`
`PATRICE KANTZ, on behalf of herself
`Individually and on behalf of those similarly
`situated,
`
`
`Plaintiff,
`
`
`
`
`
`No. 2:20-cv-00531-JCJ
`
`Judge Petrese B. Tucker
`
`
`
`
`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 1 of 16
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`-against-
`
`AT&T INC. AND AT&T SERVICES, INC.
`
`
`Defendants.
`
`
`[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO
`DISMISS
`
`
`
`AND NOW, this
`
` day of
`
`
`
`, 2022, upon consideration of Defendants’
`
`Motion to Dismiss, dated March 9, 2022, and Plaintiff having opposed the motion, the Court,
`
`having considered the papers submitted by counsel, oral arguments of counsel, evidence
`
`presented by the parties, and all other matters properly presented to and received by the Court,
`
`and for the reasons set forth in the Motion and for good cause shown, the motion to dismiss is
`
`GRANTED.
`
`IT IS SO ORDERED.
`
`Dated:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Honorable Petrese B. Tucker
`United States District Judge
`
`
`
`
`
`
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 2 of 16
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`PATRICE KANTZ, on behalf of herself
`Individually and on behalf of those similarly
`situated,
`
`Plaintiff,
`
`-against-
`
`AT&T INC. AND AT&T SERVICES, INC.
`
`Defendants.
`
`No. 2:20-cv-00531-JCJ
`
`Judge Petrese B. Tucker
`
`DEFENDANTS’ MOTION TO DISMISS
`
`Defendants, by and through their undersigned attorneys, hereby move the Court to enter
`
`an Order dismissing the collective action allegations in Kantz’s Complaint pursuant to Federal
`
`Rule of Civil Procedure 12(b)(6). In support of this Motion, Defendants rely on the
`
`accompanying Memorandum of Law dated March 9, 2022. Defendants respectfully request an
`
`opportunity to present oral argument on the issues raised in their motion, should the Court deem
`
`it appropriate.
`
`Dated: March 9, 2022
`
`Respectfully submitted,
`
`By:
`
`Kenneth W. Gage
`Elliot R. Fink
`Sara B. Tomezsko
`Paul Hastings LLP
`200 Park Avenue, 30th Floor
`New York, NY 10166
`Phone: (212) 318-6000
`Fax: (212) 230-7646
`kennethgage@paulhastings.com
`elliotfink@paulhastings.com
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 3 of 16
`
` saratomezsko@paulhastings.com
`
`William J. Leahy
`Littler Mendelson P.C.
`Three Parkway
`1601 Cherry Street, Suite 1400
`Philadelphia, PA 19102
`Phone: (267) 402-3012
`Fax: (267) 960-5464
`wleahy@littler.com
`
`Attorneys for Defendants
`AT&T INC. and AT&T SERVICES, INC.
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 4 of 16
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 9, 2022, a copy of the foregoing Defendants’ Motion to
`
`Dismiss and all supporting documents were filed electronically and served by mail on anyone
`
`unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by
`
`operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic
`
`filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the
`
`Court’s CM/ECF system.
`
`Kenneth W. Gage
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 5 of 16
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`PATRICE KANTZ, on behalf of herself
`Individually and on behalf of those similarly
`situated,
`
`Plaintiff,
`
`-against-
`
`AT&T INC. AND AT&T SERVICES, INC.
`
`Defendants.
`
`No. 2:20-cv-00531-JCJ
`
`Judge Petrese B. Tucker
`
`MEMORANDUM OF LAW IN SUPPORT OF
`DEFENDANTS’ MOTION TO DISMISS
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 6 of 16
`
`TABLE OF CONTENTS
`
`
`Page
`
`
`I.
`II.
`III.
`
`IV.
`
`INTRODUCTION ............................................................................................................. 1
`BACKGROUND ............................................................................................................... 1
`ARGUMENT ..................................................................................................................... 3
`A.
`The Applicable Standard ........................................................................................ 3
`B.
`The General Release is an enforceable contract. ................................................... 4
`C.
`The right to pursue an ADEA collective action pursuant to 29 U.S.C. §
`216(b) is waivable. ................................................................................................. 4
`The Collective Action Waiver is not unconscionable ............................................ 6
`D.
