IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Transcription

1 Pg 1 of 21 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WESTINGHOUSE ELECTRIC COMPANY LLC, et al., 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. DEFENDANTS MEMORANDUM IN OPPOSITION TO MASSEY PLAINTIFFS REQUEST TO TRANSFER Dated: August 29, 2018 New York, New York Gary T. Holtzer Robert J. Lemons Garrett A. Fail David N. Griffiths WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel to Wind Down Co.

2 Pg 2 of 21 TABLE OF CONTENTS I. INTRODUCTION... 1 II. RELEVANT FACTUAL BACKGROUND... 2 III. PROCEDURAL HISTORY... 3 IV. ARGUMENT... 5 Page A. Transfer is Not in the Interests of Justice Because it Would Preclude the Efficient Resolution of the Claims in this Action, Needlessly Complicate the Factual and Legal Issues, and Waste the Parties Resources Westinghouse s Unforeseen Business Circumstance Defense is Unique and Once Decided Will Efficiently Resolve the Westinghouse Action Factual and Legal Distinctions Weigh in Favor of Denying Transfer No Plaintiff or Class Members Will be Prejudiced if Transfer is Denied B. Plaintiffs Fail to Establish with Clear and Convincing Evidence that Any of the Remaining Eight Factors Weigh in Favor of Transfer Convenience of the Witnesses Weighs in Favor of Denying Transfer The Location of Documents and Proof Weighs in Favor of Denying Transfer Convenience of the Parties Weighs in Favor of Denying Transfer The Locus of Operative Facts Weighs in Favor of Denying Transfer The Massey Plaintiffs Choice to File the Adversary Proceeding in New York Weighs in Favor of Denying Transfer V. CONCLUSION i

3 Pg 3 of 21 Cases TABLE OF AUTHORITIES Page(s) American Eagle Outfitters, Inc. v. Tala Bros Corp., 457 F. Supp. 2d 474 (S.D.N.Y. 2006)... 6 Bukhari, et al. v. Deloitte & Touche, LLP, et al., 2012 WL (S.D.N.Y. Nov. 26, 2012)... 5 City of Perry v. Proctor & Gamble Co., 2016 WL (S.D.N.Y. Sept. 28, 2016)... 6 Cohn v. Metrop. Life Ins. Co., 2007 WL (S.D.N.Y. May 31, 2007)... 6, 16 Eagle Auto Mall Corp. v. Chrysler Group, LLC 760 F. Supp. 2d 421 (S.D.N.Y. 2011) Earley v. BJ s Wholesale Club, Inc., 2007 WL (S.D.N.Y. June 4, 2007) United States ex rel. Fisher v. Bank of America, N.A., 204 F. Supp. 3d 618 (S.D.N.Y. 2016)... 6, 15, 16 Guippone v. BH S & B Holdings LLC, 737 F.3d 221 (2d Cir. 2013)... 8, 12 Hsin Ten Enterprise USA, Inc. v. Clark Enterprises, 138 F. Supp. 2d 449 (S.D.N.Y. 2000) Lawrence v. Xerox Corp., 56 F. Supp. 2d 442 (D.N.J. 1999)... 7 MasterCard Int l. v. Lexcel Solutions, 2004 WL (S.D.N.Y. June 16, 2004)... 6, 14 Megna v. Biocomp Laboratories, 220 F. Supp. 3d 496 (S.D.N.Y. 2016) Molinari v. Bloomberg, 2008 WL (E.D.N.Y. Dec. 22, 2008) N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102 (2d Cir. 2010)... 5 ii

4 Pg 4 of 21 In re Primeo, 2011 WL (S.D.N.Y. June 8, 2011)... 7, 9 Tomita Techs. USA, LLC v. Nintendo Co., LTD, 818 F. Supp. 2d 770 (S.D.N.Y. 2011)... 7, 9, 15 Statutes 11 U.S.C. 502(c) U.S.C. 105(a) U.S.C. 1404(a)... 9, U.S.C. 2104(a)... 8, 12 iii

