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1 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687)
2 KyleR. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066)
ENDORSED FILED
ALAMEDA COUNTY 3 225 5 Calle Clara La Jolla, CA 92037
4 Telephone: (858)551-1223 Facsimile: (858) 551-1232
5 Website: www.bamlawca.com
6 Attorneys for Plaintiff
OCT 1 2 2011 CLERK OF U!E SUPERIOR COURT By __ _____A. MEN!.kD!::.Oa.L,;:A~-
Deputy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
RICHARD LARDNER, on behalf of Case No. himself and all persons similarly situated, --------
Plaintiff,
vs.
SMITH & NEPHEW, INC., a Delaware Corporation and DOES 1 through 50,
Defendant.
---------------~
CLASS ACTION COMPLAINT FOR:
1.
2.
UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE§§ 17200 et seq.; and,
WAITING TIME PENAL TIES FOR FAILURE TO PAY ACCRUED VACATION COMPENSATION AT EMPLOYMENT TERMINATION IN VIOLATION OF CAL. LAB. CODE§§ 201, 202 & 203.
DEMAND FOR A JURY TRIAL
CLAISS ACTION COMPLAINT
1 Plaintiff Richard Lardner, ("PLAINTIFF"), an individual, on behalf of himself and all
2 other similarly situated current 'and former employees, alleges upon information and belief,
3 except for his own acts and knowledge which are based on personal knowledge, the following:
4
5
6 1.
THE PARTIES
Defendant Smith & Nephew, Inc. ("SMITH" or "DEFENDANT"), is corporation
7 incorporated under the laws of the State of Delaware with its principal place of business located
8 in Massachusetts. SMITH is a global medical devices business that develops advanced medical
9 services for healthcare professionals around the world. SMITH's products enable nurses,
10 surgeons and other medical practitioners to provide effective treatment more quickly and
11 economically. SMITH is an industry leader in three main global business units - Orthpaedic
12 Reconstruction and Trauma, Endoscopy and Advanced Wound Management. In 201 0, SMITH's
13 financial report showed revenues of approximately $4 billion. SMITH was doing and continues
14 ·to do regular and substantial business in California.
15 2. Plaintiff Richard Lardner, at all relevant times mentioned herein, resided in the
16 State of California and currently resides in the City of Oakland. PLAINTIFF was employed by
17 SMITH continuously from March 2006 to January 2011, during which he earned and
18 accumulated vested hours of vacation pay that remained unused at the time of termination. On
19 January 12, 2011, after working for SMITH for over four years, PlaintiffLardner's employment
20 was terminated by SMITH. As part of SMITH's uniform policy and systematic scheme offailing
21 to pay the employees all the vested vacation wages they earned and accumulated upon the
22 termination of their employment, SMITH intentionally and in bad faith failed to compensate
23 PLAINTIFF and other employees for the vested vacation hours that they earned and
24 accumulated, and that SMITH still owes them resulting in a forfeiture of vested vacation time.
25 3. Plaintiff Richard Lardner brings this action pursuant to Cal. Code ofCiv. Proc. §
26 3 82, on behalf of himself and on behalf of a class consisting of all those persons employed by
27 Smith & Nephew, Inc., in California, who earned vested vacation pay and whose employment
28 terminated during the applicable CLASS PERIODS.
CLASS ACTION COMPLAINT -1-
1 4. PLAINTIFF and members of the CALIFORNIA CLASS suffered the loss and
2 forfeiture of accrued vested vacation ~ages and have not been paid for all earned and accrued
3 vested vacation wages by SMITH. SMITH's unlawful, unfair, and deceptive employment and
4 wage practices cheated the PLAINTIFF, and the other members ofthe CALIFORNIA CLASS,
5 out oftheir lawful wages and vacation pay due in violation ofthe California Labor Code and the
6 California Business & Professions Code
7 5. The true names and capacities, whether individual, corporate, subsidiary,
8 partnership, associate or otherwise of defendant DOES 1 through 50, inclusive, are presently
9 unknown to the PLAINTIFF who therefore sues these Defendants by such fictitious names
10 pursuant to Cal. Civ. Proc. Code § 474. The PLAINTIFF will seek leave to amend this
11 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when they
12 are ascertained. PLAINTIFF is informed and believes, and based upon that information and
13 belief alleges, that the Defendants named in this Complaint, including DOES l through 50,
14 inclusive, are responsible in some manner for one or more of the events and happenings that
15 proximately caused the injuries and damages hereinafter alleged.
16 6. The agents, servants and/or employees of the Defendants and each of them
17 acting on behalf of the Defendants acted within the course and scope of his, her or its authority
18 as the agent, servant and/or employee of the Defendants, and personally participated in the
19 conduct alleged herein on behalf of the Defendants with respect to the conduct alleged herein.
20 Consequently, the acts of each Defendant are legally attributable to the other Defendants and all
21 Defendants are jointly and severally liable to the PLAINTIFF and the other members of the
22 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the
23 Defendants' agents, servants and/or employees.
24
25
26 7.
