mew Doc 34 Filed 03/15/18 Entered 03/15/18 19:33:09 Main Document Pg 1 of 20

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1 Pg 1 of 20 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. Pro. No (MEW) v. Westinghouse Electric Company, LLC, WECTEC LLC, WECTEC Staffing Services, LLC, and WECTEC Global Project Services, Inc., Defendants. KENT GLADDEN, on behalf of himself and all others similarly situated, Plaintiff, v. Adv. Pro. No (MEW) WESTINGHOUSE ELECTRIC COMPANY, LLC, Defendant. DEBTOR-DEFENDANTS RESPONSES AND OBJECTIONS TO PLAINTIFFS MASSEY, HURLBURT, ADAMS, JENNINGS, HALL, AND BAKER S MOTION FOR CLASS CERTIFICATION AND OTHER RELIEF

2 Pg 2 of 20 TABLE OF CONTENTS Page I. INTRODUCTION...1 II. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY...3 A. Factual Background...3 B. Bankruptcy Proceedings in the Southern District of New York...4 C. Parallel Federal District Court Proceedings in the District of South Carolina...6 III. ARGUMENT...7 A. The Court Should Dismiss the Massey Action Under the First-to-File Rule To Promote Judicial Efficiency and Preserve the Debtor- Defendants Assets...7 B. The Claims of the Massey Plaintiffs Are Not Typical of the Claims of the Absent Fluor Employee Class Members, And Thus, The Massey Plaintiffs Are Not Adequate Representatives...12 IV. CONCLUSION...15 i

3 Pg 3 of 20 Cases TABLE OF AUTHORITIES Page(s) Abrams v. Interco Inc., 719 F.2d 23 (2d Cir. 1983)...9 Becker v. Schenley Indus., Inc., 557 F.2d 346 (2d Cir. 1977)...9 Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010)...13 BuddyUSA, Inc. v. Recording Industry Ass n of Am., Inc., 21 Fed. Appx. 52 (2d Cir. 2001)...8 Colorado. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)...8 In re Corson Mfg., Nos. 01-MC-5E, 2001 WL (W.D.N.Y. June 27, 2001)...9 Curtis v. Citibank, N.A., 226 F.3d 133 (2d Cir. 2000)...9, 11 First City Nat l Bank & Tr. Co. v. Simmons, 878 F.2d 76 (2d Cir. 1989)...8 Greeley v. KLM Royal Dutch Airlines, 85 F.R.D. 697 (S.D.N.Y. 1980)...13, 15 In re Green, 200 B.R. 296 (S.D.N.Y. 1996)...9, 12 Green v. Santa Fe Indus., 82 F.R.D. 688 (S.D.N.Y. 1979)...9 Harris v. Initial Sec., Inc., No. 05 Civ (GBD), 2007 WL (S.D.N.Y. Mar. 7, 2007)13 Heerwagen v. Clear Channel Commc ns, 435 F.3d 219 (2d Cir. 2006)...12 Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654 (S.D.N.Y. 1997)...8 In re Initial Pub. Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006)...12 James v. AT&T Corp., 334 F.Supp.2d 410 (S.D.N.Y. 2004)...8 Morency v. Vill. of Lynbrook, 1 F.Supp.3d 58 (E.D.N.Y. 2014)...8, 10 In re Pan Am Corp., No. M 47 (CSH), 1993 WL (S.D.N.Y. Mar. 3, 1993)...9 Presser v. Key Food Stores Co-op., Inc., No. 01-CV-8059, 2006 WL (E.D.N.Y. July 25, 2006)...13, 14 Schucker v. Flowers Foods, Inc., No. 16-CV-3439 (KMK), 2017 WL , at *5 (S.D.N.Y. Aug. 24, 2017)...8 ii

4 Pg 4 of 20 TABLE OF AUTHORITIES (continued) Page(s) Spann v. AOL Time Warner, Inc., 219 F.R.D. 307 (S.D.N.Y. 2003)...13, 15 Statutes Worker Adjustment and Retraining Notification Act, 29 U.S.C et seq.... passim Other Authorities Rule 7023 of the Federal Rules of Bankruptcy Procedure...2 FED. R. CIV. P. 23(a)...2, 12, 13 iii

