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1 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 1 of 18 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. GLADDEN PLAINTIFFS RESPONSE IN OPPOSITION TO MASSEY 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 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 2 of 18 TABLE OF CONTENTS INTRODUCTION... 1 ARGUMENT Massey is uncertifiable due to missing declarations for its slate of representatives Massey Counsel does not satisfy the best able to represent criteria of Rule Massey Counsel s investigative work does not preclude the dismissal of its case Massey Counsel s other grounds for appointment as class counsel or avoidance of dismissal are deficient Massey Counsel s references to past joint engagements are irrelevant CONCLUSION... 13

3 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 3 of 18 TABLE OF AUTHORITIES Page(s) Cases Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)...2 In re Bank of Am. Corp. Secs., Derivative & ERISA Litig., 258 F.R.D. 260 (S.D.N.Y. 2009)...5 East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395 (1977)...4 Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No (Bankr. S.D. Ind.)...13 In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y. 2004)...11 In re Jevic Holding Corp. 496 B.R. 151 (Bankr. D. Del. 2013)...12 In re Jevic Holding Corp. 656 F. App x 617, 618 (3d Cir. 2016)...12 In re Jevic Holding Corp. 787 F.3d 173 (3d Cir. 2015), as amended (Aug. 18, 2015), rev d and remanded sub nom. Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017)...12 Kingsepp v. Wesleyan Univ., No. 89 CIV (DNE), 1992 WL (S.D.N.Y. Sept. 3, 1992)...6 In re MF Glob. Holdings, Ltd., 464 B.R. 619 (Bankr. S.D.N.Y. 2012)...5 Preston, et al. v. Fluor Enterprises Inc. Case No (TLW) (D.S.C)...10 Singleton v. Alevo Manufacturing, Inc. (Adv. Proc. No (CAR)) (Bankr. M.D.N.C.)...13 In re TransCare Corp, 552 B.R. 69 (Bankr. S.D.N.Y. 2016)...7, 8 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)...2, 3 ii

4 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 4 of 18 Webber v. Norwalk, No. CV PHX-NVW, 2007 WL (D. Ariz. Feb. 8, 2007)...4 Statutes 15 U.S.C....7 Fair Labor Standards Act (FLSA)...10 Private Securities Litigation Reform Act of 1995 Pub. L. No , 109 Stat. 737 (1995)...7 WARN Act, 29 U.S.C et seq....6, 8, 10, 12 Other Authorities Fed. R. Civ. P passim Fed. R. Civ. P. 23(a)...2, 4 Fed. R. Civ. P. 23(a)(3)...3 Fed. R. Civ. P. 23(a)(4)...3, 4 Fed. R. Civ. P. 23(b)(3)...4 Fed. R. Civ. P. 23(g)(1)...5, 8 Fed. R. Civ. P. 23(g)(1)(A)...5, 6, 7 Fed. R. Civ. P. 23(g)(1)(B)...5 Fed. R. Civ. P. 23(g)(2)...2, 5 Fed. R. Civ. P. 23(g)(4)...3, 5 iii

5 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 5 of 18 INTRODUCTION Kent Gladden, Andrew Fleetwood, and Rodney Cavalieri ( Gladden Plaintiffs ) submit on behalf of themselves and the putative class of terminated employees employed by Defendants their objection to the Motion for Class Certification and Related Relief filed by plaintiffs in Massey v. Westinghouse Electric Company, LLC, et al, under the administratively consolidated Adv. Proc. No (MEW). D.I Over the last seven months Gladden Counsel 3 has released a broadside against the two sets of defendants responsible for terminating the Westinghouse employees. It has targeted Debtors here and the SCANA utility companies in the District Court of South Carolina Pennington case. Gladden Counsel has received support from highly-placed ex-westinghouse managers. The stature of the Gladden plaintiffs maximizes the chances of success by leveling the playing field and reducing the informational imbalance in this two-front battle. By contrast, three months in, the Massey plaintiffs filed an adversary proceeding that added nothing to the Gladden drive. Massey Counsel has not sued the SCANA companies. Certifying a class in the Massey case would split the class s WARN claims between one set of counsel against SCANA, and the other against Westinghouse creating overlapping, disjointed litigations. It would end the 2 On December 27, 2017, the Court ordered that all future filings made by the parties in the Massey and Gladden adversary proceedings were to be filed under the Gladden adversary proceeding number (Adv. Proc. No ). D.I As used herein, Gladden Counsel refers to Outten & Golden, Lankenau & Miller, and The Gardner Firm, who seek to represent a class of Westinghouse (and its affiliates) employees in this case against Westinghouse (and its affiliates). Fleetwood Counsel refers to Outten & Golden s initial complaint in this case which was subsequently subsumed into the Gladden Complaint which was jointly filed with Lankenau & Miller, and The Gardner Firm. Pennington Counsel refers to Outten & Golden and local counsel Bloodgood and Sanders who seek to represent a class of Fluor and Westinghouse employees in a suit against Fluor and SCANA in South Carolina. Massey Counsel refers to Klehr Harrison Harvey Branzburg, Gaffney Lewis & Edwards, and Yarborough Applegate, who seek to represent a class of Westinghouse (and its affiliates) employees in this case against Westinghouse (and its affiliates). Massey Counsel also purportedly seeks to represent a class of Fluor employees in a WARN claim against Westinghouse (and its affiliates) in this case, but as explained herein, there are no allegations in the Massey Complaint regarding claims on behalf of Fluor Employees. Massey Counsel also seeks to represent a class of Fluor employees against Fluor (but not SCANA) in South Carolina, referred herein as the Butler action.