GENERAL ALLEGATIONS
At all times during the term of the their employment with DEFENDANT, the
27 CALIFORNIA CLASS members, including the PLAINTIFF, had earned and accrued vested
28 vacation and time on the date of their termination pursuant to DEFENDANT's uniform vacation
CLASS ACTION COMPLAINT -2-
1 policies and applicable California law. The amount of vacation pay that the PLAINTIFF and the
2 other members of the CALIFORNIA CLASS earned and accumulated is evidenced by
3 DEFENDANT's business records. During the relevant CLASS PERIODS, DEFENDANT
4 executed the unlawful uniform policy and systematic practice of enforcing a forfeiture system
5 where the PLAINTIFF and other CALIFORNIA CLASS Members were forced to use their
6 vested vacation time in the defined vacation year or risk forfeiture of their unused vested
7 vacation time. PLAINTIFF and other members of the CALIFORNIA CLASS were unable to
8 use all of their vested vacation time resulting in a forfeiture of their vested vacation time; thus
9 the DEFENDANT has failed and continues to fail to pay the PLAINTIFF and each member of
10 the CALIFORNIA CLASS the total amount of vacation pay due upon termination of their
11 employment with DEFENDANT. As a result of the DEFENDANT's unlawful practice, policy
12 and procedure to deny paying the PLAINTIFF and the other members of the CALIFORNIA
13 CLASS all of their vested vacation time, DEFENDANT failed to pay the PLAINTIFF and the
14 members of the CALIFORNIA CLASS all vested vacation time as wages due upon employment
15 termination, in violation of the California Labor Code, Sections 201, 202, 203 and 227.3. This
16 failure by DEFENDANT is believed to be the result of DEFENDANT's unlawful, unfair and
17 deceptive refusal to provide compensation for earned, accrued and vested vacation time.
18 DEFENDANT perpetrated this unlawful, unfair and deceptive practice to the detriment of the
19 PLAINTIFF and the members ofthe CALIFORNIA CLASS. DEFENDANT's uniform practice
20 and policy of failing to pay the CALIFORNIA CLASS members for all vested vacation time
21 accumulated at employment termination violated and continues to violate Section 227.3 of the
22 California Labor Code.
23 8. As a result ofDEFENDANT's standardized policies, practices, and procedures as
24 herein alleged, DEFENDANT caused the PLAINTIFF, and the other members of the
25 CALIFORNIA CLASS, to be denied payment of accumulated unpaid vested vacation time as
26 wages at employment termination. The members of the CALIFORNIA CLASS, including the
27 PLAINTIFF, lost money as a result of the DEFENDANT's standardized policies, practices, and
28 procedures alleged herein, and were personally subjected to the unlawful, unfair and deceptive
CLASS ACTION COMPLAINT -3-
. 1 practices of DEFENDANT.
2 9. DEFENDANT currently has, and at all relevant times herein had, a uniform
3 vacation time policy applicable to all of the members of the CALIFORNIA CLASS, including
4 the PLAINTIFF. Pursuant to this uniform vacation policy, the PLAINTIFF and the other
5 members of the CALIFORNIA CLASS earn vacation pay as follows:
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~b~ Cc)
(d)
(e)
Twelve days of vacation time per year for years one through two; Fifteen days of vacation time per year for years three through nine; Twenty days of vacation time per year for years ten through fourteen; Twenty-two days of vacation time per year for years fifteen through nineteen; and, Twenty-five days of vacation time for each respective year after twenty.
10. DEFENDANTS's uniform vacation policy applicable to all the members of the
CALIFORNIA CLASS, including the PLAINTIFF, further provides: 12
All vacation time must be taken during the defined vacation year and may 13 not be carried over into the following year. Any unused time will be
forfeited. 14
15
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11. DEFENDANT's failure to pay the PLAINTIFF, and the other members of the
CALIFORNIA CLASS, all vested vacation pay earned and accumulated at the time of
termination is evidenced by DEFENDANT's business records. 17
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19
12. Throughout the CALIFORNIA CLASS PERIOD, despite the fact that the
PLAINTIFF and the other members of the CALIFORNIA CLASS had earned and accumulated
vacation pay at the time their employment terminated, DEFENDANT used and continues to use 20
21 an unlawful practice through which DEFENDANT systematically failed to pay the members of
the CALIFORNIA CLASS, including the PLAINTIFF, for all of the vested vacation pay they 22
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have earned and accumulated throughout their employment with SMITH.
13. DEFENDANT also made and continues to make false representations to the
PLAINTIFF and the other members of the CALIFORNIA CLASS with respect to the vacation
pay they earned and accumulated throughout the course of their employment with 26
DEFENDANT, including, but not limited to, falsely representing that upon the termination of 27
28 their employment with DEFENDANT, the PLAINTIFF and the other members of the
CLASS ACTION COMPLAINT -4-
1 CALIFORNIA CLASS: (a) Are not entitled to all the vacation pay they have earned and
2 accumulated during the course of the their employment; and (b) Have already been paid all of
3 their earned vacation time, when in fact, they have not been compensated for all earned and
4 accumulated vacation time.
5 14. California Labor Code Sections 201 and 202 require an employer to pay all wages
6 earned and unpaid, including vested vacation time, at the time of the discharge of employment.
7 An immediate payment of wages is due for any unused or accumulated vacation, annual leave,
8 holiday leave, or time off.
9 15. California Labor Code § 227.3 further provides:
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§ 227.3. Payment for vested vacation time on termination of employment. Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is termmated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon terminatiOn. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.
16. At all relevant times mentioned herein, DEFENDANT represented that at
employment termination, PLAINTIFF and the CALIFORNIA CLASS members would be paid
in a lump sum for all vested accrued vacation time.
17. Accordingly, and despite the fact that they earned and accumulated vested vacation
time, the PLAINTIFF and the other members of the CALIFORNIA CLASS did not receive
compensation for all oftheir vested vacation time upon employment termination as required by
California law. With respect to all members of the CALIFORNIA CLASS, DEFENDANT as
a matter of uniform company policy, intentionally and knowingly failed to pay these wages due
to each and every CALIFORNIA CLASS member upon the termination of their employment,
by systematically underpaying the vacation time owed to the members of the CALIFORNIA
CLASS.
