/Lardner-v-SmithNephew-original by Blumenthal Nordrehaug Bhowmik Employment Lawyers

BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) KyleR. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 225 5 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 Website: www.bamlawca.com

Attorneys for Plaintiff

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ENDORSED FILED ALAMEDA COUNTY

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

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RICHARD LARDNER, on behalf of himself and all persons similarly situated,

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17 18 19

--------

CLASS ACTION COMPLAINT FOR:

Plaintiff, vs.

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.

SMITH & NEPHEW, INC., a Delaware Corporation and DOES 1 through 50, Defendant.

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Case No.

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DEMAND FOR A JURY TRIAL

24 25 26 27 28 CLAISS ACTION COMPLAINT

Plaintiff Richard Lardner, ("PLAINTIFF"), an individual, on behalf of himself and all

other similarly situated current 'and former employees, alleges upon information and belief,

except for his own acts and knowledge which are based on personal knowledge, the following:

THE PARTIES

Defendant Smith & Nephew, Inc. ("SMITH" or "DEFENDANT"), is corporation

incorporated under the laws of the State of Delaware with its principal place of business located

in Massachusetts. SMITH is a global medical devices business that develops advanced medical

services for healthcare professionals around the world. SMITH's products enable nurses,

surgeons and other medical practitioners to provide effective treatment more quickly and

economically. SMITH is an industry leader in three main global business units - Orthpaedic

Reconstruction and Trauma, Endoscopy and Advanced Wound Management. In 201 0, SMITH's

financial report showed revenues of approximately $4 billion. SMITH was doing and continues

14 路to do regular and substantial business in California. 15

Plaintiff Richard Lardner, at all relevant times mentioned herein, resided in the

State of California and currently resides in the City of Oakland. PLAINTIFF was employed by

SMITH continuously from March 2006 to January 2011, during which he earned and

accumulated vested hours of vacation pay that remained unused at the time of termination. On

January 12, 2011, after working for SMITH for over four years, PlaintiffLardner's employment

was terminated by SMITH. As part of SMITH's uniform policy and systematic scheme offailing

to pay the employees all the vested vacation wages they earned and accumulated upon the

termination of their employment, SMITH intentionally and in bad faith failed to compensate

PLAINTIFF and other employees for the vested vacation hours that they earned and

accumulated, and that SMITH still owes them resulting in a forfeiture of vested vacation time.

Plaintiff Richard Lardner brings this action pursuant to Cal. Code ofCiv. Proc. 搂

3 82, on behalf of himself and on behalf of a class consisting of all those persons employed by

Smith & Nephew, Inc., in California, who earned vested vacation pay and whose employment

terminated during the applicable CLASS PERIODS. CLASS ACTION COMPLAINT

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PLAINTIFF and members of the CALIFORNIA CLASS suffered the loss and

forfeiture of accrued vested vacation ~ages and have not been paid for all earned and accrued

vested vacation wages by SMITH. SMITH's unlawful, unfair, and deceptive employment and

wage practices cheated the PLAINTIFF, and the other members ofthe CALIFORNIA CLASS,

out oftheir lawful wages and vacation pay due in violation ofthe California Labor Code and the

California Business & Professions Code

The true names and capacities, whether individual, corporate, subsidiary,

partnership, associate or otherwise of defendant DOES 1 through 50, inclusive, are presently

unknown to the PLAINTIFF who therefore sues these Defendants by such fictitious names

pursuant to Cal. Civ. Proc. Code ยง 474. The PLAINTIFF will seek leave to amend this

Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when they

are ascertained. PLAINTIFF is informed and believes, and based upon that information and

belief alleges, that the Defendants named in this Complaint, including DOES l through 50,

inclusive, are responsible in some manner for one or more of the events and happenings that

proximately caused the injuries and damages hereinafter alleged.

The agents, servants and/or employees of the Defendants and each of them

acting on behalf of the Defendants acted within the course and scope of his, her or its authority

as the agent, servant and/or employee of the Defendants, and personally participated in the

conduct alleged herein on behalf of the Defendants with respect to the conduct alleged herein.

Consequently, the acts of each Defendant are legally attributable to the other Defendants and all

Defendants are jointly and severally liable to the PLAINTIFF and the other members of the

CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the

Defendants' agents, servants and/or employees.

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GENERAL ALLEGATIONS 7.

