were affiliated with WEC Carolina Energy Solutions, Inc. or WEC Carolina Energy Solutions, LLC ( CES ). 12. These company affiliations were not relevant to how the Project was functionally organized or how it operated. The Project required qualified workers to fill a broad range of jobs. We placed workers into jobs based on their skills and assigned them their duties without regard to their company affiliation. 13. Each of the operational groups, including engineering, construction, procurement, materials, and others had an internal supervisory structure. All had a mixture of employees affiliated with the three companies: WEC, WECTEC Staffing, WECTEC GPS. 14. At the top of the organization, the blend of employees company affiliations was emblematic of the mixture below. 15. My company affiliation was WECTEC Staffing. I reported to Mr. Churchman who was affiliated with WEC. Mr. Churchman, in turn, reported to an executive of WECTEC, David Durham, who worked off-site, and Mr. Durham, in turn, reported to the CEO of WEC. 16. When I needed to fill a position, I did so with WEC employees, or by hiring WECTEC GPS or WECTEC Staffing employees. These decisions were driven by the fitness of the employee for the job, not company affiliation. This was true for me and throughout the Project as a whole. 17. The company affiliations were relevant only for certain administrative purposes. 3

51 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 5 of Prior to January 1, 2016, virtually all the 100 or so Westinghouse employees were affiliated with WEC. The thousands of other employees working at the Project were employed by constructions contractors, mainly, Chicago Bridge & Iron, which, like, Westinghouse, reported to the SCANA owners. This tripartite organizational scheme was found not to work. 19. After January 1, 2016, WEC absorbed those thousands of construction employees. WEC retained of them, most of whom were engineers, and housed them for administrative purposes, in its newly-established subsidiary, WECTEC GPS. By April 2, 2016, however, WEC spun off the larger group, comprising some engineers but mostly craft (manual labor) workers to Fluor, which became a subcontractor of WEC. 20. In June of 2016, WEC absorbed the contract employees it was employing through a contractor called System One. These System One contract employees, including myself, were administratively housed in WEC s newly-established entity, WECTEC Staffing. 21. When WEC absorbed these workers into WECTEC GPS and WECTEC Staffing, the employees terms of employment remained intact, by and large, in terms of pay benefits and other facets. WEC s plan was to gradually transition them into Westinghouse s own terms of employment. 22. Given the different origins of WECTEC and WECTEC Staffing groups, and the WEC employees, there were differences in the administrative handling of these groups of employees which occurred in the background and had no impact on the Project s functional operations. 23. The organization of the Project was structured solely around functionality. We filled positions with the persons best qualified to do what needed to get done regardless of their designations. 4

52 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 6 of The most significant change that did occur on January 2016 was that Westinghouse became the single point accountability for the Project. That would last until March 29, 2017 when it filed its bankruptcy petition. 25. All of the absorbed Westinghouse-paid employees were given a Westinghouse employee number and account. 26. All the Project s policies and procedures were centrally maintained in site s data room, housing the Electronic Data Management System. These includes welding procedures and HR policies and procedures, so that if a manager wanted to look for an HR expense policy, the manager would go there and do a keyword search to pull it up. 27. The hiring and onboarding processes at the site was controlled by Project managers. A hiring manager who needed an employee could seek one regardless of any WECTEC or Westinghouse designation. In doing so, the manager wore the hat of the Project not any designated entity. The manager would seek pre-approval for candidates from management such as Carl Churchman (who was a Westinghouse employee) or perhaps go above him to someone like David Durham who was WECTEC. It was then up the hiring manager to choose whom to hire. 28. Hiring forms were only slightly different for candidate designated as WECTEC Staffing, WECETEC GPS, or Westinghouse. 29. The onboarding process for was the same for everyone with respect to training, background checks, and things of that nature. 30. Budgeting and cost control for the Project were ultimately controlled by WEC management in Pittsburgh prior to March 29, Cost accounting was performed and 5

53 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 7 of 9 maintained on site on a consolidated Project-wide basis. Cost lines included the payrolls of WEC, WECTEC GPS and WECTEC Staffing. 31. As of March 29, 2017, SCANA began exercising owner-directed authority starting at the top with respect to finances and that authority began to extend down the managerial chain of command. 32. Although management and control over the work shifted to SCANA after March 29, 2017, I did not detect any change in the organizational structure with regard to the mix of company affiliations of the Project workforce. It was still a system based on meeting the operational needs of the Project regardless of company affiliation. 33. The difference after March 29, 2017, however was that SCANA went from indirectly making operational decisions, to making them directly. 34. On July 31, 2017, SCANA told Westinghouse to let go the entire Project workforce. This instruction made no distinction between the main employers within the Project: Westinghouse and subcontractor Fluor. It certain made no distinctions between sub-sets of employees. 35. At that time, SCANA stopped paying the Project payroll, except for its own direct employees, to whom it offered WARN Act pay. 36. Although SCANA retained a few employees to demobilize the Project, the vast majority of employees who were affiliated with Westinghouse lost their jobs without notice, as did I, on July 31, I am not aware of significant differences between those employees in that respect. 6

54 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 8 of I believe at some point certain ex-project employees of Westinghouse were offered certain amounts of pay, benefits, or opportunities by Westinghouse, but I was not involved in those decisions. 38. I believe that information about the number of people terminated from their jobs from each particular Westinghouse entity is easily ascertained because it is contained in Debtor- Defendants business records. 39. I did not receive at least 60 days written notice pursuant to the WARN Act, nor, to the best of my knowledge, did any of the other similarly situated former employees. I believe that my WARN rights, as well as the WARN rights of the other terminated employees were violated. 40. I have not received any payments under the WARN Act since my separation from Westinghouse except for a check of about $3,000 which was sent to me with no explanation as to what it was meant to pay. Based on information and belief, some employees may have received some payments from the Debtor-Defendants after losing their jobs at the Project. These sums should be readily ascertainable from the Debtor-Defendants books and records. 41. I believe that Defendants are legally responsible under the WARN Act for the termination of myself and similarly situated former employees of Debtor-Defendants. I am willing to represent all such former employees. I am not aware of any conflict of interest I would have representing a class that included similarly situated employees. 42. I have retained the legal services of Outten & Golden LLP as my counsel to assert WARN claims on my behalf, as well as a class claim on behalf of the other terminated employees. 7

55 DocuSign Envelope ID: B685AACA-905B-4F0F-9C89-B02409CFDBCE mew Doc 20-3 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit C Pg 9 of Because the circumstances of my termination and lack of notice are the same as those of the other terminated employees, the factual and legal issues bearing on my WARN claim and the WARN claims of the other class members (except for damages) are the same. 44. I am eager and willing to prosecute this action on behalf of the other terminated employees. I have actively assisted and will continue to actively assist my counsel in the prosecution of this action. 45. My claim against Defendants under the WARN Act for 60 days pay is approximately $77,320, not including benefits. The size of my claim, my financial situation, and the cost of attorneys fees left me unable to pursue this claim as a sole litigant. I was one of the highest paid employees at the Project. I believe that the other terminated employees are similarly unable to pursue their rights individually under the WARN Act. 46. Outten & Golden LLP has been vigorously prosecuting this action. I believe that the firm is well-qualified to serve as class counsel. 47. In view of the foregoing, I request that Plaintiffs Motion for Class Certification and Related Relief be granted. 48. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on Rodney Cavalieri 8

56 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 1 of 23 Exhibit D

57 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 2 of 23 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIERI on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. DECLARATION OF JACK A. RAISNER IN SUPPORT OF PLAINTIFFS' 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), PCI 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/A), 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

58 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 3 of 23 Jack A. Raisner hereby declares the following under penalty of perjury: 1. I am a partner of Outten & Golden LLP ( Outten & Golden or O&G ), one of the law firms that represents Plaintiffs Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri ( Plaintiffs ) in the above-captioned action. Plaintiffs are former employees of Defendants who were terminated without cause from their employment on or about July 31, This declaration is submitted in support of Plaintiffs Motion under Fed. R. Civ. P. 23 for Class Certification and Related Relief, in furtherance of their claims under the Worker Adjustment Retraining and Notification Act, 29 U.S.C et seq. (the WARN Act ), for an order (a) certifying a class All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class, and (b) appointing Outten & Golden LLP, Lankenau & Miller, LLP, and The Gardner Firm, P.C. as Class Counsel; (c) appointing Plaintiffs as the Class Representatives; (d) approving the form and manner of Notice, (e) dismissing the action titled Massey v. Westinghouse Electric Company, LLC, et al, Adv. Proc. No (MEW) or in the alternative, consolidating it with the instant action, and (e) such further relief as this Court may deem proper. BACKGROUND 3. Plaintiffs worked for Westinghouse Electric Company LLC ( WEC LLC or 2

59 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 4 of 23 Westinghouse ) and the other Debtor-Defendants named in the Complaint at the VC Summer Nuclear Reactor project site in Jenkinsville, South Carolina ( Summer or the Project ) until on or about July 31, On or about July 31, 2017, WEC LLC and the other Debtor-Defendants it owned terminated Plaintiff and over 1,000 other employees as part of the mass layoffs or plant closings carried out on that date at Summer. 5. Plaintiffs did not receive 60 days advance notice of their termination, nor to their knowledge and belief did any of the other similarly-situated employees who were terminated. PROCEDURAL HISTORY 6. On March 29, 2017, Debtors filed their voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code. (Bankr. Case No (MEW) 7. On August 10, 2017, Plaintiff Fleetwood and Outten & Golden LLP filed a Class Action Adversary Complaint (the Fleetwood Complaint or Fleetwood Action ). (Adv. Proc. No ) (D.I. 1) (Exhibit 1 hereto) in this Court against two Debtor-Defendants, WECTEC, LLC and Stone & Webster Services, LLC. 8. Also on August 10, 2017, Plaintiff Gladden and Lankenau & Miller, LLP and The Gardner Firm, P.C., filed a Class Action Adversary Complaint (the Gladden Complaint or Gladden Action ). (Adv. Proc. No ) (D.I. 1) (Exhibit 2 hereto) in this Court against Debtor-Defendant Westinghouse Electric Company, LLC. 9. On November 11, 2017, a third Class Action Adversary Complaint was filed against Debtor-Defendants Westinghouse Electric Company, LLC, WECTEC LLC, WECTEC 3

60 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 5 of 23 Staffing Services, LLC, and WECTEC Global Project Services, Inc. (the Massey Complaint or Massey Action ). (Adv. Proc. No ) (D.I. 1) (Exhibit 3 hereto). 10. On December 27, 2017, the Court entered a Consolidated Scheduling Order, administratively consolidating the proceedings in the Fleetwood Action, the Gladden Action, and the Massey Action. 11. On January 19, 2018, Plaintiffs Gladden and Fleetwood jointly filed an amended complaint adding Plaintiff Cavalieri and naming additional Debtor-Defendants (the Amended Complaint ) (Exhibit 4 hereto). 12. The Plaintiffs in the Massey Action have not filed an amended complaint. 13. In order to bring claims against other entities involved in the July 31st shutdown of Summer that may be liable for the WARN Act violations and able to pay upon any a finding of liability, on August 8, 2017, Outten & Golden filed a complaint against two companies who employed workers at the Facility. (Pennington v. Fluor Enterprises, Inc., et al., Case No (JMC) (D.S.C.) (D.I. 1) (Exhibit 5 hereto) (the Pennington Complaint or Pennington Action ). 14. The complaint in that action was filed against Fluor Enterprises, Inc., Fluor Corporation (together, Fluor ) and SCANA Corporation ( SCANA ). The Complaint estimates that together, Fluor and SCANA employed over 5,000 of the workers at the Facility and contains details about the division of manual labor, construction work, engineering, supervision, project controls, scheduling and other tasks that were performed by a consortium of corporate entities, including Westingthouse. (Id., 24-99). 15. On October 25, 2017, Outten & Golden filed an amended complaint in that action adding an additional plaintiff and adding Fluor subsidiary, Fluor Daniel Maintenance Services, 4

61 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 6 of 23 Inc., and SCANA subsidiary, South Carolina Electric & Gas Company. (Exhibit 6 hereto). 16. The amended Pennington Complaint also added significant additional allegations regarding the operations at Summer. THE ALLEGATIONS IN THE AMENDED COMPLAINT IN THIS ACTION 17. The Amended Complaint in this action alleges a Rule 23(b)(3) class claim arising from Defendants violation of the WARN Act for its failure to give 60 days notice as required by the statute (Exhibit 4, 56-68). 18. The Amended Complaint alleges that Debtor-Defendants employed more than 100 employees who worked at least 4,000 hours per week and that Defendants effected mass layoffs or plant closings that resulted in the loss of employment for at least 50 employees and at least 33% of the workforce, excluding part-time employees, as defined by the WARN Act. (Exhibit 4, 70-73). 19. The Amended Complaint further alleges that Plaintiffs and the other similarly situated former employees were terminated on or about July 31, 2017, were discharged without cause; that all of these former employees, as well as other employees who suffered a loss of employment as the reasonably foreseeable consequence of the mass layoffs or plant closings are affected employees, as defined by 29 U.S.C. 2101(a)(5), that these former employees did not receive from Debtor-Defendants 60 days advance written notice as required by the WARN Act; and that Defendants failed to pay them wages and fringe benefits, as required by the WARN Act (Exhibit 4, 74-79). 20. The Amended Complaint further alleges that the proposed class meets the requirements of Fed. R. Civ. P. 23(a) in so far as there are common questions of law and fact that are applicable to all members of the Class; that the Class is so numerous as to render joinder of 5

62 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 7 of 23 all members impracticable; that Plaintiffs claims are typical of the claims of the other Class Members; that Plaintiffs will fairly and adequately protect and represent the interests of the Class; that Plaintiffs have the time and the resources to prosecute this action; and that he has retained counsel who have extensive experience in matters involving employment class actions and the WARN Act. (Exhibit 4, 57-63). 21. The Amended Complaint further alleges that the proposed class meets the requirements of Fed. R. Civ. P. 23(b)(3) in so far as there are questions of law and fact common to the class members that predominate over any questions affecting only individual members; that a class action is superior to other available methods for the fair and efficient adjudication of the controversy; particularly in the context of WARN Act litigation, where an individual plaintiff and class members may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate Defendant. (Exhibit 4, 65-66). 22. In addition to the WARN claim, Plaintiffs also asserts a South Carolina state law class claim for unpaid wages under South Carolina Payment of Wages Act and -50 (Exhibit 4, 80-82). 23. On February 15, 2018, Defendants filed an Answer to the Amended Complaint On February 15, 2018, Intervenor Statutory Unsecured Claimholders Committee of Westinghouse Electric Company LLC, answered the Amended Complaint. 25. The parties have not commenced written discovery. 26. Since August 2017, Outten & Golden s investigation of the claims has included meetings with clients and other affected employees in South Carolina and interviews with senior managers who directed the Summer project for Westinghouse. 6

63 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 8 of As a result of the investigations, O&G, amended its complaint in the Pennington Action and added ex-westinghouse manager Timothy Lorentz as a plaintiff. The amended complaint in the Pennington Action now seeks relief against non-debtors Fluor, SCANA, and South Carolina Energy & Gas on behalf of all Westinghouse, SCANA, and Fluor employees who were terminated from their jobs in the shutdown of Summer. (Exhibit 6 hereto). The Amended Complaint sets forth 75 paragraphs of factual allegations detailing a single employer relationship between SCANA and Westinghouse that makes SCANA jointly and severally liable for the WARN Act violation. 28. The evidence adduced by O&G since August also supported an enlargement of the class as framed in the Fleetwood Complaint to include all employees of Westinghouseowned entities who worked at its Summer project. This laid the groundwork for the filing of the Amended Complaint. 29. As alleged in the Amended Complaint the class members include approximately 1000 employees who were nominally employed by Westinghouse Electric Company, LLC and various WECTEC-named entities, including WECTEC Global Project Services, Inc., WECTEC Global Staffing, LLC, WEC Carolina Energy Solutions, Inc., and WEC Carolina Energy Solutions, LLC. 30. The evidence establishes that these entity identifications played no role in the functional organizational structure of Westinghouse s operations at Summer. Whatever purpose the distinctions served, they had no bearing on the day-to-day management of the operations, nor were they used in the carrying out of orders to dismiss the entire Westinghouse workforce without notice on July 31,

64 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 9 of In short, whether an employee was directly employed by a Westinghouse or a WECTEC entity make no difference to the WARN Act claims alleged in the Amended Complaint. Westinghouse treated all the employees the same when directing their work at Summer and on July 31, 2017 when ending their work. 32. As with any WARN Act claim, all class members may have back pay damages due their different rates of pay based or different dates of termination within a 30 day layoff or plant closure period. That however, does not imperil class certification because the common issues that predominate have to do with establishing liability by overcoming the defendant s defenses for having failed to give 60 days advance notice to everyone. 33. Gladden, Fleetwood, and Cavalieri are similarly situated to and intend to represent all employees who, like them, worked for a Westinghouse entity at Summer and were terminated without notice in the July 31, 2017 closure. 34. My partner, René S. Roupinian, and I have been in discussions with Lawrence J. Baer, counsel for the Westinghouse debtors regarding the allegations in the case, collectability issues, affirmative defenses, and other defendants who may be held liable for the events of July 31 st. instead of commencing immediate full-blown litigation. This approach may alleviate the financial burden on the Debtor-Defendants in this adversary proceeding should they be found liable for the WARN violations. THE PROPOSED CLASS 35. The proposed Class consists of Plaintiff and an estimated 1,000 other former employees of Defendants who were terminated without cause on or about July 31, 2017, as part of, in anticipation of, or as the reasonably foreseeable consequence of the mass layoffs or plant 8

65 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 10 of 23 closings on or about that date, and who have not filed a timely request to opt-out of the class. The proposed Class is as follows: All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class. Alternatively, but only if necessary or more practicable, the following subclass may be formed either formally or informally: All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class, including, as potential subclasses those who were nominally employed by (a) Westinghouse Electric Company, LLC; (b) WECTEC Global Project Services Inc. or (c) WECTEC Staffing Services LLC. 36. As is more fully discussed in the accompanying brief, the proposed class satisfies all the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3) for class certification: the proposed Class is numerous; questions of law and fact are common to all members of the class; the Plaintiffs claims are typical of the claims of the Class; the Plaintiffs and proposed class counsel will fairly and adequately protect the interests of the Class; the questions of law and fact common to the class members predominate over any questions affecting individual members; and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 9

66 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 11 of 23 THE SUITABILITY OF PLAINTIFFS TO ACT AS CLASS REPRESENTATIVES 37. As shown by the accompanying Declarations of Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri (attached to Plaintiffs Motion for Class Certification as Exhibits A-C), Plaintiffs were employed by Defendants and was terminated without cause on or about July 31, 2017 as part of the mass layoffs or plant closings carried out by Defendants on that date. Plaintiffs have no conflict of interest with other class members and have and will continue to diligently prosecute this action and represent the interests of the Class. THE DILIGENT PROSECUTION OF THE ACTION 38. Plaintiffs both through counsel and otherwise, have diligently prosecuted this action. Following their retention, proposed class counsel promptly investigated the facts, researched the law and otherwise evaluated the potential WARN claims of Plaintiffs and the other employees terminated by Defendants. Plaintiffs counsel prepared and filed the Fleetwood and Gladden Complaints and the Amended Complaint in this Court. Outten & Golden also initiated an action against other non-bankrupt entities that may be liable for the events surrounding the terminations at issue in this action and has been in discussions with counsel for the Westinghouse debtors regarding the allegations in the case, collectability issues, and setting a pace of litigation that will not unnecessarily deplete the estate s resources. 39. Outten & Golden has been individually retained by 54 former employees of Westinghouse and the other debtors to date. THE SUITABILITY OF PLAINTIFFS COUNSEL TO ACT AS CLASS COUNSEL WARN Practice Group, Outten & Golden LLP 40. Jack A. Raisner and René S. Roupinian are Co-Chairs of the WARN Act Practice Group of Outten & Golden LLP ( O&G ), the nation s largest law firm devoted solely to the 10

67 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 12 of 23 rights of employees. 2 Its WARN Act practice group is the largest of its kind and includes myself and Mr. Raisner, two associates, and three paralegals, all of whom litigate WARN claims almost exclusively. We have been appointed class counsel in over 75 WARN Act cases and have been Plaintiff s counsel in over 100 WARN active or settled certified or putative class actions, including the following: Engle v. American Ambulette & Ambulance Service, Inc., Adv. Proc. No (Bankr. E.D.N.C.) (WARN class of 1,000 members certified); Mofield v. FNX Mining Company USA Inc., Case No (M.D. Tenn.) (settled on behalf of a class of about 225 employees); Updike v. Kitty Hawk Cargo, Inc., Case No (Bankr. N.D. Tex.) (settled on behalf of a class of about 400); Miller v. Columbus Steel Castings Company, et al., Adv. Proc. No CSS (Bankr.Del.); Kusnick v. LMCHH PCP, LLC, et al., Adv. Proc. No (Bankr. E.D. LA.) (appointed interim class counsel); Bent v. ABMD, Limited, 439 B.R. 475 (Bankr. S.D. Ohio) (settled on behalf of a class of over 250 employees); Martz-Gomez v. Anna s Linen s, Inc., Adv. Proc. No. 8:15-bk TA (Bankr. C.D. Cal.) (WARN class certified); Bergeron v. DGI Services, LLC, (Bank. D.N.J.) (same); Karaniewsky v. Altegrity, Inc. et al., Adv. Proc. No LSS (Bankr. Del.) (same); Ien v. Transcare Corporation, et al., Case No (Bankr.S.D.N.Y.) (class certification granted); Rasheed v. American Home Mortgage Corp., Case No (Bankr. D. Del.) (settled on behalf of a class of 2,300 employees); Mekonnen, et al. v. HomeBanc Mortgage Corporation, Case No (Bankr. Del.) (settled on behalf of a class of over 400 employees); Aguiar v. Quaker Fabric Corporation, Case No (Bankr. D. Del.) (settled on behalf of a class of 900 employees); Jones v. Alliance Bancorp, Case No (Bankr. D. Del.) (settled on behalf of 2 O&G is a 55+-attorney firm with headquarters in New York City and offices in Chicago, IL, Washington, D.C., and San Francisco, CA. It focuses on representing plaintiffs with a wide variety of employment claims, including claims of individual and class-wide violations of wage and hour laws, WARN Act violations, discrimination and harassment based on sex, race, disability, or age, as well as retaliation, whistleblower, and contract claims. 11

68 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 13 of 23 a class of about 200); Bressmer v. Delta Financial Corporation, Case No (Bankr. D. Del.) (settled on behalf of a class of over 600); Czyzewski, et al. v. Jevic Transportation, Inc., Case No (Bankr. Del.) (appointed class counsel to a class of approximately 1,800 employees); Austen. v. Archway Cookies, Case No (Bankr. D. Del.) (settled on behalf of a class of over 600 employees); Jackson v. Qimonda NA, Case No (Bankr. D. Del.) (settled on behalf of a class of over 1,200 employees); Willock v. Pemco World Air Services, Inc., Case No (Bankr. D. Del.) (settled on behalf of a class of approximately 500 employees); Folk, et al. v. Monaco Coach Corporation, Case No (Bankr. D. Del.) (settled on behalf of a class of approximately 2,200 employees); Decuir v. WL Homes LLC, Case No (Bankr. D. Del.) (settled on behalf of a class of approximately 85 employees); Hampton v. Navigation Capital Partners, Inc., Case No. 1: (D. Del.) (settled on behalf of a class of approximately 160 employees); Wojciechowski v. ClearEdge Power, Inc., Case No CN (Bankr.N.D.Cal. 2014) (settled on behalf of a class of approximately 231 employees); Murphy v. LenderLive Network, Inc., Case No. 1:12-cv (D. Colo. 2014) (settled on behalf of a certified WARN class of approximately 100 employees); Belote v. Rivet Software, Inc., Case No. 12-CV-02792, 2013 WL (D. Colo. February 28, 2013) (settled on behalf of a class of approximately 125 employees); Schuman v. The Connaught Group. Ltd., Case No (SMB) (Bankr. S.D.N.Y.) (settled on behalf certified WARN class of 95 employees); Callahan v. Taylor Bean & Whitaker Mortgage Corp., Case No (Bankr. M.D. Fl.) (settled on behalf of a class of 3,000 employees); Mochnal v. EOS Airlines, Inc., Case No (Bankr. S.D.N.Y.) (settled on behalf of a class of over 300 employees); Barcelo v. Rhythm and Hues, Inc., Case No (Bankr. C.D. Cal.) (settled on behalf of class of over 100 employees); Binford v. First Magnus Capital, Inc., Case No (Bankr. D. Ariz.) 12

69 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 14 of 23 (settled on behalf of a class of approximately 1,400 employees); Bridges v. ContinentalAFA Dispensing Co., Case No (Bankr. E.D. Mo.) (settled on behalf of a class of about 500 employees); Johnson v. First NLC Financial Services, LLC, Case No (Bankr. S.D. Fla.) (settled on behalf of a class of about 200 employees); Clayton v. Continental Promotion Group Inc., Case No (Bankr. M.D. Fla.) (settled on behalf of a class of approximately 175 employees); Iannacone v. Fortunoff Holdings Inc., (Bankr. S.D.N.Y.) (settled on behalf of a certified class of 360); Curry v. Caritas Health Care Inc., Case No (Bankr. E.D.N.Y.) (settled on behalf of a class of over 800 employees); Thielmann, et al., v. MF Global Holdings Ltd., et al., Case No (Bankr. S.D.N.Y.) (settled on behalf of a class of over 1,000 employees); Conn et al. v. Dewey & LeBoeuf LLP, Case No (Bankr. S.D.N.Y.) (settled on behalf of a class of approximately 425 employees); Matzen v. Corwood Laboratories, Inc., Case No (Bankr. E.D.N.Y.) (settled on behalf of a class of over 160 employees); Decker v. Data Listing Services, LLC, Case No (W.D.N.Y.) (settled on behalf of a class of approximately 130 employees); and Kohlstadt v. Solyndra LLC, Case No (Bankr. D. Del.) (settled on behalf of a certified class of approximately 850 employees); Frye v. Digital Domain Media Group Inc. et al., Case No (Bankr. D. Del.) (appointed interim class counsel); Zaikowski v. Dowling College, Adv. Proc. No (Bankr.E.D. N.Y.)(WARN class certified); Reynolds v. Corinthian Colleges, Inc., Adv. Pro. No (Bankr. D. Del.); Primavera v. Crowne Architectural Systems, Inc., Adv. Proc. No (Bankr. D.N.J.). 41. In ITT and MF Global, the Court appointed Outten & Golden interim class counsel for the WARN class over Massey Counsel and another firm with significant WARN litigation experience. Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No

70 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 15 of 23 (JMC) (Bankr. S.D. Ind.) (D.I. 981), Cote v. Fresh & Easy, LLC, Adv. Proc. No (BLS) and Thielmann v. MF Global Holdings, Ltd., 464 B.R. 619,625 (Bankr.S.D.N.Y. 2012). In Frye v. Digital Domain Media Group, Inc., 2012 WL (Bankr. D. Del. 2012), O&G was recognized as a firm with substantial experience in prosecuting, large-scale WARN class actions in bankruptcy court. There, the Court appointed Outten & Golden interim class counsel and dismissed the competing later-filed WARN suit. 42. On the appellate level Outten & Golden has obtained court of appeals reversals of lower court decisions in two Chapter 7 WARN Act cases in the Fifth and Second Circuits. Guippone v. BH S & B Holdings LLC, 737 F.3d 221 (2d Cir. 2013) (vacating summary judgment awarded to single employer parent) and In re TWL Corp., 712 F.3d 886 (5th Cir. 2013) (recognizing the availability of WARN Act adversary proceedings and class actions). 43. O&G has helped solidify the footing for WARN Act claims in bankruptcy by obtaining decisions that approve of the use of the adversary proceeding device in New York and Delaware bankruptcy courts. See In re Dewey & LeBoeuf LLP, 487 B.R. 169 (Bankr. S.D.N.Y. 2013); In re TSC Glob., LLC, No (KG), 2013 WL (Bankr. D. Del. June 26, 2013) (Chapter 7). 44. O&G has also successfully advocated on behalf of WARN claimants before the Supreme Court of the United States. In a 6-2 decision, the Court sided with the WARN Act class represented by Outten & Golden, holding bankruptcy courts cannot approve structured dismissals of Chapter 11 bankruptcy cases that violate the priority rules established by the Bankruptcy Code absent the consent of affected creditors. See Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 197 L. Ed. 2d 398 (2017). 14