5 Pg 5 of 20 I. INTRODUCTION Westinghouse Electric Company, LLC, WECTEC LLC, WECTEC Staffing Services, LLC, and WECTEC Global Project Services, Inc. (collectively Debtor-Defendants ) hereby submit these Responses and Objections to Plaintiffs Elton Massey, Kirt Hurlburt, Patricia Adams, John Jennings, Johnnie Hall, and Katrina Baker s (collectively Massey Plaintiffs ) Motion for Class Certification and Other Relief. (Doc. 19) ( Massey Certification Motion ). The Massey Plaintiffs seek to represent a class of all individuals who the Debtor-Defendants and non-parties Fluor Corporation, Fluor Enterprises, Inc. and/or Fluor Daniel Maintenance Services, Inc. (the non-parties collectively referred to herein as Fluor ) employed at the V.C. Summer Nuclear Station in Jenkinsville, South Carolina ( VC Station ) and whose employment the aforementioned companies terminated without cause allegedly 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, as a consequence of the mass layoffs and/or plant closing that occurred at the VC Station. The Massey complaint is the third of three virtually identical putative class action complaints alleging a violation of the WARN Act arising out of the sudden and unexpected termination of the VC Station construction project. In fact, the Massey Plaintiffs filed their complaint approximately three months after two earlier-filed actions. Plaintiffs in the two earlier-filed actions, Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri ( Gladden/Fleetwood Plaintiffs ), have since consolidated their complaints in a jointly filed amended complaint, and have also jointly filed a motion for class certification. (Doc. 20) ( Gladden/Fleetwood Certification Motion ). The Gladden/Fleetwood Plaintiffs seek to represent a virtually identical class of individuals and assert virtually identical WARN Act claims against the Debtor-Defendants as those as issue in the Massey Certification Motion. The 1

6 Pg 6 of 20 Massey Plaintiffs also filed their action approximately three months after other plaintiffs filed three separate putative class action proceedings in the United States District Court for the District of South Carolina against defendants Fluor Corporation, Fluor Enterprises, Inc., and SCANA Corporation, relating to the very same termination of the VC Station construction project and asserting claims that are virtually identical to those at issue in the Massey Certification Motion. In an effort to preserve the Debtor-Defendants assets as it seeks to emerge from bankruptcy, as well as the Court s resources, the Court should deny the Massey Certification Motion and dismiss this action because it is duplicative of and asserts virtually identical claims as the two earlier-filed actions before this Court (which have now been consolidated into the Gladden/Fleetwood action), as well as the two earlier-filed and still-pending South Carolina proceedings. In the hopes of efficiently resolving the pending motions, the Debtor-Defendants have entered into a stipulation, to be so ordered by the Court, with the Gladden/Fleetwood Plaintiffs to certify a class of the Debtor-Defendants employees who the Debtor-Defendants allegedly terminated in violation of the WARN Act. To be sure, in light of the pending Gladden/Fleetwood Action before this Court and the two still-pending actions in South Carolina federal court, which all challenge individuals terminations of employment in connection with the abrupt, unexpected termination of the VC Station construction project, no employee of either the Debtor-Defendants or Fluor at the VC Station will be left without judicial recourse. In all events, the Massey Plaintiffs claims are not typical of the claims of absent Fluor employee class members, and thus, the Massey Plaintiffs are not adequate representatives of absent Fluor employee class members. Therefore, the Massey Plaintiffs fail to meet the Bankruptcy Rule 7023 and Federal Rule of Civil Procedure 23 requirements for class certification. For these reasons, the Court should deny the Massey Certification Motion and dismiss this proceeding. 2

7 Pg 7 of 20 II. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY A. Factual Background The South Carolina Electric & Gas Company ( SCE&G ) and SCANA Corporation ( SCANA ) own the V.C. Summer Location in Jenkinsville, South Carolina. In re Westinghouse Electric Company LLC, et al., Case No (MEW), (Doc. 4), Declaration of Lisa J. Donahue, dated March 29, 2017, 42. On May 23, 2008, SCE&G and its agent, the South Carolina Public Service Company LLC, retained the Debtor-Defendants to design, manufacture, and procure the nuclear reactor, steam turbines, and generators for the nuclear station that SCE&G and SCANA planned to build at the V.C. Summer Location. Id. at Around late 2015 or early 2016, the Debtor-Defendants entered into a subcontractor agreement with Fluor, whereby Fluor assumed primary responsibility for physically constructing the plant. Id. at On March 29, 2017, the Debtor-Defendants and a number of their affiliates commenced voluntary cases under Chapter 11 of the Bankruptcy Code. In re Westinghouse Electric Company, LLC, et al., Case No (MEW), (Doc. 1). On July 31, 2017, SCANA and SCE&G announced publicly that they were ceasing construction of the VC Summer Project. See Gladden v. Westinghouse Electric Company, Adv. Pro. No (MEW), (Doc. 5) at 7 & Fleetwood v. WECTEC LLC and Stone & Webster Services LLC, Adv. Pro. No (MEW), (Doc. 6) at 7. On the same date, SCE&G stated publicly that, normal construction activities at the site will cease immediately and efforts will be shifted toward an orderly transition of winding down and securing the project property. Id. Plaintiffs allege that on that same day, the Debtor-Defendants terminated the employment of virtually all of its employees who worked at the VC Station. Massey, et al. v. Westinghouse Electric Company, et al., Adv. Pro. No (MEW), (Doc. 1) at 40. 3

