mew Doc 57 Filed 07/24/18 Entered 07/24/18 18:05:37 Main Document Pg 1 of 27. July 24, 2018

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1 Pg 1 of 27 Charles A. Ercole Direct Dial: (215) cercole@klehr.com July 24, 2018 VIA ECF The Honorable Michael E. Wiles United States Bankruptcy Court Southern District of New York One Bowling Green New York, NY RE: Westinghouse WARN Act litigation: In re: Westinghouse Electric Company, LLC, et al. Case No.: (MEW) Dear Judge Wiles: We write to update the Court about the recent developments in the WARN Act cases pending in South Carolina captioned Pennington, et al. v. Fluor Corp., et al., No. 17-cv JMC (D.S.C. 2017) ( Pennington Action ), and Butler, et al. v. Fluor Corp., et al., No. 17-cv JMC (D.S.C. 2017) ( Butler Action, and together with the Pennington Action, the South Carolina WARN Act Actions ). Further, in light of these developments, we ask the Court to consider exercising its discretion to transfer the above referenced WARN Act cases now pending in the Southern District of New York (collectively, the Westinghouse WARN Act Actions ) to the United States District Court in South Carolina. Specifically, Honorable J. Michelle Childs issued two recent decisions granting class certification, consolidating the South Carolina WARN Act Actions, and appointing class counsel. First, on July 17, 2018, Judge Childs issued an Order and Opinion granting Pennington plaintiffs Motion for Class Certification wherein the Court certified a class defined as: Plaintiffs and all persons (i) who were former employees of Defendants 1 and worked at, reported to, or received assignments from the V.C. Summer Nuclear Station (the Facility ), located at Highway 215 & Bradham Blvd, Jenkinsville, South Carolina 29065, (ii) who were terminated without cause on or about July 31, 2017 or within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass 1 The Defendants in the Pennington Action are Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc., SCANA Corporation, and South Carolina Electric & Gas Company. PHIL v.2

2 Pg 2 of 27 The Honorable Michael E. Wiles United States Bankruptcy Court Southern District of New York July 24, 2018 Page 2 layoffs and/or plant closings ordered by Defendants on or about July 31, 2017, (iii) who are affected employees within the meaning of 29 U.S.C. 2101(a)(5), and (iv) who have not filed a timely request to opt-out of the Class. A copy of this Class Certification Order and Opinion is attached hereto as Exhibit A. Second, the next day, Judge Childs decided the Pennington plaintiffs and the Butler plaintiffs competing Motions to Appoint Class Counsel and to Appoint Plaintiffs as Class Representatives. Judge Childs: Appointed as co-lead class counsel Jack Raisner and Rene Roupinian of Outten & Golden LLP and Lee Moylan and Charles Ercole of Klehr Harrison Harvey Branzburg LLP in accordance with Rule 23(g)(1); Appointed as local counsel Amy Gaffney, Regina Lewis and Susan Edwards of Gaffney Lewis & Edwards, LLC; Nancy Bloodgood and Lucy Sanders of Bloodgood and Sanders; and David Yarborough, Jr. and William Applegate, IV of Yarborough Applegate; Appointed both the Pennington Plaintiffs - Harry Pennington III and Timothy Lorentz and the Butler Plaintiffs - Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson and Jimi Che as Class Representatives; and Consolidated the Pennington Action and the Butler Action for all purposes under Rule 42(a). A copy of this Class Counsel, Class Representatives and Consolidation Order and Opinion is attached hereto as Exhibit B. During previous hearings/conferences in the Westinghouse WARN Act Actions, this Court inquired about the possibility of the WARN cases being transferred to the District Court in South Carolina, to be tried by Judge Childs along with the Pennington Action and the Butler Action. Klehr Harrison believes that: (a) this Court does have the discretion to sua sponte transfer the Westinghouse WARN Act Cases to South Carolina; and (b) the transfer is appropriate pursuant to 28 U.S.C. 1404(a) and 1409, especially in light of Judge Child s recent decisions allowing the South Carolina WARN Act Actions to proceed as a consolidated class action. See, e.g., Bank of Am., N.A. v. Wilmington Trust FSB, 943 F. Supp. 2d 417, 426 (S.D.N.Y. 2013) (citing Cento v. Pearl Arts & Craft Supply Inc., No. 03 Civ. 2424, 2003 WL , at *1 (S.D.N.Y. Apr. 24, 2003) ( The power of district courts to transfer cases under Section 1404(a) sua sponte therefore is well established. ); Sheet Metal Workers Nat l Pension PHIL v.2