`CONCLUSION .................................................................................................................. 8
`
`
`
`
`
`-i-
`
`
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 7 of 16
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`14 Penn Plaza LLC v. Pyett,
`556 U.S. 247 (2009) ...............................................................................................................4, 6
`
`Ansys, Inc. v. SF Motors, Inc.,
`No. 2:20-CV-00352-MJH, 2021 WL 22453 (W.D. Pa. Jan. 4, 2021) .......................................4
`
`Ashcroft v. Iqbal,
`556 U.S. 662, 129 S. Ct. 1937 (2009) ........................................................................................3
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 127 S. Ct. 1955 (2007) ........................................................................................3
`
`Boaz v. FedEx Customer Information Services, Inc.,
`725 F.3d 603 (6th Cir. 2013) .....................................................................................................5
`
`Brooklyn Sav. Bank v. O’Neil,
`324 U.S. 697 (1945) ...................................................................................................................5
`
`In re Burlington Coat Factory Sec. Litig.,
`114 F.3d 1410 (3d Cir. 1997).....................................................................................................3
`
`Burtch v. Milberg Factors, Inc.,
`662 F.3d 212 (3d Cir. 2011).......................................................................................................3
`
`Carter v. Countrywide Credit Indus., Inc.,
`362 F.3d 294 (5th Cir. 2004) .....................................................................................................5
`
`Delaney v. FTS Int’l Servs. LLC,
`No. 4:16-cv-662, 2017 WL 264463 (M.D. Pa Jan. 20, 2017) ...................................................3
`
`Estle v. Int’l Bus. Machs., Corp.,
`23 F.4th 210 (2d Cir. 2022) ...................................................................................................5, 6
`
`Fowler v. UPMC Shadyside,
`578 F.3d 203 (3d Cir. 2009).......................................................................................................3
`
`Horowitz v. AT&T Inc.,
`No. 3:17-CV-4827-BRM-LHG, 2018 WL 1942525 (D.N.J. Apr. 25, 2018)
`(unpublished), opinion clarified on denial of reconsideration, No. 3:17-CV-
`4827-BRM-LHG, 2019 WL 77306 (D.N.J. Jan. 2, 2019) (unpublished) ..............................5, 7
`
`Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am.,
`325 U.S. 161 (1945) ...................................................................................................................5
`
`ii
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 8 of 16
`
`
`
`Killion v. KeHE Distribs., LLC,
`761 F.3d 574 (6th Cir. 2014) .....................................................................................................5
`
`Korea Week, Inc. v. Got Capital, LLC,
`Civil Action No. 15-6351, 2016 WL 3049490 (E.D. Pa. May 27, 2016) ..................................7
`
`Kubischta v. Schlumberger Tech. Corp.,
`Civil Action No. 15-1338, 2016 WL 3752917 (W.D. Pa. July 14, 2016) .............................6, 7
`
`McIlwain v. Saber Healthcare Grp., Inc., LLC,
`2019 PA Super 122, 208 A.3d 478 (2019).................................................................................4
`
`McLeod v. Gen. Mills, Inc.,
`856 F.3d 1160 (8th Cir. 2017) ...................................................................................................4
`
`Owen v. Bristol Care, Inc.,
`702 F.3d 1050 (8th Cir. 2013) ...................................................................................................5
`
`Quilloin v. Tenet HealthSystem Philadelphia, Inc.,
`673 F.3d 221 (3d Cir. 2012).......................................................................................................6
`
`Resyn Corp. v. U.S. (In re Resyn Corp.),
`94 F.2d 1279 (3d Cir. 1991).......................................................................................................4
`
`Shaw v. Digital Equip. Corp.,
`82 F.3d 1194 (1st Cir. 1996) ......................................................................................................3
`
`In re Spectrum All., LP,
`Bankr. No. 17-14250-MDC, 2022 WL 209610 (E.D. Pa. Jan. 24, 2022)..................................4
`
`Sutherland v. Ernst & Young LLP,
`726 F.3d 290 (2d Cir. 2013).......................................................................................................5
`
`Vaughn v. Pittsburgh Fondue, LLC,
`No. 2:19-cv-01104-RJC, 2021 WL 2952902 (W.D. Pa July 14, 2021) .....................................6
`
`Vilches v. Travelers Cos., Inc.,
`413 F. App’x 487 (3d Cir. 2011) ...............................................................................................6
`
`Walthour v. Chipio Windshield Repair, LLC,
`745 F.3d 1326 (11th Cir. 2014) .................................................................................................5
`
`Statutes
`
`29 U.S.C. § 626(f)(1) .......................................................................................................................6
`
`iii
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 9 of 16
`
`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Patrice Kantz purports to bring this case under the Age Discrimination in
`
`Employment Act as a collective action on behalf of others similarly situated, pursuant to 29 U.S.C.