71 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 16 of In nine dueling-class actions contexts, Outten & Golden has been appointed interim class counsel having been found to be the best able to represent the interests of the class under the Rule 23(g)(1)(A) factors In Singleton v. Alevo Manufacturing, Inc., the Bankruptcy Court appointed Outten & Golden interim WARN class counsel over the Massey Plaintiffs counsel, Klehr Harrison Harvey Branzburg & Ellers, LLP, who had filed a competing WARN adversary complaint. Singleton v. Alevo Manufacturing, Inc., Bankr. Case No (CRA) (Bankr. M.D.N.C.) (D.I. 33) (attached hereto as Exhibit 16). As in the instant case, Outten & Golden LLP filed the WARN Act claim first, this past August. The employer, Alevo Manufacturing, Inc., was a power grid battery startup that shut down without notice. The Court found Outten & Golden LLP, representing Singleton, was the firm best able to represent the putative class based on its experience. It held that the Singleton action would go forward, unless counsel for the competing suit, Klehr Harrison Harvey Branzburg, LLP, could suggest some alternative to its dismissal, which it did not Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No (JMC) (Bankr. S.D. Ind.) (See Exhibit 8). 2. Kusnick, et al. v. LMCHH PCP, LLC (Adv. Proc. No , D.I. 70) (Bankr. E.D. La.) (See Exhibit 9). 3. Folk, et al. v. Monaco Coach Corporation, Case No (Bankr. D. Del.) (D.I. 43) (See Exhibit 10). 4. Callahan v. Taylor Bean & Whitaker Mortgage Corp., Case No (Bankr. M.D. Fla.) (D.I. 26) (See Exhibit 11). 5. Thielmann, et al. v. MF Global Holdings Ltd., et al., 464 B.R. 619 (Bankr. S.D.N.Y. 2012) (See Exhibit 12). 6. Frye v. Digital Domain Media Group Inc. et al., Case No (Bankr. D. Del.) (D.I. 25) (See Exhibit 13). 7. Kearney, et al. v. New Century Transportation, Inc., Case No (Bankr. D. N.J.) (D.I. 22) (See Exhibit 14). 8. Ien v. Transcare Corp., et al., 552 B.R. 69 (Bankr. S.D.N.Y. 2016) (See Exhibit 15). 9. Singleton v. Alevo 17-ap CRA (Bankr. M.D. N.C.). (See Exhibit 16). 15

72 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 17 of In Alevo, one factor that appeared to tip the scales in favor of the Court appointing the Outten & Golden LLP ( Fleetwood Counsel ) as interim class counsel over Klehr Harrison Harvey Branzburg & Ellers, LLP ( Massey Counsel ) was that Outten & Golden informed the Court it would be amending the complaint to name a deep pocket parent company as an additional defendant, thereby alleviating the financial pressure on the Debtor in an otherwise thin bankruptcy. (Bankr. Case No (CRA) (Bankr. M.D.N.C.) (Transcript of hearing on motion for appointment of interim class counsel, Oct. 18, 2017). (attached as Exhibit 7). 48. In another WARN action, Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No (JMC) (D.I. 981), the Bankruptcy Court appointed Outten & Golden interim WARN class counsel over Massey s counsel, Klehr Harrison Harvey Branzburg & Ellers, LLP, who had filed a competing WARN adversary complaint. Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No (JMC) (D.I. 981) (Exhibit 8). Jack A. Raisner 49. I am partner at O&G and a member of its Class Action Practice Group and Co- Chair of its WARN Act Class Action Practice Group. I represent employees in wage and hour, discrimination, and WARN class actions. I have successfully concluded and am currently prosecuting numerous WARN Act class action claims. I have prosecuted, as lead counsel, numerous wage and hour class action cases to successful conclusion, including Dorfman v. United Parcel Service, No. 06 CV (E.D.N.Y.); Levy v. Verizon Information Services, 06- CV-1583 (NG)(SMG); Hernandez v. The Home Depot Inc., No. CV (E.D.N.Y.); Day v. Control Associates, No. 04 CV (S.D.N.Y); Clark v. JP Morgan Chase & Co. No (NY Sup. Ct., NY Cnty); Fouyolle v. JP Morgan Chase & Co., No (S.D. Tex.); Lamons v. Target Corporation, CV (E.D.N.Y); Westerfield v. Washingtion 16

73 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 18 of 23 Mutual Bank, 06 Civ (E.D.N.Y.); Fei v. WestLB, 07 Civ (S.D.N.Y.); and Smith v. Citigroup, 07 Civ. 1791(E.D.N.Y.). 50. I am a Professor of Law at Tobin College of Business, St. John s University. I am the author of Pregnancy Discrimination and Parental Leave (Aspen 2000), update editor of the two-volume treatise, Representing Plaintiffs in Title VII Actions (Aspen 2006), and numerous articles and legal texts encompassing an extensive range of issues. I am a member of the American Bar Association, Section of Labor and Employment Law, Fair Labor Standards Subcommittee where, since 2006, I have delivered the annual conference presentation concerning attorneys ethics in wage and hour and WARN Act class actions. I have published articles that have appeared in various legal journals and publications, including the New York Law Journal and the New York State Bar Association Labor and Employment Newsletter. I am admitted to the New York bar, several federal district courts, circuit courts of appeal, and the Supreme Court. 51. I submit that Plaintiff s counsel is well-suited to serve as class counsel, have no conflict of interest, and, as shown above, have diligently prosecuted this action and should be appointed Class Counsel. René S. Roupinian 52. Ms. Roupinian is a partner at O&G, a member of its Class Action Practice Group, Co-Chair of its WARN Act Class Action Practice Group, and actively litigates cases on behalf of employees under the WARN Act. Since 2002, she has devoted 100% of her practice to the litigation of WARN cases. She has served as counsel in more than 150 WARN class actions, representing tens of thousands of employees. Those cases, in addition to the ones mentioned in paragraph 15 above, include: Scott v. Greenwood Mills. Inc., Case No (D.S.C.); 17

74 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 19 of 23 Andrews v. Pliant Systems Inc., Case No (Bankr. E.D.N.C.); Law v. American Capital Strategies Ltd., Case No (M.D. Tenn. 2005); Bandel v. L.F. Brands Marketing, Inc., Case No. 04-CV (S.D.N.Y. 2004); Walsh v. Consolidated Freightways Corporation, Case No MG (Bankr. C.D. Cal.); Gardner v. Pillowtex Corporation, Case No (Bankr. D. Del.); Baker v. National Machinery Company, Case No (N.D. Ohio); Ruggieri v. Teligent, Inc., (S.D.N.Y. 2003); Trout v. Transcom USA, Inc., (S.D. Ind.); Barajas v. Gonzalez Inc., Case No (Bankr. D. Ariz.); D Andreis v. Thomaston Mills, Inc., Case No (Bankr. M.D. Ga.); Ballentine v. Triad International Maintenance Corporation, Case No (E.D. Mich.); and Michael Cain v. Inacom Corp., (Bankr. D. Del.). 53. Ms. Roupinian has written numerous articles and lectured on WARN class action litigation. She has spoken on federal and state WARN rights and the litigation of WARN class claims before the American Bar Association, the New York State Bar Association, the National Employment Lawyers Association, the Midwest Regional Bankruptcy Seminar, American Bankruptcy Institute, and other organizations, including presenting for the American Bar Association s program The Last Resort: What Labor & Employment Lawyers Need to Know About Bankruptcy. Following is a list of her WARN presentations and publications: Presentations: 2017 o o Speaker: Jevic The Insider Story and the Impact on Future Chapter 11s; National Conference of Bankruptcy Judges Speaker: How will Jevic Change Chapter 11 Practice? ABI s Midwest Regional Bankruptcy Seminar 18

75 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 20 of o o Speaker: WARN Act Issues in Bankruptcy, 36th Annual ABI Midwestern Bankruptcy Institute Speaker: WARN Act Update: What Labor and Employment Lawyers Need to Know, 53rd Annual Midwest Labor & Employment Law Seminar 2014 o Speaker: Seeking Your Recovery: Pre-Judgment Attachment and Bankruptcy, National Employment Lawyers Association New York Affiliate 2010 o Speaker: The Financial Crisis: Impact on WARN Act Cases, ABA Federal Labor Standards Legislation Committee Midwinter Meeting o Speaker: The Financial Crisis: Impact on WARN Act Cases, New York County Lawyers Association 2009 o Speaker: Economy in Peril (Part 1): The Legal Landscape for Addressing Reductions in Force, American Bar Association teleconference o Speaker: WARN Act Specialist Offers Advice About Layoffs Amidst Tough Economic Times, Employment & Labor LAWCAST o Speaker: Layoff Law, Fairfield County Bar Association o Speaker: New Causes of Action: WARN Act and ERISA, National Employment Lawyers Association New York Affiliate o Speaker: Reductions in Force in Both a Union and Non-Union Setting, New York State Bar Association o Speaker: Attacking Mass Layoffs, National Employment Lawyers Association National Convention o Speaker: Analyzing Employee Issues in Chapter 11, Midwest Regional Bankruptcy Seminar o Speaker: The Last Resort: What Labor & Employment Lawyers Need to Know About Bankruptcy, American Bar Association 19

76 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 21 of o Speaker: Grasping the WARN Act through an interactive discussion addressing all the ins and outs, Tonkins Employment Law: Termination Publications: o 2010 Co-Author with Jack A. Raisner and Michael Scimone: Fair Warning for Workers, Trial Magazine, August 2010 o 2008 Author: A Practitioner s Overview of the Deficiencies of the Worker Adjustment and Retraining Notification Act Twenty Years Following its Enactment, The New York Employee Advocate, Volume 14, No. 5, June Ms. Roupinian has been quoted on WARN law rights and the firm s cases have been cited in such publications as the Wall Street Journal, the New York Times, American Lawyer, Associated Press, USA Today, Forbes, Newsday, Times-Gazette, The Herald News, and others. In May 2008, together with Jack A. Raisner and the firm s client, Joe Aguiar, Ms. Roupinian submitted testimony to the Senate Health Education Labor and Pensions (HELP) Committee of the U.S. Senate upon invitation from the Committee s Chair, Senator Edward Kennedy, on the occasion of the 20 th Anniversary of the WARN Act. Her testimony highlighted from a litigator s perspective, the deficiencies in the Act and its need for reform. 55. She received her BA from the University of Michigan in 1989, and her JD in 1994 from Michigan State University College of Law. Prior to 2002, she was a partner in a Detroit law firm where she litigated individual employment claims and class actions. She has argued before the Michigan Court of Appeals and the Michigan Supreme Court and is a member of the bars of New York and Michigan. She is also admitted to practice in the U.S. District Court of Colorado, the U.S. Court of Appeals for the Second Circuit, the U.S. Court of Appeals for the Third Circuit, the U.S. Court of Appeals for the Fifth Circuit, the U.S. Court of Appeals for the 20

77 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 22 of 23 Eighth Circuit, the U.S. Court of Appeals for the Ninth Circuit, and the United States Supreme Court. THE FORM AND MANNER OF NOTICE TO THE CLASS 56. As shown by the accompanying brief, the Proposed Notice to the class satisfies the requirements for such a notice. The Notice fairly apprises the Class members of the nature of the action, of their right to opt-out of the class, and of the effect of their failure to opt-out, namely, that they will be bound by the outcome of the litigation (See Exhibit F to Plaintiffs Motion for Class Certification). 57. The motion seeks approval of service of the Proposed Notice by first class mail sent to the address of each class member shown in Defendants business records. As discussed in the accompanying brief, service in this manner is proper. CONCLUSION In view of the foregoing, the annexed exhibits, the accompanying memorandum of law and the accompanying declaration of Plaintiff in support of the motion, this Court should enter the Proposed Order (attached to the accompanying memorandum of law as Exhibit G) (a) certifying a class of: All persons who worked at, received assignments from, or reported to Westinghouse Electric Company, LLC, or Defendant entities directly or indirectly owned by Westinghouse Electric Company, LLC, at the V.C. Summer Facility (1) who were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closing ordered by Westinghouse Electric Company, LLC on or about July 31, 2017, (2) who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) and (3) who have not opted-out of the class. (b) appointing Outten & Golden LLP, Lankenau & Miller, LLP, and The Gardner Firm, P.C. as Class Counsel; (c) appointing Plaintiffs as the Class Representatives; (d) approving the form and manner of Notice, (e) dismissing or staying the action titled Massey v. Westinghouse 21

78 mew Doc 20-4 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit D Pg 23 of 23 Electric Company, LLC, et al, Adv. Proc. No (MEW) or in the alternative, consolidating it with the instant action, and (e) such further relief as this Court may deem proper. DATED: February 15, 2018 Respectfully submitted, By: /s/ Jack A. Raisner JACK A. RAISNER 22

79 mew Doc 20-5 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 1 to Dec. of J. Raisner Pg 1 of 10 Exhibit 1

80 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 1 of 9Pg 2 of 10 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al.,, 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) ANDREW FLEETWOOD, on behalf of himself and all others similarly situated, Plaintiff, Adv. Pro. No. - v. WECTEC LLC and STONE & WEBSTER SERVICES LLC, Defendants. CLASS ACTION ADVERSARY PROCEEDING COMPLAINT FOR VIOLATION OF WARN ACT 29 U.S.C. 2101, et seq. Plaintiff Andrew Fleetwood ( Plaintiff ) alleges on behalf of himself and a putative class of similarly situated former employees of WECTEC LLC and STONE & WEBSTER SERVICES LLC, ( Debtors or Defendants ) by way of this Class Action Adversary Proceeding Complaint against Defendants as follows: 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), PCI 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/A), 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

81 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 2 of 9Pg 3 of 10 NATURE OF THE ACTION 1. This is a class action for the recovery by Plaintiff Andrew Fleetwood and the other similarly situated employees of Defendants for damages in the amount of 60 days pay and ERISA benefits by reason of Defendants violation of the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. (the WARN Act ) and for accrued unpaid vacation pay. 2. Plaintiff did not receive any advance written notice of his termination. Such termination fails to give Plaintiff and other similarly situated employees of Defendants at least 60 days advance notice of termination, as required by the WARN Act. As a consequence of such a WARN Act violation, Plaintiff and other similarly situated employees of Defendants seek their statutory remedies. JURISDICTION AND VENUE 3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1334 and 29 U.S.C. 2104(a)(5). 4. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A), (B) and (O). 5. Venue is proper in this District pursuant to 28 U.S.C and 29 U.S.C. 2104(a)(5). THE PARTIES Plaintiff 6. Plaintiff Andrew Fleetwood worked at the VC Summer Nuclear Reactor construction site in Jenkinsville, South Carolina (the Facility) and held the position of Field Engineering Manager until his termination on July 31,

82 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 3 of 9Pg 4 of On July 31, 2017, Plaintiff was furloughed without being given any indication that his employment or that of his co-workers would ever recommence. Defendants 8. Upon information and belief, Defendant WECTEC LLC is a Delaware corporation with its principal place of business located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania Upon information and belief, Defendant Stone & Webster Services, LLC is a Louisiana corporation with its principal place of business located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania Upon information and belief at all relevant times, Defendants owned, maintained and operated their business employing more than 350 employees at the Facility, as that term is defined by the WARN Act. 11. On March 30, 2017, Debtors filed their voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code. 12. Until his termination by Defendants, Plaintiff and the other similarly situated persons were employees of Defendants who worked at, received assignments from, or reported to Defendants at the Facility. 13. Until his termination by Defendants, Plaintiff and the other similarly situated persons were referred to as WECTEC employees but were paid by the Stone & Webster Services, LLC entity. FEDERAL WARN ACT CLASS ALLEGATIONS 14. Plaintiff brings this Claim for Relief for violation of 29 U.S.C et seq., on behalf of himself and on behalf of all other similarly situated former employees, pursuant to 29 3

83 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 4 of 9Pg 5 of 10 U.S.C. 2104(a)(5) and Fed. R. Civ P. 23(a), who worked at, received assignments from, or reported to Defendants at the Facility and were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017 and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the WARN Class ). 15. The persons in the WARN Class identified above ( WARN Class Members ) are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of Defendants. 16. Upon information and belief, Defendants employed more than 100 full-time employees who worked at or reported to the Facility. 17. On information and belief, the identity of the members of the class and the recent residence address of each of the WARN Class Members is contained in the books and records of Defendants. 18. On information and belief, the rate of pay and benefits that were being paid by Defendants to each WARN Class Member at the time of his/her termination is contained in the books and records of Defendants. 19. Common questions of law and fact exist as to members of the WARN Class, including, but not limited to, the following: (a) whether the members of the WARN Class were employees of the Defendants who worked at or reported to the Facility; 4

84 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 5 of 9Pg 6 of 10 (b) whether Defendants unlawfully terminated the employment of the members of the WARN Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act; and (c) whether Defendants unlawfully failed to pay the WARN Class members 60 days wages and benefits as required by the WARN Act. 20. Plaintiff s claims are typical of those of the WARN Class. Plaintiff, like other WARN Class members, worked at or reported to Defendants at the Facility and was terminated beginning on or about July 31, 2017, due to the mass layoff and/or plant closing ordered by Defendants. 21. Plaintiff will fairly and adequately protect the interests of the WARN Class. Plaintiff has retained counsel competent and experienced in complex class actions, including the WARN Act and employment litigation. 22. On or about July 31, 2017, Plaintiff was terminated by Defendants. This termination is part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which she was entitled to receive 60 days advance written notice under the WARN Act. 23. Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the WARN Class predominate over any questions affecting only individual members of the WARN Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation particularly in the context of WARN Act litigation, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate Defendants, and damages suffered by individual WARN Class members are small compared to the expense and burden of individual prosecution of this litigation. 5

85 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 6 of 9Pg 7 of Concentrating all the potential litigation concerning the WARN Act rights of the members of the Class in this Court will obviate the need for unduly duplicative litigation that might result in inconsistent judgments, will conserve the judicial resources and the resources of the parties and is the most efficient means of resolving the WARN Act rights of all the members of the Class. 25. Plaintiff intends to send notice to all members of the WARN Class to the extent required by Rule The relief sought in this proceeding is equitable in nature. CLAIM FOR RELIEF First Cause of Action: Violation of the Federal WARN Act 27. Plaintiff realleges and incorporates by reference all allegations in all preceding paragraphs. 28. At all relevant times, Defendants employed more than 100 employees who in the aggregate worked at least 4,000 hours per week, exclusive of hours of overtime, within the United States. 29. At all relevant times, Defendants were an employer, as that term is defined in 29 U.S.C (a)(1) and 20 C.F.R. 639(a)(3), and continued to operate as a business until they decided to order mass layoffs or plant closings at the Facility. 30. Beginning on or about July 31, 2017, Defendants ordered a mass layoff and/or plant closing at the Facility, as those terms are defined by 29 U.S.C. 210l(a)(2) and 20 C.F.R (i). 6

86 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 7 of 9Pg 8 of The mass layoff or plant closing at the Facility resulted in employment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants employees as well as thirty-three percent (33%) of Defendants workforce at the Facility, excluding part-time employees, as that term is defined by 29 U.S.C. 2101(a)(8). 32. Plaintiff and the Class Members were terminated by Defendants without cause on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs or plant closings ordered by Defendants at the Facility. 33. Plaintiff and the Class Members are affected employees of Defendants, within the meaning of 29 U.S.C. 2101(a)(5). 34. Defendants were required by the WARN Act to give the Plaintiff and the Class Members at least 60 days advance written notice of their terminations. 35. Defendants failed to give Plaintiff and the Class members written notice that complied with the requirements of the WARN Act. 36. Plaintiff and each of the Class Members are aggrieved employees of Defendants as that term is defined in 29 U.S.C. 2104(a)(7). 37. Upon information and belief, Defendants failed to pay Plaintiff and each of the Class Members their respective wages, salary, commissions, bonuses, accrued vacation and personal time off for 60 days following their respective terminations, and failed to make the pension and 401(k) contributions and provide employee benefits under COBRA for 60 days from and after the dates of their respective terminations. Second Cause of Action: Unpaid Wages South Carolina 38. The Plaintiff realleges and incorporates by reference all allegations in all proceeding paragraphs. 7

87 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 8 of 9Pg 9 of The Plaintiff on behalf of similarly situated employees who worked at or reported to Defendants at the Facility located in South Carolina seeks payment for all unpaid wages, including accrued but unpaid vacation pay, in violation of the South Carolina Payment of Wages Act and Defendants failure to pay wages, including accrued but unpaid vacation pay, violated , entitling Plaintiff and all other similarly situated employees to an amount equal to three times the full amount of their unpaid wages, plus costs and reasonable attorneys fees as the court may allow. PRAYER FOR RELIEF WHEREFORE, Plaintiff, individually and on behalf of all other similarly situated persons, prays for the following relief as against Defendants: A. Certification of this action as a class action; B. Designation of Plaintiff as Class Representative; C. Appointment of the undersigned attorneys as Class Counsel; D. An allowed post-petition administrative expense claim or, in the alternative, a wage priority claim for up to $12,850 of the WARN Act claims of Plaintiff and each of the other similarly situated former employees under 11 U.S.C. 507(a)(4) and (5), and the remainder as a general unsecured claim, equal to the sum of: (i) unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay pension and 401(k) contributions and other ERISA benefits, for 60 days, that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the federal WARN Act, 29 U.S.C. 2104(a)(1)(A) against 8

88 mew mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 20:18:02 21:23:05 Main Exhibit Document 1 to Dec. of J. Raisner Pg 9 of 9Pg 10 of 10 Defendants in favor of Plaintiff and the other similarly situated former employees equal to those sums; E. Judgment in favor of the Plaintiff and the other similarly situated former employees for payment of accrued vacation time, interest, applicable liquidated damages, and attorneys fees and costs pursuant to the South Carolina Payment of Wages Act , and for any unpaid benefits amounts due; F. Reasonable attorneys fees and the costs and disbursements that Plaintiff will incur in prosecuting this action, as authorized by the federal WARN Act; and G. Such other and further relief as this Court may deem just and proper. Dated: August 10, 2017 Respectfully submitted, By: /s/jack A. Raisner Jack A. Raisner René S. Roupinian OUTTEN & GOLDEN LLP 685 Third Avenue, 25 th Floor New York, New York Telephone: (212) Facsimile: (646) jar@outtengolden.com rsr@outtengolden.com Attorneys for the Plaintiff and the putative class 9

89 mew Doc 20-6 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 2 to Dec. of J. Raisner Pg 1 of 11 Exhibit 2

90 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 1 of 10Pg 2 of 11 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re WESTINGHOUSE ELECTRIC COMPANY, LLC et al., Debtors x KENT GLADDEN on behalf of himself and all others similarly situated, Plaintiff, Chapter 11 Case No (MEW) (Jointly Administered) Adversary Proceeding No. v. WESTINGHOUSE ELECTRIC COMPANY, LLC CLASS ACTION ADVERSARY PROCEEDING COMPLAINT Defendant CLASS ACTION ADVERSARY PROCEEDING COMPLAINT Plaintiff Kent Gladden ( Plaintiff ) by and through undersigned counsel, on behalf of himself and all other similarly situated persons, as and for their complaint against Defendant, allege as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. 157, 1331, 1334 and This is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A), (B) and (O). NATURE OF THE ACTION

91 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 2 of 10Pg 3 of This is a class action for the recovery by Plaintiff and other similarly situated employees of the Defendant of damages in the amount of 60 days pay and ERISA benefits by reason of Defendant s violation of the Plaintiff s rights under the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. ( WARN Act ). The Plaintiff was an employee of the Debtor and was terminated as part of, or as a result of a plant closing ordered by the Defendant. As such, the Defendant violated the WARN Act by failing to give the Plaintiff and other similarly situated employees of the Defendant at least 60 days advance written notice of termination, as required by the WARN Act. As a consequence, the Plaintiff and other similarly situated employees of the Defendant are entitled under the WARN Act to recover from the Defendant their wages and ERISA benefits for 60 days, none of which has been paid. PARTIES 4. Upon information and belief, at all relevant times, Defendant Westinghouse Electric Company, LLC ( Westinghouse or Defendant ) maintained a facility at VC Summer Nuclear Station in Jenkinsville, South Carolina (the Facility ). 5. Plaintiff worked at the Facility until his termination on or about July 31, 2017 and thereafter. 6. On or about March 29, 2017 Defendant filed with this Court a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. 7. Until his termination by Defendant, the Plaintiff and other similarly situated persons were employees of Defendant who worked at or reported to the Defendant s Facility. CLASS ACTION ALLEGATIONS 29 U.S.C

92 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 3 of 10Pg 4 of The Plaintiff and each person she seeks to represent herein, were discharged on or about July 31, 2017 and thereafter without cause on his or her part and are "affected employees" within the meaning of 29 U.S.C. 2101(a)(5). 9. The Plaintiff brings this action on his own behalf and, pursuant to the WARN Act, and Rules 7023(a) and (b)(3) of the Federal Rules of Bankruptcy and Rules 23(a) and (b) of the Federal Rules of Civil Procedure, on behalf of all other similarly situated former employees of Defendant who were terminated on or about July 31, 2017 and thereafter, who worked at the Facility until their terminations. 10. On or about July 31, 2017 and thereafter, Defendant terminated the Plaintiff s employment as part of a plant closing which qualifies as an event for which he was entitled to receive to sixty (60) days' advance written notice under the WARN Act. 11. Defendant never gave Plaintiff the statutorily required sixty (60) days advance written notice of the plant closing or termination in violation of the WARN Act. 12. At or about the time that the Plaintiff was discharged on or about July 31, 2017 and thereafter, Defendant discharged approximately 200 other employees at the Facility (the "Other Similarly Situated Former Employees"). 13. Pursuant to WARN Act 29 U.S.C. 2104(a)(5), the Plaintiff maintains this claim on behalf of each of the Other Similarly Situated Former Employees and for his or her benefit. 14. Each of the Other Similarly Situated Former Employees is similarly situated to the Plaintiff in respect to his or her rights under the WARN Act. 15. The Plaintiff and the Other Similarly Situated Former Employees were discharged by Defendant, without cause on their part. 3

93 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 4 of 10Pg 5 of The Plaintiff and each of the Other Similarly Situated Former Employees is an "affected employee" within the meaning of WARN Act 29 U.S.C. 2101(a)(5). 17. Defendant was required by the WARN Act to give the Plaintiff and the Other Similarly Situated Former Employees at least sixty (60) days prior written notice of their respective terminations. 18. Prior to their termination, neither the Plaintiff nor the Other Similarly Situated Former Employees received written notice that complied with the requirements of the WARN Act. 19. Defendant failed to pay the Plaintiff and the Other Similarly Situated Former Employees their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for sixty (60) calendar days following their respective terminations and failed to make the 401(k) contributions and provide health insurance coverage and other employee benefits under ERISA in respect to them for sixty (60) calendar days from and after the dates of their respective terminations. CLASS ACTION ALLEGATIONS RULE 7023 (a) and (b) 20. The Plaintiff asserts his claims on behalf of himself and the Other Similarly Situated Former Employees pursuant to Rules 7023(a) and (b)(3) of the Federal Rules of Bankruptcy and Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. 21. The Plaintiff and the Other Similarly Situated Former Employees constitute a class within the meaning of Rules 7023(a) and (b)(3) of the Federal Rules of Bankruptcy and Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure (The "Class"). 22. Common questions of law and fact are applicable to all members of the Class. 23. The common questions of law and fact arise from and concern the following 4

94 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 5 of 10Pg 6 of 11 facts and actions, among others, that Defendant committed or failed to commit as to all members of the Class: all Class members enjoyed the protection of the WARN Act; all Class members were employees of Defendant who, prior to the terminations, worked at the Facility; Defendant terminated the employment of all the members of the Class without cause on their part without giving them at least sixty (60) days' prior written notice as required by the WARN Act; and Defendant failed to pay the Class members wages and to provide other employee benefits for the sixty (60) day period following their respective terminations. 24. The questions of law and fact common to the members of the Class, as above noted, predominate over any questions affecting only individual members, and thus, this Class claim is superior to other available methods for the fair and efficient adjudication of this controversy. 25. The Plaintiff s claims are typical of the claims of other members of the Class in that for each of the several acts described above. 26. The Plaintiff will fairly and adequately protect and represent the interests of the Class. 27. The Plaintiff has the time and resources to prosecute this action and has retained counsel who have had extensive experience in matters involving employee rights, the WARN Act, class action litigation and bankruptcy court litigation. 28. The Class is so numerous as to render joinder of all members impracticable as there are approximately 248 persons who are included in the Class. 29. The Class meets the requirements of Fed. R. Civ. P. 23(a) for class certification. 30. The Class meets the requirements of Fed. R. Civ. P. 23(b)(3) because the 5

95 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 6 of 10Pg 7 of 11 questions of law or fact common to the members of the Class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 31. No Class member has an interest in individually controlling the prosecution of a separate action under the WARN Act. 32. No litigation concerning the WARN Act rights of any Class member has been commenced. 33. Concentrating all the potential litigation concerning the WARN Act rights of the Class members in this Court will avoid a multiplicity of suits, will conserve judicial resources and the resources of the parties and is the most efficient means of resolving the WARN Act rights of all the Class members. 34. On information and belief, the identities of the Class members are contained in the books and records of Defendant. 35. On information and belief, a recent residence address of each of the Class members is contained in the books and records of Defendant. 36. On information and belief, the rate of pay and benefits that were being paid by Defendant to each Class member at the time of his/her termination are contained in the books and records of Defendant. 37. As a result of Defendant s violation of the WARN Act, the Plaintiff and the other members of the Class have been damaged in amounts equal to the sum of: (a) their respective lost wages, salaries, commissions, bonuses, accrued holiday pay, accrued vacation pay, 401(k) contributions for sixty (60) days; (b) the health and medical insurance and other 6

96 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 7 of 10Pg 8 of 11 fringe benefits that they would have received or had the benefit of receiving, for a period of sixty (60) days after the dates of their respective terminations; and (c) medical expenses incurred during such period by such persons that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period. THE CLAIM FOR RELIEF 38. At all relevant times, the Defendant employed 100 or more employees (exclusive of part-time employees, i.e., those employees who had worked fewer than 6 of the 12 months prior to the date notice was required to be given or who had worked fewer than an average of 20 hours per week during the 60 day period prior to the date notice was required to be given (the Part-Time Employees )), or employed 100 or more employees who in the aggregate worked at least 4,000 hours per week exclusive of hours of overtime within the United States. 39. At all relevant times, Defendant was an employer, as that term is defined in the WARN Act and continued to operate as a business until it determined to order a plant closing at the Facility. 40. On or about July 31, 2017 and thereafter the Defendant ordered a plant closing at the Facility, as that term is defined by the WARN Act. 41. The plant closing at the Facility resulted in employment losses, as that term is defined by the WARN Act for at least fifty (50) of Defendant s employees as well as 33% of Defendant s workforce at the Facility, excluding part-time employees, as that term is defined by the WARN Act. 7