At all times during the term of the their employment with DEFENDANT, the

CALIFORNIA CLASS members, including the PLAINTIFF, had earned and accrued vested

vacation and time on the date of their termination pursuant to DEFENDANT's uniform vacation CLASS ACTION COMPLAINT

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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

DEFENDANT's business records. During the relevant CLASS PERIODS, DEFENDANT

executed the unlawful uniform policy and systematic practice of enforcing a forfeiture system

where the PLAINTIFF and other CALIFORNIA CLASS Members were forced to use their

vested vacation time in the defined vacation year or risk forfeiture of their unused vested

vacation time. PLAINTIFF and other members of the CALIFORNIA CLASS were unable to

use all of their vested vacation time resulting in a forfeiture of their vested vacation time; thus

the DEFENDANT has failed and continues to fail to pay the PLAINTIFF and each member of

the CALIFORNIA CLASS the total amount of vacation pay due upon termination of their

employment with DEFENDANT. As a result of the DEFENDANT's unlawful practice, policy

and procedure to deny paying the PLAINTIFF and the other members of the CALIFORNIA

CLASS all of their vested vacation time, DEFENDANT failed to pay the PLAINTIFF and the

members of the CALIFORNIA CLASS all vested vacation time as wages due upon employment

termination, in violation of the California Labor Code, Sections 201, 202, 203 and 227.3. This

failure by DEFENDANT is believed to be the result of DEFENDANT's unlawful, unfair and

deceptive refusal to provide compensation for earned, accrued and vested vacation time.

DEFENDANT perpetrated this unlawful, unfair and deceptive practice to the detriment of the

PLAINTIFF and the members ofthe CALIFORNIA CLASS. DEFENDANT's uniform practice

and policy of failing to pay the CALIFORNIA CLASS members for all vested vacation time

accumulated at employment termination violated and continues to violate Section 227.3 of the

California Labor Code.

As a result ofDEFENDANT's standardized policies, practices, and procedures as

herein alleged, DEFENDANT caused the PLAINTIFF, and the other members of the

CALIFORNIA CLASS, to be denied payment of accumulated unpaid vested vacation time as

wages at employment termination. The members of the CALIFORNIA CLASS, including the

PLAINTIFF, lost money as a result of the DEFENDANT's standardized policies, practices, and

procedures alleged herein, and were personally subjected to the unlawful, unfair and deceptive CLASS ACTION COMPLAINT

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practices of DEFENDANT.

DEFENDANT currently has, and at all relevant times herein had, a uniform

vacation time policy applicable to all of the members of the CALIFORNIA CLASS, including

the PLAINTIFF. Pursuant to this uniform vacation policy, the PLAINTIFF and the other

members of the CALIFORNIA CLASS earn vacation pay as follows:

~b~

6 7

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 11

10.

DEFENDANTS's uniform vacation policy applicable to all the members of the

CALIFORNIA CLASS, including the PLAINTIFF, further provides: 12 13

All vacation time must be taken during the defined vacation year and may not be carried over into the following year. Any unused time will be forfeited.

14 15 16

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.

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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 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 have earned and accumulated throughout their employment with SMITH.

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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 DEFENDANT, including, but not limited to, falsely representing that upon the termination of their employment with DEFENDANT, the PLAINTIFF and the other members of the

CLASS ACTION COMPLAINT

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CALIFORNIA CLASS: (a) Are not entitled to all the vacation pay they have earned and

accumulated during the course of the their employment; and (b) Have already been paid all of

their earned vacation time, when in fact, they have not been compensated for all earned and

accumulated vacation time.

14.

California Labor Code Sections 201 and 202 require an employer to pay all wages

earned and unpaid, including vested vacation time, at the time of the discharge of employment.

An immediate payment of wages is due for any unused or accumulated vacation, annual leave,

holiday leave, or time off.

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11 12 13 14

15.

California Labor Code ยง 227.3 further provides:

ยง 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.

15 16.

At all relevant times mentioned herein, DEFENDANT represented that at

16 employment termination, PLAINTIFF and the CALIFORNIA CLASS members would be paid 17 in a lump sum for all vested accrued vacation time. 18 17.

