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Cash v. Vert Capital Corp.

United States District Court, E.D. Virginia

April 2, 2015

BEN H. DROSTE AND CALVIN CASH, Individually and as Class Representatives, Plaintiff,
v.
VERT CAPITAL CORP., WOLFF FORDING HOLDINGS, LLC, AND WOLFF FORDING & CO., Defendants.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on PLAINTIFF'S MOTION TO CERTIFY CLASS (Docket No. 47). For the reasons set forth below, the motion is granted.

BACKGROUND

A. The Proposed Class and Class Claims

In PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION AND RELATED RELIEF (Docket No. 48), Droste and Cash seek to certify two classes. The first class, which Plaintiffs call the "June 10 Subclass", is defined as follows:

For the "June 10 Subclass, " the members are all those who worked at or reported to the Richmond Plant and who were terminated and/or laid off without cause on their part from their employment on or within thirty (30) days of June 10, 2014, as part of, or as the reasonably foreseeable consequences of the mass layoff/plant closing ordered by Defendants and that occurred on June 10, 2014, who do not file a timely request to opt out of the class."

Docket No. 48, at 4. The second proposed class, which Plaintiffs call the "June 23 Subclass" is defined as follows:

For the "June 23 Subclass, " the members are all those who worked at or reported to the Richmond Plant and who were terminated and/or laid off without cause on their part from their employment on or within thirty (30) days of June 23, 2014, or thereafter, as part [of], or as the reasonably foreseeable consequence of the mass layoff/plant closing ordered by Defendants and that occurred on June 23, 2014, who do not file a timely request to opt out of the class.

Id.

Both subclasses assert the same claims for relief in the Second Amended Complaint ("SAC"). See Docket No. 41, 17-20. Specifically, they both allege that:

93. At all relevant times, Defendants employed more than 100 employees who in the aggregate worked at least 4, 000 hours per week, exclusive of hours of overtime, within the United States.
94. At all times relevant, each Defendant was an "employer" as that term is defined in 29 U.S.C. §2101(a)(1) and 20 C.F.R. §639.3(a).
95. Specifically, the Vert Defendants, with Wolff-Fording, constituted a "single employer" of the Plaintiffs and the WARN Sublass [sic] Members under the WARN Act...
96. The Vert Defendants, as a single employer with Wolff-Fording, ordered and arranged for plant closings/mass layoffs, as those terms are defined by 29 U.S.C. §2101(a)(2).
97. The plan closings/mass layoffs at the Richmond Plant each resulted in "employment losses, " as that term is defined by 29 U.S.C. §2101(a) (2) for at least fifty of Defendants' employees as well as thirty-three percent (33%) of Defendants' workforce at the employment site, excluding "part-time employees, " as that term is defined by 29 U.S.C. §2101(a)(8), and at least 50 employees (again excluding any part-time employees) on each occasion experienced an "employment loss" at a single site of employment.
98. The Plaintiffs and the WARN Subclass Members were terminated by the Vert Defendants (as a single employer with Wolff-Fording) without cause on their part, as part of or as the reasonably foreseeable consequence of the mass layoffs/plant closings ordered by them.
99. The Plaintiffs and the WARN Subclass Members are "affected employees" of Defendants as their single employer within the meaning of 29 U.S.C. §2101(a)(5).
100. Defendants were required by the WARN Act to give the Plaintiffs and the WARN Subclass Members at least 60 days' advance written notice of their terminations.
101. Defendants failed to give the Plaintiffs and the WARN Subclass members written notice that complied with the requirements of the WARN Act.
102. The Plaintiffs, and each of the WARN subclass Members, are "aggrieved employees" of the Defendants as that term is defined in 29 U.S.C. §2104(a)(7).
103. Defendants failed to pay the Plaintiffs and each of the WARN Subclass Members their respective wages, salary, commissions, bonuses, and benefits for 60 days following their respective terminations.

SAC, Docket No. 41 at ¶¶ 93-103. Both classes request the "[a]ward of Damages in favor of each named Plaintiff and each Other Similarly Situated Individual, equal to 60 days' wages and benefits, pursuant to the WARN Act...All interest, including prejudgment interests, as allowed by law on the amounts owed under the preceding paragraphs...[and] reasonable attorneys' fees and costs." Id. at 19.

B. Defendants' Alleged WARN ACT Violations

Plaintiffs have sued under the Worker Adjustment and Retraining Notification Act ("WARN Act"), [1] alleging that the Defendants violated the statutory scheme by terminating Plaintiffs without providing the notice required under ...


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