8 Pg 8 of 20 B. Bankruptcy Proceedings in the Southern District of New York Plaintiffs Kent Gladden and Andrew Fleetwood filed the first two putative class action adversary proceeding complaints alleging WARN Act violations by the Debtor-Defendants associated with the termination of the VC Station construction project on August 10, Gladden v. Westinghouse Electric Company, Adv. Pro. No (MEW), (Doc. 1) ( Gladden Complaint ) & Fleetwood, et al. v. WECTEC LLC and Stone & Webster Services LLC, Adv. Pro. No (MEW), (Doc. 1) ( Fleetwood Complaint ). In his putative class action against Westinghouse Electric Company LLC, Plaintiff Gladden sought to represent a class of individuals formerly employed by Westinghouse Electric Company, LLC whose employment the company terminated on or about July 31, 2017, and thereafter, because of the termination of the VC Station construction project. Gladden Complaint at 8-9. In his putative class action against WECTEC LLC and Stone & Webster Services LLC (which had been acquired by certain of the Debtor-Defendants), Plaintiff Fleetwood sought to represent a class of individuals who worked at, received assignments from, or reported to WECTEC LLC and/or Stone &Webster Services LLC at the VC Station, and whose employment those companies terminated on or around July 31, 2017, and within 30 days of that date, or as the reasonably foreseeable consequence of the termination of the VC Station construction project. Fleetwood Complaint at 14. Approximately three months later, on November 9, 2017, the Massey Plaintiffs filed their complaint against the Debtor-Defendants, in which they seek to represent a class of [A]ll similarly situated former employees of Defendants [] 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,

9 Pg 9 of 20 Massey, et al. v. Westinghouse Electric Company, et al., Adv. Pro. No (MEW), (Doc. 1) at 63 ( Massey Complaint and such proceeding the Massey Action ) (emphasis added). Essentially, the Massey Plaintiffs initiated a proceeding seeking to represent a virtually identical class of individuals as those set forth in the Gladden and Fleetwood Complaints. Compare Gladden Complaint at 8-9 with Fleetwood Complaint at 14 and Massey Complaint at 63. On December 27, 2017, the Court entered a Consolidated Scheduling Order, administratively consolidating all three proceedings. Adv. Pro. No (MEW), 1 (Doc. 9) at 11. Plaintiffs Gladden and Fleetwood jointly filed an amended putative class action adversary proceeding complaint, adding Plaintiff Rodney Cavalieri and naming additional debtor-defendants, on January 19, (Doc. 12) ( Amended Complaint and such proceeding the Gladden/Fleetwood Action ). The Amended Complaint adopted the proposed class definition from the Fleetwood Complaint, but expanded it to include former employees of all the Debtor-Defendants as well as WEC Carolina Energy Solutions Inc. and WEC Carolina Energy Solutions, LLC. Amended Complaint at 56. Defendants filed answers to both the Gladden/Fleetwood Amended Complaint and the Massey Complaint on February 15, (Docs. 15 & 16). The Gladden/Fleetwood and Massey Plaintiffs filed the Gladden/Fleetwood and Massey Certification Motions that same day. On March 15, 2018, the Debtor-Defendants and Gladden/Fleetwood Plaintiffs entered into a stipulation, to be so ordered by the Court, to certify a class of individuals who were directly employed by Defendants at the V.C. Summer Facility whose employment was terminated without cause beginning on or about July 31, 2017, and within 30 days of that date or as the reasonably foreseeable consequence of the mass layoffs and/or plant closings of that date. 1 All further filings will take place on this docket under adversary proceeding number (MEW). 5

