Shepherd v. ASI, Ltd.

295 F.R.D. 289, 2013 WL 6058887, 2013 U.S. Dist. LEXIS 163580
CourtDistrict Court, S.D. Indiana
DecidedNovember 18, 2013
DocketNo. 1:12-cv-00167-SEB-DML
StatusPublished

This text of 295 F.R.D. 289 (Shepherd v. ASI, Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepherd v. ASI, Ltd., 295 F.R.D. 289, 2013 WL 6058887, 2013 U.S. Dist. LEXIS 163580 (S.D. Ind. 2013).

Opinion

ORDER CERTIFYING CLASS ACTION

SARAH EVANS BARKER, District Judge.

This cause comes before the Court on Plaintiffs Amended Motion for Class Certification [Docket No. 56], filed on May 6, 2013, pursuant to Federal Rules of Civil Procedure [292]*29223. For the reasons set forth below, Plaintiffs motion is GRANTED.

Factual and Legal Background

1. Facts

Defendant ASI, Limited (“ASI”) was a window manufacturing company which maintained its manufacturing facility in Whites-town, Indiana. Second Am. Compl. ¶ 4.1 Co-Defendants S & S Racing, LLC (“S & S”) and Winton Development, LLC (“Winton”) were Indiana-based limited liability companies that also maintained headquarters at the same Whitestown facility. ¶¶ 5-6. Plaintiff Andrew Shepherd was an ASI employee who worked at the Whitestown facility. ¶ 7.

On December 22, 2011, ASI shut down the Whitestown facility and terminated all of its employees, including Plaintiff Andrew Shepherd, without cause. See ¶¶ 8-9; Defs.’ Resp. 2. None of the employees were provided advance notice of the plant closing or the lay-offs. ¶ 13. Plaintiffs current estimate is that 273 employees were affected by the terminations, see Docket No. 56 Ex. A. Although Defendants do not dispute that terminations without notice occurred, they do not agree to Plaintiffs estimate of the number of employees affected and the extent of the financial harm they incurred. See Defs.’ Resp. 2-4. The terminated employees fell into several categories: union members, hourly employees, salaried employees, on-site employees, and a number of workers who, though directed from the Whitestown facility, did not report to that location for work. Id.

Upon the closing of ASI’s Whitestown plant and the termination of all its employees, PNC Bank sold the company’s assets. A number of the principal assets, including the manufacturing facility, were bought by Ohio Farmers’ Insurance Company. Ohio Farmers’ subsequently offered to rehire some, but not all, of the laid off ASI employees to positions at the reconstituted plant. Pl.’s Reply 5-6.

2. Applicable Law

Plaintiffs class action claim arises under the federal Worker Adjustment Retraining and Notification (WARN) Act of 1988, 29 U.S.C. §§ 2101-2109. Enacted as a response to the extensive economic dislocations associated with the downsizing of United States manufacturing employment in the 1970s and 1980s — dislocations which have spiked again in the aftermath of the recent recession and financial crisis — the WARN Act allows workers “to adjust to the prospective loss of employment, to seek and obtain alternative jobs and ... to enter skill training or retraining that will allow [them] to successfully compete in the job market.” See 20 C.F.R. § 639.1(a) (1998); Hotel Emps. and Restaurant Emps. Int’l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 182 (3d Cir.1999). The Act’s protections apply to the employees of any employer with 100 or more full-time workers and mandate that “an employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order” to all affected employees and to state authorities. 29 U.S.C. § 2102(a). A “plant closing” under the Act occurs if there is a permanent or temporary shutdown of a single site of employment that results in employment loss for 50 or more employees during any 30-day period, 29 U.S.C. § 2101(a)(2); even if a plant does not close, a “mass layoff’ triggering the Act’s protections occurs when at least 50 employees — constituting at least one-third of the work force— suffer employment loss. 29 U.S.C. § 2101(a)(3). Other than through outright termination, a worker suffers “employment loss” if she is laid off for more than six months or is given a reduction of work hours of at least 50% in any six-month period. 29 U.S.C. § 2101(a)(6).

If an employer violates the WARN Act’s notice requirements, its employees are entitled to back pay and benefits for each day by which the notice given fell short of the required 60 days — in addition to civil fines levied by local government units. 29 U.S.C. [293]*293§ 2104(a)(l)-(3). Certain exceptions to the notice requirements apply. Most notably, an employer may be excused from giving notice if, “as of the time that notice would have been required the employer was actively seeking capital or business which, if obtained, would have enabled the employer to avoid or postpone the shutdown,” and if the employer reasonably believed that giving notice would imperil that effort. The Act also provides an “unforeseeable business circumstances” exception, which excuses notice where the shutdown or layoffs are caused by a sudden occurrence outside the employer’s control. 29 U.S.C. § 2102(b)(2) (A).2 3 Aggrieved employees may enforce the provisions of the WARN Act in any federal district court where the closing or layoffs occurred or where the employer transacts business. 29 U.S.C. § 2104(a)(5).

Plaintiff has brought suit pursuant to the WARN Act, on behalf of himself and a proposed class of similarly situated employees, seeking recovery for

an amount equal to the sum of: unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay pension and 401 (k) contributions and other ERISA benefits that would have been covered and paid under the then applicable employee benefit plans had that coverage continued for that period, for sixty (60) working days following the member employee’s termination, all determined in accordance with the WARN Act.

Am. Compl. 6-7.

Legal Analysis

1. The Rule 23 Standard

Federal Rules of Civil Procedure 23 allows for the aggregation of claims into class action suits when the litigation of a group of potential plaintiffs’ claims era masse is a superior method of enforcing the rights of individual class members. See In re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1128 n. 33 (7th Cir.1979). The Supreme Court has recognized that “class actions serve an important function in our system of justice,” Gulf Oil Co. v. Bernard,

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Bluebook (online)
295 F.R.D. 289, 2013 WL 6058887, 2013 U.S. Dist. LEXIS 163580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-asi-ltd-insd-2013.