Accordingly, and despite the fact that they earned and accumulated vested vacation

19 time, the PLAINTIFF and the other members of the CALIFORNIA CLASS did not receive 20 compensation for all oftheir vested vacation time upon employment termination as required by 21 California law. With respect to all members of the CALIFORNIA CLASS, DEFENDANT as 22 a matter of uniform company policy, intentionally and knowingly failed to pay these wages due 23 to each and every CALIFORNIA CLASS member upon the termination of their employment, 24 by systematically underpaying the vacation time owed to the members of the CALIFORNIA 25

CLASS.

28 CLASS ACTION COMPLAINT

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1 2

THE CALIFORNIA CLASS

18.

PLAINTIFF brings the Fi~st Cause of Action for Unfair, Unlawful, and Deceptive

Business Practices pursuant to Cal. Bus. & Prof. Code Section 17200 et seq. (the "UCL") as a

class action pursuant to California Code of Civil Procedure, Section 382, on behalf of himself

and a California Class, defined as all those persons employed by Defendant Smith & Nephew,

Inc., in California, who earned vested vacation pay and whose employment terminated during

the CALIFORNIA CLASS PERIOD. The period applicable to the CALIFORNIA CLASS is

defined as the period commencing on the date four (4) years prior to the filing of this Complaint

and ending on the date as set by the Court (the "CALIFORNIA CLASS PERIOD"). To the

extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against

DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.

19.

DEFENDANT, as a matter of company policy, practice and procedure, and

in violation of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order

Requirements, and the applicable provisions of California law, intentionally, knowingly, and

wilfully, engaged in a practice whereby DEFENDANT failed to pay the members of the

CALIFORNIA CLASS, including the PLAINTIFF, for all of the vested vacation pay they have

earned and accumulated throughout their employment with DEFENDANT.

20.

DEFENDANT has the legal burden to establish that each and every CALIFORNIA

CLASS Member was paid their accrued unused vested vacation wages and to accurately account

for such earned wages. The DEFENDANT, however, as a matter of uniform and systematic

policy and procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still

fails to have in place a policy or practice to pay former employees for vested vacation wages

earned while still employed, so as to satisfy DEFENDANT's legal burden. This common

business practice applicable to each and every CALIFORNIA CLASS member can be

adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business &

Professions Code ยง 17200, et seq. (the "UCL") as causation, damages, and reliance are not

elements ofthis claim.

21.

During the CALIFORNIA CLASS PERIOD, DEFENDANT uniformly violated CLASS ACTION COMPLAINT

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the rights of the members of the CALIFORNIA CLASS, including the PLAINTIFF, under

California law by:

(a)

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;

(b)

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;

(c)

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;

(d)

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 ofvacation pay

the PLAINTIFF and the members of the CALIFORNIA CLASS earned

and accrued throughout their employment with DEFENDANT; and,

(e)

Violating Cal. Lab. Code Â§Â§ 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

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CALIFORNIA CLASS who have terminated their employment. 22.

As a result of DEFENDANT's uniform policies, practices and procedures, there

are numerous questions of law and fact common to all CALIFORNIA CLASS Members who

worked for DEFENDANT in California during the CALIFORNIA CLASS PERIOD. These

questions include, but are not limited to, the following:

(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 compensate employees for all vested vacation pay earned and accumulated

upon termination;

(c)

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

misrepresenting that the members of the CALIFORNIA CLASS are not

entitled to all vacation pay earned and accumulated upon termination of

employment with DEFENDANT;

(e)

pay earned violates Section 227.3 of the California Labor Code;

(f)

'21

California Labor Code;

(g)

Whether DEFENDANT has engaged in unfair competition by the above-listed conduct; and,

Whether DEFENDANT's failure to compensate employees for all vacation pay earned upon employment termination violates Sections 201-203 ofthe

Whether DEFENDANT's failure to compensate employees for all vacation

(h) 23.

Whether DEFENDANT's conduct was willful.

This Class Action meets the statutory prerequisites for the maintenance of a Class

Action as set forth in Cal. Code of Civ. Proc. ยง 382, in that:

(a)

The persons who comprise the CALIFORNIA CLASS are so numerous CLASS ACTION COMPLAINT

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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 23 24

24.

In addition to meeting the statutory prerequisites to a Class Action, this action is

properly maintained as a Class Action pursuant to Cal. Code ofCiv. Proc. ยง 382, in that:

(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

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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路 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 claims in the particular forum; and,

(iv)

27 28

The desirability or undesirability of concentrating the litigation of

The difficulties likely to be encountered in the management of a Class Action.