6 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 6 of 18 coordinated and efficient litigation approach Gladden Counsel has taken to press all defendants to litigate, or perhaps come to the table for a global resolution. In any event, the proposed Massey class is uncertifiable because its submission is deficient. Would-be class representative and counsel have not submitted evidence of their suitability, despite the mandatory requirements of Rule 23 class certification. This inexplicable omission alone takes Massey Counsel out of the running to be found best able to represent the class. Fed. R. Civ. P. 23(g)(2). But even if this omission were overlooked, Massey is simply a duplicative WARN adversary proceeding. The practice in this District has been to dismiss duplicative WARN adversaries as a matter of judicial economy. Although Massey asks that the cases be consolidated, based on past consensual co-counsel arrangements with Gladden Counsel, those prior arrangements have no bearing on the class interests in this case. Consolidation would add unnecessary layers of counsel, cost and delay, requiring amended complaints and answers, and serve no purpose. Gladden Counsel, therefore, respectfully requests that the Court enter the Proposed Order certifying a class and dismissing the Massey Action on the Joint Stipulation of Gladden Counsel, Counsel for Defendants, and Counsel for the UCC. D.I. 32. ARGUMENT 1. Massey is uncertifiable due to missing declarations for its slate of representatives. Rule 23 class actions are designed to promote efficiency and economy of litigation. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. Wal- Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). 2

7 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 7 of 18 A court certifying a class must find that four prerequisites are met, two of which focus on the representatives. In this regard, Rule 23 requires a finding that the claims or defenses of the representative parties be typical of the claims or defenses of the class. Rule 23(a)(3). 4 The second prong regarding the representatives requires that the representative parties have and will fairly and adequately protect the interests of the class. Rule 23(a)(4). Along the same lines, Rule 23(g)(4) imposes a fiduciary duty on class counsel and requires that [c]lass counsel must fairly and adequately represent the interests of the class. Rule 23(g)(4). The Supreme Court has emphasized that Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. Dukes, 564 U.S. at 350. In other words, movants seeking class certification must prove that their claims are typical and they are adequate to represent the class. Massey Counsel has not complied with Rule 23. To prove typicality and adequacy, Massey Counsel has submitted declarations for only three of its six would-be class representatives (Massey, Jennings, and Adams), and for only one of its three proposed class counsel, Charles A. Ercole of Klehr Harrison Harvey Branzberg, LLP. No proof has been proffered for plaintiffs Hurlburt, Hall, and Baker, nor for counsel Amy L. Gaffney of Gaffney Lewis, and Edwards LLC and David B. Yarborough, Jr. of Applegate Yarborough LLC. Massey Counsel provides no explanation for its partial proffer, nor does it propose weeding out the noshows and certifying the rest. The incomplete record precludes a finding that the Massey 4 The other two criteria are that (1) the class is so numerous that joinder of all members is impracticable; and (2) there are questions of law or fact common to the class. 3