`
`§ 216(b). She cannot be permitted to do so because, in exchange for severance benefits, she
`
`contractually agreed that she would not.
`
`This Court already found, and the Court of Appeals for the Third Circuit agreed, that the
`
`General Release and Waiver (the “General Release”) referred to in Kantz’s complaint is an
`
`enforceable contract. That agreement was the basis for Kantz’s refusal to arbitrate her claims
`
`pursuant to a prior agreement.
`
`In exchange for valid consideration described in the General Release, Kantz agreed, among
`
`other things, that she would “not bring, maintain or participate in any class action, collective action
`
`or representative action . . ...” (Plaintiff’s Brief in Further Opposition to Defendants’ Motion to
`
`Compel Individual Arbitration and Stay Proceedings (“Pltf. Opp to MTC, Ex.”), Ex. F-3 at 7,
`
`Kantz v. AT&T, Inc., No. 2:20-cv-00531-JCJ (E.D. Pa. Nov. 20, 2020), ECF No. 34-3.) It is well-
`
`settled that the procedural right to pursue a collective action under the ADEA pursuant to 29 U.S.C.
`
`§ 216(b) is waivable, notwithstanding alleged violations of the Older Workers Benefit Protection
`
`Act.
`
`Therefore, for the reasons set forth in more detail below Defendants AT&T Inc. and AT&T
`
`Services, Inc. (collectively, “AT&T”) request that this Court dismiss the collective action
`
`allegations in Kantz’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) .
`
`II.
`
`BACKGROUND
`
`According to her complaint, Kantz was notified on January 28, 2019 that she had been
`
`selected for surplus, and she was provided with a packet of materials that included the General
`
`Release. Compl. ¶¶ 108, 109, 123. The General Release clearly states that if she agreed to its terms,
`
`1
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 10 of 16
`
`Kantz would receive severance benefits under the AT&T severance plan. (Pltf. Opp to MTC, Ex.
`
`F-3.) She was advised “to consult with an attorney before accepting” the General Release. (Id. at
`
`Ex. F-3 at 1.). She had 90 days after her last day on AT&T’s payroll to sign the General Release
`
`and up to seven calendar days afterwards to revoke her acceptance. (Id. at 8.) Kantz signed the
`
`General Release. Compl. ¶ 125.
`
`Critically, the General Release contains an explicit waiver of the right to pursue a collective
`
`action. It provides in relevant part:
`
`I agree that I will not bring, maintain or participate in any class action, collective action or
`representative action against any of the Companies which asserts, in whole or in part, any
`claim(s) which arose prior to the date I sign this Agreement, whether or not such claims
`are covered by this General Release and Waiver. . . .” (Pltf. Opp to MTC, Ex. F-3 at 7).
`
`The General Release further provides that “[i]f a court determines that any part of this General
`
`Release and Waiver is not valid, the other parts will still remain valid and enforceable.” (Id. at 8.)
`
`Kantz filed her complaint in January 2020, alleging three counts relating to her surplus
`
`selection: In Count One, she alleges disparate treatment under the ADEA; in Count Two, she
`
`alleges disparate impact under the ADEA; and in Count Three, she alleges that AT&T failed to
`
`comply with the Older Workers Benefit Protection Act (“OWBPA”). She alleges that the collective
`
`action waiver is invalid. See Compl. at 2–3, ¶¶ 35(h), 35(i), 85-91, 126, 148, 152, 171. Among
`
`other things, she seeks an order certifying this matter pursuant to 29 U.S.C. § 216(b) as a collective
`
`action.