25.

This Court should permit this action to be maintained as a Class Action pursuant CLASS ACTION COMPLAINT

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1 2

to Cal. Code ofCiv. Proc. ยง 382, because:

(a)

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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

efficient adjudication of the claims of the members of the CALIFORNIA

CLASS;

(c)

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

be able to obtain effective and economic legal redress unless the action is

maintained as a class action;

(e)

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;

(f)

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

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1 2 3

THE CALIFORNIA LABOR SUB-CLASS

26.

PLAINTIFF further brings the Second Cause of Action on behalf of a

CALIFORNIA LABOR SUB-CLASS which consists of all members of the CALIFORNIA

CLASS whose employment with DEFENDANT terminated during the period beginning on the

date three (3) years prior to the filing of the action and ending on the date as determined by the

Court (the "CALIFORNIA LABOR SUB-CLASS PERIOD"), pursuant to California Code of

Civil Procedure, Section 382.

27.

DEFENDANT, as a matter of corporate policy, practice and procedure, and in

violation of the applicable California Labor Code ("Labor Code"), and Industrial Welfare

Commission ("IWC") Wage Order Requirements intentionally, knowingly, wilfully, and

systematically failed to pay PLAINTIFF and the other members of the CALIFORNIA LABOR

SUB-CLASS their earned vested vacation wages after their employment terminated based on

DEFENDANT's uniform policy in order to avoid the payment of earned vested vacation pay.

To the extent equitable tolling operates to toll claims by the CALIFORNIA LABOR SUB-

CLASS against DEFENDANT, the class period should be adjusted accordingly.

28.

DEFENDANT maintains records from which the Court can ascertain and

identify by job title each of DEFENDANT's employees who as CALIFORNIA LABOR SUB-

CLASS members have been systematically, intentionally and uniformly denied payment of

earned vested vacation pay following the termination of their employment. PLAINTIFF will

seek leave to amend the complaint to include any additional job titles when they have been

identified.

29.

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The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all

members is impracticable. 30,

Common questions oflaw and fact exist as to members of the CALIFORNIA

LABOR SUB-CLASS, including, but not limited, to the following: (a)

Whether DEFENDANT unlawfully failed to pay all earned and vested vacation compensation to members of the CALIFORNIA LABOR SUBCLASS ACTION COMPLAINT

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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. 31.

DEFENDANT as a matter of corporate policy, practice and procedure, failed to

pay accrued vested vacation wages to employees who have terminated their employment but

completed sales while still employed. All CALIFORNIA LABOR SUB-CLASS Members,

including the PLAINTIFF, were paid by DEFENDANT according to uniform and systematic

company procedures, which, as alleged herein above, failed to pay accrued vested vacation

compensation at employment termination. This business practice was uniformly applied to each

and every member of the CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety of

this conduct can be adjudicated on a class-wide basis.

32.

DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-CLASS

under California law by violating Cal. Lab. Code§§ 201, 202, and 227.3 which provides that

when an employee is discharged or quits from employment, the employer must pay the employee

all wages due, including vested vacation wages, without abatement, by failing to tender full

payment and/or restitution of wages owed or in the manner required by California law to the

members of the CALIFORNIA LABOR SUB-CLASS who have terminated their employment.

23 24 25

33.

This Class Action meets the statutory prerequisites for the maintenance of a

Class Action as set forth in Cal. Code ofCiv. Proc. § 382, in that: (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;

28 CLASS ACTION COMPLAINT

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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.

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)

PLAINTIFF sustained economic injury as a result of

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.

representative PLAINTIFF and the members of the CALIFORNIA

. 21

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 25

34.

There are no material conflicts between the claims of the

In addition to meeting the statutory prerequisites to a Class Action, this action

is properly maintained as a Class Action pursuant to Cal. Code ofCiv. Proc. ยง 382, in that: (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 SUBCLASS ACTION COMPLAINT

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CLASS will create the risk of:

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

10 11

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

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;

(c)

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:

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

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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:

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

offear 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. ยง 3 82.

26 27 28

3 5.