3 Pg 3 of 27 The Honorable Michael E. Wiles United States Bankruptcy Court Southern District of New York July 24, 2018 Page 3 Fund v. Gallagher, 669 F. Supp. 88, 91 (S.D.N.Y. 1987) ( Regardless of whether there is personal jurisdiction over the defendants, the court has power to transfer pursuant to 28 U.S.C. 1404(a) if venue is proper ); In re Nw. Airlines Corp., 384 B.R. 51, 60 (S.D.N.Y. 2008) (quoting In re Manville Forest Prods. Corp., 896 F.2d 1384, 1391 (2d Cir. 1990) ( The decision to transfer venue is within the discretion of the court based on an individualized, case-by-case consideration of convenience and fairness. ). The Westinghouse Warn Act Cases are related to cases under Chapter 11, and, therefore, their transfer is controlled by 28 U.S.C.A. 1404, the general change of venue provision. Goldberg Holding Corp. v. NEP Productions, Inc., 93 B.R. 33, 34 (S.D.N.Y. 1988). Transfer is warranted under Section 1404(a), which provides in pertinent part: 28 U.S.C. 1404(a). For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. In accordance with Section 1404, the Westinghouse WARN ACT cases might have been brought in the District of South Carolina pursuant to 28 U.S.C. 1409(e), the venue statute governing adversary proceedings related to a bankruptcy case. 2 This is so because: (a) the layoffs which are the subject of these cases occurred on July 31, 2017, well after the Westinghouse Chapter 11 cases were filed on March 29, 2017; and (b) South Carolina was the location of the plant where the WARN Act plaintiffs and purported class members worked and the layoffs which are the subject of the actions occurred. Further, the other Section 1404(a) factors, including the interests of justice and/or the convenience of the parties and witnesses, weigh heavily in favor of transfer. It makes no sense to allow parallel class actions concerning the same layoffs on the same day at the same plant in South Carolina to proceed in different venues U.S.C 1409(e) provides: A proceeding arising under title 11 or arising in or related to a case under title 11, based on a claim arising after the commencement of such case from the operation of the business of the debtor, may be commenced against the representative of the estate in such case in the district court for the district where the State or Federal court sits in which the party commencing such proceeding may, under applicable nonbankruptcy venue provisions, have brought an action on such claim, or in the district court in which such case is pending. PHIL v.2

4 Pg 4 of 27 The Honorable Michael E. Wiles United States Bankruptcy Court Southern District of New York July 24, 2018 Page 4 Accordingly, we request that the Court exercise its discretion to sua sponte transfer the Westinghouse WARN Act Actions to the District of South Carolina. Alternatively, if this Court prefers to consider the transfer issue based on formal written submissions, we respectfully request that the Court issue a briefing schedule as to the transfer issue, as Klehr Harrison believes it has good cause to move, on behalf of its clients, for this transfer given the abovedescribed recent orders in South Carolina and in the interests of justice. We are available for a conference call and can arrange it with all parties if the Court desires. Otherwise, we look forward to appearing before the Court on July 31, Please be advised that, prior to the filing of this letter, the undersigned counsel shared a copy of this letter with the attorneys carbon copied below. Thank you. Respectfully submitted, Charles A. Ercole CAE:amc cc: Lawrence J. Baer, Esquire (via lawrence.baer@weil.com) Nicole A. Eichberger, Esquire (via neichberger@proskauer.com) Jack A. Raisner, Esquire (via jar@outtengolden.com) René S. Roupinian, Esquire (via rsr@outtengolden.com) Stuart J. Miller, Esquire (via sjm@lankmill.com) Mary E. Olsen, Esquire (via molsen@thegardnerfirm.com) David B. Yarborough, Jr., Esquire (via david@yarboroughapplegate.com) Amy L. Gaffney, Esquire (via agaffney@glelawfirm.com) Raymond H. Lemisch, Esquire (via rlemisch@klehr.com) Lee D. Moylan, Esquire (via lmoylan@klehr.com) PHIL v.2

5 Pg 5 of 27 EXHIBIT A

6 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 1 of 11 Pg 6 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Harry Pennington III and Timothy Lorentz, ) on behalf of themselves and all others ) similarly situated, ) Civil Action No.: 0:17-cv JMC ) Plaintiffs, ) ) v. ) ORDER AND OPINION ) Fluor Corporation, Fluor Enterprises, Inc., ) Fluor Daniel Maintenance Services, Inc., ) SCANA Corporation, and South Carolina ) Electric & Gas Company, ) ) Defendants. ) ) This matter is before the court pursuant to Plaintiffs Harry Pennington III and Timothy Lorentz s Motion for Class Certification, on behalf of themselves and all others similarly situated (collectively, Plaintiffs ) (ECF No. 21). Defendants Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc. (collectively, Fluor Defendants ), SCANA Corporation ( SCANA ), and South Carolina Electric & Gas Company ( SCE&G ) (collectively, SCANA Defendants ) filed responses in opposition (ECF Nos. 37, 123, 124). For the reasons set forth below, the court GRANTS Plaintiffs Motion for Class Certification (ECF No. 21). I. BACKGROUND RELEVANT TO THE INSTANT MOTION This case arises out of the decision on July 31, 2017, to stop all construction at the V.C. Summer Nuclear Station ( VC Summer ) in Jenkinsville, South Carolina. (ECF No. 41 at 2 4.) As a result of that decision, Plaintiffs allege that approximately 5,000 employees were laid off who had been working and/or receiving assignments at VC Summer. (Id. at 5 23.) Until their respective terminations, Plaintiffs further allege that Pennington worked directly for Fluor Daniel 1