5 Pg 5 of 21 Pursuant to this Court s order during the parties July 31, 2018 status conference, Defendants Westinghouse Electric Company LLC, et al. ( Westinghouse or the Westinghouse Defendants ) 1 in Gladden et al. v. WECTEC LLC et al. and Massey et al. v. Westinghouse Electric Company LLC, Adv. Pro. No (the Westinghouse Action ) respectfully submit this memorandum in opposition to the Massey Plaintiffs letter request, dated July 24, 2018, Westinghouse Bankr. Action, Dkt. No. 3619, seeking to transfer this Westinghouse Action to the federal district court in South Carolina, to be consolidated with Butler, et al. v. Fluor Corporation, et al., Case No. 17-cv (the Butler Action ) (D.S.C. filed Aug. 18, 2017) and Pennington, et al. v. Fluor Corporation, et al., Case No. 17-cv-02094, (the Pennington Action ) (D.S.C. filed Aug. 8, 2017) (collectively, the South Carolina Actions ). I. INTRODUCTION If the Court retains this Action, this Court will enable approximately 400 former Westinghouse employees to efficiently litigate the targeted questions of whether their direct employer, Westinghouse, properly provided them notice pursuant to the Worker Adjustment Retraining and Notification Act ( WARN ) and/or whether Westinghouse can satisfy the unforeseen business circumstances exception under WARN. Based upon those discrete findings, Westinghouse will either owe its direct employees statutory damages under WARN, or it will not. In contrast, if the Court transfers this Action, for consolidation with the South 1 The Westinghouse Defendants include 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. As of August 1, 2018, and since the Debtors plan of reorganization became effective, Wind Down Co. has succeeded to the Westinghouse Defendants interests and obligations. See, e.g., In re Westinghouse Electric Company LLC, et al., Case No (Bankr. S.D.N.Y. filed Mar. 29, 2017) ( Westinghouse Bankr. Action ), Dkt. Nos. 2986, 2988, 3705.

6 Pg 6 of 21 Carolina Actions, any resolution as to Westinghouse employees will be delayed until at least 2020, which is when the South Carolina Actions are currently scheduled to proceed to trial. Further, consolidation with the South Carolina Actions would unnecessarily expand, complicate and confuse the issues in this Action because the South Carolina Actions involve several additional defendants not named in this Action, potentially thousands more employees who Westinghouse did not employ, and far more complex factual circumstances and legal issues. And, notably, it is Plaintiffs who are moving for transfer who chose to litigate this case in the Southern District of New York, and it is highly unusual for a plaintiff to seek transfer out of the forum chosen in the first instance, leaving the parties to wonder why there is suddenly an urgency to transfer. II. RELEVANT FACTUAL BACKGROUND The South Carolina Electric & Gas Company ( SCE&G ) and SCANA Corporation ( SCANA ) owned the V.C. Summer Location in Jenkinsville, South Carolina. Westinghouse Bankr. Action, Doc. No. 4, March 29, 2017 Declaration of Lisa J. Donahue at 42. On May 23, 2008, SCE&G and its agent, the South Carolina Public Service Company LLC, entered into a contract with Westinghouse, as part of a consortium that included Stone Weber, Inc. for design, engineering and construction work for V.C. Summer Units 2 and 3 (the V.C. Summer Project ). Id. at Around late 2015 or early 2016, Westinghouse entered into a subcontractor agreement with Fluor, which assumed primary responsibility for physically constructing the plant. Id. at The Westinghouse Defendants directly employed several hundred employees who worked on the VC Summer Project, while SCANA, Fluor Corporation, Fluor Enterprises, Inc. and Fluor Daniel Maintenance Services, Inc. (collectively, Fluor or the Fluor Entities ), who 2