CLASS ACTION COMPLAINT -5-
1 THE CALIFORNIA CLASS
2 18. PLAINTIFF brings the Fi~st Cause of Action for Unfair, Unlawful, and Deceptive
3 Business Practices pursuant to Cal. Bus. & Prof. Code Section 17200 et seq. (the "UCL") as a
4 class action pursuant to California Code of Civil Procedure, Section 382, on behalf of himself
5 and a California Class, defined as all those persons employed by Defendant Smith & Nephew,
6 Inc., in California, who earned vested vacation pay and whose employment terminated during
7 the CALIFORNIA CLASS PERIOD. The period applicable to the CALIFORNIA CLASS is
8 defined as the period commencing on the date four (4) years prior to the filing of this Complaint
9 and ending on the date as set by the Court (the "CALIFORNIA CLASS PERIOD"). To the
10 extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against
11 DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.
12 19. DEFENDANT, as a matter of company policy, practice and procedure, and
13 in violation of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order
14 Requirements, and the applicable provisions of California law, intentionally, knowingly, and
15 wilfully, engaged in a practice whereby DEFENDANT failed to pay the members of the
16 CALIFORNIA CLASS, including the PLAINTIFF, for all of the vested vacation pay they have
17 earned and accumulated throughout their employment with DEFENDANT.
18 20. DEFENDANT has the legal burden to establish that each and every CALIFORNIA
19 CLASS Member was paid their accrued unused vested vacation wages and to accurately account
20 for such earned wages. The DEFENDANT, however, as a matter of uniform and systematic
21 policy and procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still
22 fails to have in place a policy or practice to pay former employees for vested vacation wages
23 earned while still employed, so as to satisfy DEFENDANT's legal burden. This common
24 business practice applicable to each and every CALIFORNIA CLASS member can be
25 adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business &
26 Professions Code § 17200, et seq. (the "UCL") as causation, damages, and reliance are not
27 elements ofthis claim.
28 21. During the CALIFORNIA CLASS PERIOD, DEFENDANT uniformly violated
CLASS ACTION COMPLAINT -6-
1 the rights of the members of the CALIFORNIA CLASS, including the PLAINTIFF, under
2 California law by:
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(a)
(b)
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(e)
Committing an act of unfair competition in violation of the California Bus.
& Prof. Code Sections 17200 et seq. (the "UCL"), by unlawfully, unfairly,
and/or deceptively having in place company policies, practices and
procedures that uniformly failed to pay the PLAINTIFF and the members
of the CALIFORNIA CLASS for all vested vacation pay earned upon
termination of employment;
Committing an act of unfair competition in violation of the California Bus.
& Prof. Code Sections 17200 et seq. (the "UCL"), by unlawfully, unfairly,
and/or deceptively having in place company policies, practices and
procedures that failed to correctly calculate compensation due to
PLAINTIFF and other members of the CALIFORNIA CLASS for accrued
vested vacation time;
Committing an act of unfair competition in violation ofthe California Bus.
& Prof. Code Sections 17200 et seq. (the "UCL"), by unlawfully, unfairly,
and/or deceptively having in place company policies, practices and
procedures that falsely represented to the PLAINTIFF and the other
members of the CALIFORNIA CLASS that they would be paid for all
vested vacation pay they earned and accrued upon termination;
Committing an act of unfair competition in violation of the California Bus.
& Prof. Code Sections 17200 et seq. (the "UCL"), by unlawfully, unfairly,
and/or deceptively having in place company policies, practices and
procedures that changed and/or modified the actual amount of vacation pay
the PLAINTIFF and the members of the CALIFORNIA CLASS earned
and accrued throughout their employment with DEFENDANT; and,
Violating Cal. Lab. Code §§ 201, 202, and 227.3 by failing to provide
timely payment of all vested vacation pay owed to the members of the
CLASS ACTION COMPLAINT -7-
1 CALIFORNIA CLASS who have terminated their employment.
2 22. As a result of DEFENDANT's uniform policies, practices and procedures, there
3 are numerous questions of law and fact common to all CALIFORNIA CLASS Members who
4 worked for DEFENDANT in California during the CALIFORNIA CLASS PERIOD. These
5 questions include, but are not limited to, the following:
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(a) Whether DEFENDANT's policies, practices and pattern of conduct
described in this Complaint was and is illegal;
(b) Whether DEFENDANT has engaged in a common course of failing to
(c)
compensate employees for all vested vacation pay earned and accumulated
upon termination;
Whether DEFENDANT has engaged in a common course of changing,
altering and/ or modifying the amount of vacation pay employees earned
and accumulated throughout their employment;
(d) Whether DEFENDANT has engaged in a common course of
(e)
(f)
misrepresenting that the members of the CALIFORNIA CLASS are not
entitled to all vacation pay earned and accumulated upon termination of
employment with DEFENDANT;
Whether DEFENDANT's failure to compensate employees for all vacation
pay earned violates Section 227.3 of the California Labor Code;
Whether DEFENDANT's failure to compensate employees for all vacation
pay earned upon employment termination violates Sections 201-203 ofthe
California Labor Code;
(g) Whether DEFENDANT has engaged in unfair competition by the
above-listed conduct; and,
(h) Whether DEFENDANT's conduct was willful.