97 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 8 of 10Pg 9 of The Plaintiff and each of the other members of the Class were discharged by the Defendant without cause on his or her part as part of or as the reasonably foreseeable result of the plant closing ordered by the Defendant at the Facility. 43. The Plaintiff and each of the other members of the Class are affected employees of the Defendant within the meaning of the WARN Act. 44. The Defendant was required by the WARN Act to give the Plaintiff and each of the other members of the Class at least 60 days advance written notice of his or her termination. 45. The Defendant failed to give the Plaintiff and other members of the Class written notice that complied with the requirements of the WARN Act. 46. The Plaintiff and each of the other members of the Class are aggrieved employees of the Defendant as that term is defined in the WARN Act. 47. The Defendant failed to pay the Plaintiff and each of the other members of the Class their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for 60 days following their respective terminations and failed to make the pension and 401(k) contributions and provide employee benefits under ERISA, other than health insurance, for 60 days from and after the dates of their respective terminations. 48. Since the Defendant terminated the Plaintiff and each of the other members of the Class after the filing of the Defendant s bankruptcy petition, the Plaintiff s and the Class WARN Act claims against the Defendant are entitled to administrative priority status pursuant to 11 U.S.C. 503(b)(1)(A)(ii). 49. The relief sought in this proceeding is equitable in nature. 8

98 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 9 of 10Pg 10 of 11 WHEREFORE, Plaintiff on his own behalf and on behalf of the other Class members demand judgment, jointly and severally, against Defendant as follows: A. An allowed administrative priority claim pursuant to 11 U.S.C. 503(b)(1)(A)(ii) against the Defendant in favor of the Plaintiff and Class members equal to the sum of: (a) unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other ERISA benefits, for a maximum of 60 days, that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the WARN Act, 29 U.S.C. 2104(a)(1)(A). B. Certification that the Plaintiff and the other Class members constitute a single class; C. Appointment of the undersigned attorneys as Class Counsel; D. Appointment of Plaintiff as the Class Representative and payment of reasonable compensation to him for his services as such; E. An allowed administrative priority claim against the Defendant under 11 U.S.C. 503 for the reasonable attorneys fees and the costs and disbursements that the Plaintiff incurs in prosecuting this action, as authorized by the WARN Act, 29 U.S.C. 2104(a)(6); and F. Such other and further relief as this Court may deem just and proper. August 10, 2017 Respectfully submitted, By: /s/ Stuart J. Miller 9

99 mew Doc Doc Filed Filed 08/10/17 02/15/18 Entered Entered 08/10/17 02/15/18 14:29:43 21:23:05 Main Exhibit Document 2 to Dec. of J. Raisner Pg 10 of 10 Pg 11 of 11 LANKENAU & MILLER, LLP Stuart J. Miller (SJM 4276) 132 Nassau Street, Suite 1100 New York, NY P: (212) F: (212) THE GARDNER FIRM, P.C. Mary E. Olsen (OLSEM4818) M. Vance McCrary (MCCRM4402) The Gardner Firm, P.C. 210 S. Washington Avenue Mobile, AL P: (251) F: (251) Attorneys for Plaintiff 10

100 mew Doc 20-7 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 3 to Dec. of J. Raisner Pg 1 of 24 Exhibit 3

101 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 1 of 23 Pg 2 of 24 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re : Chapter 11 : WESTINGHOUSE ELECTRIC : Case No (MEW) COMPANY, LLC, et al., : : Debtor. : : : Elton Massey, Kirt Hurlburt, : Patricia Adams, John Jennings, : Johnnie Hogll, and Katrina Baker, : on behalf of themselves and all : others similarly situated, : : Plaintiffs, : Adv. No. : v. : : Westinghouse Electric Company, LLC, : WECTEC LLC, : WECTEC Staffing Services, LLC, and : WECTEC Global Project Services, Inc., : : Defendants. : : CLASS ACTION ADVERSARY PROCEEDING COMPLAINT FOR VIOLATION OF THE WARN ACT 29 U.S.C. 2101, et seq., SOUTH CAROLINA PAYMENT OF WAGES LAW AND BREACH OF CONTRACT Plaintiffs, Kirt Hurlburt, Johnnie Hogll, John Jennings, Elton Massey, Katrina Baker, and Patricia Adams (collectively, the Plaintiffs or the Class Plaintiffs ), allege on behalf of themselves and a class of similarly situated former employees of debtors, Westinghouse Electric Company, LLC ( WEC ), WECTEC LLC ( WECTEC ), WECTEC Staffing Services, Inc. ( WECTEC Staffing ), and WECTEC Global Project Services, Inc. (f/k/a CB&I Stone & PHIL v.2

102 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 2 of 23 Pg 3 of 24 Webster, Inc.) ( WECTEC Global ) (collectively, Defendants ), by way of this Adversary Complaint against Defendants, by and through their counsel, as follows: NATURE OF THE ACTION 1. This Adversary Complaint is filed against Defendants pursuant to Rules 23(a), (b)(1)(b) and 23(b)(3) of the Federal Rules of Civil Procedure, made applicable by Rule 7023 of the Federal Rules of Bankruptcy Procedure, by Plaintiffs on behalf of themselves and all other similarly situated employees of Defendants who worked at or reported to the Virgil C. Summer Nuclear Station, located at Highway 213 Jenkinsville, South Carolina ( VC Summer Location ), until their employment was terminated without cause on their part in violation of the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. (the WARN Act ), on or about July 31, 2017, or within 30 days of that date, or as the reasonably expected consequence of the mass layoffs or plant closing at the VC Summer Location, that occurred on or about July 31, For these WARN Act claims, 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. Plaintiffs 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). JURISDICTION AND VENUE 3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157, 1331, 1334 and 1367 and 29 U.S.C. 2104(a)(5). 1 On September 6, 2017, Johnnie Hogll 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. Inadvertently, Mr. Hogll s last name was misspelled as Hill and Ms. Adams last name was misspelled as Asa. PHIL v.2 2

103 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 3 of 23 Pg 4 of This is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A), (B) and (O). 5. Venue is proper in this District pursuant to 28 U.S.C and 29 U.S.C. 2104(a)(5). THE PARTIES 6. Plaintiff Kirt Hurlburt s nominal employer 2 was WECTEC Staffing for which he was a Field Welding Engineer at the VC Summer Location until his abrupt termination on or about July 31, For the purposes of the WARN Act, Mr. Hurlburt was an employee of all Defendants. 7. Plaintiff Johnnie Hogll s nominal employer was WECTEC Staffing for which he was an FFD Technician at the VC Summer Location until his abrupt termination on or about July 31, For the purposes of the WARN Act, Mr. Hogll was an employee of all Defendants. 8. Plaintiff John Jennings nominal employer was WECTEC and/or WECTEC Staffing, for which he was an ICPT Mechanical Lead at the VC Summer Location until his abrupt termination on or about July 31, For the purposes of the WARN Act, Mr. Jennings was an employee of all Defendants. 9. Plaintiff Elton Massey s nominal employer was WECTEC and/or WECTEC Staffing, for which he was a WTSS QC Inspector at the VC Summer Location until his abrupt termination on or about July 31, For the purposes of the WARN Act, Mr. Massey was an employee of all Defendants. 10. Plaintiff Katrina Baker s nominal employer was WEC and/or WECTEC, for which she was an IT Asset Administrative Global Specialist II, until her abrupt termination on or 2 The term nominal employer 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. PHIL v.2 3

104 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 4 of 23 Pg 5 of 24 about July 31, For the purposes of the WARN Act, Ms. Baker was an employee of all Defendants. 11. Plaintiff Patricia Adams nominal employer was WECTEC and/or WECTEC Global, for which she was an engineering technician. For the purposes of the WARN Act, Ms. Adams was an employee of all Defendants. 12. WEC is a Delaware limited liability company, with its headquarters located at 1000 Westinghouse Drive, Cranberry Township, PA WEC owns 100% of defendant WECTEC. 13. Defendant WECTEC is a Delaware limited liability company, with its principal office located at 1000 Westinghouse Drive, Cranberry Township, PA WECTEC owns 100% of defendants WECTEC Staffing and WECTEC Global. 14. Defendant WECTEC Global is a Louisiana corporation, with its principal office located at 1000 Westinghouse Drive, Cranberry Township, PA Defendant WECTEC Staffing is a Delaware limited liability company, with its principal office located at 1000 Westinghouse Drive, Cranberry Township, PA Upon information and belief, at all pertinent times hereto, WECTEC Global and WECTEC Staffing ran the service business of WEC and WECTEC. 17. Non-defendant Fluor Corporation ( Fluor Corp. ) is a private corporation organized and existing under the laws of Delaware and having its principal place of business at 6700 Las Colinas Boulevard, Irving, Texas Non-defendant Fluor Enterprises, Inc. ( Fluor Enterprises ) is a private corporation organized and existing under the laws of California and having a place of business at PHIL v.2 4

105 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 5 of 23 Pg 6 of Las Colinas Boulevard, Irving, Texas and business operations in the State of South Carolina. Fluor Enterprises is a wholly owned subsidiary of Fluor Corporation. 19. Non-defendant Fluor Daniel Maintenance Services, Inc. ( Fluor Daniel ) is a Fluor affiliated entity that, upon information and belief, is wholly owned by Fluor Corp. and/or Fluor Enterprises. Fluor Daniel is a Delaware corporation and is registered to do business in South Carolina. 20. Fluor Corp., Fluor Enterprises, and Fluor Daniel are collectively referred to as Fluor. Fluor is a U.S.-based global engineering and construction company with experience in nuclear plant construction. 21. Non-defendant SCANA Corporation ( SCANA ) is a South Carolina corporation with headquarters in Richland County, South Carolina. 22. SCANA wholly owns non-defendant South Carolina Electric & Gas Company ( SCE&G ), which is a statutorily created South Carolina Service Authority. SCANA operates by and through SCE&G to supply electricity to residential, commercial and governmental customers in various counties in South Carolina. FACTS Background on the VC Summer project 23. On May 23, 2008, 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 (the Consortium ), on the other hand, entered into an Engineering, Procurement and Construction Agreement ( EPC 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. PHIL v.2 5

106 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 6 of 23 Pg 7 of SCE&G and SCANA together own the VC Summer Location. 25. 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. 26. Pursuant to the EPC Agreement, the Consortium was required to substantially complete the first reactor by April 1, 2016, and the second reactor by January 1, 2019, at the VC Summer Location. 27. In October 2015, after significant cost overruns on the VC Summer project, WEC formed WECTEC Global to acquire S&W from S&W s parent, Chicago Bridge & Iron Company ( CB&I ). 28. Following this acquisition, WEC transferred many of S&W s non-craft employees to WECTEC, WECTEC Global, and/or WECTEC Staffing and WEC continued to maintain its employees on-site at the VC Summer Location. WECTEC, WECTEC Global and WECTEC Staffing are hereinafter collectively referred to as the other WEC Defendants. 29. At or about the same time WEC and WEC Global acquired S&W, WEC also entered into a Subcontractor Agreement with Fluor Corp. and/or Fluor Enterprises. Upon information and belief, Fluor took over from S&W the primary responsibility for construction and assumed the role as employer for many of the S&W craft employees (i.e., manual labor construction employees), as well as other former S&W employees. 30. As collectively outlined in several lawsuits filed against SCANA, SCE&G, and/or their directors/officers: in 2014, SCANA and SCE&G hired Bechtel Corporation ( Bechtel ) to do a comprehensive review of the VC Summer project. On or about February 5, 2016, Bechtel PHIL v.2 6

107 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 7 of 23 Pg 8 of 24 produced a report on its review (the Bechtel Report ), which outlined numerous fundamental inadequacies of the project, including, but not limited to, the construction plans were not specific enough from which the project s costs could be calculated accurately and employees worked too many hours. Bechtel recommended that a re-evaluation of the project s goals, costs and dates for completion be conducted. Upon information and belief, neither SCANA/SCE&G nor Defendants adopted Bechtel s recommendations and acted on them. 31. In or about as early as the Fall of 2016, Fluor and WEC/WECTEC assessed the status of the VC Summer project and concluded that the number of hours required to complete the project, including the expected labor costs, project management costs, and procurement costs were about $6 billion higher than had previously been estimated. 32. Based on the conclusions in this assessment, SCANA and WEC, in October 2016, agreed to a new or revised contract in the amount of $14 billion dollars. 33. By at least this time if not as early as the production of the Bechtel Report SCANA and WEC/WECTEC knew or reasonably should have known that Defendants would be unable to complete the VC Summer project on time and on budget. 34. In February 2017, Toshiba Corporation (which indirectly owns 87% of WEC) ( Toshiba ), provided emergency funding to WEC, which, among other things, was used to fund the other WEC Defendants. This funding allowed Defendants time to plan collectively for a potential Chapter 11 filing. 35. In March 2017, Toshiba refused to extend more money to WEC (and its subsidiaries) without collateral, such as DIP financing that could be obtained by Defendants if they were to file for bankruptcy protection under Chapter 11 of the Bankruptcy Code. PHIL v.2 7

108 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 8 of 23 Pg 9 of On March 28, 2017, WEC and WECTEC Global entered into an Interim Assessment Agreement ( IAA ) to create an Interim Assessment Period during which the construction of the two nuclear reactor units at the VC Summer Location would continue to and through the earlier of April 28, 2017, or the termination of the IAA by SCANA and SCE&G upon five days notice. The IAA was amended on April 28, 2017, to extend the end date to May 12, 2017, and on June 26, 2017, to extend the end date to August 10, Upon information and belief, WEC and WECTEC Global entered into the IAA on their own behalf and on behalf of their subsidiaries and/or affiliated companies, including the other defendants. 38. On March 29, 2017 (the Petition Date ), WEC and a number of its affiliates, including the other WEC Defendants (collectively referred to as the Debtors ), commenced voluntary cases under Chapter 11 of the Bankruptcy Code (the Bankruptcy Filings ). Debtors continued to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Code. Debtors estates are being jointly administered. 39. On or about July 27, 2017, SCANA and SCE&G entered into an agreement with Toshiba pursuant to which Toshiba agreed to make payments through September 2022 to SCANA and SCE&G totaling $2.168 billion, with $1.2 billion being paid to SCE&G. This amount is payable regardless of whether the VC Summer project is completed or the project is completely abandoned. 40. On July 31, 2017, SCANA and SCE&G terminated the IAA and announced that it was abandoning the VC Summer project. On that same day, Defendants and Fluor terminated PHIL v.2 8

109 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 9 of 23 Pg 10 of 24 virtually all of their nominal employees who worked at the VC Summer Location (which consisted of approximately 600 and 4,000 individuals, respectively). The Single Employer Relationship Between WEC, the other WEC Defendants, Fluor, and SCANA 41. WEC, together with Debtors and other non-debtor affiliates, operates a global business that provides design and engineering services, decommissioning services, and a variety of other critical operations both to new plant construction as well as to an existing operating fleet of nuclear power plants. 42. At the VC Summer Location, Defendants, and at all pertinent times hereto Fluor and SCANA, acted as a single employer of Plaintiffs and the other individuals who performed services and/or worked at the VC Summer Location, when balancing the following five factors: (a) (b) (c) (d) (e) common ownership; common directors and/or officers; de facto control by the parent over the subsidiary; a unity of personnel policies emanating from a common source; and a dependency of operations between the companies. 20 C.F.R (a)(2). 43. Concerning common ownership regarding Defendants and non-defendants, see paragraphs 12 through 21, supra. 44. Concerning common directors and/or officers regarding Defendants: (a) Daniel Sumner is the Vice President of Finance for each of the Defendants. PHIL v.2 9

110 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 10 of Pg of 24 (b) Jose Emeterio Guiterrez ( Guiterrez ) has been either the interim President or President and Chief Executive Officer of WEC since at least June 2016, and executed the IAA on behalf of both WEC and WEC Global. (c) David Durham is Senior Vice President of New Projects and Business for WEC and President of WECTEC and WECTEC Global. Durham also signed an amendment to the IAA on behalf of WECTEC Staffing. (d) Michael Sweeney is Senior Vice President and General Counsel for WEC, Vice President for WECTEC and WECTEC Global, and Secretary for WECTEC Staffing. (e) Carl Churchman has been identified as Consortium Vice President and Project Director for WEC and the Site Director for WECTEC ( Churchman ). 45. Concerning common directors and officers of non-defendants Fluor: (a) David Seaton is the Chairman and CEO of Fluor Corp., as well as CEO of Fluor Enterprises; (b) Carlos Hernandez is Executive Vice President, Chief Legal Officer and Secretary for Fluor Corp., as well as Secretary for Fluor Enterprises; and (c) Bruce Stanski is Executive Vice President and CFO of Fluor Corp., as well as CFO for Fluor Enterprises. 46. Concerning Defendants unity of personnel policies, in addition to the facts alleged elsewhere herein: (a) all of Defendants books and records, including personnel records, have been kept at a common location Westinghouse Drive, Cranberry Township, PA 16066; (b) certain personnel policies implemented by WEC, including, but not limited to, a Code of Conduct and Global Ethics Code, applied to Defendants employees at the VC Summer Location, regardless of by which defendant each was employed nominally, and PHIL v.2 10

111 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 11 of Pg of 24 WEC appointed a common Ethics Officer to oversee these policies for all of Defendants employees; (c) employees of WECTEC Global and WECTEC Staffing were subject to the WECTEC employee handbook; (d) Upon information and belief, Defendants employee benefits plans were sponsored by WEC/WECTEC and, in certain instances, Defendants shared equally in the funding of said benefits; (e) WEC and/or WECTEC implemented safeguards, fitness-for-duty programs, and background investigations on all Defendants employees at the VC Summer Location as needed to comply with United States Nuclear Regulatory Commission (NRC) requirements; (f) All of Defendants employees at the VC Summer Location used the same time keeping and attendance system called the Security Management System; (g) Angela Palmer was Human Resources Director for all of Defendants employees and was employed nominally or directly by Westinghouse/WECTEC; (h) David Beauchamp was the Quality Assurance and Quality Control Director for Defendants employees and was employed nominally or directly by Westinghouse/WECTEC; and (i) as averred below, WEC/WECTEC, were the decision-makers for the employment practice giving rise to this litigation to terminate Plaintiffs and all others similarly situated on July 31, 2017 without providing advance written notice as required by WARN. 47. Regarding Fluor s unity of personnel policies, among other things: PHIL v.2 11

112 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 12 of Pg of 24 (a) Upon information and belief, Fluor Enterprises funded Fluor Daniel s payroll and appeared on Fluor Daniels employees paychecks; (b) Fluor Corp. s Human Resources Department provided human resources services to all Fluor employees; (c) Fluor Corp. sponsored common benefits and a 401k program for all Fluor employees; (d) time individuals worked for Fluor Corp., Fluor Enterprises, and/or Fluor Daniels was aggregated to determine time worked for Service Awards given to Fluor employees; (e) time individuals worked for WEC/WECTEC was included in calculating paid time off accrual credits for Fluor employees; and (f) upon information and belief, employment records for all employees of Fluor were maintained on a common system, accessed via other things: 48. Concerning the dependency of operations factor regarding Defendants, among (a) Defendants share equipment and professionals, rely on each other to service customers, share centralized corporate offices and services, and collectively provide to each other a variety of critical functions, including, among other things, quality assurance, management, finance and accounting, and human resources; (b) WECTEC, WECTEC Global and WECTEC Staffing run the Services Business for WEC and this Services Business is co-engaged with WEC s construction at the VC Summer Location; PHIL v.2 12

113 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 13 of Pg of 24 (c) many employment costs of Defendants, including workers compensation obligations, payroll and benefit costs, general corporate services, and information technology costs, were, at pertinent times hereto, centrally billed; (d) prior to SCANA assuming the responsibility for funding the payroll of the Defendants and Fluor s employees at the VC Summer Location as described below, WEC funded the payrolls of the other WEC Defendants two days prior to each payroll date; and (e) Defendants collectively moved funds through numerous bank accounts to ensure the continued operation of each entity and kept track of the funds through a common resource planning software system. 49. The following allegations concern de facto control. 50. At all pertinent times hereto, upon information and belief, employees of WECTEC Global, WECTEC Staffing and Fluor, respectively, as well as the employees of WEC/WECTEC, all received direction from and/or had a solid or dotted line of reporting to a WEC/WECTEC employee. Not only this, but individuals nominally employed by Fluor trained and provided certifications to Defendants nominal employees. Indeed, WEC management consistently promoted the concept that Defendants nominal employees were one team with Fluor s nominal employees. 51. Also, at all pertinent times at the VC Summer Location, Churchman held himself out as the person ultimately in charge of not only Defendants employees, but also of all of Fluor s employees, at the VC Summer Location. Among other things, Churchman, along with Louis Seidelman and Rod Cavalieri each of whom are employed by WEC/WECTEC - regularly convened calls for all employees at the VC Summer Location, both before and after the PHIL v.2 13

114 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 14 of Pg of 24 Bankruptcy Filings, to discuss the progress of the project and to set the work priorities for work there. 52. Further, at or about the time of the IAA and the Bankruptcy Filings, WEC/WECTEC held in person all hands meetings for Defendants employees at the VC Summer Location to discuss the Bankruptcy Filings and the status of the VC Summer project. 53. Moreover, at or about the time of the IAA and the Bankruptcy Filings, WEC/WECTEC officials conveyed Defendants business decision to Defendants employees that the VC Summer project was not going to be part of Defendants core business any longer. These officials also informed Defendants employees that WEC and/or Defendants no longer could afford to pay their wages and to pay any of the other administrative costs at the site so SCANA and/or SCE&G would be taking over the responsibility for doing that. Indeed, SCANA and/or SCE&G had agreed in the IAA to indemnify WEC and WECTEC Global against, and pay any and all administrative expenses that they may incur under, the EPC Contract, the IAA, or related to the VC Summer project. 54. In addition, after the Bankruptcy Filings, SCANA began making changes to the client-contractor model they had been following at the VC Summer Location. Specifically, SCANA became far more involved in the day-to-day activities of Defendants and Fluor s employees than SCANA had been before the Bankruptcy Filings. 55. Among other things, SCANA began leading the Plan of the Day meetings ( POD meetings ) with Defendants and Fluor s employees, during which topics such as safety, priorities for the day s tasks, and the status of the VC Summer project were discussed. 56. Also, SCANA, through, among others, David Parker, Robert Sees, Billy Campbell, and Maryellen Foster, took greater control over Defendants and Fluor s employees PHIL v.2 14

115 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 15 of Pg of 24 on site. Among other things, SCANA required Fluor and/or Defendants to rewrite their Materials Management policies to conform to SCANA s policies. 57. Notably, SCANA, along with WEC/WECTEC, routinely represented to Defendants and Fluor s employees, that the VC Summer project would continue despite the Bankruptcy Filings and that the employees did not have to worry about losing their jobs. 58. As averred above, however, on July 31, 2017, SCANA and SCE&G abandoned the project. In a press release on that day, they while omitting any mention of the Bechtel Report admitted that the decision to suspend construction was based in large part on a comprehensive analysis of detailed schedule and cost data, from both project contractor WEC and subcontractor Fluor Corp., first revealed after WEC filed for bankruptcy in March. 59. On that same day (July 31, 2017), Defendants also called all of their employees into a meeting to inform them that they were being terminated immediately. Churchman led the meeting, made the announcement, and served as the agent and spokesperson for Defendants. Even though Defendants have placed the blame for the terminations on SCANA s and/or SCE&G s decision to abandon the project, Defendants, in fact, knew or reasonably should have known months, if not years before, that the costs for completing the VC Summer project were not sustainable and that terminations were inevitable. 60. Indeed, WEC/WECTEC, individually and/or collectively with Fluor and/or SCANA/SCE&G, on or about July 31, 2017, made the decision to terminate Defendants employees who worked at the VC Summer Location and, at least 60 days before July 31, 2017, decided not to give Defendants employees notice of what Defendants, Fluor, and/or SCANA/SCE&G reasonably should have known at the time would be mass layoffs and terminations at the plant. PHIL v.2 15

116 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 16 of Pg of At or about the time of the termination, Defendants collectively dealt and communicated with all of their nominal employees at the VC Summer Location and/or Defendants made no distinction between themselves when it came to those employees. For example, Defendants employees were given a furlough notification wherein Defendants were collectively defined therein as the Company. 62. Also, WEC s Human Resources employees communicated with Defendants employees concerning Westinghouse separation paperwork, which collectively defined Defendants (and other WEC affiliates) as Westinghouse, and included a Westinghouse Electric Company Separation Letter on Proprietary Information, a COBRA notice from the Westinghouse Benefits Center (which was the COBRA administrator for WECTEC ), and a Separation Letter that collectively defined WECTEC Global and WECTEC Staffing as Westinghouse and directed employees to contact the Westinghouse Call Center with any questions. WARN CLASS ALLEGATIONS 63. The Class Plaintiffs bring a claim for relief for violation of 29 U.S.C et seq., on behalf of themselves and on behalf of all other similarly situated former employees of Defendants, pursuant to 29 U.S.C. 2104(a)(5) and the Federal Rules of Civil Procedure, Rule 23(a), who worked at or reported to the V.C. Summer Location and were terminated without cause on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017, and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the WARN Class ). 64. The persons in the WARN Class identified above ( WARN Class Members ) are so numerous that joinder of all members is impracticable. Although the precise number of such PHIL v.2 16

117 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 17 of Pg of 24 persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of Defendants and/or Fluor. 65. On information and belief, the identity of the WARN Class Members and the recent residential address of each of the WARN Class Members is contained in the books and records of Defendants and/or Fluor. 66. On information and belief, the rate of pay and benefits that were being paid by Defendants, Fluor and/or SCANA/SCE&G to each WARN Class Member at the time of his/her termination is contained in the books and records of Defendants, Fluor and/or SCANA/SCE&G. 67. Common questions of law and fact exist as to WARN Class Members, including, but not limited to, the following: (a) whether the WARN Class Members were employees of the Defendants (either alone or collectively with Fluor and/or SCANA/SCE&G) who worked at or reported to the V.C. Summer Location; (b) whether Defendants, alone or collectively with Flour and/or SCANA/SCE&G, unlawfully terminated the employment of the members of the WARN Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act; and (c) whether Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, unlawfully failed to pay the WARN Class Members 60 days wages and benefits as required by the WARN Act. 68. The Class Plaintiffs claims are typical of those of the WARN Class. The Class Plaintiffs, like other WARN Class Members, worked at or reported to the V.C. Summer Location PHIL v.2 17

118 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 18 of Pg of 24 and were terminated without cause on or about July 31, 2017, due to the mass layoffs and/or plant closings ordered by Defendants, alone or collectively with Fluor and/or SCANA/SCE&G. 69. The Class Plaintiffs will fairly and adequately protect the interests of the WARN Class. The Class Plaintiffs have retained counsel competent and experienced in complex class actions, including WARN Act and employment litigation. 70. On or about July 31, 2017, Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, terminated the Plaintiffs employment as part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which they were entitled to receive 60 days advance written notice under the WARN Act. 71. Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the WARN Class predominate over any questions affecting only individual members of the WARN Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation particularly in the context of WARN Act litigation, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant, and damages suffered by individual WARN Class Members are small compared to the expense and burden of individual prosecution of this litigation. 72. Concentrating all the potential litigation concerning the WARN Act rights of the members of the WARN Class in this Court will obviate the need for unduly duplicative litigation that might result in inconsistent judgments, will conserve judicial resources and the resources of the parties and is the most efficient means of resolving the WARN Act rights of all members of the WARN Class. PHIL v.2 18

119 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 19 of Pg of Plaintiffs intend to send notice to all members of the WARN Class to the extent required by Rule 23. CLAIMS FOR RELIEF Count I: Violation of the WARN Act, 29 U.S.C et seq. 74. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 75. At all relevant times, Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, as a single employer, employed more than 100 employees who in the aggregate worked at least 4,000 hours per week, exclusive of hours of overtime, within the United States. 76. At all relevant times, Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, were an employer, as that term is defined in 29 U.S.C (a)(1) and 20 C.F.R. 639(a), and continued to operate as a business until they decided to order mass layoffs or plant closings at the V.C. Summer Location. 77. On or about July 31, 2017, Defendants, along or collectively with Fluor and/or SCANA/SCE&G, ordered mass layoffs and/or plant closings at the V.C. Summer Location, as those terms are defined by 29 U.S.C. 2101(a)(2). 78. The mass layoffs or plant closings at the V.C. Summer Location resulted in employment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants employees as well as thirty-three percent (33%) of Defendants workforce at the V.C. Summer Location, excluding part-time employees, as that term is defined by 29 U.S.C. 2101(a)(8). 79. The Plaintiffs and the WARN Class Members were terminated by Defendants alone or collectively with Fluor and/or SCANA/SCE&G without cause on their part, as part of or PHIL v.2 19

120 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 20 of Pg of 24 as the reasonably foreseeable consequence of the mass layoffs or plant closings ordered by Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, at the V.C. Summer Location. 80. The Plaintiffs and the Class Members are affected employees of Defendants, within the meaning of 29 U.S.C. 2101(a)(5). 81. Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, were required by the WARN Act to give the Plaintiffs and the WARN Class Members at least 60 days advance written notice of their terminations. 82. Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, failed to give the Plaintiffs and the WARN Class Members written notice that complied with the requirements of the WARN Act. 83. The Plaintiffs, and each of the WARN Class Members, are aggrieved employees of the Defendants as that term is defined in 29 U.S.C (a)(7). 84. Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, failed to pay the Plaintiffs and each of the WARN Class Members their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for 60 days following their respective terminations, and failed to make the pension and 401(k) contributions and provide employee benefits under COBRA for 60 days from and after the dates of their respective terminations. 85. Plaintiffs and each of the WARN Class Members seek back-pay (and other damages) attributable to a period of time after the Bankruptcy Filings, which back pay and other damages arise as a result of Defendants violation of federal laws. Therefore, Plaintiffs and the PHIL v.2 20