7 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 2 of 11 Pg 7 of 27 at VC Summer as a Heavy Equipment Operator and Lorenz was employed by Westinghouse Electric Company LLC ( WEC ) as a Project Manager. (Id. at 4 14, 15.) However, at the same time, for purposes of the WARN Act, Plaintiffs allege that they were employees of SCANA Defendants. (Id. at 2 1, 2.) To this point, Plaintiffs generally allege that SCANA Defendants were the single employer together with Fluor Defendants and/or WEC of all individuals working at VC Summer. (Id. 6; see also id. at 3 7, & ) In their Amended Complaint, Plaintiffs allege that in 2008, SCANA Defendants entered into an agreement with WEC for the purpose of constructing two AP nuclear reactors known as VC Summer 2 and 3. (ECF No. 41 at 6 31.) Plaintiffs allege that as the general contractor WEC was generally responsible for the design, manufacture, and procurement of the nuclear reactor, steam turbines, and generators. (Id. at 7 34.) Plaintiffs further allege that in or around 2015, Fluor Corporation was brought in as a subcontractor to WEC to provide staffing for craft (manual labor) employees and [] take primary responsibility for on-site construction to include responsibility for the craft, field engineers, and project controls personnel including the costs and scheduling of personnel. (Id. 37, 38.) At the same time, WEC generally accepted liability for the cost overruns on the Summer Project, by agreeing to build it for a fixed-price at SCANA [Defendants] option, which option was exercised in May 2016 thus capping [] costs for the Summer Project at close to $14 billion. (Id. 39, 40.) Plaintiffs allege that [i]n early 2017, WEC experienced cash shortfalls related to the Summer Project and a deepening liquidity crisis, which eventually led to WEC and its subsidiaries 1 The AP1000 is a nuclear power plant designed and sold by Westinghouse Electric Company, now majority owned by Toshiba. AP1000, (last visited July 17, 2018). The plant is a pressurized water reactor with improved use of passive nuclear safety. Id. 2

8 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 3 of 11 Pg 8 of 27 fil[][ing] [] voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code in the Southern District of New York on March 29, (ECF No. 41 at 8 44, 45.) Plaintiffs allege that as a result of WEC s bankruptcy SCANA [Defendants] became financially accountable for the ongoing costs and plan of completion for the VC Summer Project. (ECF No. 71 at 10.) Moreover, Plaintiffs assert that SCANA Defendants took over complete control of the VC Summer Project as demonstrated by the following post-bankruptcy conduct: SCANA [Defendants] began paying Fluor s payroll directly to Fluor (ECF No. 41 at 10 57); SCANA Defendants 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 (id. at 11 61); SCANA [Defendants] [] 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 (id. 64); SCANA [Defendants] [] input into day-to-day operations became proactive, intrusive, and decisional, in keeping with its assumption of CEO-type control and leadership (id. at 13 72); SCANA [Defendants ] field monitors, who had previously been silent, became vocal in directing Fluor/WEC personnel (id. 73); SCANA [Defendants] 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 (id. 75); SCANA [Defendants] used their authority to set the levels of craft personnel needed to perform assignments or determine whether to hire highly skilled employees for specialized jobs (id. at14 76, 77, 80); SCANA [Defendants] controlled the work schedules of employees of WEC and Fluor to include whether they worked overtime, the number of overtime hours, their days off or days designated as holidays (id. at ); and SCANA [Defendants] provided the facilities, equipment, tools [heavy construction equipment] and materials necessary to complete the work (id. 85, 86). Plaintiffs allege that after SCANA Defendants gained control of the VC Summer Project, they recognized by at least March 2017, [that] mass layoffs and shutdowns were almost inevitable 3

9 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 4 of 11 Pg 9 of 27 at the Summer Project in mid-summer. (ECF No. 41 at ) Subsequently, on July 31, 2017, SCANA Defendants sent WARN Act correspondence to the Director of Business Services for the South Carolina Department of Employment and Workforce containing the following relevant information: This notice is provided in compliance with the Worker Adjustment Retraining and Notification Act and regulations promulgated thereunder. SCANA, the parent company of SCE&G, has decided to stop the construction of both Unit 2 and Unit 3 and file a petition for approval of abandonment with the Public Service Commission of South Carolina. Unfortunately, this process is expected to involve immediate, total, and permanent termination of the new nuclear construction project at VC Summer Nuclear Station,.... This complete termination of the construction project will affect 617 SCE&G employees and a currently unknown number of employees of affiliated companies that provide administrative support to the project. The separations are expected to begin on: September 30, (ECF No. 9-4 at 2.) Also on July 31, 2017, Plaintiffs allege that Fluor Defendants and WEC were told by SCE&G to cease work on the project immediately resulting in the immediate termination of Plaintiffs employment. (ECF No. 41 at ) Additionally, Plaintiffs contend that SCANA controlled the decision to terminate all the employees on the site without advance notice. (Id. 95.) As a result of the foregoing, Pennington filed a putative class action Complaint in this court against Defendants Fluor Corporation, Fluor Enterprises, Inc. and SCANA on August 8, 2017, alleging violations of the WARN Act. (ECF No. 1.) In his Complaint, Pennington sought to represent 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 reasonably foreseeable consequence of the mass 4

