Free Motion for Leave to File - District Court of Connecticut - Connecticut

Case 3:01-cv-02361-MRK

Document 190

Filed 08/30/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT -----------------------------------------------------X : JANICE C. AMARA, GISELA : R. BRODERICK, ANNETTE S. GLANZ : individually, and on behalf of others : similarly situated, : : Plaintiffs, : v. : : CIGNA CORP. AND CIGNA : PENSION PLAN, : : Defendants. : : -----------------------------------------------------X

3:01 CV 2361 (MRK) Trial Date: 09/11/06

DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL PRE-TRIAL SUBMISSION

Dated: August 30, 2006

MORGAN, LEWIS & BOCKIUS LLP By: /s/ Joseph J. Costello_________ Joseph J. Costello Jeremy P. Blumenfeld Jamie M. Kohen Admitted pro hac vice 1701 Market Street Philadelphia, Pennsylvania 19103-2921 (215) 963-5295/5258/5472 (215) 963-5001 (fax) [email protected] [email protected] ROBINSON & COLE James A. Wade (CT # 00086) 280 Trumbull Street

Case 3:01-cv-02361-MRK

Document 190

Filed 08/30/2006

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Hartford, Connecticut 06103 (860) 275-8270 (860) 275-8299 (fax) [email protected] Attorneys for Defendants CIGNA Corporation and CIGNA Pension Plan

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Case 3:01-cv-02361-MRK

Document 190

Filed 08/30/2006

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Defendants CIGNA Corporation ("CIGNA") and the CIGNA Pension Plan (the "Plan") (together "Defendants") hereby move this Honorable Court to permit Defendants to file the following documents as a supplemental pre-trial submission: 1. Memorandum Regarding Defendants' Responses to Plaintiffs' Supplemental Proposed Trial Exhibits; 2. Supplemental Proposed Findings of Fact 3. Supplemental Proposed Conclusions of Law; 4. Supplemental Trial Brief; and 5. Supplemental Proposed Trial Exhibit and Witness List. On August 28, 2006, Defendant asked Plaintiffs to consent to this submission, but Plaintiffs refused in part. Plaintiffs' counsel consented only to the filing of No. 1 above, and to supplemental findings of fact and briefing on the new legal developments. Plaintiffs' opposition notwithstanding, good cause exists for this supplemental submission, as next explained. Since the time Defendants filed their pre-trial submission on June 27, 2006, there have been a number of significant legal developments that are relevant to Plaintiffs' claims. Most importantly, the Seventh Circuit issued its decision in Cooper v. IBM Personal Pension Plan and IBM Corp., _ F.3d _, 2006 WL 2243300 (7th Cir. August 7, 2006), the first appellate decision addressing the issue of whether cash balance plans are inherently age discriminatory. Similarly, Congress passed ground-breaking legislation related to cash balance plans. See Pension Protection Act of 2006, PL, 109-280, 120 Stat. 780. Additionally, in Hirt v. Equitable Ret. Plan for Employees, Managers and Agents, 01 Civ. 7920, 2006 WL 2023545 (S.D.N.Y. July 20, 2006), the Court ruled on certain claims that are similar to claims presented by Plaintiffs here. Accordingly, Defendants seek to provide the Court supplemental briefing and proposed conclusions of law on these new developments.

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Moreover, Plaintiffs have conducted additional third-party discovery since the time of Defendants' pre-trial submission, including multiple document productions from Prudential Retirement ("Prudential") and Rule 30(b)(6) depositions of Prudential employees. This discovery has revealed vital facts concerning Plaintiffs' claims in Count 5 regarding the relative value disclosures to participants, the Plan's Free 30% and minimum benefit protections, and CIGNA's voluntary plan administration changes in the wake of the Depenbrock decision. Plaintiffs also have finally made available for deposition two absent class members ­ Patricia Flannery and Lillian Jones ­ who intend to testify at trial.1 Defendants therefore seek to provide supplemental findings of fact and briefing to take into account this recently-completed discovery. Finally, Plaintiffs' Reply Trial Brief and the submissions that accompanied it include new facts, exhibits and arguments to which Defendants seek to respond briefly. [Docket # 188] For example, in response to Plaintiffs' supplemental list of proposed trial exhibits, Defendants' have prepared the attached Memorandum Regarding Defendants' Responses to Plaintiffs' Supplemental Proposed Trial Exhibits in order to interpose objections to these newly-offered exhibits. In addition, Defendants seek to respond to new arguments Plaintiffs raised concerning the applicability of the releases signed by thousands of class members.

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Ms. Jones will not be made available until August 30, 2006. Furthermore, Plaintiffs have refused to produce documents or respond to interrogatories that were served on Ms. Jones on March 17, 2006. Consequently, Defendants anticipate requesting at the September 6 pretrial conference that Ms. Jones be precluded from testifying at trial.

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Case 3:01-cv-02361-MRK

Document 190

Filed 08/30/2006

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WHEREFORE, Defendants respectfully request that the Court grant leave for Defendants to file the attached: 1. Memorandum Regarding Defendants' Responses to Plaintiffs' Supplemental Proposed Trial Exhibits; 2. Supplemental Proposed Findings of Fact 3. Supplemental Proposed Conclusions of Law; 4. Supplemental Trial Brief; and 5. Supplemental Proposed Trial Exhibit and Witness List.

Dated: August 30, 2006

MORGAN, LEWIS & BOCKIUS LLP By: /s/ Joseph J. Costello_________ Joseph J. Costello Jeremy P. Blumenfeld Jamie M. Kohen Admitted pro hac vice 1701 Market Street Philadelphia, Pennsylvania 19103-2921 (215) 963-5295/5258/5472 (215) 963-5001 (fax) [email protected] [email protected] ROBINSON & COLE James A. Wade (CT # 00086) 280 Trumbull Street Hartford, Connecticut 06103 (860) 275-8270 (860) 275-8299 (fax) [email protected] Attorneys for Defendants CIGNA Corporation and CIGNA Pension Plan

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CERTIFICATION OF COUNSEL

I, Jamie M. Kohen, counsel for Defendants, hereby certify that I conferred in good faith with Plaintiffs' counsel, Stephen Bruce and Tom Moukawsher who refused in part to consent to the filing of Defendants' supplemental pre-trial submission. By: /s/ Jamie M. Kohen_________ Jamie M. Kohen