121 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 21 of Pg of 24 Class Members claims against Defendants are entitled to first priority administrative expense status pursuant to 11 U.S.C. 503 (b)(1)(a). paragraphs. 86. The relief sought in this proceeding is equitable in nature. Count II: Violation of the South Carolina Payment of Wages law Sections et seq. 87. Plaintiffs reallege and incorporate by reference all allegations in all preceding 88. Defendants are employers under Section of the South Carolina Payment of Wages law (the Wages Law ). 89. Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, employed Plaintiffs, and all others similarly situated, in South Carolina. 90. In violation of the Wages Law, Defendants, alone or collectively with Fluor and/or SCANA/SCE&G, failed to timely pay, or pay at all, Plaintiffs, and all others similarly situated, all wages due under their policies, including accrued unused paid time off. 91. For the aforesaid violations, Plaintiffs, and all others similarly situated, are entitled to three times the full amount of their unpaid wages, plus costs and reasonable attorneys fees, plus costs and reasonable attorney s fees. paragraphs. Count III: Breach of Contract 92. Plaintiffs reallege and incorporate by reference all allegations in all preceding 93. Pursuant to Defendants policies and practices, Plaintiffs, and all others similarly situated, were entitled to the payment of the value of all accrued unused paid time off following their terminations. PHIL v.2 21

122 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 22 of Pg of In breach of Defendants obligations to Plaintiffs, and all others similarly situated, Defendants failed to pay the value of all accrued unused paid time off following the terminations of Plaintiffs and all others similarly situated. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs, individually and on behalf of all other similarly situated persons, pray for the following relief as against Defendants, jointly and severally: A. Certification of this action as a Class Action; B. Designation of the Plaintiffs as the Class Representatives; C. Appointment of the undersigned attorneys as Class Counsel; D. A first priority administrative expense claim against the Defendants pursuant to 11 U.S.C. 503(b)(1)(A) in favor of the Plaintiffs and the other similarly situated former employees equal to the sum of: their unpaid wages, salary, commissions, bonuses, pension and 401(k) contributions and other COBRA benefits, for 60 days, that would have been covered and paid under the then-applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the WARN Act, 29 U.S.C (a)(1)(a), including any civil penalties; E. three times the accrued paid time off pay due to Plaintiffs and all others similarly situated; F. An allowed administrative-expense priority claim under 11 U.S.C. 503 for the reasonable attorneys fees and the costs and disbursements that the Plaintiffs incur in prosecuting this action, as authorized by the WARN Act, 29 U.S.C. 2104(a)(6), the Wages Law, and/or other applicable laws; and PHIL v.2 22

123 mew mew Doc Doc Filed Filed 11/09/17 02/15/18 Entered 11/09/17 02/15/18 15:33:18 21:23:05 Main Exhibit Document 3 to Dec. of J. Raisner Pg 23 of Pg of 24 G. Such other and further relief as this Court may deem just and proper. Dated: November 9, 2017 /s/ Raymond Lemisch Raymond Lemisch, Esquire Charles A. Ercole, Esquire (admitted Pro Hac Vice) Lee D. Moylan, Esquire (admitted Pro Hac Vice) Klehr Harrison Harvey Branzburg LLP 1835 Market Street, Suite 1400 Philadelphia, PA Telephone: (215) Attorneys for Plaintiffs and the putative Class PHIL v.2 23

124 mew Doc 20-8 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 4 to Dec. of J. Raisner Pg 1 of 16 Exhibit 4

125 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 1 of 15Pg 2 of 16 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 1 Debtors. Chapter 11 Bankr. Case No MEW (Jointly Administered) KENT GLADDEN, ANDREW FLEETWOOD, and RODNEY CAVALIERI, on behalf of themselves and all others similarly situated, Plaintiff, Adv. Pro. No v. WECTEC LLC, WESTINGHOUSE ELECTRIC COMPANY LLC, WECTEC STAFFING SERVICES LLC, WECTEC GLOBAL PROJECT SERVICES INC., WEC CAROLINA ENERGY SOLUTIONS INC., WEC CAROLINA ENERGY SOLUTIONS, LLC and STONE & WEBSTER SERVICES LLC, Defendants. AMENDED CLASS ACTION ADVERSARY PROCEEDING COMPLAINT FOR VIOLATION OF WARN ACT 29 U.S.C. 2101, et seq. 2 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), PCI 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/A), 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 This Amended Complaint amends and consolidates the adversary proceeding complaints filed by Kent Gladden (Adv. Pro. No ) and Andrew Fleetwood (Adv. Pro. No ).

126 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 2 of 15Pg 3 of 16 Plaintiffs Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri ( Plaintiffs ) allege on behalf of themselves and a putative class of similarly situated former employees of WECTEC LLC, Westinghouse Electric Company LLC, WECTEC Staffing Services LLC, WECTEC Global Project Services Inc., WEC Carolina Energy Solutions Inc., WEC Carolina Energy Solutions, LLC and Stone & Webster Services LLC, ( Debtors or Defendants ) by way of this Class Action Adversary Proceeding Complaint against Defendants as follows: NATURE OF THE ACTION 1. This is a class action for the recovery by Plaintiffs and the other similarly situated employees of Defendants for damages in the amount of 60 days pay and ERISA benefits by reason of Defendants violation of the Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq. (the WARN Act ) and for accrued unpaid vacation pay. 2. Defendants did not provide Plaintiffs and the other similarly situated employees at least 60 days advanced notice of termination, as required by the WARN Act. As a consequence, Plaintiffs and other similarly situated employees of Defendants seek their statutory remedies. JURISDICTION AND VENUE 3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1334 and 29 U.S.C. 2104(a)(5). 4. This is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A), (B) and (O). 5. Venue is proper in this District pursuant to 28 U.S.C and 29 U.S.C. 2104(a)(5). 2

127 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 3 of 15Pg 4 of 16 THE PARTIES Plaintiffs 6. Plaintiff Kent Gladden worked at the VC Summer Nuclear Reactor construction site in Jenkinsville, South Carolina (the Facility ) and held the position of Environmental Health and Safety Manager until his termination on July 31, He was nominally employed by Westinghouse Electric Company LLC ( WEC LLC ). 7. Plaintiff Andrew Fleetwood worked at the Facility and held the position of Field Engineering Manager until his termination on July 31, He was nominally employed by WECTEC LLC, and/or WECTEC Global Project Services Inc., and/or Stone & Webster Services LLC and was jointly- or singly employed by WEC LLC. 8. Plaintiff Rodney Cavalieri worked at the Facility and held the position of Project Management Director until his termination on July 31, He was nominally employed by WECTEC Staffing Services Inc., and was jointly- or singly employed by WEC LLC. 9. On July 31, 2017, the Plaintiffs were terminated by Defendants without being given any indication that their employment or that of their co-workers would ever recommence. Defendants 10. Defendant WEC LLC is a Delaware company with its principal place of business located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania ( Cranberry ). 11. Michael T. Sweeney is WEC LLC s Senior Vice President, General Counsel and Secretary. 12. Defendant WECTEC LLC is a Delaware company with its principal place of business located at Cranberry, and is wholly-owned by WEC LLC, which is the sole member of WECTEC LLC. 3

128 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 4 of 15Pg 5 of WECTEC LLC s President is David C. Durham. 14. Defendant WECTEC Global Project Services Inc. is a Delaware corporation with its principal place of business located at Cranberry, and is wholly-owned by WECTEC LLC. 15. The two Directors of WECTEC Global Project Services Inc. are Michael T. Sweeney and David C. Durham, who is also the President of WECTEC Global Project Services Inc. 16. Defendant Stone & Webster Services LLC is a Louisiana company with its principal place of business located at Cranberry, and is wholly-owned by its Managing Member, WECTEC Global Project Services Inc. 17. Defendant WECTEC Staffing Services LLC is a Delaware company with its principal place of business located at Cranberry, and is wholly-owned by WECTEC LLC. 18. Defendant WEC Carolina Energy Solutions LLC is a Delaware company with its principal place of business located at 244 East Mount Gallant Road, Rock Hill, South Carolina 29730, and is owned by non-defendant, WEC Welding & Machining, LLC, which in turn is wholly owned by WEC LLC. 19. Defendant WEC Carolina Energy Solutions, Inc. is a Delaware corporation with its principal place of business located at 244 East Mount Gallant Road, Rock Hill, South Carolina 29730, and is wholly-owned by WEC Carolina Energy Solutions LLC. 20. Defendants owned, maintained and operated their business at the Facility, as that term is defined by the WARN Act. 21. The Defendants acted as a single- or joint-employer with respect to the management of their employees when they were operating and with respect to their terminations. 4

129 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 5 of 15Pg 6 of As of 2017, the Defendants (cumulatively, Westinghouse ) employed approximately 1,000 people with Westinghouse or WEC designations at the Facility. 23. WEC LLC did not group the employees in any meaningful way in carrying out construction at the Facility. 24. For administrative purposes, WEC LLC designated about 900 employees as WECTEC. Many were designated WECTEC Global Project Services Inc. or WECTEC Staffing Services, LLC. 25. Many of those designated WECTEC Global Project Services Inc. were paid with checks bearing the payor name Stone & Webster LLC. 26. About employees were designated WEC LLC. 27. Smaller numbers of employees were designated WEC Carolina Energy Solutions, Inc. or WEC Carolina Energy Solutions, LLC (together CES ). 28. These designations made no functional difference in the operations of the Facility. The Defendants employees at the Facility were hired, assigned duties, directed controlled and evaluated by the Defendants managers, irrespective of these various corporate designations. 29. The WECTEC designations were legacies of mergers that folded into WEC LLC various groups of workers at the Facility who had been employed by other entities. 30. CES was a sub-division of WEC LLC that deployed various welders and other construction specialists for WEC LLC nuclear reactor sites. 31. Prior to January 1, 2016, the WECTEC-designated employees worked at the Facility and were controlled by the Defendants managers but they were designated with the name of the contractor company that supplied them to the Facility. 5

130 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 6 of 15Pg 7 of After January 1, 2016, when these contractors began being absorbed into WEC LLC, WEC LLC replaced the contractor name with the newly created WECTEC name/designation. 33. Although WEC LLC was transitioning the various human resources, benefits, compensation levels, and systems of the merged workforces into its own WEC LLC systems, platforms and policies, these entity names kept track of any legacy issues which remained untransitioned. 34. After January 1, 2016, these designations simply indicated which Westinghouse accounts were used to pay the individuals, and which legacy human resources benefit plans might pertain to them. 35. The WEC, WECTEC or CES designations otherwise played no role and had no importance in the management or operations of the Facility. 36. The organization of the Defendants workforce at the Facility was structured solely around functionality. Defendants filled positions with the persons best qualified to do what needed to get done, regardless of their designations. 37. All of Defendants employees were assigned to tasks at the Facility based on their respective skills, experience, performance levels, and the like. Defendants made decisions about their employees based on those criteria, not administrative or entity labels. 38. Defendants managers freely hired and supervised employees with different designations than themselves. 39. Plaintiff Cavalieri, the Project Management Director at the Facility, was designated WECTEC Staffing, but reported to Carl Churchman, the Vice President and Project 6

131 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 7 of 15Pg 8 of 16 Director, who was the highest-ranked officer in charge of the Defendants work at the Facility, and was designated WEC LLC. 40. Mr. Churchman reported to an executive, David C. Durham, who upon information and belief, was WECTEC LLC s President, and who worked off-site and reported to WEC LLC s Chief Executive Officer. 41. As the Project Management Director, Plaintiff Cavalieri hired and managed WEC, WECTEC and CES employees at the Facility. 42. This mixture of designations was typical of the Defendants reporting structure at the Facility because the organizational structure took no account of entity labels. 43. All of Defendants employees at the Facility were given a Westinghouse number and account. 44. All the Defendants policies and procedures were centrally maintained at the Facility in the data room, housing the Electronic Data Management System. These included welding procedures and HR policies and procedures. 45. The hiring and onboarding processes for Defendants employees at the Facility were controlled by Defendants managers, not by any corporate entity of WEC LLC. 46. A hiring manager who needed an employee could seek one regardless of any WECTEC or Westinghouse designation. In doing so, the manager served the interests of the construction not any designated entity. 47. The manager would seek pre-approval for candidates from Defendants management at the Facility such as Plaintiff Cavalieri, or Carl Churchman (who was a WEC LLC employee) or David Durham, who was designated WECTEC. It was then up to the hiring manager to choose whom to hire. 7

132 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 8 of 15Pg 9 of Hiring forms were only slightly different for candidates designated as WECTEC Staffing Services LLC, WECTEC Global Project Services Inc, or WEC LLC. 49. The onboarding process was the same for everyone with respect to training, background checks, and the like. 50. Budgeting and cost control for at the Facility was done by Defendants managers, not necessarily of WEC LLC. The budget and accounting for the work at the Facility was maintained in a consolidated report that contained line items for WEC and WECTEC entities, and bundled all the expenses relating to the work at the Facility together on a consolidated basis. 51. On July 31, 2017, SCANA told Westinghouse to let go of Defendants entire workforce at the Facility. 52. This instruction applied in the same manner to all employees and made no distinctions between employees based on whether they were designated by one Westinghouse name or another. 53. Defendants terminated the employees on or about July 31, Upon information and belief, Plaintiffs and the other similarly situated employees were not subject to any significant decisions made by WEC LLC subsidiaries independent of WEC LLC, regarding the work at the Facility or their employment, in the months prior or subsequent to July 31, The financial viability of the operations of Defendants were dependent on WEC LLC, particularly on its agreement with the owners of the Facility to perform work at the Facility. FEDERAL WARN ACT CLASS ALLEGATIONS 56. Plaintiffs bring their Claim for Relief for violation of 29 U.S.C et seq., on 8

133 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 9 of 15 Pg 10 of 16 behalf of the themselves and on behalf of all other similarly situated former employees of Defendants and/or their subsidiaries, pursuant to 29 U.S.C. 2104(a)(5) and Fed. R. Civ P. 23(a), who worked at, received assignments from, or reported to the Facility and were terminated without cause beginning on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017 and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the WARN Class ). 57. The persons in the WARN Class identified above ( WARN Class Members ) are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of Defendants. 58. Upon information and belief, Defendants employed more than 100 full-time employees who worked at or reported to the Facility. 59. On information and belief, the identity of the members of the class and the recent residence address of each of the WARN Class Members is contained in the books and records of Defendants. 60. On information and belief, the rate of pay and benefits that were being paid by Defendants to each WARN Class Member at the time of his/her termination is contained in the books and records of Defendants. 61. Common questions of law and fact exist as to members of the WARN Class, including, but not limited to, the following: (a) whether the members of the WARN Class were employees of the Defendants who worked at or reported to the Facility; 9

134 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 10 of 15 Pg 11 of 16 (b) whether Defendants unlawfully terminated the employment of the members of the WARN Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act; (c) whether Defendants unlawfully failed to pay the WARN Class members 60 days wages and benefits as required by the WARN Act; and (d) whether Defendants are jointly and severally liable as single- or joint employers, for the failure to provide advance WARN Act notice or pay in lieu of notice. 62. Plaintiffs claims are typical of those of the WARN Class. Plaintiffs, like other WARN Class members, worked at or reported to Defendants at the Facility and were terminated beginning on or about July 31, 2017, due to the mass layoff and/or plant closing ordered by Defendants. 63. Plaintiffs will fairly and adequately protect the interests of the WARN Class. Plaintiffs have retained counsel competent and experienced in complex class actions, including the WARN Act and employment litigation. 64. On or about July 31, 2017, Plaintiffs were terminated by Defendants. This termination is part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which they were entitled to receive 60 days advance written notice under the WARN Act. 10

135 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 11 of 15 Pg 12 of Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the WARN Class predominate over any questions affecting only individual members of the WARN Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation particularly in the context of WARN Act litigation, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against corporate Defendants, and damages suffered by individual WARN Class members are small compared to the expense and burden of individual prosecution of this litigation. 66. Concentrating all the potential litigation concerning the WARN Act rights of the members of the Class in this Court will obviate the need for unduly duplicative litigation that might result in inconsistent judgments, will conserve the judicial resources and the resources of the parties and is the most efficient means of resolving the WARN Act rights of all the members of the Class. 67. Plaintiffs intend to send notice to all members of the WARN Class to the extent required by Rule The relief sought in this proceeding is equitable in nature. CLAIM FOR RELIEF First Cause of Action: Violation of the Federal WARN Act 69. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 70. At all relevant times, Defendants employed more than 100 employees who in the aggregate worked at least 4,000 hours per week, exclusive of hours of overtime, within the United States. 11

136 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 12 of 15 Pg 13 of At all relevant times, Defendants were an employer, as that term is defined in 29 U.S.C (a)(1) and 20 C.F.R. 639(a)(3), and continued to operate as a business until they decided to order mass layoffs or plant closings at the Facility. 72. Beginning on or about July 31, 2017, Defendants ordered a mass layoff and/or plant closing at the Facility, as those terms are defined by 29 U.S.C. 210l(a)(2) and 20 C.F.R (i). 73. The mass layoff or plant closing at the Facility resulted in employment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants employees as well as thirty-three percent (33%) of Defendants workforce at the Facility, excluding part-time employees, as that term is defined by 29 U.S.C. 2101(a)(8). 74. Plaintiffs and the Class Members were terminated by Defendants without cause on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs or plant closings ordered by Defendants at the Facility. 75. Plaintiffs and the Class Members are affected employees of Defendants, within the meaning of 29 U.S.C. 2101(a)(5). 76. Defendants were required by the WARN Act to give Plaintiffs and the Class Members at least 60 days advance written notice of their terminations. 77. Defendants failed to give Plaintiffs and the Class members written notice that complied with the requirements of the WARN Act. 78. Plaintiffs and each of the Class Members are aggrieved employees of Defendants as that term is defined in 29 U.S.C. 2104(a)(7). 12

137 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 13 of 15 Pg 14 of Upon information and belief, Defendants failed to pay Plaintiffs and each of the Class Members their respective wages, salary, commissions, bonuses, accrued vacation and personal time off for 60 days following their respective terminations, and failed to make the pension and 401(k) contributions and provide employee benefits under COBRA for 60 days from and after the dates of their respective terminations. Second Cause of Action: Unpaid Wages South Carolina 80. The Plaintiffs reallege and incorporate by reference all allegations in all proceeding paragraphs. 81. The Plaintiffs on behalf of similarly situated employees who worked at or reported to Defendants at the Facility located in South Carolina seek payment for all unpaid wages, including accrued but unpaid vacation pay, in violation of the South Carolina Payment of Wages Act and Defendants failure to pay wages, including accrued but unpaid vacation pay, violated , entitling Plaintiffs and all other similarly situated employees to an amount equal to three times the full amount of their unpaid wages, plus costs and reasonable attorneys fees as the court may allow. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of all other similarly situated persons, pray for the following relief as against Defendants: A. Certification of this action as a class action; B. Designation of Plaintiffs as Class Representatives; C. Appointment of the undersigned attorneys as Class Counsel; 13

138 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 14 of 15 Pg 15 of 16 D. An allowed post-petition administrative expense claim or, in the alternative, a wage priority claim for up to $12,850 of the WARN Act claims of Plaintiffs and each of the other similarly situated former employees under 11 U.S.C. 507(a)(4) and (5), and the remainder as a general unsecured claim, equal to the sum of: (i) unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay pension and 401(k) contributions and other ERISA benefits, for 60 days, that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the federal WARN Act, 29 U.S.C. 2104(a)(1)(A) against Defendants in favor of Plaintiffs and the other similarly situated former employees equal to those sums; E. Judgment in favor of the Plaintiffs and the other similarly situated former employees for payment of accrued vacation time, interest, applicable liquidated damages, and attorneys fees and costs pursuant to the South Carolina Payment of Wages Act , and for any unpaid benefits amounts due; F. Reasonable attorneys fees and the costs and disbursements that Plaintiffs will incur in prosecuting this action, as authorized by the federal WARN Act; and G. Such other and further relief as this Court may deem just and proper. Dated: January 19, 2018 Respectfully submitted, By: /s/jack A. Raisner Jack A. Raisner René S. Roupinian OUTTEN & GOLDEN LLP 685 Third Avenue, 25 th Floor New York, New York Telephone: (212) Facsimile: (646)

139 mew Doc Doc Filed Filed 01/19/18 02/15/18 Entered Entered 01/19/18 02/15/18 15:52:51 21:23:05 Main Exhibit Document 4 to Dec. of J. Raisner Pg 15 of 15 Pg 16 of 16 jar@outtengolden.com rsr@outtengolden.com LANKENAU & MILLER, LLP Stuart J. Miller (SJM 4276) 132 Nassau Street, Suite 1100 New York, NY P: (212) F: (212) sjm@lankmill.com THE GARDNER FIRM, P.C. Mary E. Olsen (OLSEM4818) M. Vance McCrary (MCCRM4402) The Gardner Firm, P.C. 210 S. Washington Avenue Mobile, AL P: (251) F: (251) molsen@thegardnerfirm.com vmccrary@thegardnerfirm.com Attorneys for the Plaintiffs and the putative class 15

140 mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 1 of 9 Exhibit 5

141 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 1 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 2 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION HARRY PENNINGTON III, on behalf of himself and all others similarly situated, v. Plaintiff, FLUOR CORPORATION, FLUOR ENTERPRISES, INC. and SCANA CORPORATION, CASE NO. 0: JMC Defendants. CLASS ACTION COMPLAINT FOR VIOLATION OF WARN ACT, 29 U.S.C. 2101, ET SEQ. Plaintiff Harry Pennington III ( Plaintiff ) alleges on behalf of himself and a class of similarly situated former employees of Fluor Enterprises, Inc., Fluor Corporation (together, Fluor ) and SCANA Corporation ( SCANA and together with Fluor, the Defendants ), by and through his counsel as follows: NATURE OF THE ACTION 1. Plaintiff was an employee of Defendants for purposes of the WARN Act until his termination along with approximately 5000 other employees on or about July 31, Plaintiff did not receive any advance written notice of his termination.

142 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 2 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 3 of 9 3. Plaintiff brings this action on behalf of himself, and the other similarly situated former employees of Defendants who worked at, reported to, or received assignments from the VC Summer Nuclear Station (the Facility ), located at Highway 215 & Bradham Blvd, Jenkinsville, South Carolina 29065, who were terminated without cause, as part of, or as the foreseeable result of, plant closings or mass layoffs ordered by Defendants on or around July 31, 2017, and who were not provided 60 days advance written notice of their terminations by Defendant, as required by the Worker Adjustment and Retraining Notification Act ( WARN Act ), 29 U.S.C et seq. 4. Plaintiff and all similarly situated employees seek to recover 60 days wages and benefits, pursuant to the WARN Act, from Defendants. JURISDICTION AND VENUE 5. This Court has jurisdiction over this matter pursuant to 28 U.S.C and 29 U.S.C. 2104(a)(5). 6. Venue is proper in this District pursuant to 29 U.S.C. 2104(a)(5) and 28 U.S.C Assignment in the Rock Hill Division is appropriate because a substantial part of the events or omissions giving rise to the claim occurred in Jenkensville, South Carolina, which is in Fairfield County. THE PARTIES Plaintiff 8. Plaintiff Harry Pennington III was an employee of Defendants and worked at the VC Summer Nuclear Station until his termination on or about July 31,

143 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 3 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 4 of 9 Defendants 9. Defendant Fluor Corporation is a Delaware corporation with its principal place of business located at 6700 Las Colinas Boulevard Irving, Texas Defendant Fluor Enterprises, Inc., is a California corporation with its principal place of business located at 3 Polaris Way Aliso Viejo, California Upon information and belief, Fluor Enterprises, Inc. is a subsidiary of Fluor Corporation. 12. Defendant SCANA Corporation is a South Carolina corporation with its principal place of business located at 100 SCANA Parkway, Cayce, South Carolina Upon information and belief, SCANA Corporation was responsible for funding the payroll of the terminated employees and ordered the termination of Plaintiff and all similarly situated employees. 14. Upon information and belief, Defendants conducted or transacted business in this district. 15. On or about July 31, 2017, Defendants terminated without notice the employment of approximately 5000 employees who worked at, reported to, or received assignments from the Facility. WARN CLASS ALLEGATIONS, 29 U.S.C Plaintiff brings the First Claim for Relief for violation of 29 U.S.C et seq., on behalf of himself and on behalf of all other similarly situated former employees, pursuant to 29 U.S.C. 2104(a)(5) and Fed. R. Civ P. 23(a), who worked at, reported to, or received assignments from one of Defendants Facilities and were terminated without cause on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the 3

144 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 4 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 5 of 9 reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017, and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the WARN Class ). 17. The persons in the WARN Class identified above ( WARN Class Members ) are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of Defendant. 18. On information and belief, Defendants employed approximately 5,000 employees at the Facility. 19. On information and belief, the identity of the members of the class and the recent residence address of each of the WARN Class Members is contained in the books and records of Defendants. 20. On information and belief, the rate of pay and benefits that were being paid by Defendants to each WARN Class Member at the time of his/her termination is contained in the books and records of the Defendant. 21. Common questions of law and fact exist as to members of the WARN Class, including, but not limited to, the following: (a) whether the members of the WARN Class were employees of the Defendants who worked at, reported to, or received assignments from Defendants Facility; (b) whether Defendants unlawfully terminated the employment of the members of the WARN Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act; and 4

145 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 5 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 6 of 9 (c) whether Defendants unlawfully failed to pay the WARN Class members 60 days wages and benefits as required by the WARN Act. 22. The Plaintiff s claims are typical of those of the WARN Class. The Plaintiff, like other WARN Class members, worked at, reported to, or received assignments from the Defendants Facility and was terminated without cause on or about July 31, 2017, due to the mass layoffs and/or plant closings ordered by Defendants. 23. The Plaintiff will fairly and adequately protect the interests of the WARN Class. The Plaintiff has retained counsel competent and experienced in complex class actions, including the WARN Act and employment litigation. 24. On or about July 31, 2017, Defendants terminated the Plaintiff s employment as part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which he was entitled to receive 60 days advance written notice under the WARN Act. 25. Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the WARN Class predominate over any questions affecting only individual members of the WARN Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation particularly because this is a WARN Act litigation, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant, and damages suffered by individual WARN Class members are small compared to the expense and burden of individual prosecution of this litigation. 5

146 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 6 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 7 of Concentrating all the potential litigation concerning the WARN Act rights of the members of the Class in this Court will obviate the need for unduly duplicative litigation that might result in inconsistent judgments, will conserve the judicial resources and the resources of the parties, and is the most efficient means of resolving the WARN Act rights of all the members of the Class. 27. The Plaintiff intends to send notice to all members of the WARN Class to the extent required by Rule 23. CLAIMS FOR RELIEF Violation of the WARN Act, 29 U.S.C Plaintiff realleges and incorporates by reference all allegations in all preceding paragraphs. 29. At all relevant times, Defendants employed more than 100 employees who in the aggregate worked at least 4,000 hours per week, exclusive of hours of overtime, within the United States. 30. At all relevant times, Defendants were an employer, as that term is defined in 29 U.S.C (a)(1) and 20 C.F.R. 639(a), and continued to operate as a business until it decided to order mass layoffs or plant closings at the Facilities. 31. On or about July 31, 2017, Defendants ordered mass layoffs and/or plant closings at the Facility, as those terms are defined by 29 U.S.C. 2101(a)(2). 32. The mass layoffs or plant closings at the Facility resulted in employment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants employees as well as thirty-three percent (33%) of Defendants workforce at the Facilities, excluding parttime employees, as that term is defined by 29 U.S.C. 2101(a)(8). 6

147 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 7 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 8 of The Plaintiff and the Class Members were terminated by Defendants without cause on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs or plant closings ordered by Defendants at the Facilities. 34. The Plaintiff and the Class Members are affected employees of Defendants, within the meaning of 29 U.S.C. 2101(a)(5). 35. Defendants were required by the WARN Act to give the Plaintiff and the Class Members at least 60 days advance written notice of their terminations. 36. Defendants failed to give the Plaintiff and the Class members written notice that complied with the requirements of the WARN Act. 37. The Plaintiff and each of the Class Members, are aggrieved employees of the Defendants as that term is defined in 29 U.S.C. 2104(a)(7). 38. Defendants failed to pay the Plaintiff and each of the Class Members their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for 60 days following their respective terminations, and failed to make the pension and 401(k) contributions and provide employee benefits under COBRA for 60 days from and after the dates of their respective terminations. 39. The relief sought in this proceeding is equitable in nature. PRAYER FOR RELIEF WHEREFORE, the Plaintiff, individually and on behalf of all other similarly situated persons, pray for the following relief as against Defendants: A. Certification of this action as a class action; B. Designation of the Plaintiff as the Class Representative; C. Appointment of the undersigned attorneys as Class Counsel; 7