10 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 5 of 11 Pg 10 of 27 layoffs and/or plant closings ordered by Defendants on or about July 31, 2017,.... (ECF No. 1 at ) Pennington further alleged that Fluor Corporation, Fluor Enterprises, Inc. and SCANA knowingly failed to give their employees at least 60 days prior notice of termination of their employment as required by the WARN Act. (ECF No. 1 at 2 3.) On October 25, 2017, Pennington filed an Amended Class Action Complaint, which provided additional WARN Act allegations and added Timothy Lorentz as Plaintiff and Fluor Daniel and SCE&G as Defendants. (ECF No. 41.) On November 20, 2017, Fluor Defendants answered the Amended Complaint and asserted their affirmative defenses. (ECF No. 68.) As it pertains to the present Motion, Plaintiffs filed a Motion for Class Certification and Supplemental Motions in Support of Class Certification, stating that Plaintiffs have satisfied the requirements of Federal Rule of Civil Procedure 23. (ECF Nos. 21, 49, 82, 115.) 2 SCANA Defendants filed responses in opposition, maintaining that (1) Plaintiffs have not satisfied their evidentiary burden of proof and (2) Plaintiffs have not met the requirements of Federal Rule of Civil Procedure 23. (ECF Nos. 37, 123.) 3 SCANA Defendants main argument is that Plaintiffs do not provide any evidence of the manner by which SCANA and/or SCE&G supposedly controlled or dictated the terms and conditions of Plaintiffs work individually or any other specific individual on site who they seek to include in the purported class. (ECF No. 123 at 4-5.) SCANA Defendants position remains that they never implemented an across-the-project plan or policy to control or direct the work of the individuals employed by Fluor Defendants or Westinghouse. (Id. at 13.) Accordingly, SCANA Defendants argue that at least two requirements of class certification commonality and typicality cannot be met until the court decides whether 2 Lorentz was not yet a named plaintiff at the time ECF No. 21 (Motion to Certify Class) was filed. 3 SCE&G was not a party to this matter at the time ECF No. 37 (Response in Opposition to Motion to Certify Class) was filed. 5

11 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 6 of 11 Pg 11 of 27 the SCANA Defendants are considered a single employer with Plaintiffs respective immediate employers, Fluor Defendants and Westinghouse. (Id. at 7.) Therefore, SCANA Defendants assert that Plaintiffs cannot adequately represent the class because they were employed by different employers, working in different positions, and performing different tasks than the putative class members at the VC Summer Project. (Id. at 18.) The Fluor Defendants filed a response in opposition to Plaintiffs Motion, maintaining that (1) Plaintiffs shifting class definition is inappropriate; (2) Plaintiffs cannot meet the commonality or typicality prongs of Rule 23; and (3) Plaintiffs proposed notice is confusing and misleading. (ECF No. 124.) Similar to the SCANA Defendants, the Fluor Defendants contend that the single employer issue must be addressed prior to class certification. (Id. at 11.) Plaintiffs filed a reply to the SCANA Defendants Response, stating (1) class certification is appropriate because the predominant issues present in this case are class wide; and (2) the SCANA Defendants focus on ground-level operational activities is irrelevant because the allegations in the Amended Complaint address many aspects of the SCANA Defendants control over the VC Summer Project, none of which entail individualized control over each employee s job duties. (ECF No. 130.) Plaintiffs also filed a reply to the Fluor Defendants Response, averring that (1) the class lists are easily ascertained, and therefore no discovery is needed; and (2) adopting the Amended Complaint s class definition will avoid any concerns regarding the two groups in the class. (ECF No. 131.) 6

12 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 7 of 11 Pg 12 of 27 II. JURISDICTION This court has jurisdiction over Plaintiffs WARN Act cause of action via 28 U.S.C. 1331, as it arises under a law of the United States, and also via 29 U.S.C. 2104(a)(5), which empowers district courts to hear claims alleging violations of the WARN Act. III. LEGAL STANDARD The United States Court of Appeals for the Fourth Circuit has held that a class cannot be certified if the class members are not identifiable or ascertainable, stating... Rule 23 contains an implicit threshold requirement that the members of a proposed class be readily identifiable. EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)); see also Solo v. Bausch & Lomb Inc., No. 2:06-CV DCN, 2009 WL , at *4 (D.S.C. Sept. 25, 2009) ( [A]s a preliminary matter, the court must consider the definition of the class when determining the appropriateness of class certification. ) (citing Kirkman v. North Carolina R. Co., 220 F.R.D. 49, 53 (M.D.N.C. 2004)). In addition to demonstrating ascertainability, the party seeking class certification bears the burden of demonstrating that it meets the requirements of Rule 23. See, e.g., Romig v. Pella Corporation, 2016 WL , at *3 (D.S.C. June 3, 2016). Rule 23(a) provides that certification is only proper if: (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. Once these prerequisites are met, the proposed class must still satisfy one of three additional requirements for certification under Rule 23(b). See EQT Prod. Co., 764 F.3d at 357 (quoting Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003)). Plaintiffs seek 7

13 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 8 of 11 Pg 13 of 27 certification under Rule 23(b)(3); therefore, Plaintiffs must show that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods of fairly and efficiently adjudicating the controversy. (emphasis added). The predominance requirement is similar to but more stringent than the commonality requirement of Rule 23(a). Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006) (quoting Lienhart v. Dryvit Sys., 255 F.3d 138, 146 n.4 (4th Cir. 2001)). A party must produce enough evidence to demonstrate that class certification is in fact warranted. See Wal Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). If one of the requirements necessary for class certification is not met, Plaintiffs efforts to certify a class must fail. See Clark v. Experian Info. Sols. Inc., Nos. Civ.A.8: , Civ.A.8: , Civ.A.8: , 2001 WL , at *4 (D.S.C. March 19, 2001) (citing Harriston v. Chicago Tribune Co., 992 F.2d 697, 205 (7th Cir. 1993)). The court must go beyond the pleadings, taking a close look at relevant matters, conducting a rigorous analysis of such matters, and making findings that the requirements of Rule 23 have been satisfied. See Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365 (4th Cir. 2004) (citations omitted). While the court should not include consideration of whether the proposed class is likely to prevail ultimately on the merits, id. at 366 (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, (1974)), sometimes it may be necessary for the district court to probe behind the pleadings before coming to rest on the certification question. Id. (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982)). 8