7 Pg 7 of 21 were subcontractors, directly employed an additional several thousand employees. See Pennington Action, Dkt. No. 41 at 23. Several delays impeded the timely completion of the VC Summer Project, and the projected cost for Santee Cooper, a partner in the project, and SCANA to complete the project skyrocketed. On July 31, 2017, SCANA and SCE&G announced that they were ceasing construction of the VC Summer Project. See Gladden v. Westinghouse Electric Company, Adv. Pro. No , Dkt. No. 5 at 7; Fleetwood v. WECTEC LLC and Stone & Webster Services LLC, Adv. Pro. No , Dkt. No. 6 at 7. Westinghouse learned of the project owners decision to shut down the VC Summer Project after-the-fact. SCANA s decision to shut down the VC Summer Project blindsided Westinghouse, who then sought to quickly reassign or transfer as many of its employees as possible. However, not every Westinghouse employee could be reassigned, and Westinghouse as soon as practicable issued WARN Act notices to its employees and the appropriate state and local officials on August 9 and 10, III. PROCEDURAL HISTORY On August 10, 2017, Plaintiffs Kent Gladden and Andrew Fleetwood filed the first two putative class action adversary proceeding complaints alleging WARN Act violations by the debtor-defendants associated with the termination of the VC Summer Project. Gladden v. Westinghouse Electric Company, Adv. Pro. No (the Gladden Action ), Dkt. No. 1; Fleetwood, et al. v. WECTEC LLC and Stone & Webster Services LLC, Adv. Pro. No , Dkt. No. 1. Approximately three months later, on November 9, 2017, the Massey Plaintiffs filed their complaint against the debtor-defendants. Massey, et al. v. Westinghouse Electric Company, et al., Adv. Pro. No (the Massey Action ), Dkt. 1. On January 19, 2018, Plaintiffs 3

8 Pg 8 of 21 Gladden and Fleetwood jointly filed an amended putative class action complaint, adding Plaintiff Rodney Cavalieri and naming additional debtor-defendants. See Gladden Action, Dkt. No. 12. On February 15, 2018, the Gladden and Massey Plaintiffs filed their respective motions for class certification, including competing requests for appointment of class counsel and class representative. See Gladden Action, Dkt. Nos. 19; 20. On March 15, 2018, Westinghouse and the Gladden Plaintiffs entered a stipulation, to be so ordered, to certify a class of individuals who were directly employed by Defendants at the V.C. Summer Facility... whose employment was terminated without cause beginning on or about July 31, 2017, within 30 days of that date or as the reasonably foreseeable consequence of the mass layoffs and/or plant closings of that date[.] See Gladden Action, Dkt. No. 32 at 3 ( Stipulation ). Westinghouse also opposed the Massey plaintiffs motion for class certification because the claims of the Massey plaintiffs are not typical of the claims of the absent Fluor employees they seek to represent. Westinghouse also sought dismissal under the first-to-file rule. See Gladden Action, Dkt. No. 34. The Court has yet to so-order the Stipulation, certify a class or appoint class counsel in Gladden or Massey. Separately, on August 8, 2017, Plaintiffs Harry Pennington III, et al. filed a putative class action in the District of South Carolina purporting to represent a class of several thousand Fluor employees, but also named SCANA and SCE&G as co-defendants and purported single employers. See Pennington Action, Dkt. No. 1 at 1-4; On August 18, 2017, in the District of South Carolina, Plaintiffs Lawrence Butler, et al. (represented by the Massey Plaintiffs counsel) filed a putative class action purporting to represent the same class of 4,000 Fluor Corporation and Fluor Enterprises, Inc. employees terminated on July 31, 2017, alleging violations of the WARN Act and the public policy of the state of South Carolina. See Butler 4

9 Pg 9 of 21 Action, Dkt. No. 1 at 1-24; These two cases have since been consolidated and are referred to herein as the South Carolina Actions. Following the denial of a number of dispositive pleadings motions in the South Carolina Actions, on July 17, 2018, the Court in the South Carolina Actions certified the following class: 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. See Order and Opinion, Pennington Action, Dkt. No Notably, the class includes the very same Fluor employees the Massey plaintiffs seek to include in this Action. On July 26, 2018, the Court also issued a scheduling order currently setting a trial date for July 6, See id.; July 26, 2018 Conference and Scheduling Order (the South Carolina Scheduling Order ), Pennington Action, Dkt. No. 135 at 3. IV. ARGUMENT The Massey Plaintiffs have utterly failed to show with clear and convincing evidence that transfer is appropriate pursuant to 28 U.S.C. 1404(a) or See N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010) (explaining that the moving party bears the burden of establishing, by clear and convincing evidence, that a transfer of venue is warranted.); Bukhari, et al. v. Deloitte & Touche, LLP, et al., 2012 WL , *2 (S.D.N.Y. Nov. 26, 2012) (Engelmayer, P.). Transfer and consolidation with the South Carolina Actions will also preclude any efficient resolution of this Action vis-à-vis the approximately 400 direct Westinghouse employees. Moreover, transfer and consolidation will needlessly delay the 5