148 0:17-cv JMC Date Filed 08/08/17 Entry Number 1 Page 8 of mew Doc 20-9 Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 5 to Dec. of J. Raisner Pg 9 of 9 D. A judgment in favor of the Plaintiff and the other similarly situated former employees equal to the sum of: their unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other COBRA benefits, for 60 days, that would have been covered and paid under the then-applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the WARN Act, 29 U.S.C. 2104(a)(1)(A); and E. Such other and further relief as this Court may deem just and proper. DATED: August 8, 2017 Respectfully submitted, By: s/ Lucy C. Sanders Lucy C. Sanders, Esq. BLOODGOOD & SANDERS, LLC 242 Mathis Ferry Road, Suite 201 Mt. Pleasant, South Carolina Telephone: (843) Jack A. Raisner, Esq. René S. Roupinian, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY Telephone: (212) Pro Hac Vice Motion Forthcoming Attorneys for Plaintiff and the putative class 8

149 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 1 of 25 Exhibit 6

150 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 1 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 2 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA HARRY PENNINGTON III and TIMOTHY LORENTZ, on behalf of themselves and all others similarly situated, CASE NO. 0: JMC Plaintiffs, v. FLUOR CORPORATION, FLUOR ENTERPRISES, INC., FLOUR DANIEL MAINTENANCE SERVICES, INC., SCANA CORPORATION, and SOUTH CAROLINA ELECTRIC & GAS COMPANY, Defendants. AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF WARN ACT, 29 U.S.C. 2101, ET SEQ. Plaintiffs Harry Pennington III and Timothy Lorentz ( Plaintiffs ) allege on behalf of themselves and subclasses of similarly situated former employees of Defendants Fluor Corporation, Fluor Enterprises, Inc., and Fluor Daniel Maintenance Services, Inc. (together, Fluor ) and of non-defendant Westinghouse Electric Company LLC and its subsidiaries ( WEC or Westinghouse ), against Fluor and Defendants SCANA Corporation and its subsidiary, South Carolina Electric & Gas Company (together, SCANA or the SCANA Defendants ), as follows:

151 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 2 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 3 of 25 NATURE OF THE ACTION 1. Plaintiff Pennington was an employee of Defendants Fluor and SCANA for purposes of the WARN Act until his termination along with approximately 5,000 other similarly situated employees on or about July 31, Plaintiff Lorentz was an employee of non-defendant WEC and the SCANA Defendants for purposes of the WARN Act until his termination along with approximately 600 other similarly situated employees on or about July 31, Plaintiffs did not receive any advance written notice of their termination. 4. Plaintiffs bring this action on behalf of themselves, and the other similarly situated former employees of SCANA who worked at, reported to, or received assignments from the Virgil C. Summer Nuclear Generating Station ( VC Summer or the Facility ), located at Highway 215 & Bradham Blvd., Jenkinsville, South Carolina 29065, who were terminated without cause, as part of, or as the foreseeable result of, plant closings or mass layoffs ordered by Defendants on or around July 31, 2017, and who were not provided 60 days advance written notice of their terminations by SCANA or their immediate employers Fluor and WEC, as required by the Worker Adjustment and Retraining Notification Act ( WARN Act ), 29 U.S.C et seq. 5. The WARN Act provides that two or more independent contracting companies may be held jointly and severally liable as a single employer, and also provides that parents and subsidiaries may be held jointly and severally liable as a single employer. 20 C.F.R (a)(2). 6. Fluor and its subsidiaries were a single employer of the persons they employed at VC Summer, and together with the SCANA Defendants, a single employer of those employees. 2

152 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 3 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 4 of Non-defendants WEC and its subsidiaries were a single employer of the persons they employed at VC Summer, and together with the SCANA Defendants, a single employer of those employees. 8. Both Plaintiffs and all similarly situated employees seek to recover 60 days wages and benefits pursuant to the WARN Act from SCANA, and Plaintiff Pennington seeks such recovery jointly and severally against Fluor. 9. Plaintiff Pennington filed the original Complaint in this action on August 8, At least one action has been filed under the WARN Act on behalf of employees of debtors WEC and its subsidiaries based on the July 31, 2017 VC Summer terminations in the United States Bankruptcy Court of the Southern District of New York. (Fleetwood. et al., v. WECTEC, LLC. et al., 17-ap MEW)(Bankr. S.D.N.Y). JURISDICTION AND VENUE 11. This Court has jurisdiction over this matter pursuant to 28 U.S.C and 29 U.S.C. 2104(a)(5). 12. Venue is proper in this District pursuant to 29 U.S.C. 2104(a)(5) and 28 U.S.C Assignment in the Rock Hill Division is appropriate because a substantial part of the events or omissions giving rise to the claim occurred in Jenkinsville, South Carolina, which is in Fairfield County. 3

153 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 4 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 5 of 25 THE PARTIES Plaintiffs 14. Plaintiff Harry Pennington III worked as a Heavy Equipment Operator at VC Summer until his termination on or about July 31, His immediate employer was Fluor Daniel Maintenance Services, Inc. 15. Plaintiff Timothy Lorenz worked as a Project Manager. His immediate employer was Westinghouse Electric Company LLC. Defendants 16. Defendant Fluor Corporation is a Delaware corporation with its principal place of business located at 6700 Las Colinas Boulevard, Irving, Texas Defendant Fluor Enterprises, Inc. is a California corporation with its principal place of business located at 3 Polaris Way, Aliso Viejo, California Defendant Fluor Daniel Maintenance Services, Inc. is a Delaware corporation with its principal place of business located at 6700 Las Colinas Boulevard, Irving, Texas Upon information and belief, Fluor Enterprises, Inc. and Fluor Daniel Maintenance Services, Inc. are subsidiaries of Fluor Corporation. 20. Defendant SCANA Corporation is a South Carolina corporation with its principal place of business located at 100 SCANA Parkway, Cayce, South Carolina South Carolina Electric & Gas Company ( SCE&G ) is a regulated public utility wholly-owned by SCANA Corporation engaged in the generation, transmission, distribution and sale of electricity, primarily in South Carolina. 22. SCE&G is incorporated in South Carolina and maintains its principal executive offices at 220 Operation Way, Cayce, South Carolina

154 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 5 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 6 of On or about July 31, 2017, SCANA together with Fluor terminated without notice the employment of approximately 5,000 employees, including the Plaintiff Pennington, and SCANA together with non-defendant WEC, terminated the employment of approximately 600 employees, including the Plaintiff Lorentz. SUBSTANTIVE ALLEGATIONS 24. Defendant SCANA, an energy-based holding company and its principal subsidiary, South Carolina Electric & Gas Company, are engaged in the generation, transmission, distribution and sale of electricity, primarily in South Carolina. 25. SCANA petitioned the South Carolina state legislature in 2007 for permission to proceed at the existing V.C. Summer Nuclear Station with a multi-billion dollar two-reactor expansion (the Summer Project ). Defendants would be 60% owners of the Summer Project, and South Carolina Public Service Authority (Santee Cooper), a state agency (together with SCANA, the Owners ), would be the 40% owner. 26. The Summer Project was initially expected to cost about $9 billion. But by 2017, delays and cost overruns had driven up the cost estimates to $20 billion or more. 27. A major reason that state regulators and utility staffers went ahead with the SCANA Summer Project was that state lawmakers had passed the Base Load Review Act (the BLRA ) in 2007, which provided huge incentives to build large-scale power plants. 5

155 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 6 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 7 of The BLRA demanded only limited accountability from the utility company builders themselves. The BLRA put the risk for the Summer Project onto electric customers by ensuring that the utility could recoup its costs. As is customary in massive projects, it was assumed rate-payers could and should absorb all costs because they would be compensated by cheaper power over a year period. The BLRA, however, imposed costs on the electric rate-payers even if the project was cancelled. 29. When SCANA terminated the project in July 2017, it indeed proposed to charge its losses to electric rate-payers (who were already paying on average an extra $27 a month for the reactors) for the next 60 years pursuant to the BLRA. 30. When SCANA applied to build the reactors in 2007, it used a generic schedule that was non-specific and inadequate to reflect the construction time and costs necessary to complete the Summer Project. SCANA knew its schedule was not legitimate. 31. In 2008, SCANA Corporation, for itself and as agent for Santee Cooper, entered into an agreement with a consortium (the Consortium ) comprising WEC and Chicago Bridge & Iron Company ( CB&I ) the owner of Stone & Webster ( S&W ). The parties entered into an Engineering, Procurement, and Construction Agreement in May 2008 (the EPC Agreement ) under which the Consortium would build the Summer Project, featuring two AP nuclear reactors known as VC Summer 2 and The Summer Project, along with a comparable agreement to build similar reactors in Georgia, represented the first new nuclear power plant construction in the U.S. in 30 years. 33. Under the EPC Agreement, the Consortium had to substantially complete the first VC Summer 2 by April 1, 2016 and VC Summer 3 by January 1,

156 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 7 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 8 of Under the EPC Agreement, WEC was generally responsible for the design, manufacture, and procurement of the nuclear reactor, steam turbines, and generators, while S&W was responsible for on-site construction and procurement of auxiliary equipment. 35. As delays and cost overruns mounted, disputes arose between SCANA and the Consortium members regarding the pace of the projects and which parties bore the ultimate responsibility for cost increases. The Owners and the Consortium members alleged claims against each other and commenced litigation to resolve the apportionment of increased costs. 36. In or around 2015, WEC sought to resolve existing and potential litigation by acquiring CB&I and S&W. 37. Although WEC remained the primary contractor to SCANA, a new subcontractor was appointed to WEC, Fluor Corporation, a U.S.-based global engineering and construction company. Fluor would provide staffing for craft (manual labor) employees and would take primary responsibility for on-site construction while WEC focused on engineering and project management. WEC transferred to Fluor many of the S&W craft employees it had acquired. 38. Fluor took responsibility for the craft, field engineers, and project controls personnel including the costs and scheduling of personnel. 39. In acquiring S&W, Westinghouse generally accepted liability for the cost overruns on the Summer Project, by agreeing to build it for a fixed-price at SCANA s option. 40. In May 2016, SCANA exercised that option, ostensibly capping the Owners costs for the Summer Project at close to $14 billion. 7

157 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 8 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 9 of In December 2016, Westinghouse and Fluor were concluding work on an Estimate to Complete report ( ETC ) pursuant to the EPC agreement. The ETC would forecast the actual number of hours and costs required to complete the Summer Project. The ETC was not formally circulated as it was being audited and verified in early 2017 but upon information and belief, its results were known by the parties. 42. Upon information and belief, the ETC forecast that an additional $6.1 billion beyond the $14 billion fixed price estimate would be necessary to complete the Summer Project (for which WEC would be liable). That amount would comprise $3.7 billion in additional labor costs; $1.8 billion in additional equipment prices and vendor costs; and $600 million in additional risk and contingency planning including warranty and fee claims. It would also take at least three more years to complete. 43. Learning of this, WEC s parent Toshiba and WEC determined WEC could not sustain these costs under the fixed price agreement. 44. In early 2017, WEC experienced cash shortfalls related to the Summer Project and a deepening liquidity crisis. Although WEC sought additional emergency funding from its parent, Toshiba, in March 2017, Toshiba stated it could not provide it without collateral, including potentially through debtor-in-possession funding in a chapter 11 reorganization process, which WEC then initiated. 45. On March 29, 2017, WEC and its subsidiaries filed their voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code in the Southern District of New York. 8

158 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 9 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 10 of With its bankruptcy filing of March 29, 2017, the WEC debtors had the possibility of rejecting the fixed price provision of the contract. To forestall the rejection decision, the parties entered into an Interim Assessment period in which SCANA would fund the operational costs of the Summer Project until alternatives for completing it could be developed. 47. SCANA used the Interim Assessment period (which was extended until August 10, 2017) to determine if it were feasible for it to complete the project using an owner-directed model. 48. Under that model, SCANA began to take complete control over the manufacture and construction of the Summer Project. 49. SCANA operationalized the owner-directed model as of March 29, 2017 because, on information and belief, the Summer Project failed due to, in large measure deficiencies in the client-contractor model for construction that SCANA adopted in launching the Summer Project. 50. Under the client-contractor model, there were two separate, parallel hierarchies of managers who attempted to direct the Summer Project construction. 51. On the one hand SCANA had its own pyramidal workforce consisting of its general manager of nuclear construction atop dozens of its own employees reporting up to him who oversaw every facet of the on site construction. 52. On the other hand, WEC, the primary contractor together with its subsidiaries and its main subcontractor, Defendant Fluor, maintained a pyramidal hierarchy headed by a WEC product director and Fluor construction director, and hundreds of managers and thousands of craft level employees reporting up to them. (The division of responsibilities between WEC and Fluor were set out in their own agreement). 9

159 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 10 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 11 of Given the independent hierarchies in that model, no entity or person filled the functional role of a Chief Executive Officer responsible for the whole project and to whom all lines of supervision reported. 54. As a result of the separate structures, neither Fluor, WEC, or SCANA was ever fully in charge of the project. 55. No entity was fully accountable for the cost under this structure. SCANA could pass its responsibility to rate-payers under the BLRA and then it pass all future accountability to WEC under the fixed price contract. 56. At the point of the bankruptcy, SCANA became financially accountable for the ongoing costs and plan of completion. With WEC sidelined under bankruptcy court protection, SCANA recognized it needed to immediately take full charge of the project to make it appear viable. 57. Until the petition was filed, WEC laid out the construction costs, with SCANA periodically reimbursing only a fraction of those amounts. Now SCANA was responsible for paying the large payroll of thousands of craft employees. Side-stepping WEC and the prior hierarchies, SCANA began paying Fluor s payroll directly to Fluor. 58. As a result of becoming responsible for all the costs of completing the project, SCANA made clear it had veto power over any decision that might add cost or cause delay to the Summer Project, and began to exercise that prerogative. 59. SCANA s assumption of control over construction at the site on a decision-bydecision basis was tied to its complete overhaul and restructuring of the client based model to the owner-directed model. SCANA articulated this restructuring in open discussions with Fluor and WEC, and in writing. 10

160 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 11 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 12 of Upon the bankruptcy filing, SCANA became responsible for completing the unfinished ETC roadmap for the completion of the project. SCANA redrafted the ETC to spell out the new single hierarchy in which it assumed complete control over all significant decisions made from the ground-level up on the construction site. 61. SCANA, in the ETC, reassigned Fluor and WEC employees in a line of supervision interspersed with SCANA s own managers to whom Fluor and WEC employees would report at various levels. SCANA created organization charts to reflect the structure. 62. Not waiting for the ETC to be formally promulgated, SCANA began taking ownership of operational decision-making to give effect to the owner-directed model. 63. Until the bankruptcy filing, SCANA s general manager and cadre of overseers, many of whom were subject matter specialists and had even worked for Fluor or WEC at the Summer Project, oversaw the work of Fluor and WEC. 64. SCANA s ground-level overseers attended all significant construction events, such as crane lifts and major concrete placements, and they attended the continual meetings across the site that took place throughout the day between Fluor and WEC and their respective crews dealing with the operational nuts-and-bolts of the constructions tasks. 65. Prior to the bankruptcy filing, SCANA s overseers normally kept silent at these events and meetings; instead, they made notes and sent messages up the SCANA reporting chain. 66. These messages might then be discussed when SCANA s top project directors interfaced with their counterparts at Fluor and WEC at the daily Plan of the Day ( POD ) meeting. The POD meeting was held weekday mornings at 9 a.m. and lasted about an hour 11

161 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 12 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 13 of POD meetings were typically attended by SCANA s top operational officers: Alan Torres, SCANA s General Manager of Nuclear Construction at the VC Summer Unit 2 and 3, and/or Kyle Young, SCANA s Manager, Nuclear Plant Construction and /or Brian Merriman, SCANA s Project Manager/Engineer IV. Attending from Fluor were Bruce Hinkley, Fluor s Construction Director and/or John Shepherd, Fluor s V.P. and Site Director, and from WEC were Carl D. Churchman, WEC s Consortium VP and Project Director for VC Summer 2/3 and/or Rod Cavalieri, WEC s Director of Project Management. SCANA FLUOR WEC Alan Torres, General Manager of Nuclear Construction at the VC Summer Unit 2 and 3. Kyle Young, Manager, Nuclear Plant Construction. Brian Merriman, Project Manager/ Engineer IV. Bruce Hinkley, Construction Director. John Shepherd, V.P. and Site Director. Carl D. Churchman, Consortium VP and Project Director for VC Summer 2/3. Rod Cavalieri, Director of Project Management. 68. The SCANA, Fluor and WEC leaders would typically attend the POD meetings along with nine or 10 of their second-tier managers so that the conference room would fill with about people. Plaintiff Lorentz attended many POD meetings with his WEC supervisors, Churchman and Cavalieri. 69. The purpose of the POD meetings prior to the bankruptcy was for Fluor/WEC to inform SCANA of what they planned to do and to invite comments, consistent with client contractor relationship. The parties dialoged about any issues that had bubbled up from their respective phalanxes of managers in the field, consistent with Fluor/WEC s correction action processes and procedures. It was understood that Fluor/WEC had control over the manner and means in which the construction work was done and over their own personnel. 12

162 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 13 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 14 of Prior to the bankruptcy, SCANA could, as client, flag discrepancies or mistakes such as a bad weld, and file a condition report seeking corrective action. 71. Consistent with their own correction action processes and procedures, Fluor/WEC would address and resolve those issues. It was understood that Fluor/WEC had control over the manner and means in which the construction was performed in the first instance. While SCANA raised issues in its role as client, Fluor/WEC controlled the decision to take corrective actions. 72. That changed after the bankruptcy filing. SCANA became outspoken and forceful at the POD meetings. For the first time, SCANA s input into day-to-day operations became proactive, intrusive, and decisional, in keeping with its assumption of CEO-type control and leadership. 73. After the bankruptcy, SCANA field monitors, who had previously been silent, became vocal in directing Fluor/WEC personnel. If a SCANA overseer expressed disagreement with how Fluor/WEC was performing a task, such as using a piece of equipment, SCANA overseers could and often would say so on the spot, and it was taken as a directive. 74. Fluor/WEC personnel reasonably understood that the SCANA overseer s disagreement, if not complied with, would immediately upstream to SCANA s project director, Al Torres who would demand action from his Fluor or WEC counterparts, such as Carl Churchman or Bruce Hinkley, either at the next morning s POD meeting or in a call or message, who would then require compliance from the crew. 75. After March 29, SCANA gave specific orders and directions concerning virtually all facets of the project, including construction, and safety - particularly concerning anything that would cause a delay or add cost. 13

163 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 14 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 15 of Prior to the bankruptcy filing, Fluor or WEC set the levels of craft personnel needed to perform assignments. If more workers were needed in Fluor s or WEC s view, they had the authority to set headcount levels and engage in hiring. After the bankruptcy, they lost that authority. They had to requisition new hires from SCANA and obtain SCANA approval. 77. Prior to the bankruptcy filing, WEC identified specialized jobs that required highly-skilled employees and had the right to hire that manpower of its own accord. For example, WEC engaged about 120 specialists to work on the Nuclear Steam Supply System the heart of the reactor s generator by entering into a contract with Bechtel. After the bankruptcy filing, SCANA, however, decided against it and terminated the agreement forcing WEC to let go the 120 individuals. 78. SCANA s subordination of Fluor s and WEC s independence and autonomy in hiring and procurement was consistent with new ETC organization charts showing changes to the duties, titles, authority, and assignments of Fluor and WEC personnel. 79. Under the ETC, Fluor was made construction manager reporting directly to SCANA, taking the place of WEC and its subsidiaries. 80. After the bankruptcy, if Fluor or WEC needed several dozen employees, for example boilermakers, the decision, which they had once tightly-held, now had to be approved by SCANA. 81. Upon information and belief, SCANA prevailed on Fluor to remove one of its managers over the construction site. When Fluor sought to replace the person by hiring a WEC manager, Fluor had to, and did seek prior approval from SCANA. 14

164 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 15 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 16 of Taking control of operations after the bankruptcy, SCANA prospectively intervened in controlling the work. If Fluor or WEC wished to perform a particular task, such as a major concrete placement on a Friday or Saturday, Al Torres might call them and tell them not to do so, and say he wanted it done on a different day, such as a Thursday or Monday, which they would then do. 83. Prior to the bankruptcy, it was up to the Project Management Office maintained by WEC to approve all overtime. WEC maintained final approval of overtime for the entire site. After the petition filing, SCANA took away that authority from WEC, and WEC and Fluor employees had to go directly to SCANA which decided when they worked overtime and for how many hours. Thus, SCANA exercised control over their job schedules, duties and performance. 84. SCANA s control over work schedules extended to policies for days off. SCANA directed that the Memorial Day weekend would be treated as a three-day weekend, but that the following Saturday would be a work day a type of decision formerly left to WEC. 85. At all times, SCANA provided the facilities, equipment, tools and materials necessary to complete the work. Although Fluor and WEC personnel manned the equipment room, the construction helmets, vests and other safety gear and protective clothing that were dispensed were paid for by SCANA. Requisitions for the equipment were sent to and paid for by SCANA 86. Heavy construction equipment, which was generally rented, was paid for by SCANA. 15

165 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 16 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 17 of The construction work took place on SCANA s premises where hundreds of SCANA s own employees worked. Some operated the pre-existing nuclear reactor, V.C. Summer 1, but others were dedicated to the construction of reactors 2 and 3. All of WEC s and Fluor s employees at the site were dedicated solely to the building of the Summer Project for the Owners. 88. Besides micro-managing schedules and controlling the manner and means of discrete construction tasks after the bankruptcy filing, SCANA was rearranging the priorities for the project s critical path toward completion which formerly had been in the bailiwick of WEC/Fluor. The effect was that SCANA obliterated the functional independence of the Fluor and WEC contractors and took control over the work and workforce. 89. Although SCANA began implementing its owner-directed model after the bankruptcy, no one stepped forward to help fund it. 90. On information and belief, under the EPC Agreement, Santee Cooper could not remove itself from the VC Summer project, however, until a designated point in time. With the bankruptcy of Westinghouse and the Interim Assessment period expiring, however, that exit point was calendared. As expected, when that point arrived in late July 2017, Santee Cooper took the opportunity to withdraw its 40 percent ownership from the project, which foreseeably doomed it. 16

166 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 17 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 18 of As SCANA recognized from at least March 2017, mass layoffs and shutdowns were almost inevitable at the Summer Project in mid-summer. Out of the four options SCANA faced, the three most-likely scenarios demanded them. While it may have been possible to find funding to replace WEC/Toshiba, and continue to build both Units 2 and 3, SCANA knew realistically that it was more probable that either: 1) only Unit 2 would go forward; or 2) Unit 3 would also go forward, but only after a long delay (requiring a shut down or layoff); or 3) neither would go forward (requiring a total shutdown). 92. Given the greater probability of those options, SCANA and any responsible party aware of the circumstances would have recognized the need to provide notice 60 days prior to implementing those options. 93. On July 31, 2017, SCANA sent a WARN Act notice to the South Carolina Department of Employment and Workforce that it had decided to stop work on the construction of both Units. 94. SCANA stated that its complete termination of the construction project will affect 617 SCE&G employees, none of whom it chose to terminate at that point. 95. On that day, SCE&G informed Fluor and Westinghouse of its decision to abandon the project. SCE&G asked them to cease all work on the project immediately. SCANA suddenly stopped paying the cost of employing over 5,000 employees on the site. 96. In the four months leading to that day, the contractors obeyed SCANA s order to stop work and terminated the employees. SCANA controlled the decision to terminate all the employees on the site without advance notice. 17

167 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 18 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 19 of SCANA had the ability to comply with the WARN Act by letting it be known 60 days prior to July 31, 2017 that unless the continuance of both reactors was deemed feasible at the end of the Interim Assessment period, a mass layoff would occur. Alternatively, it could have postponed notice until the shutdown or mass layoff decision was made, and then provided 60 days notice for terminations to take place after the orderly wind-down of the site was completed, to be paid for out of SCANA s wind-down budget. 98. The day after the shutdown, SCE&G acknowledged at the August 1 ex parte briefing before the Public Service Commission of South Carolina, that its evaluation team arrived at substantial completion dates for Unit 2 of December 31, 2022, and for Unit 3 of March 31, 2024 forecast the further cost of completion of the units of approximately $8.8 billion. 99. At that briefing, SCE&G acknowledged it was responsible for the operational costs that its owner-directed model incurred: when we learned that Westinghouse intended to reject our fixed-price contract, our first objective was to determine if it was feasible to complete the project using an owner-directed model and what it would cost for us to do so. WARN CLASS ALLEGATIONS 100. Plaintiff Pennington brings the First Claim for Relief for violation of 29 U.S.C et seq., on behalf of himself and on behalf of a subclass all other similarly situated persons whose immediate employer was Fluor, pursuant to 29 U.S.C. 2104(a)(5) and Fed. R. Civ. P. 23(a), who worked at, reported to, or received assignments from the VC Summer Facility and were terminated without cause on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs 18

168 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 19 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 20 of 25 and/or plant closings ordered by Defendants on or about July 31, 2017, and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the Pennington Subclass ) Plaintiff Lorentz brings the Claim for Relief for violation of 29 U.S.C et seq., on behalf of himself and on behalf of a subclass all other similarly situated former persons whose immediate employer was WEC or its subsidiaries, pursuant to 29 U.S.C. 2104(a)(5) and Fed. R. Civ. P. 23(a), who worked at, reported to, or received assignments from the VC Summer Facility and were terminated without cause on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by the SCANA Defendants on or about July 31, 2017, and who are affected employees, within the meaning of 29 U.S.C. 2101(a)(5) (the Lorentz Subclass, and together with the Pennington Subclass, the WARN Class ) The persons in the WARN Class identified above ( WARN Class Members ) are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of SCANA and/or Fluor On information and belief, SCANA was a single employer of approximately 5,000 employees of Defendant Fluor and 600 employees of non-defendant WEC at the Facility On information and belief, the identity of the members of the class and the recent residence address of each of the WARN Class Members is contained in the books and records of Defendants SCANA and/or Fluor On information and belief, the rate of pay and benefits that were being paid by Defendants SCANA and Fluor to each WARN Class Member at the time of his/her termination is contained in the books and records of the Defendants. 19

169 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 20 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 21 of Common questions of law and fact exist as to members of the WARN Class, including, but not limited to, the following: (a) whether the members of the WARN Class were employees of the Defendants who worked at, reported to, or received assignments from Defendants SCANA and Fluor in the case of the Pennington subclass, and Defendant SCANA and non-defendant WEC in the case of the Lorentz subclass; (b) whether Defendants unlawfully terminated the employment of the members of the WARN Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act; and (c) whether Defendants unlawfully failed to pay the WARN Class members 60 days wages and benefits as required by the WARN Act The Plaintiffs claims are typical of those of the WARN Class. The Plaintiffs like other WARN Class members, worked at, reported to, or received assignments from the Defendants Facility and were terminated without cause on or about July 31, 2017, due to the mass layoffs and/or plant closings ordered by SCANA The claims of Plaintiffs Pennington and Lorentz are typical of claims of those of the respective Pennington Subclass and Lorentz Subclass The Plaintiffs will fairly and adequately protect the interests of the WARN Class. The Plaintiffs have retained counsel competent and experienced in complex class actions, including the WARN Act and employment litigation On or about July 31, 2017, Defendants terminated the Plaintiff Pennington s employment as part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which he was entitled to receive 60 days advance written notice under the WARN Act. 20

170 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 21 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 22 of On or about July 31, 2017, Defendant SCANA along with WEC terminated the Plaintiff Lorentz s employment as part of a mass layoff or a plant closing as defined by 29 U.S.C. 2101(a)(2), (3), for which he was entitled to receive 60 days advance written notice under the WARN Act Class certification of these claims is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the WARN Class predominate over any questions affecting only individual members of the WARN Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation particularly because this is a WARN Act litigation, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant, and damages suffered by individual WARN Class members are small compared to the expense and burden of individual prosecution of this litigation Concentrating all the potential litigation concerning the WARN Act rights of the members of the Class in this Court will obviate the need for unduly duplicative litigation that might result in inconsistent judgments, will conserve the judicial resources and the resources of the parties, and is the most efficient means of resolving the WARN Act rights of all the members of the Class The Plaintiffs intend to send notice to all members of the WARN Class to the extent required by Rule 23. CLAIMS FOR RELIEF Violation of the WARN Act, 29 U.S.C Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 21

171 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 22 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 23 of At all relevant times, Defendants employed more than 100 employees who in the aggregate worked at least 4,000 hours per week, exclusive of hours of overtime At all relevant times, Defendants were an employer, as that term is defined in 29 U.S.C (a)(1) and 20 C.F.R (a)(1) and (2) at the VC Summer Facility At all relevant times, Defendants SCANA and Fluor, on the one hand, and SCANA and WEC, on the other hand, were a single employer. 20 C.F.R (a)(2) with respect to the employees who worked at the VC Summer Facility On or about July 31, 2017, Defendants ordered mass layoffs and/or plant closings at the Facility, as those terms are defined by 29 U.S.C. 2101(a)(2) The mass layoffs or plant closings at the Facility resulted in employment losses, as that term is defined by 29 U.S.C. 2101(a)(2) for at least fifty of Defendants employees as well as thirty-three percent (33%) of Defendants workforce at the Facilities, excluding parttime employees, as that term is defined by 29 U.S.C. 2101(a)(8) The Plaintiffs and the Class Members were terminated by Defendants without cause on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs or plant closings ordered by Defendants SCANA and Fluor, or SCANA and non-defendant WEC, at the VC Summer Facility The Plaintiffs and the Class Members are affected employees of Defendants, within the meaning of 29 U.S.C. 2101(a)(5) Defendants were required by the WARN Act to give the Plaintiffs and the Class Members at least 60 days advance written notice of their terminations Defendants failed to give the Plaintiffs and the Class members written notice that complied with the requirements of the WARN Act. 22

172 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 23 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 24 of The Plaintiffs and each of the Class Members, are aggrieved employees of the Defendants as that term is defined in 29 U.S.C. 2104(a)(7) Defendants failed to pay the Plaintiffs and each of the Class Members their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for 60 days following their respective terminations, and failed to make the pension and 401(k) contributions and provide employee benefits under COBRA for 60 days from and after the dates of their respective terminations. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs, individually and on behalf of all other similarly situated persons, pray for the following relief as against Defendants, jointly and severally: A. Certification of this action as a class action; B. Designation of Plaintiffs as Class Representatives of their respective subclasses; C. Appointment of the undersigned attorneys as Class Counsel; D. A judgment in favor of the Plaintiffs and the other similarly situated former employees equal to the sum of: their unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other COBRA benefits, for 60 days, that would have been covered and paid under the then-applicable employee benefit plans had that coverage continued for that period, all determined in accordance with the WARN Act, 29 U.S.C. 2104(a)(1)(A); E. Reasonable attorneys fees and the costs and disbursements that Plaintiffs will incur in prosecuting this action, as authorized by the federal WARN Act; and F. Such other and further relief as this Court may deem just and proper. 23

173 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 24 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 6 to Dec. of J. Raisner Pg 25 of 25 DATED: October 25, 2017 Respectfully submitted, By: s/ Lucy C. Sanders Lucy C. Sanders, Esq. BLOODGOOD & SANDERS, LLC 242 Mathis Ferry Road, Suite 201 Mt. Pleasant, South Carolina Telephone: (843) s/ Jack A. Raisner Jack A. Raisner, Esq. René S. Roupinian, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25 th Floor New York, NY Telephone: (212) Attorneys for Plaintiffs and the putative class 24

174 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 1 of 27 Exhibit 7

175 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 2 of 27 IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA WINSTON-SALEM DIVISION C O P Y In re: ) ) ALEVO MANUFACTURING, INC., and ) ALEVO USA, INC., ) TRANSCRIPT OF HEARING Debtors. ) ) ) JEROME SINGLETON, ) ADVERSARY PROCEEDING Plaintiff, ) v. ) ) ALEVO MANUFACTURING, INC., ) Defendant, ) v. ) ) JAMES POPWELL, ) Respondent. ) ) Motion by Plaintiff for Appointment of Interim Class Counsel and Related Relief Motion by Jerome Singleton for Appointment Of Interim Counsel and Related Relief Wednesday, October 18, :01 o'clock p.m. Honorable Catharine R. Aron Presiding Atlantic Professional Reporters, Ltd. Winston-Salem, NC

176 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 3 of 27 APPEARANCES OF COUNSEL Page 2 Leslie Lane Mize, Esq. James C. White, Esq. Claire Harrison, Esq. Charles Ercole, Esq. Michelle Walker, Esq. June L. Basden, Esq. Jack Raisner, Esq. Rene Roupinian, Esq. (via telephone)

177 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 4 of 27 I N D E X Page 3 PROCEEDING 4 EXAMINATION Witness Direct Cross Redirect Recross (None) ADJOURNMENT 25 TRANSCRIPT CERTIFICATE 26 E X H I B I T S Name Offered By Identified Admitted (None offered)

178 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 5 of 27 1 P R O C E E D I N G Page 4 2 (2:01 o'clock p.m.) 3 THE CLERK: The Honorable Catherine 4 Aron presiding. 5 THE COURT: You may open court. 6 THE CLERK: The United States 7 Bankruptcy for the Middle District of North Carolina 8 is now in session. 9 Please be seated and come to order. 10 MS. GRISSOM: Singleton versus Alevo 11 Manufacturing, motion by plaintiff for appointment of 12 interim class counsel and related relief. 13 Attorney for the plaintiff is Jack 14 Raisner. Attorney for the defendant is Matthew 15 Lindenbaum. Bankruptcy administrator is William 16 Miller. 17 The second matter is Popwell versus Alevo 18 Manufacturing. It's a motion by Jerome Singleton for 19 appointment of interim counsel and related relief. 20 Attorney for the plaintiff is James White. 21 Attorney for the defendants Matthew Lindenbaum, 22 attorney for Singleton is Jack Raisner. 23 THE COURT: Good afternoon. 24 If I could just note appearances for the 25 record, and I'll start with Ms. Walker.