14 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 9 of 11 Pg 14 of 27 IV. ANALYSIS A. Federal Rule of Civil Procedure 23(a) The Rule 23 requirements have been met. First, numerosity is satisfied because there are an estimated 5,000 putative class members who worked at the VC Summer Project who were terminated allegedly by all Defendants beginning on July 31, 2017 or thereafter as the reasonably foreseeable result of the mass layoffs or plant closings carried out on July 31, 2017 (ECF No. 1, 1, 101, 102). Plainly, such a large number makes joinder impracticable. Second, commonality is satisfied because this factor of Rule 23(a) requires the plaintiff to demonstrate that the putative class members have suffered the same injury. Thomas v. FTS USA, LLC, 312 F.R.D. 407, 417 (E.D. Va. 2016). Plaintiffs claims here are not different from the claims of the absent class members, nor will the defenses raised against Plaintiffs differ from those asserted against the group. Plaintiffs proof of their own individual claims, and refutation of Defendants assertion that they are not a single employer, will advance the claims of the putative class. Here, there are at least three common questions of fact and law. First, whether Defendants were subject to the requirements of the WARN Act. Second, whether the appropriate WARN notice was given. Third, whether Defendants are legally liable for the alleged WARN violation as a single employer. Third, typicality, which is similar to commonality, is satisfied here because Plaintiffs and the putative class have an interest in prevailing in similar legal claims. Nolan v. Reliant Equity Partners, LLC, 08-cv-062, 2009 WL , at *3 (N.D. W.Va. Aug. 10, 2009). All class members, including Plaintiffs, must eventually establish that Defendants acted as a single employer in order to hold them liable for the WARN violation. The court disagrees with Defendants contention that because the single employer issue has not yet been decided, the court 9

15 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 10 of 11 Pg 15 of 27 cannot certify the class at this time. The court is not bound by the class definition proposed in the Amended Complaint and can modify its language as the case progresses. See Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993). Fourth, adequacy of representation is satisfied here. Pennington has no conflicts of interest with the putative class and has vigorously pursued his claims. (See ECF No ) Lorentz, the new proposed class representative, has also fairly and adequately represented the interests of the putative class members. (See ECF No ) Lorentz has no conflicts of interest with the putative class and intends to continue to assist in prosecution of this case should he be appointed class representative. (Id.) The proposed class counsel has also vigorously pursued this action by continuing to stay involved in the developments in this case and the three other related WARN actions. (See ECF No ) Therefore, Plaintiffs satisfy all of the requirements of Rule 23(a). B. Federal Rule of Civil Procedure 23(b)(3) A class action is a superior method of adjudicating the WARN claims here. It is in the interest of judicial economy and efficiency to consolidate as many as 5,000 potential claims into a single action, which will allow the common questions of law and fact to be determined collectively, rather than by consideration in a haphazard and piecemeal fashion. Finally, class action litigation is superior to other methods of resolving the dispute because without certification, it would be economically unfeasible for individual plaintiffs to bring their cases independently. See Quint v. Trident Mgmt., Inc., No. 1:14-CV-287, 2014 WL , at *1 (M.D.N.C. Aug. 20, 2014) (proposed WARN class satisfied Rule 23(b)(3) because common questions of law predominate over individual questions and a class action is superior to other available methods for the fair and efficient adjudication of the matters in controversy. ). 10

16 0:17-cv JMC Date Filed 07/17/18 Entry Number 133 Page 11 of 11 Pg 16 of 27 Accordingly, both prongs of Rule 23(b)(3) predominance and superiority are satisfied here. As such, the court finds that class certification is appropriate. Accordingly, it is hereby ORDERED: A class (the Class ) is certified comprising: Plaintiffs and all persons (i) who were former employees of Defendants and worked at, reported to, or received assignments from the V.C. Summer Nuclear Station (the Facility ), located at Highway 215 & Bradham Blvd, Jenkinsville, South Carolina 29065, (ii) who were terminated without cause on or about July 31, 2017 or 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, (iii) who are affected employees within the meaning of 29 U.S.C. 2101(a)(5), and (iv) who have not filed a timely request to opt-out of the Class. (ECF No. 21). V. CONCLUSION Based on the foregoing, the court GRANTS Plaintiffs Motion for Class Certification IT IS SO ORDERED. July 17, 2018 Columbia, South Carolina United States District Judge 11