10 Pg 10 of 21 completion of Westinghouse s bankruptcy case and impede the ability to liquidate efficiently these pending claims for which the estate s successor will be forced to continue to hold in reserve. Under 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 determining whether transfer is appropriate, courts consider the following nine factors: (1) trial efficiency and the interests of justice; (2) convenience of witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the convenience of the parties; (5) the locus of operative facts; (6) the availability of process to compel the attendance of unwilling witnesses; (7) the relative means of the parties; (8) the forum s familiarity with the governing law; and (9) the weight accorded a plaintiff s choice of forum. See, e.g., City of Perry v. Proctor & Gamble Co., 2016 WL , at *1 (S.D.N.Y. Sept. 28, 2016) (Furman, J.); United States ex rel. Fisher v. Bank of America, N.A., 204 F. Supp. 3d 618, (S.D.N.Y. 2016) (Cott, J.). [T]here is no rigid formula for balancing these factors and no single one of them is determinative. American Eagle Outfitters, Inc. v. Tala Bros Corp., 457 F. Supp. 2d 474, 477 (S.D.N.Y. 2006) (Sweet, J.); Cohn v. Metrop. Life Ins. Co., 2007 WL , *1 (S.D.N.Y. May 31, 2007) (Baer, H.). If a factor is neutral, that will militate against transfer. See MasterCard Int l. v. Lexcel Solutions, 2004 WL , *9 (S.D.N.Y. June 16, 2004) (Pauley, J.) ( [F]orum s familiarity with the governing law, convenience of witnesses, and availability of process factors are neutral, and thus favor... New York. ). The movant must show that the proposed forum is not only adequate, but also more convenient than the present forum. Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 451 (D.N.J. 1999). This Court should deny transfer because none of the factors weighs decidedly in favor of transfer. 6

11 Pg 11 of 21 A. Transfer is Not in the Interests of Justice Because it Would Preclude the Efficient Resolution of the Claims in this Action, Needlessly Complicate the Factual and Legal Issues, and Waste the Parties Resources Courts in the Second Circuit deny transfer when transfer will only serve to complicate, confuse and needlessly conflate the issues, resulting in delay. See, e.g., In re Primeo, 2011 WL , at *3-4 (S.D.N.Y. June 8, 2011) (Berman, R.) (denying motion to transfer and consolidate class actions noting the transfer would create unnecessary confusion and delay ); Tomita Techs. USA, LLC v. Nintendo Co., LTD, 818 F. Supp. 2d 770, 774 (S.D.N.Y. 2011) (Rakoff, J.) (denying transfer because transfers inevitably delay the proceedings. [and]... It is not in the interest of justice to countenance delay when... no substantial countervailing purpose will be served. ). Transferring this Action will be contrary to the interests of justice and efficiency because: (1) by retaining this Action, this Court can more efficiently resolve the discrete and more targeted claims against Westinghouse and the defenses asserted by Westinghouse; (2) significant factual and legal distinctions between this Action and the South Carolina Actions would needlessly expand, confuse and conflate the issues in both sets of proceedings; and (3) no plaintiff or putative class member will be prejudiced if this Court retains this Action. 1. Westinghouse s Unforeseen Business Circumstance Defense is Unique and Once Decided Will Efficiently Resolve the Westinghouse Action This Court has the opportunity to efficiently resolve this Action by deciding a single set of discrete issues whether Westinghouse properly provided WARN notices to its direct employees, and/or whether it can satisfactorily establish the unforeseen business circumstances ( UBC ) defense under the WARN Act. If this Court finds that Westinghouse s WARN notice to employees was proper, or that it has satisfied the UBC exception, the case is over, and the Westinghouse employees claims evaporate. If not, then Westinghouse will be found to owe its 7