179 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 6 of 27 1 MS. WALKER: Good morning. Page 5 2 Michelle Walker on behalf of Mr. Popwell. 3 THE COURT: Thank you. 4 MR. ERCOLE: And Charles Ercole and 5 Claire Harrison on behalf of Mr. Popwell. 6 THE COURT: All right. Thank you. 7 MR. RAISNER: Jack Raisner, Outten 8 Golden, on behalf of Jerome Singleton. 9 MS. BASDEN: And June Basden as 10 local counsel to Jerome Singleton. 11 THE COURT: Thank you. 12 MS. BRUCE: And Sara Bruce here on 13 behalf of the bankruptcy administrator. 14 MS. MIZE: And good afternoon, Your 15 Honor. I'm Leslie Mize on behalf of Alevo. 16 THE COURT: All right, thank you. 17 Do we have parties appearing 18 telephonically? 19 MS. ROUPINIAN: Yes, Your Honor. 20 Rene Roupinian of Outten Golden appearing 21 on behalf of Mr. Singleton. 22 THE COURT: All right, thank you. 23 The first motion is yours, sir. 24 MR. RAISNER: Thank you, Your Honor. 25 Again, for the record, Jack Raisner of

180 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 7 of 27 1 Outten Golden, on behalf of Jerome Singleton. Page 6 2 Your Honor, what brings us here this 3 afternoon is that 60 days ago, on August 18th, Alevo 4 filed bankruptcy, and just before doing so they 5 terminated all of their employees. So this was a 6 planned Chapter 11 filing, and obviously it was a 7 planned termination of all of the employees. 8 That gave rise to the pre-petition claim 9 under the Warren Act for a termination without any 10 prior notice. 11 As it turns out, a notice was handed out, 12 or sent out around that time, which needed to 13 preserve any defenses that Alevo could have for not 14 having provided 60 days' notice. That notice does 15 not frame any such defenses. 16 And so for the purposes of the argument 17 today, Your Honor, I'm going to ask the Court to 18 assume that there is going to be some Warren 19 liability in the case and be happy to address that, 20 but that really isn't the focus of why we're here 21 today. 22 What -- what also brings us here, Your 23 Honor, is that we're in the beginning of a path, and 24 that path hopefully will lead to some value for these 25 employees. And that path may take more than two

181 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 8 of 27 1 months, but it -- it's the first steps that we're 2 taking today, and we have to take the first steps 3 today because of the dual filings. 4 But let me just give a sense of the 5 context of what this path looks like, because it's a 6 very challenged one, Your Honor. Page 7 7 We understand that this Chapter 11 case is 8 precarious at best and probably offers little 9 assurance that unsecured creditors are going to find 10 value here in this estate. 11 So I'm going to talk about a few truisms, 12 about class actions and bankruptcy of Warren cases. 13 But I think they're particularly true here when we 14 have a path that lies ahead, which is going to have 15 very high challenges and hurdles to have to cross to 16 find value at the end of the line. 17 The reason why we are taking this path, 18 Your Honor, is that a Warren claim is, first of all, 19 one that is amenable to class certification so that 20 it's not one person, but it's the entire group. 21 And class actions have been considered 22 appropriate universally in cases of Warren because 23 everybody in the class has been treated in the exact 24 same fashion in a mass termination, and so they have 25 and share all common issues with one another. And

182 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 9 of 27 1 that's sort of the idea of the class came -- claim, 2 that everyone can be roped together sort of in -- or Page 8 3 in this case, pushed out in one room. They're all in 4 one bucket. 5 So class is -- class actions is a normal 6 format for a Warren claim. And so it does have the 7 benefit of having a large number of -- of claimants 8 who can pool their -- their efforts so to speak in -- 9 in order to bring a claim forward such as this. 10 And the bankruptcy code by operation of 11 the priority scheme also treats the Warren class claim 12 as a wage priority under 507(a)(4) when it's 13 pre-petition up to the capped amount for each 14 individual. 15 So by virtue of the operation of the code, 16 there is actually some reason to pursue a class claim 17 in bankruptcy on behalf of Warren plaintiffs. 18 And the -- the -- the priorities code 19 prominence that is given to this claim makes it 20 almost front and center in the planning around either 21 a Chapter 11, which is trying to go into a plan and 22 figure out whether it would be able to pay such a 23 claim or reserve for it. 24 Or on the other end of the spectrum, if 25 this is a straight liquidation, it may -- may very

183 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 10 of 27 1 well be that the class counsel for the Warren Page 9 2 plaintiffs are going to be the last creditor standing 3 so to speak with the trustee, or whoever is 4 liquidating the case, to say well, what do we do with 5 the money that may be available to creditors in this 6 estate if the Warren class claim is going to by 7 virtue of the priority code sort of absorb it. 8 It inevitably leads to the -- the Warren 9 claim being a claim that has to be dealt with in the 10 bankruptcy, and experience has shown that trying to 11 deal with it early is more effective and efficient 12 than putting it off in the haystack of other claims 13 and dealing with it at some later date. Because its 14 most unsecured claims can be reconciled at the very 15 end when we know it's in the estate and it can go 16 through that process. But the Warren claim is apart 17 from that, again, by the prominence that the large 18 priority amount lends to it. 19 And therefore, it's better to have an 20 interface between Warren class counsel and all the 21 parties in the estate to see that the Warren claim is 22 being accounted for or dealt with in a way that's 23 going to be efficient and maximize value for the 24 estate. 25 And that's basically our maxim, Your

184 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 11 of 27 1 Honor, that is to try to maximize value to the estate Page 10 2 with the Warren claim so that the Warren claim can be fit 3 into a process for ultimately being reconciled or 4 fixed in a way which is not going to delay the 5 bankruptcy, and isn't going to cost the bankruptcy 6 process and the other creditors undue delay or cost. 7 In -- in trying to maximize value for the 8 estate, we find that we're the beneficiary of that 9 indirectly because that maximizes the possible pool 10 of distributable assets that the Warren claimants might 11 be able to enjoy. 12 So as to not dissipate assets, we try to 13 work in a collegial way, in a constructive way with 14 all the parties as early as we can so that this claim 15 isn't hanging out there or going to be met with undue 16 resistance and wasteful litigation, or a process that 17 isn't as -- as efficient as possible in order for 18 everyone to get their arms around the claim, then put 19 it into the pecking order into a process that allows 20 the administration of the bankruptcy to be as smooth 21 as possible. 22 In our attempt to maximize value we try to 23 minimize expenses by having a consensual process with with the committee and with the debtor in a 25 Chapter 11, to try to resolve all issues that can

185 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 12 of 27 1 possibly be resolved consensually without litigation 2 so as to avoid any unnecessary litigation costs. 3 The adversary itself, the filing of an Page 11 4 adversary, enables the parties to deal with the claim 5 sort of in its own docket and with a scheduling 6 order, and with a -- a device that is appropriate for 7 having to deal with the Warren claim earlier than 8 waiting till the ultimate reconciliation process for 9 the other secured claims. 10 So the adversary has been found to be 11 effective in economizing and stream -- streamlining 12 the process of handling the Warren claim. 13 And on the other side of the balance sheet 14 if we can save as much money as possible for the 15 estate, sometimes that isn't enough. And we're going 16 to have to try to maximize value by bringing in money 17 ourselves that may be available to Warren as a 18 separate path that the committee or at least the 19 estate might not otherwise be able to pursue. 20 I just want to say one more thing about 21 the minimizing of the expense, Your Honor. The 22 words, class action, conjure up in most people's mind 23 something that's big, something that's ungainly, 24 that's expensive, and has many pejorative of 25 connotations about claims that that -- the -- too

186 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 13 of 27 1 much ice in the Starbucks consumer claim where the 2 Italian olive oil really wasn't from Italy, and 3 claims like that which may have some monetary value. 4 But the perception is that the lawyers are in it in 5 order to make money on fees in some -- in some way, 6 and that there is skepticism about that. Page 12 7 In Warren claims in bankruptcy as -- outside 8 of bankruptcy, that's not really the way it works. 9 We are on a contingency and that means that we as 10 attorneys are never billing the estate anything. 11 What we try to do in working with our 12 contingencies is to successfully get a pool of money 13 in recognition of the Warren claim through litigation 14 or a settlement usually. And that's money that has 15 been determined to be owed to these creditors, Warren 16 Creditors. 17 And if you credit -- that there is a 18 federal law and that these are creditors like any 19 other and they have a claim. The amount that we're 20 able to achieve for that group then enables us to ask 21 the Court for permission to take from that pool or 22 fund fees for our services, which any -- any person, 23 any client would expect to have to pay to a lawyer. 24 And it's usually at a contingency rate of 33 percent, 25 and expenses if we have those as well.

187 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 14 of 27 1 But that all comes from the amount, the 2 sum certain that has been already appropriated for 3 the Warren claimants and doesn't come from the 4 estate's funds like other professionals. Page 13 5 So in a sense, Warren contingency work in -- 6 in bankruptcy is cash neutral to the estate because 7 it's -- it is isn't charging the estate, it's 8 charging the -- the clients or the class members. 9 In terms of our being able to make some 10 type of value added attempt to -- to be value added 11 in a case such as this, Your Honor, we are having to 12 look beyond the low hanging fruit. 13 The low hanging fruit means, you know, the 14 readily available assets in the estate, and we 15 understand that most of those are spoken for. 16 There is a DIP that is running against 17 whatever the sale value is going to be of -- of the 18 assets. And if it's going to be a -- a -- a credit 19 bid to buy all those assets by the DIP lender, and 20 all that is probably going to go -- go away from out of the reach of the unsecured creditors. And, of 22 course, professionals also have to be spoken for. 23 And I don't know that there is a -- a 24 realistic prospect of that happening, there's a 25 potential one. But I think the potential for the --

188 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 15 of 27 Page 14 1 the assets of this estate being able to garner enough 2 to pay unsecured creditors would have to come through 3 a mechanism that involves the affiliates in Europe, 4 in which value is reposed. 5 We know because that is where the 6 intellectual property is of -- of the Alevo group and 7 the Alevo affiliates. And I think that's where eyes 8 are going to turn and our attention has turned since 9 the beginning to be able to understand what -- what 10 can be done to bring such value into this estate. 11 The -- the long and short of it, Your 12 Honor, is that we expect that based on our 13 investigation of the claims with our clients -- and 14 we have over 50 members of the potential class who 15 have retained us separately or -- or privately THE COURT: --- And are all of those 17 employees of manufacturing, or are any of those 18 employees of USA? 19 MR. RAISNER: Right now all 20 manufacturing. 21 The -- the -- the group that we represent 22 includes some employees who had quite an elevated 23 role in the hierarchy of the -- of the organization. 24 And by the organization I mean here in Concord and 25 also in -- in Europe. And they've given us a -- a --

189 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 16 of 27 1 enough information for us to be able to present a 2 claim, a direct liability against the parents. Page 15 3 And we've done this in other cases and Mr. 4 Ercole has, and Mr. Ercole -- and -- and we have done 5 this in other cases in order to -- to value. So this 6 is -- this is not something brand new by any means, 7 but it is a particular challenge for two reasons. 8 Here, of course, one is that these are 9 entities that are in Europe and now are going through 10 their own insolvency process. And so being able to 11 fit a claim based here into that insolvency process 12 in order to unlock value is by no means a well-trod 13 path or a well-charted course that has to be 14 developed. 15 And I don't want to go too far into the 16 details other than to say that a first step down that 17 path that I was alluding to earlier would be to be 18 able to have the ability to speak on behalf of, or do 19 something on behalf of the group in that proceeding 20 in -- in -- in Switzerland as soon as possible, 21 because I really don't know specifically what should 22 be done and with what timing. But it would be better 23 to have the authority to do that on behalf of the 24 claimants here. 25 And were let's say the scenario that by

190 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 17 of 27 Page 16 1 getting a judgment from the bankruptcy court through 2 the bankruptcy proceeding here against those parents, 3 where we're able to achieve jurisdiction and -- and 4 have that done, which is what we hope to be able to 5 do, that would give us the best possible advantage in 6 -- in terms of fitting into a -- or unlocking value 7 there. 8 Doing that here, Your Honor, should not 9 entail hopefully a great deal of time, cost or effort 10 and -- and burden this estate. It should maximize 11 value for the estate to the extent that we can 12 alleviate a claim from this estate to the extent that 13 we can satisfy a claim by the responsible parties in 14 our view. 15 It's quite clear in that notice that I 16 mentioned on August 18th the reason given for the 17 termination of the employees was that the parents in 18 Europe decided that they no longer want to provide 19 future funding. So it was their decision to close 20 the company here. 21 And by all rights, the ones who make the 22 decision under the single employer theory of Warren, 23 of the Department of Labor's rules, is to go to the 24 responsible decision making party and have them pay 25 for it.

191 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 18 of 27 Page 17 1 So it's -- it's really well within the -- 2 the framework of the -- the theory of Warren and -- and 3 what the statute and regulations say, to go and be 4 able to make a claim against the parents under the 5 Warren Act. 6 But there are a lot of -- a lot of details 7 that have to be painted in, but we have -- we have 8 the factual basis I'm quite sure as we see it and -- 9 and as we try to amend our complaint. Being able to 10 amend the complaint whether it's going to violate a 11 stay against these parties right now at the moment I 12 don't have the answer to. 13 But, again, being able to take these steps 14 forward, to investigate it, to spend the time and 15 effort to -- to dig further into this is something 16 that we would like to do. But we are hesitant to if 17 we think that we're not going to be accorded the 18 ability to -- to represent this group in this Court. 19 And that's really why we are here at this 20 point to try to settle at least the first step of 21 interim class counsel before a class is even 22 certified to say, okay, why don't you do that, take 23 this roll for these steps and at least you -- you can you can have -- you'd be deputized to do that as 25 interim class counsel and see if we can make some

192 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 19 of 27 1 headway. Page 18 2 Without that it's daunting to really want 3 to be able to expend the time and the effort to -- to 4 go on -- on -- on a precarious expedition, which is 5 this bankruptcy case. And particularly, the goal of 6 trying to achieve value by looking to Europe. 7 Thank you. 8 THE COURT: Thank you, sir. 9 Yes, sir? 10 MR. ERCOLE: Your Honor, Charles 11 Ercole on behalf of Mr. Popwell and the Popwell 12 class. 13 So I -- I agree with Mr. Raisner. He is 14 right, we've worked together on very similar cases. 15 The Kommanda case had a lot of the exact same 16 characteristics in Richmond, Virginia, when the 17 computer chip manufacturer went out -- out of 18 business. They had two North American entities, a 19 manufacturing plant and a back office here in Cary, 20 North Carolina. Very similar issues. 21 We were actually put on a committee in 22 that case because we had such a large value claim class, and worked with the committee in litigation 24 for intra-company claims against the European parent. 25 And part of that did involve -- at some

193 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 20 of 27 1 part down the road. Not two months into the case, 2 some point down the road resulted in a very large 3 favorable settlement for the employees. Page 19 4 Which fortunately, as the case developed 5 and the European case, which is still ongoing, 6 resulted in some very large claims that are still 7 sitting over there that are worth well, we believe, 8 you know, large values and will render a very nice 9 dividend and distribution to a lot of creditors. Not 10 just the employee class, but other unsecured 11 creditors. 12 So again, Mr. Raisner is right. I think 13 those of us that have been in these situations 14 before, you come into the case and you kind of see 15 where things are going. Jack has used the phrase, 16 the dust settling period, early on while you're 17 trying to figure out where the assets are, what's 18 going on. 19 You have to be in contact with the -- the 20 trustees or the bankruptcy administrators or the 21 debtor's counsel, cooperate with them. You're not 22 looking to jump full-fledged into litigation. 23 Sometimes our hands are forced, sometimes 24 there's an early motion to dismiss our complaints. 25 But, you know, we -- we believe -- these cases are

194 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 21 of 27 1 always consolidated. We don't think one side should 2 be picked and dismissed. 3 Typically, the cases are consolidated. Page 20 4 The lead plaintiffs are put together in a case and in 5 many cases we worked out agreements to do that. 6 I mean, I think Mr. Raisner pointed out in 7 his pleadings that they've filed nearly a hundred 8 cases and there's only been five interim counsel 9 appointments that they've had. Because typically, 10 this is not the way it's worked out. There is 11 nothing that prevents the Court from saying you guys 12 should consolidate and work together. 13 We've done it by ourselves before. But 14 again, under court order if that's going to bring the 15 most value to the class, and I think we have worked 16 together successfully on behalf of thousands of 17 employees over the years. 18 So again, we don't think that there's 19 anything that should preclude the Court from 20 appointing us together. We've given arguments in our 21 papers why we think -- if the Court is determined to 22 pick only one, that they should pick Claire Harrison 23 and the Popwell plaintiffs. We will concede that 24 Outten & Golden files far more Warren Act class 25 actions than we do.

195 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 22 of 27 1 But on a quality analysis or credentials 2 analysis, nobody can challenge our success rate for 3 quality representation. 4 I don't think they would. I don't Page 21 5 challenge theirs either. I'm just saying we -- if -- 6 there was value to us not taking as many cases on. 7 We will be solely focused on this case and 8 prepared to be as involved and as attentive and 9 aggressive or as -- as needed. 10 But those are my primary points. I mean, 11 we -- we had discussions about 30 days ago to work on 12 this case together. 13 And at that time Mr. Raisner believed we 14 could work together. We have another case going on 15 in South Carolina where we could reach an agreement 16 because -- about of the involvement of our local 17 counsel on my side. 18 So we -- that's what brought this motion 19 before the Court. My only point of raising that is 20 not the issues with South Carolina, but to say that 21 at that time Mr. Raisner thought it was okay that our 22 firms work together to prosecute this case. 23 He was in agreement, thought that that was 24 a doable solution. There's enough work here 25 particularly if we're going to be taking claims to

196 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 23 of 27 1 Europe or litigation that is going to involve large 2 intra-company plans. 3 There is going to be plenty of work for 4 our firms and -- again, unless the Court has any 5 questions, I'll... 6 THE COURT: Do you have any other 7 named plaintiffs or any other plaintiffs? 8 MR. ERCOLE: Yeah. We have -- we 9 have a dozen plaintiffs, and to answer the Court's 10 question, I think they're all with manufacturers. 11 THE COURT: Okay. 12 MR. ERCOLE: Manufacturing. 13 THE COURT: All right. Anything 14 else? 15 MR. ERCOLE: Thank you. 16 THE COURT: Any comments from the 17 bankruptcy administrator's office? Page MS. BRUCE: Not really, Your Honor. 19 We don't really have a substantive 20 position as to which or both of these firms should be 21 appointed as interim class counsel today. 22 We'll just -- no further effort -- as 23 usual, our concern about duplication of efforts and 24 preservation of resources. 25 THE COURT: All right. Well, the

197 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 24 of 27 Page 23 1 way I read the rules -- and you gentlemen certainly 2 have exponentially more experience with class actions 3 than just the Court. 4 I looked at it and so we're just talking 5 about making an interim appointment, but it seems 6 that the rule is pretty clear that when you have more 7 than one application, that the Court has to make a 8 decision as to who is best able to represent the 9 interest of the class. 10 And in looking at that, you -- you both 11 have outstanding qualifications. The work that you the briefs that you gave us were certainly 13 exceptional. You pulled some of the cases that 14 you've been involved in and you both have been able 15 to get very good results for your clients. 16 But I -- so you start out with that, who 17 you are. Equal. I looked at who was first to file. 18 You were first to file. I looked at the number of 19 individuals that you're representing. You have more 20 of the representation. 21 I looked at the allegations in the 22 complaint. Yours does not include actions under the 23 North Carolina law for wages. 24 So based on those factors, I think it is 25 more appropriate to find that your firm should

198 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 25 of 27 1 proceed on an interim basis as class counsel. Page 24 2 That leaves you with the decision -- I'm 3 not really -- I'm going to leave it up to you -- or 4 give you a time period to decide if you want your 5 action dismissed on -- or if your plaintiffs with 6 other lead counsel wish to go forward with them. 7 MR. ERCOLE: Okay. 8 THE COURT: So I hope you will be 9 successful. 10 You're correct, this is a very thin case. 11 There's very, very little money in this case. But a 12 lot of money was put into this company and maybe the 13 people in Europe will have deeper pockets to pay for 14 these wages, because these wages were earned locally 15 for people, by people who do not earn a great deal of 16 money. 17 And to the extent that they have filed 18 these claims, I would certainly like to see those 19 priority claims paid. 20 So sir, if you would prepare a proposed 21 order and circulate it to all the parties, I'll be 22 glad to review it. 23 MR. RAISNER: Thank you, Your Honor. 24 MR. ERCOLE: Thank you, Your Honor. 25 MS. BASDEN: Thank you, Your Honor.

199 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 26 of 27 1 THE COURT: Thank you. Page 25 2 WHEREUPON, 3 at 2:27 o'clock p.m. the hearing was adjourned

200 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 7 to Dec. of J. Raisner Pg 27 of 27 1 CERTIFICATION Page 26 2 I, Cassandra J. Stiles, CVR, Certified 3 Court Reporter and Notary Public in and for the 4 County of Forsyth, State of North Carolina at Large, 5 do hereby certify; 6 That the foregoing record was reduced to 7 typewriting in the normal course and manner of the 8 transcription of electronic files as provided, and 9 that the electronic file from which the record was 10 produced was retrieved from the official records of 11 the Court hereon indicated, and that the foregoing 12 pages are a complete and accurate written record of 13 said file; 14 That the undersigned is not of kin nor in 15 anywise associated with any of the parties touched by 16 the subject matter contained herein, nor any counsel 17 thereto, and that I am not interested in any event(s) 18 thereof. 19 IN WITNESS WHEREOF, I have hereunto set my 20 hand this the 14th day of November, Cassandra J. Stiles, CVR-M 22 Certified Court Reporter 23 Atlantic Professional Reporters 24 Post Office Box Winston-Salem, NC

201 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 8 to Dec. of J. Raisner Pg 1 of 3 Exhibit 8

202 Case mew JMC-7A Doc Doc 981 Filed 02/15/18 Filed 01/20/17 Entered EOD 02/15/18 01/20/17 21:23:05 13:18:25 Exhibit Pg 18 of to2 SO ORDERED: Dec. of J. Raisner January 20, Pg of 3 James M. Carr United States Bankruptcy Judge UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION IN RE: ) ) ITT EDUCATIONAL SERVICES, INC., et al. 1 ) Case No JMC-7A ) Debtors. ) Jointly Administered ) ORDER APPOINTING OUTTEN & GOLDEN LLP AS INTERIM CLASS COUNSEL AND DENYING COMPETING MOTIONS THIS MATTER comes before the Court on: (1) Federman et al. Plaintiffs Motion Pursuant to Fed. R. Bankr. P. 7023(g) for Appointment of Interim Class Counsel and Related Relief filed by Allen Federman, Joanna Castro and Steve Ryan on behalf of themselves and all others similarly situated on October 11, 2016 (Docket No. 322) (the Federman Motion ), and all related pleadings and submissions including those at Docket Nos. 460 and The debtors in these cases, along with the last four digits of their respective federal tax identification numbers are ITT Educational Services, Inc. [1311]; ESI Service Corp. [2117]; and Daniel Webster College, Inc. [5980].