17 Pg 17 of 27 EXHIBIT B

18 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 1 of 10 Pg 18 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Harry Pennington III and Timothy Lorentz, on ) Civil Action No.: 0:17-cv JMC behalf of themselves and all others similarly ) situated, ) ) Plaintiffs, ) ) ORDER v. ) ) Fluor Corporation, Fluor Enterprises, Inc., Fluor ) Daniel Maintenance Services, Inc., SCANA ) Corporation, and South Carolina Electric & Gas ) Company, ) ) Defendants. ) ) Lawrence Butler, Lakeisha Darwish, Darron Eigner, ) Civil Action No.: 0:17-cv JMC Jr., Bernard A. Johnson, and Jimi Che Sutton, ) ) Plaintiffs, ) ) ORDER v. ) ) Fluor Corporation and Fluor Enterprises, Inc., ) ) Defendants. ) ) Plaintiffs Harry Pennington III and Timothy Lorentz (together the Pennington Plaintiffs ) filed a putative class action against Fluor Corporation ( Fluor ), Fluor Enterprises, Inc. ( FEI ), Fluor Daniel Maintenance Services, Inc. ( FDMSI ), SCANA Corporation ( SCANA ) and South Carolina Electric & Gas Company ( SCE&G ) (collectively the Pennington Defendants ) alleging that the termination of their employment on July 31, 2017, was in violation of the Worker Adjustment and Retraining Notification Act (the WARN Act ) 1, 1 In general terms, the WARN Act requires certain employers to provide affected employees with sixty-day s notice of a plant closing or mass layoff. Meson v. GATX Tech. Servs. Corp., 1

19 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 2 of 10 Pg 19 of U.S.C Pennington v. Fluor Corp., C/A No. 0:17-cv JMC, ECF No. 41 (D.S.C. Oct. 25, 2017) ( Pennington ). Plaintiffs Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson and Jimi Che Sutton (collectively the Butler Plaintiffs ) also filed WARN Act claims resulting from their terminations on July 31, 2017, against Fluor and FEI (together the Butler Defendants ). See Butler v. Fluor Corp., C/A No. 0:17-cv JMC, ECF No. 1 (D.S.C. Aug. 18, 2017) ( Butler ). This matter is before the court by way of competing Motions to Appoint Class Counsel and to Appoint Plaintiffs as Class Representatives filed by Pennington Plaintiffs and Butler Plaintiffs pursuant to Rule 23 of the Federal Rules of Civil Procedure. (ECF No. 21 (Pennington); ECF No. 62 (Butler).) More specifically, Pennington Plaintiffs assert that the court should appoint Pennington and Lorentz as class representatives, appoint Outten & Golden LLP as class counsel with Bloodgood & Sanders, LLC as local counsel. (ECF No. 115 at 7 (Pennington); see also ECF No at 23 (Pennington).) In contrast to Pennington Plaintiffs position, Butler Plaintiffs assert that their attorneys representing the firms of Gaffney Lewis & Edwards, LLC, Yarborough Applegate LLC and Klehr Harrison Harvey Branzburg LLP satisfy the requirements of Rule 23 and should be appointed as class counsel. (ECF No. 45 at 7 (Butler); see also ECF No. 5 at 9 13 (Butler).) Pennington Plaintiffs and Butler Plaintiffs oppose each other s Motions respectively. (See ECF No. 89 (Pennington); ECF Nos. 20, 33, 65 (Butler).) Additionally, neither Pennington Defendants nor Butler Defendants filed specific substantive opposition to the pending Motions. 507 F.3d 803, 808 (4th Cir. 2007) (citing 29 U.S.C. 2102(a)). An employer who fails to provide this notice is liable to each affected employee for backpay, benefits, and attorney s fees. Id. (citing 29 U.S.C. 2104(a)). 2

20 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 3 of 10 Pg 20 of 27 I. BACKGROUND RELEVANT TO INSTANT MOTIONS These cases arise out of the decision on July 31, 2017, to stop all construction at the V.C. Summer Nuclear Station ( VC Summer ) in Jenkinsville, South Carolina. (ECF No. 41 at 2 4 (Pennington); ECF No. 1 at 3 16 (Butler).) As a result of that decision, approximately 4,000 to 5,000 employees were laid off who had been working and/or receiving assignments at VC Summer. (ECF No. 41 at 5 23 (Pennington); ECF No. 1 at 3 17 (Butler).) As a result of the foregoing, Pennington filed a putative class action Complaint in this court against Fluor, FEI and SCANA on August 8, 2017, alleging violation of the WARN Act. (ECF No. 1 (Pennington).) In his Complaint, Pennington sought to represent 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 reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017,.... (ECF No. 1 at (Pennington).) Pennington further alleged that Fluor, FEI and SCANA knowingly failed to give their employees at least 60 days prior notice of termination of their employment as required by the WARN Act. (ECF No. 1 at 2 3 (Pennington).) On October 25, 2017, Pennington filed an Amended Class Action Complaint, which provided additional WARN Act allegations and added Timothy Lorentz as Plaintiff and FDMSI and SCE&G as Defendants. (ECF No. 41 (Pennington).) On August 18, 2017, Butler Plaintiffs filed a WARN Act action against Fluor and FEI. (ECF No. 1 (Butler).) Butler Plaintiffs seek to represent all other similarly situated former employees, pursuant to 29 U.S.C. 2104(a)(5) and Rule 23(a), who worked for Fluor within 90 3