12 Pg 12 of 21 direct employees statutory damages under the WARN Act, resolving the approximately 400 Westinghouse direct employees claims. See 29 U.S.C (a) (noting an employer is liable for up to 60 days of pay and benefits for failing to give proper notice under the WARN Act); see also Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013). In either case, the proceeding before this Court, including the Stipulation through which Westinghouse and the Gladden Plaintiffs have agreed to certify a class comprising of direct Westinghouse employees, can be resolved efficiently, and most likely much sooner than the 2020 (at the earliest) trial date if this Action is transferred to South Carolina. See South Carolina Scheduling Order, Dkt. No. 135 at 3 (noting that trial in the South Carolina Actions is set for July 6, 2020, but allowing the parties to seek a delay as necessary). Therefore, this Court should deny Plaintiffs request for transfer. Discovery relating to the UBC exception vis-à-vis Westinghouse and its direct employees will be much more targeted than discovery relating to the UBC exception that includes SCANA and Fluor s defenses. On the other hand, rather than preserving judicial and party resources, transfer to South Carolina would likely unnecessarily waste the parties (and particularly, Westinghouse s) resources, because Westinghouse would effectively be pulled into two plus years of costly litigation relating to issues that would not be necessary to resolve if the case were limited to Westinghouse s direct employees before this Court, as Westinghouse and the Gladden Plaintiffs have agreed. See South Carolina Scheduling Order, Dkt. No Indeed, the estate s recently formed successor will evaluate its potential options to further expedite resolution of this Action in order to facilitate liquidation of these claims postconfirmation and to complete the execution of the Plan of Reorganization, including but not limited to seeking an estimation of the claims pursuant to 11 U.S.C. 502(c) and 105(a) of the 8

13 Pg 13 of 21 Bankruptcy Code. Such matters could only be appropriately considered and determined by this Court which, of course, retains exclusive jurisdiction over the Plan of Reorganization. Courts have routinely held that transfer is inappropriate where consolidation with additional actions will delay an otherwise efficient resolution of the case in the transferor court. 2 See, e.g., In re Primeo, 2011 WL , at *3-4; Tomita, 818 F. Supp. 2d at 774. Thus, transfer and consolidation with the South Carolina Actions would not serve the interests of justice and this Court should deny transfer. 2. Factual and Legal Distinctions Weigh in Favor of Denying Transfer The Massey Plaintiffs ignore the key factual distinctions between this Action and the South Carolina Actions. Courts may deny transfer under 28 U.S.C or 1409 where factual distinctions are such that transfer will only serve to confuse and conflate the adjudication of the action. See, e.g., In re Primeo, 2011 WL , at *3-4; Tomita, 818 F. Supp. 2d at 774. Transfer of this Action to South Carolina will embroil Westinghouse in factual issues where it has little involvement, and prejudice Westinghouse as to certain legal issues most notably class certification that have already been decided without Westinghouse s input. Accordingly, the Court should deny Plaintiffs request for transfer. (a) The South Carolina Actions name several defendants that are not named in the Westinghouse Action The Butler Plaintiffs allege they are the employees of two of the three Fluor entities, but do not allege that they were employees of Westinghouse. See Butler Action, Dkt. No. 1 at 1-3; The Pennington Plaintiffs allege that their employers were the three Fluor Entities, 2 Further, transfer is particularly inappropriate here where Westinghouse had no opportunity to participate in the negotiation of the South Carolina Actions Scheduling Order. Although the Massey Plaintiffs have indicated that the Scheduling Order may need to be modified if this Action is transferred, this Action would still not proceed to trial until at the earliest July 6,