26 23. This Class Action meets the statutory prerequisites for the maintenance of a Class
27 Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
28 (a) The persons who comprise the CALIFORNIA CLASS are so numerous
CLASS ACTION COMPLAINT -8-
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that the joinder of all such persons is impracticable and the disposition of
their claims as a class will benefit the parties and the Court;
(b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues
that are raised in this Complaint are common to the CALIFORNIA CLASS
and will apply uniformly to every member of the CALIFORNIA CLASS;
(c) The claims of the representative PLAINTIFF are typical of the claims of
each member of the CALIFORNIA CLASS. The PLAINTIFF, like all the
other members of the CALIFORNIA CLASS, failed to receive
compensation for all accrued vested vacation time upon employment
termination as a result ofDEFENDANT's standardized policies, practices
and procedures. The PLAINTIFF and the other members of the
CALIFORNIA CLASS were and are similarly or identically harmed by the
same unlawful, deceptive, unfair, systematic and pervasive pattern of
misconduct engaged in by DEFENDANT; and,
(d) The representative PLAINTIFF will fairly and adequately represent and
protect the interest of the CALIFORNIA CLASS, and has retained counsel
who are competent and experienced in Class Action litigation. There are
no material conflicts between the claims of the PLAINTIFF and the
members of the CALIFORNIA CLASS that would make class certification
inappropriate. Counsel for the CALIFORNIA CLASS will vigorously
assert the claims of all members of the CALIFORNIA CLASS.
22 24. In addition to meeting the statutory prerequisites to a Class Action, this action is
23 properly maintained as a Class Action pursuant to Cal. Code ofCiv. Proc. § 382, in that:
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(a) Without Class certification and determination of declaratory, injunctive,
statutory and other legal questions within the class format, prosecution of
separate actions by individual members of the CALIFORNIA CLASS will
create the risk of:
(i) Inconsistent or varying adjudications with respect to individual
CLASS ACTION COMPLAINT -9-
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members of the CALIFORNIA CLASS which would establish
incompatible standards of conduct for the parties opposing the
CALIFORNIA CLASS; or,
(ii) Adjudication with respect to individual members of the
CALIFORNIA CLASS which would as a practical matter be
dispositive of interests of the· other members not party to the
adjudication or substantially impair or impede their ability to protect
their interests;
(b) The parties opposing the CALIFORNIA CLASS have acted or refuse to ac
on grounds generally applicable to the CALIFORNIA CLASS, thereby
making appropriate final injunctive relief or corresponding declaratory
relief with respect to the CALIFORNIA CLASS as a whole; or
(c) Common questions of law and fact exist as to the members ofthe
CALIFORNIA CLASS and predominate over any question affecting only
individual members, and a Class Action is superior to other available
methods for the fair and efficient adjudication of the controversy, including
consideration of:
(i) The interests of the members of the CALIFORNIA CLASS in
individually controlling the prosecution or defense of separate
actions;
(ii) The extent and nature of any litigation concerning the controversy
already commenced by or against members of the CALIFORNIA
CLASS;
(iii) The desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and,
(iv) The difficulties likely to be encountered in the management of a
Class Action.
This Court should permit this action to be maintained as a Class Action pursuant
CLASS ACTION COMPLAINT -10-
1 to Cal. Code ofCiv. Proc. § 382, because:
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(a) The questi.ons of law and fact common to the CALIFORNIA CLASS
predominate over any question affecting only individual members;
(b) A class action is superior to any other available method for the fair and
(c)
efficient adjudication of the claims of the members of the CALIFORNIA
CLASS;
The members of the CALIFORNIA CLASS are so numerous that it is
impractical to bring all members of the CALIFORNIA CLASS before the
Court;
(d) The PLAINTIFF, and the other CALIFORNIA CLASS members, will not
(e)
(f)
be able to obtain effective and economic legal redress unless the action is
maintained as a class action;
There is a community of interest in obtaining appropriate legal and
equitable relieffor the statutory violations and other improprieties, and in
obtaining adequate compensation for the economic injuries which
DEFENDANT's actions have inflicted upon the CALIFORNIA CLASS;
There is a community of interest in ensuring that the combined assets and
available insurance, if any, of DEFENDANT are sufficient to adequately
compensate the members of the CALIFORNIA CLASS for the injuries
sustained;
(g) DEFENDANT has acted or refused to act on grounds generally applicable
to the CALIFORNIA CLASS, thereby making final class-wide relief
appropriate with respect to the CALIFORNIA CLASS as a whole ;
(h) The CALIFORNIA CLASS Members are readily ascertainable from the
business records of DEFENDANT. The CALIFORNIA CLASS consists
of all individuals who were previously employed by DEFENDANT in
California and who were subject to the above described uniform policies
and practices in California during the CALIFORNIA CLASS PERIOD.
CLASS ACTION COMPLAINT -11-
1
2 THE CALIFORNIA LABOR SUB-CLASS
3 26. PLAINTIFF further brings the Second Cause of Action on behalf of a
4 CALIFORNIA LABOR SUB-CLASS which consists of all members of the CALIFORNIA
5 CLASS whose employment with DEFENDANT terminated during the period beginning on the
6 date three (3) years prior to the filing of the action and ending on the date as determined by the
7 Court (the "CALIFORNIA LABOR SUB-CLASS PERIOD"), pursuant to California Code of
8 Civil Procedure, Section 382.
9 27. DEFENDANT, as a matter of corporate policy, practice and procedure, and in
10 violation of the applicable California Labor Code ("Labor Code"), and Industrial Welfare
11 Commission ("IWC") Wage Order Requirements intentionally, knowingly, wilfully, and
12 systematically failed to pay PLAINTIFF and the other members of the CALIFORNIA LABOR
13 SUB-CLASS their earned vested vacation wages after their employment terminated based on
14 DEFENDANT's uniform policy in order to avoid the payment of earned vested vacation pay.
15 To the extent equitable tolling operates to toll claims by the CALIFORNIA LABOR SUB-
16 CLASS against DEFENDANT, the class period should be adjusted accordingly.
17 28. DEFENDANT maintains records from which the Court can ascertain and
18 identify by job title each of DEFENDANT's employees who as CALIFORNIA LABOR SUB-
19 CLASS members have been systematically, intentionally and uniformly denied payment of
20 earned vested vacation pay following the termination of their employment. PLAINTIFF will
21 seek leave to amend the complaint to include any additional job titles when they have been
22 identified.