203 Case JMC-7A Doc 981 Filed 01/20/17 EOD 01/20/17 13:18:25 Pg 2 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 8 to Dec. of J. Raisner Pg 3 of 3 (2) Claimant Christin M. Long s Motion to Appoint Benjamin F. Johns of Chimicles & Tikellis LLP and Michael W. Hile of Jacobson Hile, LLC as Interim Co-Lead Counsel, and Brandon M. Wise of Peiffer Rosca Wolf Abdullah Carr & Kane APLC to an Executive Committee filed by Christin M. Long on October 11, 2016 (Docket No. 320) (the Long Motion ), and all related pleadings and submissions including those at Docket Nos. 458, 460, 550 and 655. (3) Motion of Artis Plaintiffs for Appointment of Klehr Harrison Harvey Branzburg LLP as Interim Class Counsel Pursuant to Fed. R. Bankr. Proc. 7023(g) filed by Dennis Artis, Donna A. Lindsay and Patricia Marshall on October 11, 2016 (Docket No. 321) (together with the Long Motion, the Competing Motions ), and all related pleadings and submissions including those at Docket Nos. 459, 460 and 656. The Court, having reviewed the Federman Motion, the Competing Motions and all related pleadings and submissions, having heard the representations of counsel at a hearing on November 16, 2016, and being otherwise duly advised, now GRANTS the Federman Motion pursuant to Fed. R. Civ. P. 23(g), made applicable to this bankruptcy case by Fed. R. Bankr. P. 7023, and DENIES the Competing Motions. IT IS ORDERED that Outten & Golden LLP be appointed as interim class counsel to represent the WARN Act claimants in this bankruptcy case. # # #

204 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 9 to Dec. of J. Raisner Pg 1 of 6 Exhibit 9

205 Case mew Doc Filed Filed 07/13/17 02/15/18 Entered Entered 07/13/17 02/15/18 14:49:53 21:23:05 Main Exhibit Document 9 to Dec. of J. Page Raisner 1 of 5Pg 2 of 6

206 Case mew Doc Filed Filed 07/13/17 02/15/18 Entered Entered 07/13/17 02/15/18 14:49:53 21:23:05 Main Exhibit Document 9 to Dec. of J. Page Raisner 2 of 5Pg 3 of 6

207 Case mew Doc Filed Filed 07/13/17 02/15/18 Entered Entered 07/13/17 02/15/18 14:49:53 21:23:05 Main Exhibit Document 9 to Dec. of J. Page Raisner 3 of 5Pg 4 of 6

208 Case mew Doc Filed Filed 07/13/17 02/15/18 Entered Entered 07/13/17 02/15/18 14:49:53 21:23:05 Main Exhibit Document 9 to Dec. of J. Page Raisner 4 of 5Pg 5 of 6 Stirman v. Exxon Corp Berger v. Compaq Computer Corp

209 Case mew Doc Filed Filed 07/13/17 02/15/18 Entered Entered 07/13/17 02/15/18 14:49:53 21:23:05 Main Exhibit Document 9 to Dec. of J. Page Raisner 5 of 5Pg 6 of 6

210 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 10 to Dec. of J. Raisner Pg 1 of 2 Exhibit 10

211 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 10 to Dec. of J. Raisner Pg 2 of 2 IN TIrF. IDIITED STATES BANKRUPTCY COURT FOR TIIE DISTRICT OF DELAWARE In re MONACO COACH CORPORATION, CHAPTER 7 Case No (KJC) Debtor. RONALD C. FOLK and JEROME A. HOOVER, on behalf of themselves and all others similarly situated, v. Plaintiffs. Adv. Pro. No (KJC) MONACO COACH CORPORATION, Defendant. Re: Adversery Nos. 15, 16, and 25 ORDER APPOINTING Upon."*rd & Golden LLP as Class Counsel Pursuant to Fed. R. Civ. P. 23(g) (the "Motion") and their Memorandum of Law in support of same, it is hereby ORDERED that, pursuant to Fed. R Civ. P. 23(g), Outten & Golden LLP be appointed as interim class counsel to represent the WARN Act claimants in the above-captioned bankruptcy and adversaqploceedings. DArED: uub The CNO rc Plaintifft'Motion to Appoint Class Counscl.DOCX

212 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 11 to Dec. of J. Raisner Pg 1 of 2 Exhibit 11

213 Case 3:09-ap JAF Doc 26 Filed 01/11/10 Page 1 of mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 11 to Dec. of J. Raisner Pg 2 of 2

214 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 1 of 8 Exhibit 12

215 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 2 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec B.R. 619 United States Bankruptcy Court, S.D. New York. In re MF GLOBAL HOLDINGS, LTD. et al., Debtor. Todd Thielmann, Pierre Yvan Desparois, Natalia Sivova, Sandy Glover Bowles, and Arton Sina, individual, and on behalf of all other similarly situated former employees, Plaintiffs, v. MF Global Holdings Ltd, MF Global Holdings USA Inc., MF Global Finance USA, Inc.; MF Global Inc., et al., Defendants. Genitra Greene and Victor Hurtado individual, and on behalf of all other similarly situated former employees, Plaintiffs, v. MF Global Holdings Ltd, MF Global Holdings USA Inc., MF Global Finance USA, Inc.; MF Global Inc., Defendants. Bankruptcy No (MG). Adversary Nos (MG), (MG). Jan. 30, Synopsis Background: Former employees brought separate adversary proceedings against debtors, asserting class action claims under federal Worker Adjustment and Retraining Notification Act (WARN Act) and New York State Workers Adjustment and Retraining Notification Act. Counsel in fourth proceeding filed moved to consolidate complaints and for its appointment as lead counsel of combined proceedings. After consolidated amended complaint was filed to serve as surviving complaint for other three proceedings, associated counsel moved for their appointment as interim counsel and objected to consolidation of fourth-filed complaint, seeking dismissal of that proceeding. Holdings: The Bankruptcy Court, Martin Glenn, J., held that: [1] dismissal of fourth proceeding, rather than consolidation with previously filed proceedings, was warranted, and [2] appointment of one law firm as interim counsel was warranted. Ordered accordingly. West Headnotes (9) [1] Bankruptcy Nature and form; adversary proceedings Bankruptcy Pleading; dismissal Bankruptcy court has broad discretion to determine whether consolidation or dismissal of adversary proceedings is appropriate. 1 Cases that cite this headnote [2] Bankruptcy Nature and form; adversary proceedings In deciding whether to consolidate multiple actions, court must consider whether specific risks of prejudice and possible confusion are overborne by risk of inconsistent adjudications of common factual and legal issues, burden on parties, witnesses, and available judicial resources posed by multiple lawsuits, length of time required to conclude multiple suits as against a single one, and relative expense to all concerned of the single-trial, multipletrial alternatives. Fed.Rules Bankr.Proc.Rule 7042, 11 U.S.C.A.; Fed.Rules Civ.Proc.Rule 42(a), 28 U.S.C.A. Cases that cite this headnote [3] Action Another Action Pending Bankruptcy Nature and form; adversary proceedings Federal Courts 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

216 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 3 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 Duplicative actions in general In addition to the power to consolidate multiple cases currently before it, as part of its general power to administer its docket, a court may stay or dismiss a suit that is duplicative of another federal-court suit. Fed.Rules Civ.Proc.Rule 42(a), 28 U.S.C.A. 1 Cases that cite this headnote [4] Federal Courts Duplicative actions in general Court deciding whether to dismiss a second action as duplicative must consider the equities of the situation in exercising its discretion. 1 Cases that cite this headnote [5] Federal Courts Duplicative actions in general Court must be careful, when dismissing a second action between the same parties as duplicative, not to be swayed by a rough resemblance between the two actions without assuring itself that, beyond the resemblance already noted, the claims asserted in both actions are also the same. 1 Cases that cite this headnote [6] Bankruptcy Nature and form; adversary proceedings Bankruptcy Pleading; dismissal Dismissal, rather than consolidation with previously filed and combined adversary proceedings, was warranted as to fourth proceeding filed by debtors' former employees asserting class action claims under federal Worker Adjustment and Retraining Notification Act (WARN Act) and New York State Workers Adjustment and Retraining Notification Act; putative classes were composed of same members and organized to vindicate same rights, and issues and facts to be determined, witnesses and evidence required, and relief requested were the same. Worker Adjustment and Retraining Notification Act, 2 et seq., 29 U.S.C.A et seq.; Fed.Rules Bankr.Proc.Rule 7042, 11 U.S.C.A.; Fed.Rules Civ.Proc.Rule 42(a), 28 U.S.C.A.; N.Y.McKinney's Labor Law 860 et seq. Cases that cite this headnote [7] Bankruptcy Parties Class action rule requires a court to determine at an early practicable time whether to certify a class and, if so, to appoint class counsel. Fed.Rules Bankr.Proc.Rule 7023, 11 U.S.C.A.; Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. Cases that cite this headnote [8] Bankruptcy Parties In selecting class counsel, courts may consider matters pertinent to counsel's ability to fairly and adequately represent the interests of the class, including (1) the quality of the pleadings, (2) the vigorousness of the prosecution of the lawsuits, and (3) the capabilities of counsel, as well as whether their charges will be reasonable. Fed.Rules Civ.Proc.Rule 23(g)(3), 28 U.S.C.A. Cases that cite this headnote [9] Bankruptcy Parties Appointment, as interim counsel, of one of law firms that represented debtors' former employees in three combined adversary proceedings asserting class action claims under federal Worker Adjustment and Retraining Notification Act (WARN Act) and New York State Workers Adjustment and Retraining Notification Act was warranted; administrative and judicial efficiency was best served by appointing only one firm as interim counsel, selected firm was one of first to file complaint 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

217 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 4 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 against debtors, selected firm, along with other firms, met with dozens of putative class members, reviewed extensive materials pertinent to litigation, researched relevant case law, and drafted amended complaint, and selected firm maintained website devoted exclusively to WARN Act litigation and had litigated approximately 50 WARN Act class actions, including two cases currently before bankruptcy court. Worker Adjustment and Retraining Notification Act, 2 et seq., 29 U.S.C.A et seq.; Fed.Rules Civ.Proc.Rule 23(g)(2, 3), 28 U.S.C.A.; N.Y.McKinney's Labor Law 860 et seq. Cases that cite this headnote Attorneys and Law Firms *620 Harwood Feffer LLP, By: Robert I. Harwood, Esq., Peter J. Overs, Jr., Esq., New York, NY, for Plaintiffs Genitra Greene and Victor Hurtado. *621 Outten & Golden LLP, By: Jack A. Raisner, Esq., Rene S. Roupinian, Esq., New York, NY, for Thielmann Plaintiffs and the Putative Class. Klehr Harrison Harvey Branzburg LLP, By: Jeffrey D. Kurtzman, Esq., Philadelphia, PA, for Thielmann Plaintiffs and the Putative Class. Lankenau & Miller, LLP, By: Stuart J. Miller, Esq., New York, NY, Cooperating Attorneys for the NLG Maurice and Jane Sugar Law Center for Economic and Social Justice and Attorneys for Thielmann Plaintiffs and the Putative Class. The Gardner Firm, P.C., By: Mary E. Olsen, Esq., Mobile, AL, for Thielmann Plaintiffs and the Putative Class. Pepper Hamilton LLP, By: Deborah Kovsky Apap, Esq., Southfield, MI, Proposed Counsel for Louis J. Freeh, Chapter 11 Trustee. MEMORANDUM OPINION AND ORDER APPOINTING INTERIM COUNSEL IN CERTAIN CONSOLIDATED WARN ACT CLASS ACTIONS AND DISMISSING A DUPLICATIVE WARN ACT CLASS ACTION MARTIN GLENN, Bankruptcy Judge. The MF Global bankruptcy and liquidation cases continue to spawn a large amount of litigation. Four class action adversary proceedings have been commenced asserting claims under the federal Worker Adjustment and Retraining Notification Act and the New York State Workers Adjustment and Retraining Act (collectively, the WARN Act ). With the defendants' counsel happily standing on the sidelines, plaintiffs' counsel are engaged in a vitriolic battle about which cases will proceed forward and who will serve as interim counsel. Counsel in three cases have joined together in a consolidated amended complaint, but they oppose consolidation of the fourth, later-filed case, asking that it be dismissed. Counsel in the fourth case wants its case consolidated with the earlierfiled three cases, with the firm appointed as lead counsel. The Court must decide whether to consolidate or dismiss the fourth case, and whether and whom to appoint as interim counsel. For the reasons explained below and in the exercise of the Court's discretion, the Court concludes that the last-filed case should be dismissed and one firm, Outten & Golden LLP, should be appointed as interim counsel. BACKGROUND The federal Worker Adjustment and Retraining Notification Act is codified at 29 U.S.C In very general terms, it requires employers with more than 100 employees to provide sixty calendar days' advance notice of plant closing or mass layoffs (both terms are defined in section 2101(a)). There are three exceptions to the full sixty-day requirement; however, employers must still provide notice as soon as practicable. The exceptions are: (1) when an employer is actively seeking capital or business and reasonably believes that advance notice would preclude its ability to garner capital or business (known as the faltering company exception); (2) unforeseeable business circumstances; and (3) natural disasters. See 29 U.S.C. 2102(b). When section 2102 is violated, the employer is liable for damages, including employee back pay and benefits under an employee benefit plan. See id Thomson Reuters. No claim to original U.S. Government Works. 3

218 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 5 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 Three WARN Act class actions were initially filed between November 11 and November 14, 2011: (1) Abruzzo v. MF Global Holdings Ltd, Adv. Proc. No mg (the Abruzzo Action ) was filed on November 11, 2011 by Lankenau & *622 Miller, LLP ( Lankenau ) and The Gardner Firm, P.C. ( Gardner ); (2) Sivova v. MF Global Holdings Ltd, Adv. Proc. No mg (the Sivova Action ) was filed on November 14, 2011 by Outten & Golden LLP ( Outten ); and (3) Thielmann v. MF Global Finance USA, Inc., Adv. Proc. No mg (the Thielmann Action ) was filed on November 14, 2011 by Klehr, Harrison, Harvey, Branzburg, LLP ( Klehr ). 1 On December 1, 2011, approximately twenty days after the Thielmann, Sivova, and Abruzzo Actions were commenced, another WARN Act class action complaint, Greene v. MF Global Holdings Ltd, Adv. Proc. No mg (the Greene Action ), was filed by Harwood Feffer LLP ( Harwood Feffer ). According to the Thielmann Motion (defined below), Outten contacted Harwood Feffer to determine why it filed a fourth class action and suggested that Harwood Feffer dismiss the Greene Action because the Greene Plaintiffs were already well-represented in the Thielmann Action. (Thielmann Mot. at 5.) Harwood Feffer's answer came on December 7, 2011, when the Greene Plaintiffs filed a motion (the Greene Motion ) to consolidate all four class action complaints and appoint Harwood Feffer as lead counsel of the combined class actions. (Greene Action, ECF Doc. # 3; Thielmann Action, ECF Doc. # 3; Sivova Action, ECF Doc. # 4; Abruzzo Action, ECF Doc. # 3.) Harwood Feffer attached its firm biography to the declaration in support of the Greene Motion. On December 12, 2011, Thielmann Counsel filed a consolidated amended complaint 2 in the Thielmann Action to serve as the surviving class action complaint, adding the plaintiffs from the Abruzzo and Sivova Actions, but excluding the Greene Plaintiffs. (Thielmann Action, ECF Doc. # 4.) Motions to dismiss the Abruzzo Action and the Sivova Action voluntarily were filed on December 20, Thielmann Counsel also filed a motion (the Thielmann Motion ) seeking an order appointing themselves as interim counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Rule 7023 of the Federal Rules of Bankruptcy Procedure. (Thielmann Action, ECF Doc. # 11.) Declarations in support of the Thielmann Motion were filed by: (1) Jack Raisner, a partner at Outten; (2) Stuart J. Miller, a partner at Lankenau; and (3) Charles A. Ercole, a partner at Klehr. On January 12, 2012, the Thielmann Plaintiffs filed a response to the Greene Motion (the Thielmann Response ) (Thielmann Action, ECF Doc. # 32), and the Greene Plaintiffs filed a response to the Thielmann Motion (the Greene Response ) (Thielmann Action, ECF Doc. # 31). In the Thielmann Response, Theilmann Counsel reasserted the same allegations against Harwood Feffer that were made in the Thielmann Motion. Thielmann Counsel also objected to the consolidation of the Thielmann Action and Greene Action and advocated for complete dismissal of the Greene Action, arguing that the Greene Action is a copycat complaint that adds nothing to the earlier filed Thielmann Action. In the Greene Response, Harwood Feffer pointed at certain procedural mistakes Thielmann Counsel had made and again advocated for consolidation of all four WARN Act class actions *623 and appointment of Harwood Feffer as lead counsel. The Court held a hearing on these issues on January 19, 2012; counsel from Harwood Feffer and Outten presented the arguments to the Court. DISCUSSION A. Dismissal of the Greene Action Is Warranted The Court must first determine whether to consolidate the consolidated Thielmann Action and the Greene Action, or to dismiss or stay the Greene Action. Consolidation of the actions may be the path of least resistance, but based on the circumstances here, dismissal of the Greene Action is warranted. [1] [2] The Court has broad discretion to determine whether consolidation or dismissal is appropriate. This power stems from the Court's inherent authority to control disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants. Lester Krebs, Inc. v. Geffen Records, Inc., No. 85 Civ. 6320, 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 dictates when multiple actions may be consolidated in federal court and is made applicable in adversary proceedings by Rule 7042 of the Federal 2017 Thomson Reuters. No claim to original U.S. Government Works. 4

219 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 6 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 Rules of Bankruptcy Procedure. In relevant part, Rule 42 provides: (a) CONSOLIDATION. If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. FED.R.CIV.P. 42(a). Moreover, the Court must also 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)). [3] [4] [5] In addition to the power to consolidate multiple cases currently before it, [a]s part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit. Curtis, 226 F.3d at 138. When determining whether to dismiss a second suit, a court must consider the equities of the situation when exercising its discretion. Id. However, [a] court must be careful, when dismissing a second suit between the same parties as duplicative, not to be swayed by a rough resemblance between the two suits without assuring itself that beyond the resemblance already noted, the claims asserted in both suits are also the same. Id. at 136. The United States Supreme Court in United States v. The Haytian Republic, stated that the true test of the sufficiency of a plea of other suit pending in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as the thing adjudged, regarding the matters at issue in the second suit. 154 U.S. 118, 124, 14 S.Ct. 992, 38 L.Ed. 930 (1894) (internal citations omitted). [6] The rule against duplicative litigation and the doctrine of res judicata serve *624 the same purpose: fostering judicial economy. Here, judicial economy would best be served by dismissing the Greene Action in its entirety. The Court has reviewed the complaints and amended complaints filed in the Thielmann Action and the Greene Action. 3 Based upon this review, it is clear that the putative classes are composed of the same members, and are organized to vindicate the same rights. James v. AT & T Corp., 334 F.Supp.2d 410, 411 (S.D.N.Y.2004) (finding that a second action should be dismissed because it included the same parties and sought the same relief and was only filed to correct a procedural flaw). Moreover, as in James, [t]he issues and facts to be determined, the witnesses and evidence required, and the relief requested, are exactly the same. Id. The Thielmann Action and the Greene Action present the identical issue: Did the Debtors provide sufficient notice to employees prior to termination under the WARN Act? Each action will likely involve identical motion practice, discovery, and, possibly, trial or settlement discussions. The Court is unable to find any additional benefit in permitting the Greene Action to proceed. In fact, the Greene Plaintiffs admitted that the Greene Action was entirely duplicative of the previously filed actions and did not add any claims or issues. (See Greene Mot. at 7.) Assuming a class is ultimately certified, the Greene Plaintiffs are adequately represented by the Thielmann Plaintiffs and are fully encompassed in the putative class in the Thielmann Action. For the reasons set forth above, the Court finds that the Greene Action is entirely duplicative of the Thielmann Action. Therefore, in the exercise of discretion, the Greene Action shall be dismissed. B. One Law Firm Should Be Appointed as Interim Counsel Although the Court has dismissed the Greene Action, the Court is still presented with a motion to appoint interim counsel pursuant to Rule 23(g)(3) of the Federal 2017 Thomson Reuters. No claim to original U.S. Government Works. 5

220 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 7 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 Rules of Civil Procedure. Here, the three law firms currently referred to as Thielmann Counsel jointly seek appointment as interim counsel. [7] Class actions are governed by Rule 23. It requires a court to determine at an early practicable time whether to certify a class and, if so, to appoint class counsel. Anderson v. Fiserv, Inc., No. 09 CIV 8397, 2010 WL , at *2 (S.D.N.Y. Jan. 29, 2010). However, representation of a putative class prior to the filing of a motion for class certification is often necessary, and Rule 23(g)(3) permits a bankruptcy court to appoint interim counsel. See FED.R.CIV.P. 23(g)(3) ( The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. ). If only one applicant seeks appointment as class counsel, a court must only determine whether the applicant is adequate under Rule 23(g)(1) and (4). However, if more than one applicant seeks appointment, the court must appoint the applicant that is best able to represent the interests of the class. FED.R.CIV.P. 23(g) (2). [8] Generally, in selecting interim counsel where multiple law firms are seeking *625 appointment, courts have initially relied on the criteria for determining the adequacy of class counsel set forth in Rule 23(g)(1)(A). Rule 23(g) (1)(A) provides that the court must factor (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources counsel will commit to representing the class. In re Bank of Am. Corp. Secs., Derivative & ERISA Litig., 258 F.R.D. 260, 272 (S.D.N.Y.2009); see also In re Mun. Derivatives Antitrust Litig., 252 F.R.D. 184, 186 (S.D.N.Y.2008). Moreover, under Rule 23(g)(1)(B), courts may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class, including: (1) the quality of the pleadings; (2) the vigorousness of the prosecution of the lawsuits; and (3) the capabilities of counsel, as well as whether... their charges will be reasonable. In re Bank of Am. Corp. Secs., 258 F.R.D. at 272. Finally, as stated above, the court must appoint the applicant that is best able to represent the interests of the class. FED.R.CIV.P. 23(g)(2); see also Anderson v. Fiserv, Inc., 2010 WL , at *2. [9] Despite the heavy criticism directed by both Thielmann Counsel and Harwood Feffer against each other, any one of the Thielmann Counsel would likely prove capable of adequately representing the class. The Court believes that administrative and judicial efficiency is best served in this case by appointing only one law firm as interim counsel. That counsel will be responsible for coordinating proceedings with other firms representing plaintiffs, and with defense counsel, and the Court. While all three firms appearing in the Thielmann Action are capable, the Court appoints Outten & Golden, LLP as interim counsel. Outten was one of the first firms to file a complaint against the Debtors. According to its papers, Outten, along with the other firms that make up Thielmann Counsel, has met with dozens of putative class members, reviewed extensive materials pertinent to the litigation, researched relevant case law, and drafted an amended complaint. (Thielmann Mot. at 12.) Moreover, [a]pproximately 140 individual ex-mf Global employees have already retained Thielmann Counsel to litigate their WARN claims. 4 Id. Additionally, although each of the firms has extensive experience handling complex litigation, including class actions, Outten's experience in representing WARN Act plaintiffs specifically tips the balance in favor of Outten. Outten maintains a website exclusively devoted to WARN Act litigation, has litigated approximately fifty WARN Act class actions, including two current cases before this Court. 5 (Raisner Decl ) *626 CONCLUSION For the reasons stated above, the Court dismisses the Greene Action and appoints Outten as interim counsel in the Thielmann Action. The Court expects that Outen will coordinate work with Lankenau, Gardner, and Klehr, avoiding duplication of efforts. It appears that each of these firms has specific skills that would benefit the putative class in the Thielmann Action. In the event that class certification is granted, the Court will be required to appoint class counsel pursuant to Rule 23(g), but the result is not preordained by the ruling here selecting interim counsel. IT IS SO ORDERED Thomson Reuters. No claim to original U.S. Government Works. 6

221 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 12 to Dec. of J. Raisner Pg 8 of 8 In re MF Global Holdings, Ltd., 464 B.R. 619 (2012) 56 Bankr.Ct.Dec. 6 All Citations 464 B.R. 619, 56 Bankr.Ct.Dec. 6 Footnotes 1 Lankenau, Gardner, Outten and Klehr are collectively referred to as Thielmann Counsel. 2 The plaintiffs listed on the consolidated amended complaint in the Thielmannn Action are collectively referred to as the Thielmann Plaintiffs. 3 Here, it is clear that the two cases are duplicative. First, it appears that Harwood Feffer filed the exact same complaint that was filed in the Sivova Action. Moreover, the amended complaint filed in the Greene Action appears substantially similar to the amended complaint filed in the Thielmann Action, and certain paragraphs appear to be copied verbatim. 4 Harwood Feffer merely stated that it has moved expeditiously to streamline the litigation by filing the Greene Motion. (Greene Mot. at 9.) Moreover, the complaint filed by Harwood Feffer in the Greene Action appears to be a nearly-wordfor-word copy of the complaint filed by Outten in the Sivova Action. 5 The other firms that make up Thielmann Counsel have also litigated a large number of WARN Act class actions. (Miller Decl. 3, 6 8.) Recently, Lankenau and Gardner represented WARN Act plaintiffs before this Court in Pinsker v. Borders, Inc., Case No and in Wenzel v. Partsearch Technologies, Inc., Case No Additionally, Klehr Harrison avers that it has obtained at least twelve WARN Act class counsel appointments. (Ercole Decl. 6.) Although Harwood Feffer has extensive experience in class actions, Harwood Feffer's papers indicate that it has mainly litigated class actions brought under the Employee Retirement Income Security Act ( ERISA ) and other labor and employment matters. (Greene Mot. at 9.) At the hearing, counsel from Harwood Feffer acknowledged that Harwood Feffer has never litigated a WARN Act class action. Therefore, even if the Greene Action were consolidated rather than dismissed, the Court would not appoint Harwood Feffer as interim counsel. End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 7

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232 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 2 of 11 In re TransCare Corp, 552 B.R. 69 (2016) 552 B.R. 69 United States Bankruptcy Court, S.D. New York. In re: TransCare Corp., et al., Debtors. Shameeka Ien on behalf of herself and all others similarly situated, Plaintiff, v. TransCare Corp., TransCare New York, Inc., TransCare ML, Inc., TC Ambulance Group, Inc., TransCare Management Services, Inc., TCBA Ambulance, Inc., TC Billing and Services Corp., TransCare Maryland, Inc., TC Ambulance North, Inc., TransCare Harford County, Inc., Lynn Tilton, ARK CLO Limited, ARK Investment Partners II, L.P., Patriarch Partners, LLC, and Patriarch Partners III, LLC, Defendants. Joseph Pena, Michelle Escobar, and Mercedes Tavarez, on behalf of themselves and all others similarly situated, Plaintiffs, v. TransCare Corp., TransCare New York, Inc., TransCare ML, Inc., TC Ambulance Group, Inc., TransCare Management Services, Inc., TCBA Ambulance, Inc., TC Billing and Services Corp., TransCare Maryland Inc., TC Ambulance North, Inc., TransCare Harford County, Inc., Patriarch Partners, LLC, Patriarch Partners III, LLC, ARK CLO Limited, ARK Investment Partners II, L.P., and ARK Investment GP II, LLC, Defendants. Case No (SMB) (Jointly Administered) Adv. Proc. No , Adv. Proc. No Signed May 23, 2016 Synopsis Background: Former employee who had filed class action under the Worker Adjustment and Retraining Notification Act (WARN Act) on behalf of all former employees of corporate debtors moved to dismiss subsequent WARN Act class action filed by other employees as duplicative proceeding, or in alternative, for consolidation of proceedings, as well as for appointment of law firm that represented her as interim class counsel. Holdings: The Bankruptcy Court, Stuart M. Bernstein, J., held that: [1] largely duplicative class proceeding brought to recover on behalf of same class of former employees of bankrupt corporate debtors against largely the same defendants for allegedly violating rights granted to employees under the WARN Act would be dismissed, rather than consolidated with previously-filed WARN Act proceeding, and [2] law firm representing employee who first commenced cause of action on behalf of former employees would be appointed as class counsel. Motion granted. West Headnotes (9) [1] Bankruptcy Nature and form; adversary proceedings Court has broad discretion to determine whether consolidation of actions that share common questions of law and fact is appropriate, a discretion that comes from its inherent authority to control disposition of causes on its docket with economy of time and effort for itself, for counsel and for litigants. Fed. R. Civ. P. 42; Fed. R. Bankr. P Cases that cite this headnote [2] Bankruptcy Nature and form; adversary proceedings In exercising its discretion whether to consolidate adversary proceedings that share common questions of law and fact, bankruptcy court must weigh the risk of prejudice and confusion against risk of inconsistent adjudication of common factual and legal issues, the burden posed by multiple proceedings on the parties, witnesses and judicial resources, the length of time required to conclude multiple actions, and the relative 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

233 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 3 of 11 In re TransCare Corp, 552 B.R. 69 (2016) expense of multiple trials. Fed. R. Civ. P. 42; Fed. R. Bankr. P Cases that cite this headnote claims asserted in both suits are the also the same. Cases that cite this headnote [3] Bankruptcy Exclusive, Conflicting, or Concurrent Jurisdiction Bankruptcy Nature and form; adversary proceedings In addition to the power to consolidate multiple actions, court also has discretion, pursuant to its general power to administer its docket, to stay or dismiss suit that is duplicative of another federal court suit. Cases that cite this headnote [4] Bankruptcy Exclusive, Conflicting, or Concurrent Jurisdiction Bankruptcy Equitable powers and principles In deciding whether to dismiss a duplicative action, bankruptcy court must consider the equities of the situation. Cases that cite this headnote [5] Federal Courts Duplicative actions in general Judicial action is duplicative of another such judicial action if the claims, parties, and available relief do not significantly differ between the two actions. Cases that cite this headnote [6] Bankruptcy Exclusive, Conflicting, or Concurrent Jurisdiction Bankruptcy court must be careful, when deciding whether to dismiss a second suit between the same parties as duplicative, not to be swayed by a rough resemblance between the two suits without assuring itself that the [7] Bankruptcy Exclusive, Conflicting, or Concurrent Jurisdiction In deciding whether to dismiss one class action as duplicative of another, bankruptcy courts look for substantial similarity in the claims, defendants and putative classes represented in each action. Cases that cite this headnote [8] Bankruptcy Bankruptcy courts and other federal courts Bankruptcy Nature and form; adversary proceedings Largely duplicative class proceeding brought to recover on behalf of same class of former employees of bankrupt corporate debtors against largely the same defendants for allegedly violating rights granted to employees under the Worker Adjustment and Retraining Notification Act (WARN Act) would be dismissed, rather than consolidated with previously-filed WARN Act proceeding, where second proceeding, while adding entity of unknown worth as additional defendant and potential source of recovery, failed to join debtors' owner and sole shareholder, and also failed to include state law claims for unpaid wages like first proceeding, and where consolidation would require interim counsel to craft a consolidated class action complaint and require defendants to file amended answer, all of which would serve to increase cost and delay resolution of claims. Worker Adjustment and Retraining Notification Act 2 et seq., 29 U.S.C.A et seq.; Fed. R. Civ. P. 42; Fed. R. Bankr. P Cases that cite this headnote 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