`
`In response to AT&T’s motion to compel individual arbitration, Kantz argued that the
`
`General Release was an agreement between Kantz and AT&T that superseded a pre-existing
`
`arbitration agreement. Memorandum at 9, Kantz v. AT&T, Inc., No. 2:20-cv-00531-JCJ (E.D. Pa.
`
`Mar. 19, 2021), ECF No. 37. This Court agreed. On AT&T’s appeal, the Third Circuit affirmed
`
`2
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 11 of 16
`
`based on the finding that the General Release was an agreement between the parties. The mandate
`
`of the Court of Appeals issued on March 4, 2022.
`
`AT&T now moves to dismiss Kantz’s collective action allegations, pursuant to Rule
`
`12(b)(6) of the Federal Rules of Civil Procedure.
`
`III.
`
`ARGUMENT
`
`A.
`
`The Applicable Standard
`
`A complaint cannot survive dismissal under this rule unless it contains sufficient factual
`
`matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
`
`1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
`
`(2007)). In evaluating the sufficiency of a complaint, the claims’ factual and legal elements must
`
`be separated. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). Mere legal
`
`conclusions are not entitled to any presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d
`
`212, 224 (3d Cir. 2011).
`
`Where, as here, a “document [is] integral to or explicitly relied upon in the complaint” (as
`
`the General Release is here), that document may be considered by the Court “without converting
`
`the motion to dismiss into one for summary judgment.” In re Burlington Coat Factory Sec. Litig.,
`
`114 F.3d 1410, 1426 (3d Cir. 1997) (citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st
`
`Cir. 1996); see also Delaney v. FTS Int’l Servs. LLC, No. 4:16-cv-662, 2017 WL 264463 (M.D.
`
`Pa Jan. 20, 2017) (enforcing collective action waiver based on document extraneous to the
`
`pleadings based on notion that Plaintiff had adequate notice).
`
`On the face of Kantz’s complaint, and considering the terms of the General Release, which
`
`is explicitly referred to in the complaint, she cannot legally pursue a collective action. Therefore,
`
`for the reasons set forth below, the Court should dismiss her collective action allegations.
`
`3
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 12 of 16
`
`B.
`
`The General Release is an enforceable contract.
`
`Under Pennsylvania law, an enforceable contract is formed when there is “offer,
`
`acceptance, consideration, or mutual meeting of the minds.” Ansys, Inc. v. SF Motors, Inc., No.
`
`2:20-CV-00352-MJH, 2021 WL 22453, at *3 (W.D. Pa. Jan. 4, 2021) (citing McIlwain v. Saber
`
`Healthcare Grp., Inc., LLC, 2019 PA Super 122, 208 A.3d 478, 485 (2019)). The General Release
`
`is an enforceable contract.
`
`Kantz signed the General Release. Compl. ¶ 125. She then argued successfully that it was
`
`an enforceable agreement between her and AT&T to avoid her prior agreement to arbitrate these
`
`claims. This Court agreed, and the Court of Appeals did too. As such, it is law of the case that the
`
`General Release is an agreement between Kantz and AT&T. In re Spectrum All., LP, Bankr. No.
`
`17-14250-MDC, 2022 WL 209610, at *6 (E.D. Pa. Jan. 24, 2022) (citing Resyn Corp. v. U.S. (In
`
`re Resyn Corp.), 94 F.2d 1279 (3d Cir. 1991)).
`
`The General Release contains a severability provision, as noted above. (Pltf. Opp to MTC,
`
`Ex. F-3 at 8.) The collective action waiver therefore is unaffected by Kantz’s allegations in Count
`
`Three that AT&T failed to comply with the OWBPA, which only governs the waiver of substantive
`
`ADEA rights. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 259 (2009).
`
`C.
`
`The right to pursue an ADEA collective action pursuant to 29 U.S.C. § 216(b)
`is waivable.