23 29. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all
24 members is impracticable.
25 30, Common questions oflaw and fact exist as to members of the CALIFORNIA
26 LABOR SUB-CLASS, including, but not limited, to the following:
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(a) Whether DEFENDANT unlawfully failed to pay all earned and vested
vacation compensation to members of the CALIFORNIA LABOR SUB-
CLASS ACTION COMPLAINT -12-
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CLASS at the time of employment termination m violation of the
California'Labor Code and applicable regulations;
(b) Whether DEFENDANT's policy and practice of failing to pay members of
the CALIFORNIA LABOR SUB-CLASS all wages when due within the
time required by law after their employment ended violates California law;
(c) Whether DEFENDANT's conduct was willful; and,
(d) The proper measure of penalties owed to the members of the
CALIFORNIA LABOR SUB-CLASS.
9 31. DEFENDANT as a matter of corporate policy, practice and procedure, failed to
10 pay accrued vested vacation wages to employees who have terminated their employment but
11 completed sales while still employed. All CALIFORNIA LABOR SUB-CLASS Members,
12 including the PLAINTIFF, were paid by DEFENDANT according to uniform and systematic
13 company procedures, which, as alleged herein above, failed to pay accrued vested vacation
14 compensation at employment termination. This business practice was uniformly applied to each
15 and every member of the CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety of
16 this conduct can be adjudicated on a class-wide basis.
17 32. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-CLASS
18 under California law by violating Cal. Lab. Code§§ 201, 202, and 227.3 which provides that
19 when an employee is discharged or quits from employment, the employer must pay the employee
20 all wages due, including vested vacation wages, without abatement, by failing to tender full
21 payment and/or restitution of wages owed or in the manner required by California law to the
22 members of the CALIFORNIA LABOR SUB-CLASS who have terminated their employment.
23 3 3. This Class Action meets the statutory prerequisites for the maintenance of a
24 Class Action as set forth in Cal. Code ofCiv. Proc. § 382, in that:
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(a) The persons who comprise the CALIFORNIA LABOR SUB-CLASS are
so numerous that the joinder of all such persons is impracticable and the
disposition of their claims as a class will benefit the parties and the Court;
CLASS ACTION COMPLAINT -13-
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(b) Nearly all factual, legal, statutory, and declaratory relief issues that are
raised in this Complaint are common to the CALIFORNIA LABOR SUB
CLASS and will apply uniformly to every member of the CALIFORNIA
LABOR SUB-CLASS;
(c) The claims of the representative PLAINTIFF are typical of the claims of
each member of the CALIFORNIA LABOR SUB-CLASS. PLAINTIFF,
like every other member of the CALIFORNIA LABOR SUB-CLASS was
subjected to the DEFENDANT's uniform practice and policy which failed
to pay all accrued vested vacation wages due to members of the
CALIFORNIA LABOR SUB-CLASS upon termination of their
employment. PLAINTIFF sustained economic injury as a result of
DEFENDANT's employment practices alleged herein. PLAINTIFF and
the members of the CALIFORNIA LABOR SUB-CLASS were and are
similarly or identically harmed by the same unlawful pattern of misconduct
engaged in by DEFENDANT; and,
(d) The representative PLAINTIFF will fairly and adequately represent and
protect the interest of the CALIFORNIA LABOR SUB-CLASS, and has
retained counsel who are competent and experienced in Class Action
litigation. There are no material conflicts between the claims of the
representative PLAINTIFF and the members of the CALIFORNIA
LABOR SUB-CLASS that would make class certification inappropriate.
Counsel for the CALIFORNIA LABOR SUB-CLASS will vigorously
assert the claims of all CALIFORNIA LABOR SUB-CLASS Members.
24 34. In addition to meeting the statutory prerequisites to a Class Action, this action
25 is properly maintained as a Class Action pursuant to Cal. Code ofCiv. Proc. § 382, in that:
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(a) Without class certification and determination of declaratory, statutory and
other legal questions within the class format, prosecution of separate
actions by individual members of the CALIFORNIA LABOR SUB-
CLASS ACTION COMPLAINT -14-
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CLASS will create the risk of:
1)
2)
Inconsistent or varying adjudications with respect to individual
members ofthe CALIFORNIA LABOR SUB-CLASS which would
establish incompatible standards of conduct for the parties opposing
the CALIFORNIA LABOR SUB-CLASS; or,
Adjudication with respect to individual members of the
CALIFORNIA LABOR SUB-CLASS which would as a practical
matter be dispositive of interests of the other members not party to
the adjudication or substantially impair or impede their ability to
protect their interests.