21 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 4 of 10 Pg 21 of 27 days of July 31, 2017, 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 ordered by Fluor on or about July 31, 2017,.... (ECF No. 1 at (Butler).) In their respective Complaints, Pennington Plaintiffs and Butler Plaintiffs both allege that they did not receive at least 60 days prior notice of termination of their employment as required by the WARN Act. (ECF No. 1 at 2 3 (Butler); ECF No. 41 at 2 3 (Pennington).) On August 29, 2017, Butler Plaintiffs filed a Motion to Appoint Interim Class Counsel. (ECF No. 5 (Butler).) On October 4, 2017, Pennington Plaintiffs moved the court to appoint their own attorneys as class counsel. (ECF No. 21 (Pennington).) After concluding that the appointment of class counsel is premature at this time, the court denied Butler Plaintiffs Motion without prejudice (ECF No. 40 (Butler)) on January 24, 2018, in order to allow the attorneys representing Pennington Plaintiffs and Butler Plaintiffs to participate in a motions hearing addressing then pending Motions to Dismiss. (See ECF No. 69 (Pennington); ECF No. 17 (Butler).) After denying the aforementioned Motions to Dismiss, the court set up a briefing schedule resulting in the filing on June 13, 2018, of the instant Motions to Appoint Class Counsel and to Appoint Plaintiffs as Class Representatives. 2 (ECF No. 115 (Pennington); ECF No. 62 (Butler).) II. JURISDICTION This court has jurisdiction over Pennington Plaintiffs and Butler Plaintiffs WARN Act claims via 28 U.S.C. 1331, as they arise under a law of the United States, and also via 29 2 Additionally, Pennington Plaintiffs and Butler Plaintiffs also moved for certification of their respective classes. (See ECF Nos. 21, 115 (Pennington); ECF No. 62 (Butler).) On July 17, 2018, the court granted Pennington Plaintiffs Motion for Class Certification. (ECF No. 133 (Pennington).) 4

22 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 5 of 10 Pg 22 of 27 U.S.C. 2104(a)(5), which empowers district courts to hear claims alleging violation of the WARN Act. III. LEGAL STANDARD Rule 23 of the Federal Rules of Civil Procedure provides that [u]nless a statute provides otherwise, a court that certifies a class must appoint class counsel. Fed. R. Civ. P. 23(g)(1). 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; (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. Fed. R. Civ. P. 23(g)(1). Additionally, [c]lass counsel must fairly and adequately represent the interests of the class. Id. at 23(g)(4). IV. ANALYSIS A. The Parties Arguments In their Motion as it relates to Rule 23(g), Pennington Plaintiffs point out that their attorneys have done work on the case so far to include interviewing dozens of putative class members, advising the over 160 individual former employees [who] have retained Pennington Counsel, and traveling to South Carolina to hold an informational meeting to provide putative class members with relevant information about the WARN Act and their rights. (ECF No at 20 (Pennington).) Further, Pennington Plaintiffs assert that their attorneys from the law firm of Outten & Golden, have substantial experience in WARN Act class action cases since they (1) are the largest law firm in the nation that exclusively represents employees, (2) have the largest 5

23 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 6 of 10 Pg 23 of 27 dedicated WARN Act practice group... of its kind and (3) have been appointed class counsel in over 75 WARN Act cases. (Id. at 21 (citing ECF No at & 12 23) (Pennington).) Additionally, Pennington Plaintiffs contend that their local counsel, Bloodgood & Sanders, LLC, specializes in employment law and provide[s] a local presence and advice on compliance with local rules and the local practice. (Id. at 22 (Pennington).) Finally, as it relates to available resources, Pennington Plaintiffs reiterate that Outten & Golden has a seven person WARN Act practice group that is almost exclusively devoted to WARN Act litigation. (Id. at 23 (Pennington).) Butler Plaintiffs argue that their attorneys satisfy the Rule 23(g) requirements and are the most qualified to represent the interests of the Class. (ECF No at (Butler).) In support of this argument, Butler Plaintiffs first assert that their attorneys have been actively pursuing WARN claims on multiple fronts on behalf of all of the employees who worked at the VC Summer Location until their termination on July 31, 2017 including in this Court and in the Westinghouse Bankruptcy. (Id. at 22 (Butler).) Butler Plaintiffs next assert that their attorneys are qualified to serve as class counsel because they have been retained directly by the Butler Plaintiffs, as well as by about 430 others to date. (ECF No at 22 (citing ECF No at 3 4 6) (Butler).) Finally, Butler Plaintiffs contend that (1) Klehr Harrison has extensive experience litigating on behalf of thousands of employees... in numerous class action lawsuits and (2) Gaffney Lewis and Yarborough Applegate have extensive class action and/or employment law experience, [and] already have developed relationships with hundreds of putative class members. (Id. (citing ECF No at ) (Butler).) 6