10 Pg 10 of 20 (Doc. 32) at 3 ( Stipulation ). The Court has yet to certify a class or appoint class counsel in the Gladden/Fleetwood or Massey Actions. C. Parallel Federal District Court Proceedings in the District of South Carolina Former Fluor employees are already asserting claims against Fluor in two still-pending putative class action proceedings in federal court in South Carolina relating to the termination of the VC Station construction project and the resulting terminations of employment. Plaintiff Harry Pennington III filed the first putative class action complaint against Fluor concerning alleged WARN Act violations associated with the termination of the VC Station construction project and the resulting terminations of employment on August 8, Pennington v. Fluor Corporation, Fluor Enterprises, Inc. and SCANA Corporation, Civil Action No JMC, (Doc. 1) ( Pennington Complaint and such proceeding the Pennington Action ). Plaintiff Pennington seeks to represent a class of individuals who worked at, reported to, or received assignments from Fluor or SCANA at the VC Station, and whose employment those companies terminated on July 31, 2017, and within 30 days of that date, or as a reasonably foreseeable consequence of the termination of the VC Station construction project. Pennington Complaint at 16. On August 11, 2017, in Humphrey v. Fluor Enterprises, Inc., Civil Action No TLW, another putative class action pending against Fluor, the plaintiff filed a motion to amend his FLSA complaint to also add WARN Act class claims against Fluor associated with termination of the VC Station construction project and the resulting terminations of employment. (Doc. 29-2) ( Humphrey Amended Complaint and such proceeding the Humphrey Action ). The plaintiff in the Humphrey Action sought to represent a class of individuals formerly employed by Fluor and whose employment the company terminated as part of, or because of, the termination of the VC Station construction project. Humphrey Amended Complaint at 3. 6

11 Pg 11 of 20 However, the court denied the plaintiff s motion because if it permitted the plaintiff to amend his complaint to add a proposed WARN Act class claim, the court would have to dismiss that claim pursuant to the First-to-File Rule due to the earlier-filed Pennington Action. Humphrey Action (Doc. 37) at 4-8. On August 18, 2017, Plaintiffs Lawrence Butler, Lakeisha Darwish, Darron Eigner, Bernard A. Johnson, and Jimi Che Sutton ( Butler Plaintiffs ) filed a third putative class action complaint alleging WARN Act violations by Fluor associated with the termination of the VC Station construction project and the resulting terminations of employment. Butler, et al. v. Fluor Corporation and Fluor Enterprises, Inc., Civil Action No JMC, (Doc. 1) ( Butler Complaint and such proceeding the Butler Action ). The Butler Plaintiffs seek to represent a class of individuals who worked for Fluor at the VC Station and whose employment the company terminated on or about July 31, 2017, and within 30 days of that date, or as a reasonably foreseeable consequence of the termination of the construction project. Butler Complaint at 24. The same law firm represents both the Massey and Butler Plaintiffs. Compare Massey Complaint with Butler Complaint (both reflecting that the firm Klehr Harrison Harvey Branzburg, LLP represents the named plaintiffs in each proceeding). On February 16, 2018, the South Carolina federal district court consolidated the Butler Action with the Pennington Action for purposes of discovery and pretrial motions. Pennington Action (Doc. 86) & Butler Action (Doc. 43). The Court has yet to certify a class or appoint class counsel in the consolidated action. III. ARGUMENT A. The Court Should Dismiss the Massey Action Under the First-to-File Rule To Promote Judicial Efficiency and Preserve the Debtor-Defendants Assets The Court should preserve the assets and resources of the Debtor-Defendants estate as it 7