14 Pg 14 of 21 SCANA and SCE&G and, together with Westinghouse, constituted a single employer[.] See Pennington Action, Dkt. No. 41 at Accordingly, there will be issues in the South Carolina Actions that have no bearing on the Westinghouse Defendants, namely, whether Fluor employees can hold Fluor liable, and if not, whether Fluor employees can hold SCANA liable as a single employer, and then only if that argument also fails, whether Fluor employees can hold Westinghouse liable. Westinghouse is essentially a third and last resort from whom the Fluor employees seek judgment, when neither the Massey or Butler Plaintiffs have adduced any evidence to question either Fluor s or SCANA s ability to satisfy any judgment that may be owed to the Fluor employees. Moreover, neither SCANA nor Fluor has asserted any cross-claims against Westinghouse, seeking to hold Westinghouse liable for any judgment in the South Carolina Actions. In sum, to include Westinghouse as part of the South Carolina Actions, and further to force Westinghouse to litigate its otherwise discrete issues alongside the South Carolina Actions would prejudice Westinghouse and delay resolution of this Action. See Molinari v. Bloomberg, 2008 WL , at *6 (E.D.N.Y. Dec. 22, 2008) (noting that courts deny motions to transfer under 28 U.S.C when gains in efficiency [favoring transfer] are lost when the parties or legal issues differ between cases... [or] do not possess complete identify of legal issues ) (citing Generale Bank v. Wassel, 779 F.Supp. 310, 313 (S.D.N.Y. 1991) (denying transfer where plaintiff was not a party to action pending in transferee forum)). (b) Westinghouse s role in the VC Summer Project was markedly different from the roles of Fluor and SCANA Further, no plaintiff in the South Carolina Actions has alleged that Westinghouse had the same type of day-to-day control over operations at the VC Summer Project as did SCANA and Fluor. See, e.g., Butler Action, Dkt. No. 1 at 1-3; 14-21; Pennington Action, Dkt. No. 41 at 10

15 Pg 15 of ; Instead, the Pennington Plaintiffs have alleged that in the period leading up to the shutdown, SCANA was intimately involved in the day-to-day control and supervision of the Fluor employees, such that the alleged single employer relationship as between SCANA and Fluor is a distinct legal and factual issue that is not implicated in this Action because SCANA is not alleged to be a single employer with Westinghouse in this Action. See Pennington Action, Dkt. No. 41 at 34-38; Because of these facts, the majority of discovery in the South Carolina Actions, particularly vis-à-vis the alleged single employer relationship between Fluor and SCANA is likely to involve Fluor and SCANA. Also, any discovery directed at Westinghouse can be coordinated with Plaintiffs counsel to ensure the efforts of the parties and the court are not duplicated. Therefore, this Court should deny Plaintiffs request to transfer this Action to the South Carolina District Court. (c) Westinghouse had no right to oppose certification of an overly broad certified class in the South Carolina Actions This Action and the South Carolina Actions are also procedurally distinct. While a class in the South Carolina Actions has recently been certified and includes the identical Fluor employees that the Massey Plaintiffs seek to improperly include in this Action (notwithstanding that they do not have a single named Fluor class representative), no class has been certified in this Action. Westinghouse also did not have the opportunity to oppose class certification in the South Carolina Actions and, therefore, would be prejudiced if it was forced to be folded into the class certified in the South Carolina Actions. Westinghouse s prejudice is not illusory, as there are several thousands of class members in the South Carolina Actions class, while the Stipulation in the current proceeding potentially includes only 400 direct employees of Westinghouse. See Butler Action, Dkt. No. 1 at 1-25; 36-49; Order and Opinion, Pennington Action, Dkt. No. 133; Stipulation, Gladden Action, Dkt. No. 32 at 3. The thousands of 11

16 Pg 16 of 21 remaining class members in the South Carolina Action were never direct employees of Westinghouse, and are already seeking recourse against their direct employer, Fluor, and secondarily, SCANA as well, neither of which, as discussed, has given any indication that they would not be able to satisfy any judgment that is rendered against them. See, e.g., Butler Action, Dkt. No. 1 at 1-2 (alleging that the class members worked for Fluor and were terminated without cause... by Fluor ). Transfer to South Carolina could unnecessarily expose Westinghouse to significantly more liability without affording Westinghouse the right to oppose the overly broad certified class. 3. No Plaintiff or Class Members Will be Prejudiced if Transfer is Denied The plaintiffs and putative class members in the South Carolina Actions and this Action will suffer no prejudice if the Court denies transfer. Under the WARN Act, a former employee is entitled to back pay and benefits for the period of the alleged violation, up to a maximum of 60 days. See 29 U.S.C. 2104(a); see also Guippone, 737 F.3d at 225. There are no claims allowed for punitive or consequential damages under the WARN Act, and an employee may not collect more than the statutory amount of damages. See id. Thus, no plaintiff and class member can recover any damages in excess to what is prescribed in the Act, no matter how many defendants they seek to hold liable. As discussed above, Westinghouse would only be liable to the South Carolina Action plaintiffs if the Fluor Entities could not satisfy a judgment in favor of their direct employees, and if SCANA were also unable to satisfy a judgment if found to be a single employer with Fluor. More specifically, the Fluor employees can first seek back pay from their direct employer, in this case Fluor. If Fluor were unable to satisfy any judgment (and there has been no indication that Fluor could not), then the Flour employees could seek back pay from SCANA under a theory of single employer liability between Fluor and SCANA. Only upon the remote possibility of Fluor 12