24 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 7 of 10 Pg 24 of 27 B. The Court s Review 1. Motion to Appoint Class Counsel When appointing class counsel, the Court must consider the work performed by counsel so far in the action, counsel s experience in handling class actions and complex litigation, counsel's knowledge of the applicable law, and the resources that counsel will commit to representing the class. Etzelsberger v. Fisker Auto., Inc., 300 F.R.D. 378, 385 (C.D. Cal. 2013) (citing Fed. R. Civ. P. 23(g)(1)(A)). Both Pennington Plaintiffs and Butler Plaintiffs propose that their attorneys should be appointed class counsel. Upon its review of their respective submissions, the court observes that it is unable to recognize a discernible difference in the Rule 23(g) applications of counsel for Pennington Plaintiffs and Butler Plaintiffs. Both groups of attorneys have done work to become acquainted with putative class members, have handled employment matters to include WARN Act cases and possess the requisite knowledge and resources. Accordingly, the court is persuaded that the attorneys for both Pennington Plaintiffs and Butler Plaintiffs are capable of handling these matters and would be able to adequately represent the interests of the putative class. Moreover, neither side presents persuasive argument as to why the other side is incapable of adequately representing the class. In trying to formulate a decision, the court could not help but notice the observation by Charles Ercole of Klehr Harrison that his firm and Outten & Golden have previously been able to work[] seamlessly as co-counsel. (ECF No at 8 18.) The putative class in these cases is estimated to number around 5,000 individuals. To ensure that all of these individuals are fairly and adequately represented, the court is persuaded that the scope of these actions necessitates use of a multi-firm structure. For this reason, the court appoints as co-lead class counsel Jack Raisner and Rene Roupinian of Outten & Golden LLP and Lee Moylan and Charles Ercole of 7

25 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 8 of 10 Pg 25 of 27 Klehr Harrison Harvey Branzburg LLP in accordance with Rule 23(g)(1). See Wright v. Krispy Kreme Doughnuts, Inc., 232 F.R.D. 528, 530 (M.D.N.C. 2005) ( The court... may appoint one or more attorneys as... [L]ead [C]ounsel... for the consolidated cases and accordingly assign the designated lawyers specific responsibilities. ) (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d 2385, at 463 (2d ed & Supp. 2005) (footnote omitted)). As for local counsel, the court appoints Amy Gaffney, Regina Lewis and Susan Edwards of Gaffney Lewis & Edwards, LLC, Nancy Bloodgood and Lucy Sanders of Bloodgood and Sanders, and David Yarborough, Jr. and William Applegate, IV of Yarborough Applegate. The combined efforts of these attorneys will provide Pennington Plaintiffs and Butler Plaintiffs with counsel that will effectively represent their interests. The court s intention with this inclusive appointment is to place responsibility for the putative class on these attorneys specifically and not their firms generally. 2. Motion to Appoint Class Representative Pennington Plaintiffs and Butler Plaintiffs move the court for appointment as class representatives. For the reasons discussed generally in connection with the court s Rule 23(a) analysis in its class certification order (see ECF No. 133 at 9 10 (Pennington)), the court finds that the interests of both Pennington Plaintiffs and Butler Plaintiffs are aligned with those of the other class members. Accordingly, the court appoints Harry Pennington III, Timothy Lorentz, Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson and Jimi Che Sutton as class representatives. 3. Consolidation Under Rule 42 of the Federal Rules of Civil Procedure, a court may consolidate cases for trial or other purposes when the actions involve a common question of law or fact. Fed. R. 8

26 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 9 of 10 Pg 26 of 27 Civ. P. 42(a). The court previously consolidated the Pennington and Butler actions for purposes of discovery and pretrial motions. (ECF No. 86 at 8 (Pennington); ECF No. 43 at 8 (Butler).) In reviewing the instant Motions and the Motions for Class Certification (see ECF Nos. 21, 115 (Pennington); ECF No. 62 (Butler)), the court was reminded that each case presents virtually identical factual and legal issues. Given the similarities of the cases and the lack of any apparent inconvenience, delay, or expense that would result from bringing the cases together, the court consolidates these cases for all purposes pursuant to Rule 42(a). See Rule v. Best Indus., Inc., No , 1997 WL , at *8 (4th Cir. Aug. 25, 1997) ( Rule 42(a) contemplates consolidation precisely to avoid unnecessary costs or delay when actions involve common questions of law or fact. ). V. CONCLUSION Upon careful consideration of the entire record and the parties arguments, the court hereby GRANTS the Motions to Appoint Class Counsel and to Appoint Plaintiffs as Class Representatives of Plaintiffs Harry Pennington III and Timothy Lorentz. Pennington v. Fluor Corp., C/A No. 0:17-cv JMC, ECF No. 21 (D.S.C. Oct. 4, 2017). Further, the court GRANTS the Motions to Appoint Class Counsel and to Appoint Plaintiffs as Class Representatives of Plaintiffs Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson, and Jimi Che Sutton. Butler v. Fluor Corp., C/A No. 0:17-cv JMC, ECF No. 62 (D.S.C. June 13, 2018). As a result of the foregoing, the court appoints Jack Raisner and Rene Roupinian of Outten & Golden LLP; Lee Moylan and Charles Ercole of Klehr Harrison Harvey Branzburg LLP; Amy Gaffney, Regina Lewis and Susan Edwards of Gaffney Lewis & Edwards, LLC; Nancy Bloodgood and Lucy Sanders of Bloodgood and Sanders; and David Yarborough, Jr. and William Applegate, IV of Yarborough Applegate as class counsel in both lawsuits going 9

27 0:17-cv JMC Date Filed 07/18/18 Entry Number 78 Page 10 of 10 Pg 27 of 27 forward. The class representatives are Harry Pennington III, Timothy Lorentz, Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson and Jimi Che Sutton. Finally, the court consolidates Pennington v. Fluor Corp., C/A No. 0:17-cv JMC, and Butler v. Fluor Corp., C/A No. 0:17-cv JMC, for all purposes under the above-stated caption. All relevant filings and submissions shall be made in both case numbers for this point forward. IT IS SO ORDERED. July 18, 2018 Columbia, South Carolina United States District Judge 10