8 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 8 of 18 plaintiffs claims are typical of those of the class, or that the class will be fairly and adequately represented by its slate of plaintiffs and attorneys. The Massey motion must be denied. Even if disqualification were not automatic, denial is in order. Massey Counsel s deficient submission provides no assurance of vigorous advocacy for a class. Webber v. Norwalk, No. CV PHX-NVW, 2007 WL , at *6 (D. Ariz. Feb. 8, 2007) ( Certification is no mere formality.... Vigorous advocacy is assured by the authoritative imposition of the named plaintiffs of a duty adequately to represent the entire class. ). Massey s inexplicable indifference, if not disregard, in moving for certification surely bears strongly on the adequacy of the representation that those class members might expect to receive. East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). In contrast, the Gladden submission goes beyond the norm. Each plaintiff has submitted a declaration attesting to facts that meet the basic criteria of Rule 23(a) and Rule 23(b)(3), as is required. Ordinarily, WARN plaintiffs are not expected to do more. But, when WARN class certification complexities arise, such as when the employer-defendants are part of a group of affiliated entities, some knowledge about the relationships in the group may be necessary. This information, however, may reside only at the company s C-suite level. WARN plaintiffs typically are rank and file employees. Often, they stumble due to the asymmetry of information about corporate matters. Gladden Plaintiff Rodney Cavalieri, however, was Westinghouse s second in charge at the V.C. Summer project, and provides authoritative information in his declaration. As a proposed class representative, Mr. Cavalieri brings a wealth of knowledge to the Gladden litigation. The Gladden class representatives are especially well-equipped to fairly and adequately protect the interests of the class. Rule 23(a)(4). 4

9 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 9 of Massey Counsel does not satisfy the best able to represent criteria of Rule 23. A court that certifies a class must appoint class counsel. Rule 23(g)(1). In making that determination the court 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. Rule 23(g)(1)(A). See In re Bank of Am. Corp. Secs., Derivative & ERISA Litig., 258 F.R.D. 260, 272 (S.D.N.Y. 2009). When one applicant seeks class counsel appointment, a court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) (under the four criteria above) and Rule 23(g)(4) ( duty of class counsel to fairly and adequately represent the interests of the class ). See Rule 23(g)(2). However, if more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class. Id.; see also In re MF Glob. Holdings, Ltd., 464 B.R. 619, 624 (Bankr. S.D.N.Y. 2012). In doing so, the court also may consider any other matter pertinent to counsel s ability to fairly and adequately represent the interests of the class under Rule 23(g)(1)(B), 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 MF Glob. Holdings, Ltd., 464 B.R. at 625 (citing In re Bank of Am. Corp. Secs., 258 F.R.D. at 272). 5

10 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 10 of 18 Because the role of class counsel is akin to that of a fiduciary to the absent class members, a court must scrutinize the character, competence and quality of counsel retained by the plaintiff. Kingsepp v. Wesleyan Univ., No. 89 CIV (DNE), 1992 WL , at *1 (S.D.N.Y. Sept. 3, 1992) (citations omitted). The firms of Gaffney and Yarborough have given this Court nothing to scrutinize. They are undoubtedly fine lawyers in their practice areas, but as Massey Counsel tacitly concedes, they did not come to this case with any WARN Act class action knowledge or experience. Their Memorandum of Law in Support of Class Certification refers to the declaration of co-counsel Charles A. Ercole. (D.I. 19 ( Massey Mem. ) (citing D.I ( Ercole Decl. ) at 4)). He states [b]oth firms have extensive class action and/or employment law experience, already have developed relationships with hundreds of putative class members. (Ercole Decl. at 4). But their non-compliance with Rule 23, together with Mr. Ercole s and/or qualifier suggests some dearth of class action and employment law experience, and there is no mention of prior contact with the WARN Act. Relationships are not mentioned in Rule 23(g)(1)(A). The relevant experience that must be demonstrated by Massey Counsel is instead left for guesswork by the Court. Confirming these doubts, Mr. Ercole states that they bring extensive experience to assist in pursuing the WARN Act claims here. (Massey Mem. At 13) (emphasis added). Again, without even a mention of their years in practice, types and numbers of cases, outcomes, or a single fact about them, there is no creditable evidence of experience or qualifications to support a finding of adequacy. The absence of Gaffney s and Yarborough s names on the Massey Complaint adds further doubts as to their roles in the Massey proceeding. This anomaly is not cured by Massey counsel s proposed designation of Klehr Harrison as Lead Class Counsel and Gaffney and Yarborough as co-class Counsel. (Massey Mem. 6