234 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 4 of 11 In re TransCare Corp, 552 B.R. 69 (2016) [9] Bankruptcy Attorneys Law firm representing employee who first commenced cause of action on behalf of former employees of bankrupt corporate employers to recover for alleged violation of employees' rights under the Worker Adjustment and Retraining Notification Act (WARN Act) would be appointed as interim class counsel, following dismissal of duplicative WARN Act proceeding brought by other employees represented by separate law firm, where first firm had extensive experience in litigating WARN Act class actions, having filed over 100 WARN Act class actions in federal courts since 2007, had extensive knowledge of applicable law, had already done significant work in identifying and investigating potential claims, and had ability to commit substantial resources to representing class. Worker Adjustment and Retraining Notification Act 2 et seq., 29 U.S.C.A et seq.; Fed. R. Civ. P. 23(g). Cases that cite this headnote MEMORANDUM DECISION GRANTING MOTION TO DISMISS SUBSEQUENTLY FILED ADVERSARY PROCEEDING AND APPOINTING INTERIM CLASS COUNSEL STUART M. BERNSTEIN, United States Bankruptcy Judge: Shameeka Ien, the plaintiff in class action adversary proceeding no (the *72 Ien Proceeding ) brought under the federal and New York Worker Adjustment and Retraining Notification Acts, 29 U.S.C et seq. (the WARN Act ), and New York Labor Law 860 et seq., moved to dismiss the subsequently filed class action adversary proceeding no (the Pena Proceeding ), or alternatively, consolidate the Pena Proceeding with her earlier action. Ien also moved to appoint her counsel, Outten & Golden LLP ( Outten & Golden ), as interim class counsel under Rule 23(g)(3) of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Rule 7023 of the Federal Rules of Bankruptcy Procedure. For the reasons that follow, the Court grants the motion to dismiss the Pena Proceeding and appoints Outten & Golden as interim class counsel. Attorneys and Law Firms *71 OUTTEN & GOLDEN LLP, Attorneys for Shameeka Ien, 3 Park Avenue, 29th Floor, New York, NY 10016, Jack A. Raisner, Esq., René S. Roupinian, Esq., Of Counsel. CARY KANE LLP, Attorneys for Pena Plaintiffs, 1350 Broadway, Suite 1400, New York, NY 10018, Larry Cary, Esq., Tara Jensen, Esq., Liz Vladeck, Esq., Of Counsel. PROSKAUER ROSE LLP, Attorneys for Defendants, Eleven Times Square, New York, NY 10036, Irena M. Goldstein, Esq., Kathleen M. McKenna, Esq., Of Counsel. LAMONICA HERBST & MANISCALCO, LLP, Attorneys for Salvatore LaMonica, Chapter 7 Trustee, 3305 Jerusalem Avenue, Wantagh, NY 11793, Holly R. Holecek, Esq., Of Counsel. BACKGROUND Prior to the commencement of the bankruptcy case, the Debtors 1 operated an emergency medical transportation business primarily under contracts with municipalities, counties and other governmental agencies. (See Joint Administration Motion at 5 7 (ECF/Main Case Doc. # 7)). 2 On February 24, 2016, the Debtors filed voluntary petitions for relief under chapter 7, and Salvatore LaMonica, Esq. was appointed as the interim chapter 7 trustee (the Trustee ) on February 25, (Id. at 2 3.) He subsequently became permanent trustee by operation of law. See 11 U.S.C. 702(d). A. WARN Act Proceedings in the District Court and the Ien Complaint Following the commencement of the Debtors' bankruptcy cases, former employees of the Debtors commenced three separate class action suits in the United States 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

235 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 5 of 11 In re TransCare Corp, 552 B.R. 69 (2016) District Court against certain non-debtor defendants under the federal and New York WARN Acts. 3 With certain exceptions, the WARN Acts prohibit mass terminations of employees without advance written notice. See 29 U.S.C. 2102(a); N.Y. LAB. LAW 860 b(1) (McKinney's 2015). Employers who fail to give notice under the Acts may be liable for back pay and employee benefits. 29 U.S.C. 2104(a)(1); N.Y. LAB. LAW 860 g(1). On March 1, 2016, Ien, a former employee of the Debtors, commenced the Ien Proceeding on behalf of herself and a class *73 of all similarly situated former employees of the Debtors. (See Adversary Class Action Complaint, dated Mar. 1, 2016 ( Ien Complaint ) (ECF/Ien Doc. # 1).) The Ien Complaint asserted federal and New York WARN Act claims and claims for unpaid wages under New York, Pennsylvania and Maryland law. In addition to the Debtors, the Ien Complaint named Patriarch Partners, LLC ( Patriarch Partners ), its founder and CEO Lynn Tilton, and several direct or indirect subsidiaries of Patriarch Partners: ARK CLO Limited ( ARK CLO ), ARK Investment Partners II, L.P. ( ARK Investment ), and Patriarch Partners III, LLC ( Patriarch III, and collectively with Patriarch Partners, Tilton, ARK CLO and ARK Investment, the Ien Defendants ). It alleged that the Debtors and the Ien Defendants were part of a single employer group, (Ien Complaint at 25), setting forth in some detail the roadmap of ownership that connected the Debtors to the Ien Defendants as well as their common management and joint operational structure. (Id. at 26 32, 50.) The Ien Complaint also averred that the Tilton and Patriarch Partners exercised de facto control over the Debtors. The Debtors did not have an independent CEO, and Patriarch Partners terminated the Debtors' CEO in January 2016 and advertised an opening for the position on its website. (Id. at ) It then installed Peter Wolf as the COO and the Carl Marks Advisory Group as the CFO of the Debtors. However, W. Randall Jones, Jean Luc Pelissier and John Harrington, managing directors at Patriarch Partners, and Michael Greenberg, a Patriarch Investment and Credit Professional, oversaw the Debtors' operations and finances, including exercising control over the timing and payment of amounts to vendors and creditors. (Id. at ) Patriarch Partners demanded and the Debtors paid Patriarch Partners management fees and $400,000 in interest payments each month ahead of other obligations such as payroll. (Id. at 45.) The Debtors also depended on Patriarch Partners for their day to day financial support, and Patriarch Partners did not permit the Debtors to obtain their own funding or attain independent viability. (See id. at 51, 53, 54.) Patriarch Partners infused capital so that the Debtors could make payroll and pay other expenses and reimbursed itself with interest taken from the Debtors. (Id. at 46.) Patriarch Partners and Tilton decided to place the Debtors into bankruptcy and planned to transfer the existing business into a new ambulance business called Transcendence. (Id. at 47.) However, the plan did not come to fruition. (Id.) Patriarch Partners and Tilton then decided not to fund the Debtors' payroll, which had been accruing since February 14, 2016, with full knowledge that the Debtors had no other source for such funding. (Id. at 48.) The decision not to fund payroll caused the filing of the chapter 7 cases, the immediate shutdown of the Debtors' operations, and the termination of approximately 1,700 employees. (Id. at 49.) The Ien Defendants filed an answer to the Ien Complaint on April 22, (Answer to Adversary Class Action Complaint, dated Apr. 22, 2016 ( Answer ) (ECF/Ien Doc. # 18).) The Answer admitted that Tilton was an owner and sole director of TransCare, (id. at 25), but denied that the Ien Defendants and the Debtors comprised a single employer group. (Id. at 19 20, 25.) The Answer also asserted twenty eight affirmative defenses, including statutory defenses under the federal and New York WARN Acts. (Id. at ) B. The Pena Complaint On April 1, 2016, Joseph Pena, Michelle Escobar and Mercedes Tavares (collectively, *74 the Pena Plaintiffs ), also former employees of the Debtors, initiated the Pena Proceeding on behalf of an identical class. (Adversary Proceeding Class Action Complaint, dated Apr. 1, 2016 ( Pena Complaint ) (ECF/Pena Doc. # 1).) The Pena Complaint asserted federal and New York WARN Act claims. Like the Ien Complaint, the Pena Complaint alleged that the Debtors failed to give proper notice before terminating their employees, (id. at , ), but did not assert claims for unpaid wages under New York, Pennsylvania and Maryland law. The defendants in the two adversary proceedings were identical with two exceptions: the Pena Complaint named ARK Investment GP II LLC ( ARK GP ), but failed to join Tilton Thomson Reuters. No claim to original U.S. Government Works. 4

236 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 6 of 11 In re TransCare Corp, 552 B.R. 69 (2016) Like the Ien Complaint, the Pena Complaint asserted that the Debtors and the Pena Defendants constituted a single employer group and largely mirrored the allegations in the Ien Complaint regarding the ownership and management of the Debtors. (See id. at ) The Pena Complaint also alleged that Patriarch Partners terminated the Debtors' CEO in January 2016 and advertised the opening on its website, (id. at 49), hired a restructuring advisory firm to take over the Debtors' CFO function, (id. at 50), and exerted control over the Debtors' operations and finances through Pelissier, Jones and Greenberg. 4 (Id. at 52.) The Pena Complaint also repeated the allegations relating to Patriarch Partners' financial control over the Debtors. It alleged that the Debtors received funding for payroll and other expenses from Patriarch Partners, (id. at 53, 64), Patriarch Partners received monthly management fees and interest payments, which were paid ahead of other obligations, (id. at 63), Patriarch Partners did not allow the Debtors to obtain operational funds independently, (id. at 70), and the mass termination of the Debtors' employees resulted from Patriarch Partners' decision to stop funding for the Debtors. (Id. at 75.) The Pena Complaint further alleged that Patriarch Partners, the Debtors' COO and the Carl Marks Advisory Firm attempted to spin off some of the Debtors' more profitable divisions by creating two new entities to continue the Debtors' operations and conducting a strict foreclosure of certain of the Debtors' assets, including their vehicles, contracts and certifications for operation. (Id. at 84, 86.) The Pena Complaint went into detail about the amount of control Tilton and Patriarch Partners exercised over the Debtors and the extent to which the Debtors were dependent on Tilton and Patriarch Partners. In January 2016, the Debtors narrowly avoided a shutdown because of Patriarch Partners' failure to provide or obtain funding to make a workers' compensation insurance payment. (Id. at 54, ) The Debtors also missed payroll three times in 2015 due to Patriarch Partners' decision not to provide or obtain the necessary funds. (Id. at 55, ) Patriarch Partners controlled the timing and amounts of payments to creditors and vendors and held approval authority over equipment expenses. (Id. at 56, 65.) In November 2015, Patriarch Partners refused to allow the Debtors' CEO to purchase a new ambulance, which was necessary to meet the 911 division's contractual obligations. (Id. at 57, ) Patriarch Partners also refused to entertain an offer from a competitor to purchase the Debtors' paratransit contract with the Metropolitan Transit Authority (the MTA ), which had been arranged by the Debtors in order to raise operational *75 funds. The sale would have generated a large amount of revenue because the Debtors had secured a five-year, $130 million extension of its contract in July (Id. at 71.) Members of Patriarch Partners also attended, participated in and led meetings and conference calls with the Debtors' contractual partners regarding the maintenance and renewal of service contracts and with Wells Fargo Bank, N.A. regarding funding requests. (Id. at 58.) Finally, Patriarch Partners decided not to fund the Debtors payroll and placed the Debtors in bankruptcy. (Id. at 119, 129.) The Pena Complaint also sought to undercut the anticipated defenses. For example, it alleged that the Debtors' demise was neither sudden nor unexpected. (Id. at 89.) In the months leading up to the bankruptcy, the Debtors experienced a number of serious financial crises that could have resulted in immediate shutdown and termination of their employees. The Pena Defendants, therefore, had ample opportunity to give advance notice to employees in accordance with the WARN Acts. (Id. at 90.) These crises included the Debtors' failure to make payroll on three separate occasions in 2015, (id. at 91 98), the near shutdown of operations in January 2016 due to the Debtors' missed workers' compensation payment, (id. at ), and the loss of contracts with municipalities and hospitals beginning in January (Id. at ) Furthermore, the Pena Defendants had already made the decision in January 2016 to shut down certain of the Debtors' divisions and transferred certain operations to two entities incorporated in Delaware on February 10, (Id. at 106, 114.) Transcendence Transit, Inc. was created in order to acquire the Debtors' Pittsburgh and Hudson Valley ambulance divisions, (id. at 112), and Transcendence Transit II, Inc. was created to acquire the Debtors' New York City paratransit division. (Id. at 113.) The remaining divisions were to be shut down and liquidated through a chapter 7 bankruptcy. (Id. at 115.) Pelissier, one of Patriarch Partners' managing directors, informed the Hudson Valley division that it would continue operations and that Tilton was committed to investing $10 million into its operations. (Id. at 2017 Thomson Reuters. No claim to original U.S. Government Works. 5

237 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 7 of 11 In re TransCare Corp, 552 B.R. 69 (2016) 116.) Jones, another managing director, directed an officer of the Debtors to communicate to the MTA that the paratransit division was not being shut down and that its operations would continue through the new entity. (Id. at 117.) Notwithstanding these forewarnings, the Debtors' employees were not given any advance notice that they would lose their jobs. (Id. at ) C. The Motion to Dismiss or Consolidate On April 6, 2016, Ien filed a motion to appoint her attorneys, Outten & Golden, as interim class counsel and to dismiss the Pena Proceeding, or alternatively, consolidate it with the Ien Proceeding. (Motion Pursuant to Fed. R. Bankr.P. 7023(g) [sic] for Appointment of Interim Class Counsel, dated Apr. 6, 2016 ( Dismissal Motion ) (ECF/Pena Doc. # 4); see also Plaintiff's Memorandum of Law in Support of Motion Pursuant to Fed. R. Bankr.P. 7023(g) [sic] for Appointment of Interim Class Counsel, dated Apr. 6, 2016 ( Moving Memo ), at 1 (ECF/Pena Doc. # 5).) 5 Ien argued that appointment of interim class counsel would promote efficient management of the action, (Moving Memo at 8), *76 and that Outten & Golden was best able to represent the interests of the class because it had done a significant amount of work in the case, possessed a great amount of experience and knowledge regarding WARN Act litigation, and was capable of committing necessary resources to litigate the case. (Id. at 9 15.) 6 Ien also contended that the Pena Proceeding was duplicative of her proceeding and that other bankruptcy courts had dismissed later class actions in similar circumstances, notably in Thielmann v. MF Global Holdings Ltd. (In re MF Global Holdings, Ltd.), 464 B.R. 619 (Bankr.S.D.N.Y.2012), and Frye v. Dig. Domain Media Grp. Inc. (In re Dig. Domain Media Grp. Inc.), Adv. Nos (BLS) & (BLS), 2012 WL (Bankr.D.Del. Dec. 7, 2012). (Moving Memo at 15.) If the Court did not dismiss the Pena Proceeding, Ien asked that it be consolidated with her proceeding for the sake of economy of administration. (Moving Memo at ) The Pena Plaintiffs opposed the Dismissal Motion and argued instead that the Court should consolidate the two proceedings 7 and appoint Outten & Golden and Cary Kane LLP ( Cary Kane ), counsel for the Pena Plaintiffs, as co-interim class counsel. (Opposition Memo at ) In the main, the Pena Plaintiffs claimed that their action was not duplicative of the Ien Proceeding and the allegations in the Pena Complaint significantly strengthen[ed] the class claims in several ways: (i) they weakened the defendants' ability to rely on two statutory defenses, the faltering company and unforeseen business circumstances defenses, (id. at 1112), (ii) they provided stronger groundwork for establishing single employer liability, (id. at 13), and (iii) the Pena Complaint added ARK GP as a defendant, thereby increasing the potential pool for recovery. (Id. at 14.) The Pena Plaintiffs also maintained that Cary Kane was ready and willing to serve as interim class counsel if the Court were inclined to appoint a single firm. (Id.) However, because the Pena Plaintiffs were seeking consolidation of the two actions and given Outten & Golden's experience in WARN Act litigation, the Pena Plaintiffs sought appointment as co-interim counsel. (Id. at ) The Pena Plaintiffs contended that a co-interim class counsel structure could benefit the class, with Outten & Golden contributing its WARN litigation expertise and Cary Kane bringing its extensive fact investigation to the table. (Id. at 19.) Ien replied that the case was neither so large nor sufficiently complex to warrant *77 the appointment of multiple firms as interim class counsel. (Plaintiff's Reply Memorandum of Law in Support of Motion Pursuant to Fed. R. Bankr.P. 7023(g) [sic] for Appointment as Interim Class Counsel, dated Apr. 26, 2016 ( Reply ), at 3, 12 (ECF/Pena Doc. # 11).) Ien also disputed the efficacy of pleading additional factual allegations in a complaint in order to defeat affirmative defenses, (id. at 9), and contended that consolidation was unnecessary and wasteful because the Ien Defendants had already filed an answer to the Ien Complaint. (Id. at 14.) DISCUSSION A. Dismissal of the Pena Action [1] A trial court has broad discretion to determine whether consolidation of actions sharing common questions of law and fact is appropriate. Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990). This power comes from the court's inherent authority to 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 (Bankr.S.D.N.Y.2012) (quoting Lester Krebs, Inc. v Thomson Reuters. No claim to original U.S. Government Works. 6

238 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 8 of 11 In re TransCare Corp, 552 B.R. 69 (2016) Geffen Records, Inc., 85 Civ. 6320, 1985 WL 4270, at *2 (S.D.N.Y. Dec. 4, 1985)); accord Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.2000). Rule 42 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Rule 7042 of the Federal Rules of Bankruptcy Procedure, governs consolidation of adversary proceedings. Rule 42 provides in relevant part: (a) Consolidation. If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. [2] When exercising its discretion, the court must weigh the risk of prejudice and confusion against the risk of inconsistent adjudication of common factual and legal issues, the burden posed by multiple actions on the parties, witnesses and judicial resources, the length of time required to conclude multiple actions, and the relative expense of multiple trials. Celotex, 899 F.2d at 1285 (citing Hendrix v. Raybestos Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985)). are the also the same. Curtis, 226 F.3d at 136; MF Global, 464 B.R. at 623. [7] Although this rule is typically applied to non-class action litigation, it has also been invoked in connection with multiple *78 class action suits involving the same defendants and similar claims. Quinn, 958 F.Supp.2d at 539 (noting that rule applies where parties and claims in both class actions are identical or substantially similar ); Bukhari v. Deloitte & Touche LLP, No. 12 Civ. 4290, 2012 WL , at *3 (S.D.N.Y. Nov. 26, 2012) (same); see also Lopez v. Ferguson, 361 Fed.Appx. 225, 226 (2d Cir.2010) (dismissing subsequently filed class action as duplicative of prior class action asserting same claims against a similar group of defendants). In that the context, courts look for substantial similarity in the claims, defendants and putative classes represented in each action. See Quinn, 958 F.Supp.2d at (finding no overlap between putative classes and claims asserted); Bukhari, 2012 WL , at *3 4 (same); Pippins v. KPMG LLP, No. 11 Civ. 0377, 2011 WL , at *3 4 (S.D.N.Y. Mar. 21, 2011) (finding that putative classes and claims were substantially similar). [8] A comparison of the Ien and Pena Complaints demonstrates that they are largely duplicative and share more than a rough resemblance. Both Ien and the Pena Plaintiffs purport to represent the same class of former [3] [4] [5] [6] In addition to the power to consolidateemployees, the defendants in both actions are nearly multiple cases, the court also has the discretion, pursuant to the general power to administer its docket, to stay or dismiss a suit that is duplicative of another federal court suit. Curtis, 226 F.3d at 138 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)); Quinn v. Walgreen Co., 958 F.Supp.2d 533, 539 (S.D.N.Y.2013); MF Global, 464 B.R. at 623. When determining whether to dismiss a identical, and both complaints assert identical WARN Act claims. They diverge in two respects, neither of which favors the Pena Plaintiffs. First, the Pena Plaintiffs joined ARK GP, an entity of unknown worth which, they speculate, will make recovery more likely, (Opposition Memo at 14), but failed to join Lynn Tilton, the Debtors' owner and sole shareholder and the CEO and founder of Patriarch Partners. duplicative action, the court must consider the equities of the situation. Curtis, 226 F.3d at 138; MF Global, 464 B.R. at 623. A suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions. Morency v. Village of Lynbrook, 1 F.Supp.3d 58, 62 (E.D.N.Y.2014) (citing Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993)); James v. AT & T Corp., 334 F.Supp.2d 410, 411 (S.D.N.Y.2004) (citing same). At the same time, the court must be careful when dismissing a second suit between the same parties as duplicative, not to be swayed by a rough resemblance between the two suits without assuring itself... the claims asserted in both suits Second, the Ien Complaint asserts claims for unpaid wages under New York, Maryland and Pennsylvania law against the Ien Defendants; the Pena Complaint does not. The Pena Plaintiffs explained that they omitted these claims because they were uncertain whether they could assert the wage claims against the Debtors in an adversary proceeding as opposed to a proof of claim. (Opposition Memo at 9.) As Ien points out, however, these claims cannot be asserted against non-debtor defendants through a proof of claim and must be presented in a complaint. (Reply at 10.) Furthermore, this chapter 7 case is currently 2017 Thomson Reuters. No claim to original U.S. Government Works. 7

239 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 9 of 11 In re TransCare Corp, 552 B.R. 69 (2016) a no-asset case. According to the Notice of Chapter 7 Bankruptcy Case No Proof of Claim Deadline (Official Form 309C) (ECF/Main Case Doc. # 20), [n]o property appears to be available to pay creditors. Therefore, please do not file a proof of claim now. Thus, no proofs of claim may ever be filed or paid. The Pena Plaintiffs' additional allegations tending to undercut the affirmative defenses also fail to supply a reason against dismissal. First, the Court must look to the claims, parties and relief sought to determine whether a complaint is duplicative. Morency, 1 F.Supp.3d at 62. Second, the defendants answered the Ien Complaint and did not move to dismiss it for legal insufficiency. Third, the validity of the affirmative defenses will be based on the evidence, not the pleadings. The factual allegations in the Pena Complaint weaken the defendants' affirmative defenses only to the extent that they are supported by evidence to be adduced through pre-trial discovery. In short, there is no benefit to consolidating the Pena Proceeding with the Ien Proceeding instead of dismissing it, and there is a downside to the former course. Consolidation would require interim counsel to craft a consolidated class action complaint and require the defendants to file an amended answer, all of which would serve to increase the cost and delay the resolution of this action. Therefore, in the interest of judicial economy, the Court exercises its discretion and dismisses the Pena Proceeding. *79 B. Designation of Interim Class Counsel [9] Rule 23(g)(3) permits the Court to appoint interim class counsel, see FED. R. CIV. P. 23(g)(3) ( The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. ), and generally considers the same factors used in determining the adequacy of class counsel upon certification under Rule 23(g)(1)(A). In re Mun. Derivatives Antitrust Litig., 252 F.R.D. 184, 186 (S.D.N.Y.2008). Rule 23(g) states in relevant part: (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court: (A) must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class The Rule 23(g)(1) factors favor appointment of Outten & Golden as interim class counsel. 8 First, the firm has done significant work in identifying and investigating potential claims in the action. The firm was contacted by potential clients following the commencement of the Debtors' bankruptcy case, (Raisner Declaration at 4), and its attorneys and paralegals began interviewing former employees, including several accounting employees who had witnessed Patriarch Partners' day-to-day involvement in the Debtors' operations. (Id. at 5 6.) In addition, the firm researched records and reviewed materials relating to the relationship between the Debtors and their ownership. (Id. at 7.) Following the filing of the Ien Complaint, Outten & Golden started preliminary conversations with various interested parties, including the New York State Assistant Attorney General, (id. at 11), officials at the New York State Department of Labor, (id. at 12), and counsel for a transit workers' union. (Id. at 13.) The firm also engaged in conversations with the Trustee regarding the general condition of the estate as well as details relating to unpaid wages, employees' health care benefits and the 401(k) plan. (Id. at 15.) Finally, the firm had preliminary discussions with counsel to the defendants regarding various substantive and procedural aspects of the case. (Id. at 19.) Second, Outten & Golden has extensive experience in litigating WARN Act class actions, a fact even Cary Kane conceded. It has filed over 100 WARN Act class actions in federal courts since 2007, (id. at 29), and having served as plaintiff's counsel in over 80 actions. (Id. at 32.) Moreover, this experience includes WARN Act class action litigation in bankruptcy court. (Id. at 35.) 2017 Thomson Reuters. No claim to original U.S. Government Works. 8

240 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 10 of 11 In re TransCare Corp, 552 B.R. 69 (2016) *80 Third, attorneys at Outten & Golden have extensive knowledge of applicable law and are recognized authorities on the WARN Act. Outten & Golden attorneys have written numerous articles and frequently lecture on WARN Act class action litigation. (Id. at ) Outten & Golden attorneys have also testified before the United States Senate Health Education Labor and Pensions Committee, (id. at 44), and are often cited in news publications such as the Wall Street Journal and the New York Times. (Id. at 45.) Fourth, the firm is able to commit substantial resources to representing the class. The firm has over 50 attorneys practicing employment law, and the WARN Act practice group includes two partners, an associate, a staff attorney and three paralegals. The firm also maintains a website exclusively dedicated to the WARN Act. (Id. at 47.) Accordingly, the Dismissal Motion is granted and Outten & Golden is designated interim class counsel. Ien is directed to settle separate orders on notice. All Citations 552 B.R. 69 Footnotes 1 The filing entities, hereafter referred to collectively as the Debtors, are: TransCare Corporation, TransCare New York, Inc., TransCare ML, Inc., TC Ambulance Group, Inc., TransCare Management Services, Inc., TCBA Ambulance, Inc., TC Billing and Services Corporation, TransCare Westchester, Inc., TransCare Maryland, Inc., TC Ambulance North, Inc. and TransCare Harford County, Inc. (Motion for the Entry of an Order, Pursuant to 11 U.S.C. 105(a) and 721, Authorizing the Chapter 7 Trustee to Operate the Debtors' Businesses and Pay Certain Operating Expenses of these Estates, dated Feb. 26, 2016 ( Joint Administration Motion ), at 2 3 (ECF/Main Case Doc. # 7).) 2 ECF/Main Case Doc. # refers to documents filed on the docket of the main bankruptcy case, In re TransCare Corporation, Case No (SMB). ECF/Ien Doc. # refers to documents filed in the Ien Proceeding, Adv. Proc. No (SMB), and ECF/Pena Doc. # to documents filed in the Pena Proceeding, Adv. Proc. No (SMB). 3 The three actions, all pending in the United States District Court for the Southern District of New York, are: Gisinger v. Tilton, Case No. 16 cv 1564 (ER), Garcia v. Patriarch Partners, LLC, Case No. 16 cv 1596 (ER), and Eisenstadt v. Patriarch Partners, LLC, Case No. 16 cv 2831 (ER). The defendants in Gisinger v. Tilton are Lynn Tilton and Patriarch Partners, LLC. The defendants in Garcia v. Patriarch Partners, LLC and Eisenstadt v. Patriarch Partners, LLC are Patriarch Partners, LLC and XYZ Entities The Pena Complaint, however, omitted any reference to John Harrington. 5 The Dismissal Motion and Moving Memo were also filed in the Ien Proceeding. (ECF/Ien Doc. ## 11, 12.) 6 Ien also submitted the declaration of Jack Raisner, Esq., a partner at Outten & Golden, in support of the motion. (Declaration of Jack A. Raisner in Support of Plaintiff's Motion for Appointment Interim Class Counsel Pursuant to Fed. R. Bankr.P. 7023(g) [sic], dated Apr. 6, 2016 ( Raisner Declaration ) (ECF/Pena Doc. # 5 2).) Raisner detailed his firm's extensive experience as plaintiff's counsel in WARN Act litigation, including class action adversary proceedings. (Id. at 32, 35.) 7 See Pena Plaintiffs' Objection to Ien Plaintiff's Motion Pursuant to Fed. R. Bankr.P. 7023(g) for Dismissal of Pena's Complaint and Appointment of Outten & Golden as Interim Class Counsel, and in Support of Pena Plaintiff's Cross Motion Pursuant to Rules 42(a) and 23(g) for Consolidation of Related Actions and for the Appointment of Cary Kane and Outten & Golden as Co Interim Class Counsel, dated Apr. 19, 2016 (ECF/Pena Doc. # 8); Pena Plaintiffs' Memorandum of Law Objecting to Ien Plaintiff's Motion Pursuant to Fed. R. Bankr.P. 7023(g) for Dismissal of Pena's Complaint and Appointment of Outten & Golden as Interim Class Counsel, and in Support of Pena Plaintiff's Cross Motion Pursuant to Rules 42(a) and 23(g) for Consolidation of Related Actions and for the Appointment of Cary Kane and Outten & Golden as Co Interim Class Counsel, dated Apr. 19, 2016 ( Opposition Memo ), at 6 7 (ECF/Pena Doc. # 9). 8 The Pena Plaintiffs moved to appoint Cary Kane as co-interim class counsel in a consolidated proceeding. (Opposition Memo at ) When more than one adequate applicant seeks appointment as interim class counsel, the court must appoint the applicant that is best able to represent the interests of the class. See FED. R. CIV. P. 23(g)(2); In re Bank of Am. Corp. Secs., Derivative & ERISA Litig., 258 F.R.D. 260, 272 (S.D.N.Y.2009). However, dismissal of the Pena Proceeding effectively moots the Pena Plaintiffs' request to appoint Cary Kane as co-counsel Thomson Reuters. No claim to original U.S. Government Works. 9

241 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 15 to Dec. of J. Raisner Pg 11 of 11 In re TransCare Corp, 552 B.R. 69 (2016) End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 10

242 mew Doc Filed 02/15/18 Entered 02/15/18 21:23:05 Exhibit 16 to Dec. of J. Raisner Pg 1 of 4 Exhibit 16

243 mew Case Doc Filed Doc 02/15/18 33 Filed Entered 10/24/17 02/15/18 Page 21:23:05 1 of 3 Exhibit 16 to Dec. of J. Raisner Pg 2 of 4 SO ORDERED. SIGNED this 24th day of October, In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA WINSTON-SALEM DIVISION ALEVO MANUFACTURING, INC. Debtor. Chapter 11 Bankr. Case No CRA JEROME SINGLETON, on behalf of himself and all others similarly situated, Plaintiff, Adv. Pro. No CRA v. ALEVO MANUFACTURING, INC. Defendant. JAMES POPWELL, on behalf of himself and all others similarly situated, Plaintiff, Adv. Pro. No CRA v. ALEVO MANUFACTURING, INC. Defendant.