12 Pg 12 of 20 emerges from bankruptcy by dismissing the duplicative Massey Action. Federal courts have the inherent power to administer their dockets to advance the interests of efficient judicial administration and conservation of limited judicial resources. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); see also BuddyUSA, Inc. v. Recording Industry Ass n of Am., Inc., 21 Fed. Appx. 52, 55 (2d Cir. 2001). Accordingly, a federal court may dismiss a suit... whenever it is duplicative of a parallel action already pending in another federal court or in the same federal court. Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 664 (S.D.N.Y. 1997) (internal quotation marks and citations omitted). A court will generally dismiss a second duplicative suit in favor of a prior pending action unless the party who filed the second complaint can show special circumstances warranting the continuation of that second action, or that the balance of conveniences weighs in their favor. See First City Nat l Bank & Tr. Co. v. Simmons, 878 F.2d 76, (2d Cir. 1989). Notably, the claims, parties, and relief requested in the later-filed action do not need to be identical in order for the court to consider it duplicative of an earlier-filed action. See Morency v. Vill. of Lynbrook, 1 F.Supp.3d 58, 62 (E.D.N.Y. 2014) (holding that a suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions. ) citing Serlin v. Author Anders & Co., 3 F.3d 221, 223 (7th Cir. 1993) (emphasis added); James v. AT&T Corp., 334 F.Supp.2d 410, 411 (S.D.N.Y. 2004) (citing same); Howard, 977 F. Supp. at 664 ( For a second action to be duplicative, it is not necessary that the parties be identical [] if the parties represent the same interests... ) (internal quotation marks and citations omitted). Courts will not only dismiss a later-filed duplicative action, but they will also deny any effort to certify a later-filed duplicative class action in favor of the first-filed class action. See Schucker v. Flowers Foods, Inc., No. 16-CV-3439 (KMK), 2017 WL , at *5 (S.D.N.Y. 8

13 Pg 13 of 20 Aug. 24, 2017) ( [T]here is no question that in the class action context, a trial court s discretion to deny certification has been continually upheld where... it has been exercised so as to avoid duplicative class actions. ) quoting Becker v. Schenley Indus., Inc., 557 F.2d 346, 348 (2d Cir. 1977); see also Abrams v. Interco Inc., 719 F.2d 23, (2d Cir. 1983) (recognizing that a desire to avoid duplicative class actions is a basis on which to deny class certification); Green v. Santa Fe Indus., 82 F.R.D. 688, 690 (S.D.N.Y. 1979) (denying class certification because the relief requested on behalf of the class would result in duplicative litigation. ). In the bankruptcy context, courts have considered the negative effect that unnecessarily duplicative litigation will have on the debtor-defendant s limited assets. See In re Green, 200 B.R. 296, 299 (S.D.N.Y. 1996) (dismissing third-party action that would result in duplicative presentations on substantially overlapping factual matters because it would cause unnecessary delay and deplete both judicial resources and the assets of the bankruptcy estate. ); In re Corson Mfg., Nos. 01-MC-5E, 2001 WL , at *2 (W.D.N.Y. June 27, 2001) (rejecting motion to adjudicate related claims separately in bankruptcy and district court due to the negative impact it would have on the debtors remaining assets); In re Pan Am Corp., No. M 47 (CSH), 1993 WL 59381, at *4 (S.D.N.Y. Mar. 3, 1993) ( The duplicative litigation wastes scarce debtor resources unnecessarily. ). The court should take into account all the different facts and circumstances to determine whether to deny certification because the case is duplicative of an earlier filed proceeding. See 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 to dismiss a duplicative action.). The Massey Action not only duplicates the consolidated Gladden/Fleetwood Action, but 9

14 Pg 14 of 20 also the Pennington and Butler Actions. Debtor-Defendants join in the arguments of the Gladden/Fleetwood Plaintiffs in Section VIII of the Gladden/Fleetwood Certification Motion, i.e., that the Court should apply the First-to-File Rule and dismiss or stay the Massey Action which is the third putative class action adversary proceeding complaint filed against Debtor- Defendants concerning the termination of the VC Station construction project and claims relating to the resulting terminations of employment. Both the Gladden/Fleetwood Plaintiffs and the Massey Plaintiffs bring putative class actions against the Debtor-Defendants (with the Gladden/Fleetwood Action naming additional affiliated debtor entities), seek to represent virtually identical classes of the Debtor-Defendants former employees from the VC Station, and assert identical WARN Act claims based on the same set of operative facts. Compare Amended Complaint at with Massey Complaint at To the extent that the proposed class definitions in the Massey and Gladden/Fleetwood Actions are not identical, at minimum, they do not significantly differ. Morency, 1 F.Supp.3d at 62. In addition, the former employees of Fluor who are included in the Massey Action class definition are already included as members of the proposed classes in the two earlier-filed and still-pending South Carolina federal district court proceedings that former Fluor employees have brought against their direct employer, the entities comprising Fluor entities that unlike the Debtor-Defendants, are not in bankruptcy. Compare Massey Certification Motion at 1 with Pennington Complaint at 16 and Butler Complaint at 24. The same counsel representing the Massey Plaintiffs represents the plaintiffs in one of those proceedings. Compare Massey Complaint with Butler Complaint. Quite simply, all former employees of the Debtor-Defendants and Fluor have, and are already pursuing, judicial recourse for the alleged violations and damages stemming from the termination of the VC Station construction project in either this 10