11 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 11 of 18 at 1). The word lead is not recognized by Rule 23. It is term of art used in the Private Securities Litigation Reform Act of 1995, and thus is meaningless in this context. 5 Even assuming this Court were to overlook Massey Counsel s failure to provide evidence concerning their experience in handling class actions, knowledge of the applicable law, and committed resources, the Court would need to consider the work counsel has done in identifying or investigating potential claims in the action. Rule 23(g)(1)(A). 3. Massey Counsel s investigative work does not preclude the dismissal of its case. Massey Counsel argues their November Massey Complaint is superior to the original August Fleetwood and Gladden Complaints. Massey Counsel, of course, does not try to compare its pleading with the current, more authoritative and detailed Amended Gladden Complaint, except for one contention (discussed on page 8, below). Looking back at August, Massey Counsel claims they waited to file [in November] only because they were spending considerable necessary time thoroughly investigating the facts which gave rise to the WARN claim against Defendants. (Massey Mem. at 15). Nevertheless, Massey Counsel does not contend that their November Complaint proposes a class that differs appreciably from the class framed in the original Gladden or Fleetwood complaints. All these complaints were somewhat imprecise about which plaintiffs worked for which entities. But accepting, for argument s sake, that the Massey Complaint contained some extra detail, it is of no consequence as demonstrated in In re TransCare Corp, 552 B.R. 69 (Bankr. S.D.N.Y. 2016). In Transcare, Outten & Golden commenced the first WARN adversary proceeding by filing the Ien complaint. A month later, a well-researched and more detailed complaint was filed 5 See Rule 23, Committee Notes on Rules 2003 ( Paragraph (1)(A) does not apply if a statute provides otherwise. This recognizes that provisions of the Private Securities Litigation Reform Act of 1995, Pub. L. No , 109 Stat. 737 (1995) (codified in various sections of 15 U.S.C.), contain directives that bear on selection of a lead plaintiff and the retention of counsel. ) 7

12 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 12 of 18 by a plaintiff s labor and employment law firm for plaintiff Pena. Pena Counsel argued that its extensive investigation should at least qualify it to be named co-interim class counsel with Outten & Golden. Id. The Court noted that the Pena complaint asserted claims against a defendant omitted in the Ien complaint. Nevertheless, Judge Bernstein found the two complaints largely duplicative and that they shared more than a rough resemblance. Id. at 78. The Transcare Court noted that [b]oth Ien and the Pena Plaintiffs 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. Id. The Court refused to consolidate the Pena proceeding into Ien. It reasoned that consolidation would require the defendants to file an amended answer, all of which would serve to increase the cost and delay the resolution of this action. Id. On the grounds of judicial economy, the Court exercised its discretion and dismissed the Pena proceeding. Id. The Transcare Court next turned to the designation of interim class counsel, which rests on the same Rule 23(g)(1) factors as class counsel appointment. The court found Outten & Golden had done significant work in identifying and investigating potential claims in the action, had extensive experience in litigating WARN Act class actions and knowledge of applicable law as recognized authorities on the WARN Act, and was able to commit substantial resources to representing the class. Id. at Like the Pena complaint, whose allegations failed to supply a reason against dismissal, id. at 78, the Massey Complaint adds nothing to the Gladden/Fleetwood pleadings. Massey Counsel nevertheless claims that the Complaint does contain a material allegation that justifies preserving it. According to Massey Counsel the Massey Plaintiffs have alleged claims against Defendants also for their role in the termination of those approximately 4,000 individuals who 8

13 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 13 of 18 were nominally employed by non-defendant Fluor. To date, neither Gladden nor Fleetwood has done that. (Massey Mem. at (citing Ercole Decl. at 19) (emphasis added)). Massey Counsel is correct that the Gladden/Fleetwood pleadings contain no such claim which if proved could triple or quadruple Westinghouse s maximum liability. But Massey Counsel is incorrect that the Massey Complaint contains this allegation. Both references to this allegation in the Massey Memorandum of Law and Ercole Declaration fail to cite to the paragraph of the Massey Complaint where this allegation is framed. See Massey Mem. at 15-16; Ercole Decl. at 19). Moreover, the Massey Complaint opens by indicating that it is brought on behalf of the plaintiffs and a class of similarly situated former employees of debtors, Westinghouse Electric Company, LLC [etc.]. (Adv. Proc (MEW), D.I. 1). Nowhere does it indicate that it is brought on behalf of Fluor s employees. Massey s claim that its Complaint is superior is unfounded. 4. Massey Counsel s other grounds for appointment as class counsel or avoidance of dismissal are deficient. As evidence that it is best able to represent the class, Massey Counsel points to MF Global, which does nothing to tip the scales in Massey Counsel s favor here since Klehr Harrison, Outten & Golden, The Gardner Firm and Lankenau & Miller were all ultimately appointed class counsel in MF Global, with Outten & Golden being initially solely appointed as interim class counsel. As further evidence of its efforts in this litigation, Massey Counsel expands the frame of reference to include the ongoing District of South Carolina litigation, which is appropriate. Massey Counsel notes that it has been pursuing WARN claims against Fluor directly in the District Court in South Carolina. (Ercole Decl. at 23). Massey Counsel claims its representation there of individuals who were nominally employed by Fluor will prove helpful to 9