`
`The right to pursue an ADEA collective action pursuant to 29 U.S.C. § 216(b) is a waivable
`
`procedural right, not a substantive right specifically protected by the OWBPA’s requirements for
`
`knowing and voluntary waivers. The federal appellate courts that have considered the issue agree
`
`that it can be contractually waived. “Standing alone,” one court explained, “§ 216(b) does not
`
`create a non-waivable substantive right; . . .” McLeod v. Gen. Mills, Inc., 856 F.3d 1160, 1165 (8th
`
`Cir. 2017) (affirming order compelling arbitration and rejecting argument that OWBPA
`
`4
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 13 of 16
`
`requirements apply to jury trial and collective action rights); see also Estle v. Int’l Bus. Machs.,
`
`Corp., 23 F.4th 210, 214 (2d Cir. 2022) (affirming dismissal of claim seeking to invalidate
`
`collective action waiver in ADEA action). The majority of federal appellate courts have reached
`
`the same conclusion in FLSA cases. See Walthour v. Chipio Windshield Repair, LLC, 745 F.3d
`
`1326 (11th Cir. 2014) (upholding collective action waiver); Sutherland v. Ernst & Young LLP, 726
`
`F.3d 290 (2d Cir. 2013) (same); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013) (same);
`
`Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294 (5th Cir. 2004) (same).1
`
`The district courts within the Third Circuit to have considered the issue in ADEA cases
`
`agree that the right to pursue an ADEA collective action is waivable. See, e.g., Horowitz v. AT&T
`
`Inc., No. 3:17-CV-4827-BRM-LHG, 2018 WL 1942525, at *17–20 (D.N.J. Apr. 25, 2018)
`
`(unpublished), opinion clarified on denial of reconsideration, No. 3:17-CV-4827-BRM-LHG,
`
`2019 WL 77306 (D.N.J. Jan. 2, 2019) (unpublished) (holding that the plaintiff validly waived her
`
`right under § 216(b) to pursue an ADEA collective action against AT&T ); see also Order, Ray v.
`
`AT&T Inc., No.18-3303 (E.D. Pa. Sept. 12, 2019), ECF No. 62 (denying plaintiff’s motion to
`
`proceed as an ADEA collective action based on the collective action waiver in the General
`
`Release).
`
`The reasons for this conclusion are grounded in U.S. Supreme Court precedent. The
`
`OWBPA provides that “[a]n individual may not waive any right or claim under this chapter unless
`
`the waiver is knowing and voluntary” and then outlines certain enumerated requirements for valid
`
`1The Sixth Circuit, however, held that the right to pursue a collective action under the FLSA is non-waivable. See
`Killion v. KeHE Distribs., LLC, 761 F.3d 574 (6th Cir. 2014). It reached that conclusion in Killion because that court
`previously held in Boaz v. FedEx Customer Information Services, Inc., 725 F.3d 603 (6th Cir. 2013), that an employee
`could not agree to a shorter statute of limitations for FLSA claims. The Boaz decision was based upon the U.S.
`Supreme Court’s decades old holding “that an employee is not free to waive her claims under the Fair Labor Standards
`Act.” Id. at 604–06 (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706–10 (1945), and Jewell Ridge Coal Corp.
`v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161, 167 (1945)). The Supreme Court has not extended that
`rule to the ADEA. As described herein, the Supreme Court has clearly held that procedural rights under the ADEA
`may be waived.
`
`5
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 14 of 16
`
`waivers of ADEA claims. 29 U.S.C. § 626(f)(1) (emphasis added). In 2009, the Supreme Court
`
`held that the OWBPA’s requirements set forth in § 626(f)(1) apply to substantive, not procedural,
`
`rights. 14 Penn Plaza, 556 U.S. at 259.
`
`Affirming a decision enforcing a collective action waiver in an ADEA case, the Second
`
`Circuit in Estle recently explained that “[t]he result in this case is governed by 14 Penn Plaza: The
`
`phrase ‘right or claim’ as used in § 626(f)(1) is limited to substantive rights and does not include
`
`procedural ones. And collective action, like arbitration, is a ‘procedural mechanism,’ not a
`
`substantive right.” Estle, 23 F.4th at 214. Significantly, the Second Circuit reached this result
`
`without reaching the defendant’s argument that the collective waiver was also enforceable because
`
`of the Federal Arbitration Act. Id. at 216 n.4.
`
`Therefore, Kantz can (and this Court should find that she did) waive her right to pursue a
`
`collective action.
`
`D.
`
`The Collective Action Waiver is not unconscionable
`
`To the extent that Kantz attempts to avoid her contractual commitment not to pursue a
`
`collective action by arguing that the waiver is unconscionable, that argument should be rejected.