(b) The parties opposing the CALIFORNIA LABOR SUB-CLASS have acted
or refused to act on grounds generally applicable to the CALIFORNIA
LABOR SUB-CLASS, making appropriate class-wide relief with respect
to the CALIFORNIA LABOR SUB-CLASS as a whole in that the
(c)
DEFENDANT uniformly failed to pay all accrued vested vacation wages
due to PLAINTIFF and members of the CALIFORNIA LABOR SUB-
CLASS upon termination of their employment, and thereby denied these
employees compensation as required by law;
Common questions of law and fact predominate as to the members of the
CALIFORNIA LABOR SUB-CLASS, with respect to the practices and
violations of California Law as listed above, and predominate over any
question affecting only individual members, and a Class Action is superior
to other available methods for the fair and efficient adjudication of the
controversy, including consideration of:
1) The interests of the members of the CALIFORNIA LABOR SUB-
CLASS in individually controlling the prosecution or defense of
separate actions in that the substantial expense of individual actions
will be avoided to recover the relatively small amount of economic
CLASS ACTION COMPLAINT -15-
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2)
3)
4)
losses sustained by the individual CALIFORNIA LABOR SUB
CLASS members when compared to the substantial expense and
burden of individual prosecution of this litigation;
Class cettification will obviate the need for unduly duplicative
litigation that would create the risk of:
A.
B.
Inconsistent or varying adjudications with respect to
individual members of the CALIFORNIA LABOR SUB
CLASS, which would establish incompatible standards of
conduct for the DEFENDANT; and/or,
Adjudications with respect to individual members of the
CALIFORNIA LABOR SUB-CLASS would as a practical
matter be dispositive of the interests of the other members
not parties to the adjudication or substantially impair or
impede their ability to protect their interests;
In the context of wage litigation because a substantial number of
individual class members will avoid asserting their legal rights out
off ear of retaliation by DEFENDANT, which may adversely affect
an individual's job with DEFENDANT or with a subsequent
employer, the Class Action is the only means to assert their claims
through a representative; and,
A class action is superior to other available methods for the fair and
efficient adjudication of this litigation because class treatment will
obviate the need for unduly and unnecessary duplicative litigation
that is likely to result in the absence of certification of this action
pursuant to Cal. Code of Civ. Proc. § 3 82.
26 3 5. This Court should permit this action to be maintained as a Class Action
27 pursuant to Cal. Code ofCiv. Proc. § 382 because:
28 (a) The questions of law and fact common to the CALIFORNIA LABOR
CLASS ACTION COMPLAINT -16-
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SUB-CLASS predominate over any question affecting only individual
members;
{b) A Class Action is superior to any other available method for the fair and
efficient adjudication of the claims of the members of the CALIFORNIA
LABOR SUB-CLASS because in the context of employment litigation a
substantial number of individual Class members will avoid asserting their
rights individually out of fear of retaliation or adverse impact on their
employment;
(c) The members of the CALIFORNIA LABOR SUB-CLASS are so
numerous that it is impractical to bring all members of the CALIFORNIA
LABOR SUB-CLASS before the Court;
(d) PLAINTIFF, and the other CALIFORNIA LABOR SUB-CLASS
(e)
(f)
members, will not be able to obtain effective and economic legal redress
unless the action is maintained as a Class Action;
There is a community of interest in obtaining appropriate legal and
equitable relief for the acts of unfair competition, statutory violations and
other improprieties, and in obtaining adequate compensation for the
damages and injuries which DEFENDANT's actions have inflicted upon
the CALIFORNIA LABOR SUB-CLASS;
There is a community of interest in ensuring that the combined assets of
DEFENDANT are sufficient to adequately compensate the members ofthe
CALIFORNIA LABOR SUB-CLASS for the injuries sustained;
(g) DEFENDANT has acted or refused to act on grounds generally applicable
to the CALIFORNIA LABOR SUB-CLASS, thereby making final class
wide relief appropriate with respect to the CALIFORNIA LABOR SUB
CLASS as a whole;
(h) The members of the CALIFORNIA LABOR SUB-CLASS are readily
ascertainable from the business records of DEFENDANT. The
CLASS ACTION COMPLAINT -17-
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(i)
CALIFORNIA LABOR SUB-CLASS consists of all members of the
CALIFORNIA CLASS whose employment terminated during the
CALIFORNIA LABOR SUB-CLASS PERIOD ; and,
Class treatment provides manageable judicial treatment calculated to bring
a efficient and rapid conclusion to all litigation of all wage and hour related
claims arising out of the conduct of DEFENDANT.
7 36. DEFENDANT maintains records from which the Court can ascertain and identity
8 by job title each of DEFENDANT's employees who as have been systematically, intentionally
9 and uniformly subjected to DEFENDANT's corporate policy, practices and procedures as herein
10 alleged. PLAINTIFF will seek leave to amend the complaint to include any additional job titles
11 of similarly situated employees when they have been identified.
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JURISDICTION AND VENUE
37. This Court has jurisdiction over this action pursuant to the California Code of
Civil Procedure, Section 410.10 and California Business & Professions Code, Section 17203.
This action is brought as a class action on behalf of similarly situated employees of Defendant 17
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Smith & Nephew, Inc., pursuant to the California Code of Civil Procedure, Section 382.
38. Venue is proper in this Court pursuant to the California Code of Civil Procedure,
Sections 395 and 395.5, because PLAINTIFF resides in this County and the DEFENDANT (i) 20
21 currently maintains and at all relevant times maintained offices and facilities in this County, and
(ii) committed wrongful conduct herein alleged in this County against members of the 22
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CALIFORNIA CLASS.
FIRST CAUSE OF ACTION
For Unfair Competition
[Cal. Bus. & Prof. Code§§ 17200 et. seq.]