15 Pg 15 of 20 Court or South Carolina federal district court through putative class action proceedings that various plaintiffs filed months before the Massey Complaint. Moreover, because Plaintiffs Gladden and Fleetwood filed the Gladden and Fleetwood Complaints months before the Massey Plaintiffs filed the Massey Complaint, the Gladden/Fleetwood Action has also proceeded further along than the Massey Action. More specifically, before the Massey Plaintiffs filed the Massey Complaint, Debtor-Defendants counsel and the Gladden/Fleetwood Plaintiffs counsel had already engaged in preliminary settlement discussions, which included the voluntary exchange of relevant documents and information. Stipulation at 2-3. Therefore, permitting the later-filed, duplicative Massey Action to continue under these circumstances would be an unnecessary waste and inefficient use of both the Court s and the Debtor-Defendants resources. In contrast, permitting only the Gladden/Fleetwood Action to proceed and certifying the class in the Gladden/Fleetwood Action will offer the best opportunity for these issues to be resolved in an expeditious and complete manner that is fair and equitable to the putative class members and the Debtor-Defendants. Indeed, in an effort to efficiently resolve the pending motions, the Debtor-Defendants, including certain additional debtor-entities, have entered into a stipulation, to be so ordered by the Court, with the Gladden/Fleetwood Plaintiffs to certify a class of individuals who were directly employed by Defendants at the V.C. Summer Facility whose employment was terminated without cause beginning on or about July 31, 2017, and within 30 days of that date or as the reasonably foreseeable consequence of the mass layoffs and/or plant closings of that date. Stipulation at 3. See Curtis, 226 F.3d at 138 (requiring a court to assess the equities of the situation when deciding whether to dismiss a duplicative proceeding.). So ordering the stipulation in the Gladden/Fleetwood Action and dismissing the Massey Action will avoid unnecessary delay and deplet[ion] of both judicial resources and the 11

16 Pg 16 of 20 assets of the bankrupt estate. In re Green, 200 B.R. at 299. For these reasons, the Court should deny the Massey Certification Motion and dismiss the Massey Action. B. The Claims of the Massey Plaintiffs Are Not Typical of the Claims of the Absent Fluor Employee Class Members, And Thus, The Massey Plaintiffs Are Not Adequate Representatives The Court also should deny the Massey Certification Motion because the Massey Plaintiffs who the Debtor-Defendants directly employed fail to satisfy the requirements of Rule 23(a) because their claims are not typical of the claims of absent Fluor employee class members, and thus, they are not adequate representatives. In seeking class certification, a plaintiff must establish all four elements of Rule 23(a) (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(A). A district judge may certify a class only after making a determination that each of the Rule 23 requirements has been met. In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006) (reversing grant of class certification). [A] lesser standard such as some showing for satisfying each requirement will not suffice. Id. at 27. In addition, the party moving for class certification bears the burden of establishing satisfaction of each of these requirements by a preponderance of the evidence. Heerwagen v. Clear Channel Commc ns, 435 F.3d 219, 233 (2d Cir. 2006). Thus, a court should only permit class certification if it resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met. In re Initial Pub., 471 F.3d at 41. The class certification requirement of typicality [] tend[s] to merge with the adequacy- 12

17 Pg 17 of 20 of-representation requirement because they serve as guideposts for determining whether the named plaintiff s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Harris v. Initial Sec., Inc., No. 05 Civ. 3873(GBD), 2007 WL , at *6 (S.D.N.Y. Mar. 7, 2007) (internal quotation marks and citations omitted). Putative class representatives satisfy the typicality requirement of Rule 23(a) when the class representatives and absent class members must make[] similar legal arguments to prove the defendant s liability. Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (internal quotation marks and citations omitted). In assessing the typicality of the plaintiff s claims, the court must pay special attention to unique defenses that are not shared by the class representatives and members of the class. Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 316 (S.D.N.Y. 2003). When assessing the adequacy criteria, a court will chiefly inquire whether the named plaintiffs interests are antagonistic to those of the class... Id. at 320. In cases where the absent class members are subject to a unique defense that does not apply to the named plaintiffs, courts will deny certification on the basis that the named plaintiffs are not adequate class representatives. See e.g., Spann 219 F.R.D. at 320 (denying class certification because an issue in which the three Plaintiffs may not have any stake, has the potential to become central to this litigation. ); Greeley v. KLM Royal Dutch Airlines, 85 F.R.D. 697, 701 (S.D.N.Y. 1980) ( Having refused to settle, plaintiff has no personal reason to be concerned with the means by which [defendant] induced settlements from others and therefore has no real interest in proving those settlements were wrongfully obtained. ). For example, in Presser v. Key Food Stores Co-op., Inc., No. 01-CV-8059, 2006 WL , at *2 (E.D.N.Y. July 25, 2006), a company issued a series of WARN Act notices to its employees while a pending acquisition was repeatedly extended the last of which was sent out 13