17 Pg 17 of 21 and SCANA both being unable to satisfy a judgment as to the Fluor employees might Westinghouse possibly be implicated to satisfy a judgment in the event the Westinghouse Defendants are determined to have been a single employer with Fluor. The Massey Plaintiffs are thus asking this Court to subject Westinghouse to a minimum of two years of litigation on the chance that Flour and SCANA cannot satisfy a judgment, and putative class members who Westinghouse did not employ establish Westinghouse was somehow liable. See South Carolina Scheduling Order, Dkt. No. 135 at 3 (noting that trial in the South Carolina Actions is set for July 6, 2020, but allowing the parties to seek a delay as necessary). Moreover, SCANA agreed to indemnify and hold harmless [Westinghouse] against any administrative expenses in the Interim Assessment Agreement, by and among SCE&G, South Carolina Public Service Authority, Westinghouse Electric Company LLC and Wectec Global Project Services, Inc. f/k/a Stone and Webster, dated March 28, 2017, as amended, April 28, 2017 (the IAA ). This Court retained exclusive jurisdiction over the any disputes arising under the IAA. Thus, any disagreement between Westinghouse and SCANA over SCANA s responsibility for the disputed WARN Act payments would necessarily remain in this Court. See Westinghouse Bankr. Action, Dkt. Nos. 68, 68-1, 385 at 4. Accordingly, this Court should deny Plaintiffs request to transfer and not allow the Massey Plaintiffs to waste party and judicial resources. B. Plaintiffs Fail to Establish with Clear and Convincing Evidence that Any of the Remaining Eight Factors Weigh in Favor of Transfer This Court may deny transfer solely on the basis that transfer is not in the interests of justice, but may also deny transfer because the Massey Plaintiffs fail to show that the remaining 13

18 Pg 18 of 21 eight (8) factors favor transfer. 3 For each of the remaining factors, the facts either support denial of transfer or are neutral, which weighs against transfer. See MasterCard, 2004 WL , at *9 ( [F]orum s familiarity with the governing law, convenience of witnesses, and availability of process factors are neutral, and thus favor... New York. ). 1. Convenience of the Witnesses Weighs in Favor of Denying Transfer With respect to convenience of witnesses, which is often considered the most important factor, the Massey Plaintiffs failed to identify a single witness in the Westinghouse Action who they believe resides in South Carolina. This is not surprising given that not a single witness who the Westinghouse Defendants have identified on their Fed. R. Civ. P. 26 initial disclosures resides or primarily works in South Carolina. In fact, the witnesses Westinghouse identified in its initial disclosures are located in Pennsylvania. Accordingly, it would not be more convenient for either party if the Action were transferred to South Carolina, and this factor weighs in favor of denial. 2. The Location of Documents and Proof Weighs in Favor of Denying Transfer The Massey Plaintiffs may attempt to argue that discovery will be centered in South Carolina because the VC Summer Project was located in the state. But, courts have determined that in a nationwide class action, the single most likely source of relevant documents is defendant s headquarters, which in this case is not in South Carolina. See Earley v. BJ s Wholesale Club, Inc., 2007 WL , *3 (S.D.N.Y. June 4, 2007) (Pauley, W.). The majority of discovery in this Action is also likely to be in the form of electronic materials, the 3 The factors relating to availability of process to compel unwilling witnesses, the relative means of the parties, and the forum s familiarity with the governing law are either of little consequence, or not sufficiently developed by the Massey Plaintiffs. 14