(By the PLAINTIFF and the CALIFORNIA CLASS and Against All Defendants)
CLASS ACTION COMPLAINT -18-
1 39. The PLAINTIFF, and the other members of the CALIFORNIA CLASS, reallege
2 and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 38 ofthis
3 Complaint.
4 40. DEFENDANT is a "person" as that term is defined under the California Business
5 & Professions Code, Section 17021.
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IS
41. California Business & Professions Code Sections 17200 et seq. (the "UCL")
defines unfair competition as any unlawful, unfair, or fraudulent business act or practice.
Section 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to
unfair competition as follows:
Any person who en!:\ages, has engaged, or proposes to engage in unfair competition may be enJoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment b,Y any person of any practice which constitutes unfair competition, as defined m this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.
California Business & Professions Code § 17203.
42. By the conduct alleged herein, DEFENDANT has engaged and continues to
16 engage in a business practice which violates California law, including but not limited California
17 Labor Code§§ 201,202,203 and 227.3. As a result, the DEFENDANT's policies, practices and
18 procedures alleged herein constitute an unlawful business practice.
19 43. By and through the conduct described herein, DEFENDANT has engaged in
20 unfair, unlawful and deceptive practices by failing to pay PLAINTIFF, and the other members
21 of the CALIFORNIA CLASS, accrued vested vacation wages and failed to comply with the
22 requirements of California law with respect to payment of wage to employees upon termination
23 of their employment in violation of Cal. Bus. and Prof. Code§ 17200 et seq., and have thereby
24 deprived PLAINTIFF, and the other members of the CALIFORNIA CLASS, of fundamental
25 rights and privileges and caused them economic injury as herein alleged. DEFENDANT
26 engaged in unfair competition by withholding accrued vested vacation compensation for work
27 performed by PLAINTIFF and the other members of the CALIFORNIA CLASS. As herein
28 alleged, DEFENDANT's conduct was unlawful in that, with respect to all California employees,
CLASS ACTION COMPLAINT -19-
1 DEFENDANT uniformly violated California law and regulations, including but not limited to
2 Labor Code§§ 201,202 and 227.3.
3 44. By the conduct alleged herein, DEFENDANT has engaged and continues to
4 engage in a business practice which is likely to deceive DEFENDANT's employees. The
5 DEFENDANT's conduct is likely to deceive employees because the DEFENDANT represents
6 to employees that (i) they earned and accumulated vacation hours during their employment, and
7 (ii) they would be paid in full for all vested vacation in a lump sum payment upon employment
8 termination, when in fact DEFENDANT secretly deleted and/or denied payment of vested
9 vacation upon termination. As a result, the DEFENDANT's policies, practices and procedures
10 alleged herein constitute a deceptive business practice.
11 45. By the conduct alleged herein, DEFENDANT has engaged and continues to
12 engage m a business practice which is unfair to DEFENDANT's employees. The
13 DEFENDANT's conduct is unfair because denying vacation pay that employees earned through
14 · the performance of labor, after representing to the employees that they earned and accumulated
15 vacation pay and are entitled such compensation, is immoral, unethical, oppressive, and
16 unscrupulous, and violates public policy. As a result, the DEFENDANT's policies, practices and
17 procedures alleged herein constitute an unfair business practice.
18 46. At all times relevant hereto, by and through the conduct described herein,
19 DEFENDANT engaged In unlawful, unfair and/or deceptive business practices by failing to pay
20 the PLAINTIFF, and the other members ofthe CALIFORNIA CLASS, compensation for vested
21 vacation wages upon termination of employment with DEFENDANT, pursuant to the applicable
22 provisions of the California Labor Code, in violation of the California Business and Professions
23 Code, Sections 17200 et seq., and has thereby deprived the PLAINTIFF, and the other members
24 of the CALIFORNIA CLASS, of earned wages.
25 4 7. By and through the unlawful, unfair and/or deceptive business practices described
26 herein, DEFENDANT obtained valuable property, money, and services from the PLAINTIFF,
27 and the other members of the CALIFORNIA CLASS, and has deprived them of valuable rights
28 and benefits guaranteed by law, all to their detriment.
CLASS ACTION COMPLAINT -20-
1 48. All the acts described herein as violations of, among other things the California
2 Labor Code, are unlawful and' in violation of public policy; and in addition are immoral,
3 unethical, oppressive, unscrupulous, and likely to deceive, and thereby constitute unlawful,
4 unfair and/or deceptive business practices in violation of the California Business and Professions
5 Code, Sections 17200 et. seq.
6 49. The PLAINTIFF, and the other members of the CALIFORNIA CLASS, are
7 entitled to, and do, seek such relief as may be necessary to restore to them the money which the
8 DEFENDANT may have acquired, or of which PLAINTIFF, and other members of the
9 CALIFORNIA CLASS, have been deprived, by means of the above described unlawful, unfair
10 and/or deceptive business practices, which includes the accrued vacation wages.
11 50. The PLAINTIFF, and the other members of the CALIFORNIA CLASS, are further
12 entitled to, and do, seek a declaration that the above described business practices are unlawful,
13 unfair and/or deceptive and that injunctive relief should be issued restraining DEFENDANT
14 from engaging in any of the above described unlawful, unfair and/ or deceptive business practices
15 in the future.