18 Pg 18 of 20 on June 22. Id. at *2-3. The plaintiff denied receiving the earlier letters, but acknowledged receiving the June 22 final notice. Id. at *3. After the parties consummated the transaction, the company offered the plaintiff ten weeks severance pay in exchange for a release, but she rejected the severance offer. Id. at *5. Plaintiff then filed a putative class action complaint seeking to represent, inter alia, a subclass of employees who did not receive sufficient notice under the WARN Act, and who signed allegedly incomplete releases as well as those who signed complete releases but attempted to revoke them. Id. at *14. But the court held that plaintiffs claims were not typical of the claims of unnamed class members, and thus, she could not be an adequate representative because she has no incentive to prove, for example, that other plaintiffs might not have received the June 22 notice, that certain releases were incomplete, or that certain signed releases are void, all of which are issues that must be litigated by this case before the WARN Act claim can be addressed. Id. at *14 (emphasis added). Thus, the court denied class certification. Id. at *14. Like in Presser, the Massey Plaintiffs claims are not typical of the absent Fluor employee class members claims, and they cannot serve as adequate representatives because none of the Fluor entities ever directly employed a single one of the Massey Plaintiffs. Massey Complaint at 6-11 (listing the employers for the named plaintiffs as Westinghouse Electric Company, LLC, WECTEC LLC, WECTEC Staffing Services, LLC, and WECTEC Global Project Services, Inc.). Notwithstanding that fact, the Massey Plaintiffs purport to represent all similarly situated employees who the Debtor-Defendants employed, as well as those who Fluor Corporation, Fluor Enterprises, Inc., and/or Fluor Daniel Maintenance Services, Inc. employed. Massey Certification Motion at 1. However, the Debtor-Defendants will dispute that they were a single employer with 14

19 Pg 19 of 20 Fluor under the WARN Act for purposes of the absent Fluor employee class members. As a result, the circumstances of the putative class representatives are very different from the circumstances of the absent Fluor employee class members. While the Massey Plaintiffs have [no] stake in this issue, for absent Fluor employee class members, this question is likely to become central to the litigation. Spann, 219 F.R.D. at 320. In other words, the Massey Plaintiffs have no reason to be concerned with whether Debtor-Defendants were responsible for providing WARN Act notices to Fluor employees, and thus, they have no real interest in proving that a single employer relationship existed between Debtor-Defendants and Fluor. Greeley, 85 F.R.D. at 701. In fact, since Debtor-Defendants are currently in bankruptcy and all creditors claims are subject to a limited pool of assets, the Massey Plaintiffs interests may even be adverse to that of the absent Fluor employee class members because the fewer competing creditors, the more the Massey Plaintiffs may be able to recover. Therefore, because the Massey Plaintiffs claims are not typical of the claims of absent Fluor employee class members and because they do not share the interests of (and potentially have interests adverse to) those absent Fluor employee class members, this Court should deny the Massey Certification Motion. IV. CONCLUSION For all of these reasons, the Debtor-Defendants respectfully request that this Court deny the Massey Certification Motion, dismiss the Massey Action, and certify a class in the Gladden/Fleetwood Action with the class definition to which Debtor-Defendants and the Gladden/Fleetwood Plaintiffs have stipulated and agreed. 15

20 Pg 20 of 20 Dated March 15, 2018 Respectfully submitted, WEIL, GOTSHAL & MANGES LLP BY /s/ Robert J. Lemons Robert J. Lemons Nicholas J. Pappas Lawrence J. Baer 767 Fifth Avenue New York, New York (212) Counsel for Debtor-Defendants 16