`
`Under Pennsylvania law, “[t]he contractual doctrine of unconscionability ‘involves both
`
`“procedural” and “substantive” elements,’ and ‘requires a two-fold determination: that the
`
`contractual terms are unreasonably favorable to the drafter [the substantive variety] and that there
`
`is no meaningful choice on the part of the other party regarding acceptance of the provisions’ [the
`
`procedural variety.]” Vaughn v. Pittsburgh Fondue, LLC, No. 2:19-cv-01104-RJC, 2021 WL
`
`2952902, *5–6 (W.D. Pa July 14, 2021) (quoting Vilches v. Travelers Cos., Inc., 413 F. App'x 487,
`
`493 (3d Cir. 2011) and Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221, 230 (3d
`
`Cir. 2012)). The burden is on Plaintiff to prove unconscionability. Kubischta v. Schlumberger
`
`6
`
`

`

`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 15 of 16
`
`Tech. Corp., Civil Action No. 15-1338, 2016 WL 3752917, at *4 (W.D. Pa. July 14, 2016). Here,
`
`Kantz can show neither procedural nor substantive unconscionability.
`
`The plaintiff in Horowitz made the same allegations as Kantz regarding the same General
`
`Release, without any factual assertions, that the General Release was “fraudulent and part of an
`
`illegal scheme.” See, e.g., Compl. ¶ 35(h) (claiming AT&T “fraudulently obtained . . . a purported
`
`waiver of [its terminated older employees’] statutory right to proceed collectively on an ADEA
`
`claim”); ¶¶ 35(i), 85, 91, 152 (same); ¶ 86 (“invalid, unenforceable, and in violation of the . . .
`
`OWBPA.”); ¶¶ 126, 148, 171 (same); Horowitz, 2018 WL 1942525, at *20. The court in Horowitz
`
`concluded that “other than those bare bone allegations [in her complaint], Plaintiff[] fail[s] to
`
`articulate any facts demonstrating . . . the [General Release] was entered into involuntarily or
`
`unknowingly or was unconscionable . . . ” Id. This Court should reach the same conclusion. The
`
`court’s decision in Kubischta, 2016 WL 3752917, is another example.
`
`In Kubischta, the plaintiff signed a severance agreement that contained a waiver of
`
`collective actions then attempted to pursue a collective action. Kubischta, 2016 WL 3752917 at
`
`*1–2. The court held there was no procedural unconscionability because the plaintiff was not
`
`required to accept the agreement, could have revoked it, was given significant time to consider it,
`
`and was advised to speak with counsel, just as Kantz was here. Id. at *6. There was no substantive
`
`unconscionability, the court concluded, because the plaintiff was not otherwise entitled to the
`
`severance benefits. Moreover, the court rejected the argument that collective action waivers are
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`per se unenforceable under Pennsylvania law. Id. at *5–7. See also Korea Week, Inc. v. Got
`
`Capital, LLC, Civil Action No. 15-6351, 2016 WL 3049490, at *10 (E.D. Pa. May 27, 2016)
`
`(similarly rejecting notion that class waiver was per se unconscionable under Pennsylvania law).
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`The Court should reject any unconscionability argument here too.
`
`7
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`

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`Case 2:20-cv-00531-PBT Document 47 Filed 03/09/22 Page 16 of 16
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`IV.
`
`CONCLUSION
`
`For the foregoing reasons, the court should grant AT&T’s motion to dismiss the collective
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`action allegations in Kantz’s complaint.
`
`Dated: March 9, 2022
`
`Respectfully Submitted,
`
`By:
`
`______________________
`Kenneth W. Gage
`Elliot R. Fink
`Sara B. Tomezsko
`Paul Hastings LLP
`200 Park Avenue, 30th Floor
`New York, NY 10166
`Phone: (212) 318-6000
`Fax: (212) 230-7646
`kennethgage@paulhastings.com
`elliotfink@paulhastings.com
` saratomezsko@paulhastings.com
`
`William J. Leahy
`Littler Mendelson P.C.
`Three Parkway
`1601 Cherry Street, Suite 1400
`Philadelphia, PA 19102
`Phone: (267) 402-3012
`Fax: (267) 960-5464
`wleahy@littler.com
`
`Attorneys for Defendants
`AT&T INC. and AT&T SERVICES,
`INC.
`
`8
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`