This Court should permit this action to be maintained as a Class Action

pursuant to Cal. Code ofCiv. Proc. ยง 382 because:

(a)

The questions of law and fact common to the CALIFORNIA LABOR CLASS ACTION COMPLAINT

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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

members, will not be able to obtain effective and economic legal redress

unless the action is maintained as a Class Action;

(e)

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;

(f)

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;

27 28

(h)

The members of the CALIFORNIA LABOR SUB-CLASS are readily ascertainable from the business records of DEFENDANT. CLASS ACTION COMPLAINT

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The

CALIFORNIA LABOR SUB-CLASS consists of all members of the

CALIFORNIA CLASS whose employment terminated during the

CALIFORNIA LABOR SUB-CLASS PERIOD ; and,

(i)

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.

36.

DEFENDANT maintains records from which the Court can ascertain and identity

by job title each of DEFENDANT's employees who as have been systematically, intentionally

and uniformly subjected to DEFENDANT's corporate policy, practices and procedures as herein

alleged. PLAINTIFF will seek leave to amend the complaint to include any additional job titles

of similarly situated employees when they have been identified.

12 13

JURISDICTION AND VENUE

15 16

17 18 19

20 21

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 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) 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 CALIFORNIA CLASS.

23 24

26 27 28

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

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39.

The PLAINTIFF, and the other members of the CALIFORNIA CLASS, reallege

and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 38 ofthis

Complaint.

5 6

40.

DEFENDANT is a "person" as that term is defined under the California Business

& Professions Code, Section 17021. 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:

10 11 12 13 14

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

engage in a business practice which violates California law, including but not limited California

Labor Code§§ 201,202,203 and 227.3. As a result, the DEFENDANT's policies, practices and

procedures alleged herein constitute an unlawful business practice.

43.

By and through the conduct described herein, DEFENDANT has engaged in

unfair, unlawful and deceptive practices by failing to pay PLAINTIFF, and the other members

of the CALIFORNIA CLASS, accrued vested vacation wages and failed to comply with the

requirements of California law with respect to payment of wage to employees upon termination

of their employment in violation of Cal. Bus. and Prof. Code§ 17200 et seq., and have thereby

deprived PLAINTIFF, and the other members of the CALIFORNIA CLASS, of fundamental

rights and privileges and caused them economic injury as herein alleged. DEFENDANT

engaged in unfair competition by withholding accrued vested vacation compensation for work

performed by PLAINTIFF and the other members of the CALIFORNIA CLASS.

alleged, DEFENDANT's conduct was unlawful in that, with respect to all California employees, CLASS ACTION COMPLAINT

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As herein

1 DEFENDANT uniformly violated California law and regulations, including but not limited to 2 3

Labor Code§§ 201,202 and 227.3. 44.

By the conduct alleged herein, DEFENDANT has engaged and continues to

engage in a business practice which is likely to deceive DEFENDANT's employees. The

DEFENDANT's conduct is likely to deceive employees because the DEFENDANT represents

to employees that (i) they earned and accumulated vacation hours during their employment, and

(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 10 11

vacation upon termination. As a result, the DEFENDANT's policies, practices and procedures alleged herein constitute a deceptive business practice. 45.

By the conduct alleged herein, DEFENDANT has engaged and continues to

engage m a business practice which is unfair to DEFENDANT's employees.

The

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

unscrupulous, and violates public policy. As a result, the DEFENDANT's policies, practices and

procedures alleged herein constitute an unfair business practice.

46.

At all times relevant hereto, by and through the conduct described herein,

DEFENDANT engaged In unlawful, unfair and/or deceptive business practices by failing to pay

the PLAINTIFF, and the other members ofthe CALIFORNIA CLASS, compensation for vested

vacation wages upon termination of employment with DEFENDANT, pursuant to the applicable

provisions of the California Labor Code, in violation of the California Business and Professions

Code, Sections 17200 et seq., and has thereby deprived the PLAINTIFF, and the other members

of the CALIFORNIA CLASS, of earned wages.

47.

By and through the unlawful, unfair and/or deceptive business practices described

herein, DEFENDANT obtained valuable property, money, and services from the PLAINTIFF,

and the other members of the CALIFORNIA CLASS, and has deprived them of valuable rights

and benefits guaranteed by law, all to their detriment. CLASS ACTION COMPLAINT

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48.

All the acts described herein as violations of, among other things the California

Labor Code, are unlawful and' in violation of public policy; and in addition are immoral,

unethical, oppressive, unscrupulous, and likely to deceive, and thereby constitute unlawful,

unfair and/or deceptive business practices in violation of the California Business and Professions

Code, Sections 17200 et. seq.