19 Pg 19 of 21 location of which is virtually meaningless. Thus, the physical location of documents should not be a significant consideration for the Court, and this factor weighs in favor of denying transfer. Tomita, 818 F. Supp. at 772 (citing TouchTunes Music Corp. v. Rowe Int l Corp., 676 F. Supp. 2d 169, 174 (S.D.N.Y. 2009) (noting that, today, location of the documents is not a significant factor in the convenience analysis )). 3. Convenience of the Parties Weighs in Favor of Denying Transfer In order to show that transfer of the Action to South Carolina is more convenient for the parties, the Massey Plaintiffs must do more than shift the burden of inconvenience from one party to another. See, e.g., Eagle Auto Mall Corp. v. Chrysler Group, LLC 760 F. Supp. 2d 421, 425 (S.D.N.Y. 2011) (Wexler, J.). Moreover, the convenience of counsel is not an appropriate factor that courts may consider in assessing a motion to transfer. See United States ex rel. Fisher, 204 F. Supp. 3d at 627. While it is true that certain plaintiffs reside in South Carolina, it is also true that many plaintiffs do not and it would not be any more convenient for any of the Westinghouse Defendants to litigate in South Carolina. In fact, because the Westinghouse Defendants already appear in New York for bankruptcy proceedings, it would be inconvenient to have to defend an entirely separate action in South Carolina. Moreover, the Massey plaintiffs themselves initially chose to file their proceeding in this Court, so they must have considered this forum to be sufficiently convenient for their purposes. Thus, this factor weighs against transfer. 4. The Locus of Operative Facts Weighs in Favor of Denying Transfer In terms of locus of the operative facts, the Massey Plaintiffs not surprisingly focus only on the location of the VC Summer Project in South Carolina, and the terminations that occurred in South Carolina. However, the Massey Plaintiffs failed to consider that several of the key individuals who first learned of SCANA s decision to terminate the plant construction, which 15

20 Pg 20 of 21 ultimately lead to the Westinghouse Defendants decision to terminate employees, are not located in South Carolina, but rather are located in Pennsylvania. 5. The Massey Plaintiffs Choice to File the Adversary Proceeding in New York Weighs in Favor of Denying Transfer Finally, in terms of the weight to be accorded to plaintiffs choice of forum, this factor weighs decidedly against transfer to South Carolina because this Court must assume that having chosen [a] District [i.e., this Court], the Plaintiff wants to try his case here. See Cohn, 2007 WL at *2. Moreover, [a] motion to transfer venue is not ordinarily granted at the request of the party who chose the forum in the first place. Megna v. Biocomp Laboratories, 220 F. Supp. 3d 496, 498 (S.D.N.Y. 2016) (Marrero, V.) (citing Ferrostaal, Inc. v. Union Pac. R. Co., 109 F. Supp. 2d 146, 152 (S.D.N.Y. 2000)). A plaintiff moving to transfer must demonstrate that, since the action was filed, there has been a change of circumstances that warrants transfer of venue. See id.; Hsin Ten Enterprise USA, Inc. v. Clark Enterprises, 138 F. Supp. 2d 449, 465 (S.D.N.Y. 2000). Circumstances that were known or should have been known to plaintiff long before the lawsuit accordingly will not support a plaintiff s motion to transfer. United States ex rel. Fisher, 204 F. Supp. 3d at 623. Notably, while the Massey Plaintiffs counsel filed the Butler action in South Carolina in August 2017, they nevertheless affirmatively chose to file the instant proceeding against the Westinghouse Defendants in this Court several months later in November Plaintiffs could have requested permission from this Court to file their action outside of the bankruptcy proceeding in South Carolina; however, they consciously chose not to do so. Having deliberately chosen this Court in which to litigate these proceedings, the Massey Plaintiffs should not be permitted transfer the Westinghouse Action to South Carolina without a showing that (a) there was a change in circumstances that warrants transfer; and (b) the balance 16

21 Pg 21 of 21 of factors weighs strongly in favor of transfer, and as noted above they will not be able to make either showing. Therefore, this factor weighs in favor of denying transfer. V. CONCLUSION For the above stated reasons, Westinghouse respectfully asks this Court to deny the Massey Plaintiffs request to transfer this Action to South Carolina. Respectfully submitted, Dated: August 29, 2018 New York, New York /s/ Robert J. Lemons Gary T. Holtzer Robert J.Lemons Garrett A. Fail David N. Griffiths WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel to Wind Down Co. 17