16 51. The PLAINTIFF, and the other members of the CALIFORNIA CLASS, have no
17 plain, speedy, and/or adequate remedy at law to redress the injuries which they have suffered as
18 a consequence ofthe unlawful, unfair and/or deceptive business practices ofDEFENDANT. As
19 a result of the unlawful, unfair and/or deceptive business practices described above, the
20 PLAINTIFF and other members ofthe CALIFORNIA CLASS, have suffered and will continue
21 to suffer irreparable harm unless DEFENDANT is restrained from continuing to engage in these
22 unlawful, unfair and/or deceptive business practices. Therefore, the DEFENDANT should be
23 required to disgorge the unpaid wages into a common fund for restitution of these wages to the
24 PLAINTIFF and to the members ofthe CALIFORNIA CLASS.
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SECOND CAUSE OF ACTION
For Waiting Time Penalties
[Cal. Lab. Code§§ 201, 202 and 203]
CLASS ACTION COMPLAINT -21-
1 (By PLAINTIFF and CALIFORNIA LABOR SUB-CLASS and Against All
2
3
Defendants)
52. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS,
reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 4
5
6
51 of this Complaint.
53. Cal. Lab. Code § 201 provides, "if an employer discharges an employee, the
wages earned and unpaid at the time of discharge are due and payable immediately." 7
8 54. Cal. Lab. Code § 202 provides that if an employee quits his or her employment,
"his or her wages shall become due and payable not later than 72 hours thereafter, unless the 9
employee has given 72 hours previous notice of his or her intention to quit, in which case the 10
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employee is entitled to his or her wages at the time of quitting."
55. The California Labor Code, Section 203, provides:
if an employer wilfully fails to pay, without abatement or reduction, in accordance to Sections 201, 201.5, 202, and 205, any wages of an employee who is discharged or quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.
Cal. Lab. Code§ 203. 16
17 56. Cal. Lab. Code§ 227.3 provides that whenever a contract of employment of
18 employer policy provides for paid vacations, and an employee is terminated without having taken
off his vested vacation time, all vested vacation time shall be paid to him as wages at his final 19
rate in accordance with such contract of employment or employer policy respecting eligibility 20
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or time served.
57. At all times relevant hereto, the PLAINTIFF, and the other members of the
. CALIFORNIA LABOR SUB-CLASS, earned and accumulated unused vested vacation leave. 23
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58. At all times relevant hereto, DEFENDANT wilfully failed to pay the PLAINTIFF,
and the other members of the CALIFORNIA LABOR SUB-CLASS, compensation for all of the
vested vacation time earned throughout their employment with DEFENDANT, which is due 26
PLAINTIFF and other members of the CALIFORNIA LABOR SUB-CLASS upon employment 27
termination, in violation of Cal. Lab. Code§§ 201,202 and 227.3. The PLAINTIFF, on behalf 28
CLASS ACTION COMPLAINT -22-
1 of himself and on behalf of the CALIFORNIA LABOR SUB-CLASS, theref6re seeks recovery
2 of the statutory penalties in accordance with Cal. Lab. Code § 203 based upon the earned
3 vacation wages which DEFENDANT failed to pay them upon the termination of their
4 employment with DEFENDANT.
5 59. The PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-
6 CLASS, are informed and believe, and based upon that information and belief allege, that
7 DEFENDANT willfully and intentionally failed to pay these wages to the PLAINTIFF and the
8 other members of the CALIFORNIA LABOR SUB-CLASS, in violation of California Labor
9 Code§§ 201 & 202. The PLAINTIFF and the other members of the CALIFORNIA LABOR
10 SUB-CLASS therefore request recovery of waiting time penalties against DEFENDANT, in a
11 sum as provided by Cal. Lab. Code § 203 and/or other statutes, along with statutory costs as
12 provided for by Cal. Lab. Code§ 203.
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PRAYER FOR RELIEF
WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly
and severally, as follows:
1. On behalf of the CALIFORNIA CLASS:
A) That the Court certifY the First Cause of Action asserted by the CALIFORNIA
CLASS as a Class Action pursuant to Cal. Code ofCiv. Proc. § 382;
B)
C)
D)
An order temporarily, preliminarily and permanently enjoining and restraining
DEFENDANT from engaging in similar unlawful conduct as set forth herein;
An order requiring DEFENDANT to pay all sums unlawfully withheld from
the PLAINTIFF and the other CALIFORNIA CLASS Members, including the
unpaid vacation wages; and,
Disgorgement ofDEFENDANT's ill-gotten gains into a fluid fund for restitution
of the sums incidental to DEFENDANT's violations due PLAINTIFF and the
other CALIFORNIA CLASS Members.
2. On behalf of the CALIFORNIA LABOR SUB-CLASS:
CLASS ACTION COMPLAINT -23-
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A)
B)
That the Court certify the Second Cause of Action asserted by the CALIFORNIA '
LABOR SUB-CLASS as a class action pursuant to Cal. Code ofCiv. Proc. § 382;
and,
The wages of all terminated employees due to members of the CALIFORNIA
LABOR SUB-CLASS as a penalty from the due date thereof at the same rate until
paid or until an action therefor is commenced in accordance with Cal. Lab. Code
§ 203.
8 3. On all claims:
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A)
B)
C)
An award of statutory costs and interest, including prejudgment interest at the
legal rate;
Such other and further relief as the Court deems just and equitable; and,
An award of penalties and cost of suit, but neither this prayer nor any other
allegation or prayer in this Complaint is to be construed as a request, under
any circumstance, that would result in a request for attorneys' fees under Cal.
Lab. Code§ 218.5.
17 Dated: October 10, 2011
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CLASS ACTION COMPLAINT -24-
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DEMAND FOR JURY TRIAL
PLAINTIFF demands a jury trial on issues triable to a jury.
Dated: October 10, 2011
Norman B. ent a Attorneys for Plaintiffs
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CLASS ACTION COMPLAINT -25-