49.

The PLAINTIFF, and the other members of the CALIFORNIA CLASS, are

entitled to, and do, seek such relief as may be necessary to restore to them the money which the

DEFENDANT may have acquired, or of which PLAINTIFF, and other members of the

CALIFORNIA CLASS, have been deprived, by means of the above described unlawful, unfair

10 11

and/or deceptive business practices, which includes the accrued vacation wages. 50.

The PLAINTIFF, and the other members ofthe CALIFORNIA CLASS, are further

entitled to, and do, seek a declaration that the above described business practices are unlawful,

unfair and/or deceptive and that injunctive relief should be issued restraining DEFENDANT

from engaging in any of the above described unlawful, unfair and/or deceptive business practices

in the future.

51.

The PLAINTIFF, and the other members of the CALIFORNIA CLASS, have no

plain, speedy, and/or adequate remedy at law to redress the injuries which they have suffered as

a consequence ofthe unlawful, unfair and/or deceptive business practices ofDEFENDANT. As

a result of the unlawful, unfair and/or deceptive business practices described above, the

PLAINTIFF and other members ofthe CALIFORNIA CLASS, have suffered and will continue

to suffer irreparable harm unless DEFENDANT is restrained from continuing to engage in these

unlawful, unfair and/or deceptive business practices. Therefore, the DEFENDANT should be

required to disgorge the unpaid wages into a common fund for restitution of these wages to the

PLAINTIFF and to the members ofthe CALIFORNIA CLASS.

SECOND CAUSE OF ACTION

For Waiting Time Penalties

[Cal. Lab. CodeÂ§Â§ 201, 202 and 203] CLASS ACTION COMPLAINT

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(By PLAINTIFF and CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

2 52.

PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS,

3 reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 4 51 of this Complaint.

5 53.

Cal. Lab. Code § 201 provides, "if an employer discharges an employee, the

6 wages earned and unpaid at the time of discharge are due and payable immediately."

7 54.

Cal. Lab. Code § 202 provides that if an employee quits his or her employment,

8 "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 employee is entitled to his or her wages at the time of quitting."

11 55.

The California Labor Code, Section 203, provides:

12 13 14

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.

15 Cal. Lab. Code§ 203. 16 56.

Cal. Lab. Code§ 227.3 provides that whenever a contract of employment of

17 employer policy provides for paid vacations, and an employee is terminated without having taken 18 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 or time served. 21 57.

At all times relevant hereto, the PLAINTIFF, and the other members of the

22 . CALIFORNIA LABOR SUB-CLASS, earned and accumulated unused vested vacation leave. 23 58.

At all times relevant hereto, DEFENDANT wilfully failed to pay the PLAINTIFF,

24 and the other members of the CALIFORNIA LABOR SUB-CLASS, compensation for all of the 25 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

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of himself and on behalf of the CALIFORNIA LABOR SUB-CLASS, theref6re seeks recovery

of the statutory penalties in accordance with Cal. Lab. Code § 203 based upon the earned

vacation wages which DEFENDANT failed to pay them upon the termination of their

employment with DEFENDANT.

59.

The PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-

CLASS, are informed and believe, and based upon that information and belief allege, that

DEFENDANT willfully and intentionally failed to pay these wages to the PLAINTIFF and the

other members of the CALIFORNIA LABOR SUB-CLASS, in violation of California Labor

Code§§ 201 & 202. The PLAINTIFF and the other members of the CALIFORNIA LABOR

SUB-CLASS therefore request recovery of waiting time penalties against DEFENDANT, in a

sum as provided by Cal. Lab. Code § 203 and/or other statutes, along with statutory costs as

provided for by Cal. Lab. Code§ 203.

PRAYER FOR RELIEF

WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly

and severally, as follows: 16

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;

An order temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein;

C) 22

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. 27

On behalf of the CALIFORNIA LABOR SUB-CLASS:

CLASS ACTION COMPLAINT

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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. ยง 382;

and, B)

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

ยง 203.

8 9

On all claims: A)

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. Codeยง 218.5.

16 17

Dated: October 10, 2011

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26 27 28 CLASS ACTION COMPLAINT

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1 DEMAND FOR JURY TRIAL

2 3

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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