14 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 14 of 18 Proposed Class Counsel in pursuing the claims here. (Id. at 25). Unexplained is how Massey Counsel s representation of Fluor employees against Fluor would help it pursue Westinghouse employees claims against Westinghouse. See id. Indeed, Massey Counsel s WARN representation of Fluor employees may be short-lived. Gladden (Fleetwood) Counsel has moved in the Pennington matter for certification of a class of Westinghouse and Fluor employees against SCANA, and a subclass of Fluor employees against Fluor. If that motion is granted, Massey counsel s six-plaintiff Butler action against Fluor will likely be subsumed. (Massey Counsel has not moved for class certification in Butler). Of the Butler action s two WARN-based claims, Massey Counsel voluntarily dismissed one with prejudice two months after filing it. 6 Massey Counsel also dismissed with prejudice in January 2018, a class action it had filed in October 2017 against a Fluor predecessor under the Fair Labor Standards Act (FLSA). 7 Massey Counsel Gaffney and Yarborough continue, however, to represent six field engineers seeking overtime under the FLSA. Preston, et al. v. Fluor Enterprises Inc. Case No (TLW) (D.S.C). While Massey Counsel has been pursuing these overtime claims for its Fluor clients, it has not filed WARN Act claims against SCANA, or sought class certification, as Gladden counsel has for the Fluor employees. Just as Massey Counsel did not identify and investigate the claims of its Fluor clients particularly well, it has also not done so for its Westinghouse clients. Massey Counsel has not raised claims against SCANA, which ordered the plant closing, for example. By contrast, Fleetwood Counsel added Westinghouse Electric Company, LLC Project Manager Timothy 6 On Oct. 3, 2017, Massey Counsel stipulated to the dismissal with prejudice of the Butler Complaint s second cause of action for Violation of Public Policy of the State of South Carolina (Individual and Class Action) which has sought WARN-like damages if its WARN claims failed. 17-cv JMC, D.I On Jan. 11, 2018, Massey Counsel (less Klehr Harrison) consented to dismiss with prejudice an overtime case against CB&I, that it had filed in October 2017 against Fluor. 17-cv MGL, D.I

15 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 15 of 18 Lorenz as a named plaintiff to its Pennington action. Fleetwood counsel further bolstered the Westinghouse employees claims against SCANA by asserting over 70 paragraphs of detailed single employer allegations in the Amended Pennington Complaint. (Exhibit A hereto). Massey Counsel claims Gladden/Fleetwood Counsel s experience is outweighed by the fact that Massey Counsel has been retained by more former employees than the Gladden/Fleetwood counsel combined. (Massey Mem. at 12). But Massey Counsel does not state the number of Westinghouse entity employees there are in its over 400 retainers versus employees nominally employed by Fluor. Nor does it purport to know how many Westinghouse employees have retained Gladden/Fleetwood. But retainers recede in importance when class certification is at stake. The Court has a fiduciary responsibility that runs not to the clients who retain counsel, but to the absent, unrepresented class members who surely outnumber the represented class members. In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004) ( The Court has a fiduciary duty to the non-representative class members. and absent class members. ) (citing Martens v. Smith Barney, Inc., 181 F.R.D. 243, 262 (S.D.N.Y.1998)). As the Global Crossing Court noted, unlike typical adversary litigation, where the Court sits as an umpire, in this situation the Court sits also as a guardian for class members who have not received a notice or who lack the intellectual or financial resources to press objections. Id. One question, among others, is whether the absent class member stands to do better with counsel who will represent him/her against Westinghouse and also seeks to do so against SCANA, or counsel who is content with suing Westinghouse alone. Finally, Massey Counsel claims it invested significant time and effort into pursuing the claims of the proposed Class. (Massey Mem. at 13). It states, [s]pecifically, within a week of the terminations from the VC Summer Location on July 31, 2017, they met with approximately 11

