Volume 47, Issue 07 - July 2012


ASI Responds to Employee Allegations; Attributes Plant Closing to Lender
ASI Ltd. in Whitestown, Ind., recently was sued by a former employee who alleges that he and others were released from the company without proper notice of a plant closing as required under the Worker Adjustment and Retraining Notification (WARN) Act. Former ASI employee Andrew Shepherd alleges that his employment with ASI was terminated with the plant closing, along with that of approximately 200 other employees, and that they were entitled to receive 60 days’ advance written notice of the closing under the WARN Act.

The company has denied many of the allegations made against it, but admits in court documents that the plant did close on December 22. The company attributes the decision to close, however, to its lender, PNC Bank. ASI further “admits no written notice was issued prior to the plant closing,” but denies that the company violated the WARN Act.

With regard to Shepherd’s allegations that he and others were not paid after the closing, ASI responds as follows: “The defendant admits that it did not pay the plaintiff for work after PNC Bank closed the plant on December 22, 2011.”

In addition, ASI issued several affirmative defenses to the suit in its response. Among these, the company alleges that it is excused from the requirements of the WARN Act, because “the plant closing was caused by business circumstances that were not reasonably foreseeable as of the time notice would have been required.”

Along similar lines, ASI claims that at the time of the closure, it “was actively seeking capital and business which, if obtained, would have enabled the employer to avoid or postpone the shutdown and ASI reasonably and in good faith believed that giving the notice required would have precluded the employer from obtaining the needed capital and/or business.”

Finally, ASI alleges that Shepherd and others “suffered no actual damages” alleged in the complaint.

ASI suspended operations on December 22, 2011, and allegedly resumed operations with new financial backing in mid-January.

Judge Dismisses Class Action Suit Against Trainor
A class action suit against Trainor Glass Co. filed by former employee Katherine McNeel “on her own behalf and on behalf of all other persons similarly situated,” based on allegations related to the Worker Adjustment and Retraining Notification (WARN) Act, was dismissed in June by Carl Doyle, currently serving as judge for the U.S. Bankruptcy Court Northern District Of Illinois Eastern Division. According to court documents, the suit sought “recovery by plaintiff and other similarly situated employees of the defendant of damages in the amount of 60 days’ pay and ERISA benefits by reason of defendant’s violation of the plaintiff’s rights under the WARN Act.” Trainor had submitted a motion to dismiss the case, alleging that the case was a pre-petition claim. “The adversary proceeding should be dismissed because the plaintiff’s WARN Act claim is a pre-petition claim that is properly addressed in the claims administration process, not by way of an adversary proceeding,” wrote the company in its joint motion to dismiss McNeel’s class action. “[The] plaintiff’s WARN Act claim is a pre-petition claim as a matter of law.” Additionally, Trainor argued “the plaintiff’s WARN Act claim should be adjudicated through the claim administration process, not by way of an adversary proceeding.” Trainor also claimed in its motion to dismiss that “The plaintiff, therefore, had a ‘claim’ against the debtors on the 60th day prior to his termination of employment, even if that ‘claim’ was ‘contingent’ when it arose and even if that ‘claim’ was very likely ‘disputed.’ To the extent that plaintiff did not receive the requisite advance notice of the mass layoff, he would be entitled to ‘back pay’ and benefits under the WARN Act. Defendant’s alleged failure to give the Plaintiff notice on November 1, 2008, clearly occurred pre-petition.” The class action suit had been filed as part of Trainor’s bankruptcy case (see related story on page 10).

New York Woman Amends Complaint Against Apple
New York resident Evelyn Paswall, 82, has amended a complaint filed earlier this year against California-based Apple Inc. related to injuries she allegedly sustained when she walked into a glass wall at the company’s Manhasset, N.Y., store. Among the changes in the latest complaint are the removal of the her request for $1 million and several new specific references to New York’s building code related to the use of transparent glass in commercial buildings (see related story in June USGlass, page 18).

Amendments to Paswall’s complaint include allegations that Apple Inc. violated a rule within Title 12 of the New York Industrial Code titled Transparent Glass Doors in Mercantile Establishments and in Public and Commercial Buildings and Structures.

“Transparent glass doors and fixed adjacent transparent glass sidelites shall be marked in two areas … One area shall be located at least 30, but not more than 36 inches and the other 60, but more than 66 inches above the ground, floor or equivalent surface below the door or sidelight,” writes Paswall’s counsel in the amended complaint, citing the New York Industrial Code.

The new complaint further alleges that Apple Inc. did not abide by the marking requirements within the code, which Paswall claims caused numerous injuries as a result. Additionally, the plaintiff’s complaint alleges Apple was aware of previous injuries sustained by other customers and “acted with reckless disregard” when it did not apply markings to the front entrance “despite knowing the dangers and previous injuries …”

Apple Inc., represented by Thomas Crispi of Schiff Hardin LLP, has denied the allegations in Paswall’s amended complaint.

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