16 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 16 of individuals who had been terminated there. Id. 8 Also, Massey Counsel claims its staff fielded over 1,500 telephone calls and s in response to the massive layoffs and crisis. Id. The article Massey Counsel cites, however, does not mention that lawyers provided any WARN advice at the meeting. It relates instead that Ms. Gaffney gathered information from all who attended to see if there were any legal claims they would be able to file in the future. Klehr Harrison notes that it has a demonstrated and well-established bankruptcy and WARN practice which has litigated successfully on behalf of thousands of employees and served as lead counsel in numerous employment class action lawsuits. (Ercole Decl. at 10; see also 6, 9). While Klehr Harrison s WARN successes on behalf of employees are commendable, full disclosure requires recognition of its impact on WARN Act law to diminish the rights of WARN claimants. Mr. Ercole touts his firm s full blown litigation and bankruptcy departments naming Domenic Pacitti [and] Linda Richenderfer, specifically. (Ercole Decl. at 6-7). They, as counsel to the Jevic defendants, defeated Outten & Golden s 2,000-member WARN class repeatedly in the In re Jevic Holding Corp. line of cases. See e.g., 496 B.R. 151 (Bankr. D. Del. 2013) (upholding the employer s unforeseeable business circumstances exception); 656 F. App x 617, 618 (3d Cir. 2016) (affirming decision that the parent private equity fund was not a single-employer); 787 F.3d 173 (3d Cir. 2015), as amended (Aug. 18, 2015), rev d and remanded sub nom. Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017) (approving settlement that zeroed out an $8 million priority WARN award in a structured dismissal). Ironically, although Outten & Golden is a firm of only employment lawyers, Fleetwood Counsel, with the assistance of WilmerHale, persuaded the Supreme Court to reverse the Jevic 8 Citing 12

17 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 17 of 18 defendants victory which had damaged the Bankruptcy Code s wage priority rule. Thus, online publisher Law360 named Outten & Golden a 2017 Bankruptcy Practice Group of the Year. 5. Massey Counsel s references to past joint engagements are irrelevant. Massey Counsel describes some prior cases in which Klehr Harrison has co-counseled with Outten & Golden, Lankenau & Miller, and The Gardner Firm, or some combination thereof. In those instances, counsel filed relatively similar complaints at the same time and found it sensible to work together. 9 In those cases: 1) one counsel did not file a case three months after the first case was filed; 2) counsel did not come with inexperienced WARN co-counsel in tow; and 3) counsel did not seek to interfere with a multi-prong litigation by picking off one case. Massey s account of prior engagements also omits a fact that perhaps is relevant. Although, Massey Counsel (Klehr Harrison) has vied on a couple of occasions to be appointed interim class counsel, alone or with other counsel, over Outten & Golden or, alternatively, for the cases to be consolidated, it has never succeeded. See Federman, et al. v. ITT Educational Services, Inc., Bankr. Case No (JMC) (D.I ; Exh. 8 to Raisner Decl. in support of Motion for Class Certification); Singleton v. Alevo Manufacturing, Inc. (Adv. Proc. No (CAR)) (Bankr. M.D.N.C.) (D.I. 33) (D.I ; Exh. 16 to Raisner Decl. in support of Motion for Class Certification). CONCLUSION For the foregoing reasons, Gladden Plaintiffs respectfully request that this Court enter the Proposed Order certifying a class and dismissing the Massey Action submitted with the Joint Stipulation of Gladden Counsel, Defendants Counsel, and Counsel for the UCC. D.I Klehr Harrison also does not mention the many times the second-filer has walked away in deference to the first filed complaint, and simply referred over its plaintiffs to the continuing case, because that was the sensible path. 13

18 mew Doc 35 Filed 03/15/18 Entered 03/15/18 19:50:09 Main Document Pg 18 of 18 Dated: March 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) 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 Gladden Plaintiffs and the putative class 14

19 Pg 1 of 25 EXHIBIT A

20 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 1 of 24 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:

21 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 2 of 24 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

22 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 3 of 24 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

23 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 4 of 24 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

24 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 5 of 24 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

25 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 6 of 24 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,

26 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 7 of 24 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

27 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 8 of 24 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

28 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 9 of 24 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

29 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 10 of 24 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

30 0:17-cv JMC Date Filed 10/25/17 Entry Number 41 Page 11 of 24 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