Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-02671-RPM

Document 67

Filed 01/29/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02671 RPM JOHNNY WELLS, DONALD J. BROOKINS, and RILEY ANDREW SCHAEFFER, on behalf of themselves and all others similarly situated, Plaintiffs, v. GANNETT RETIREMENT PLAN and GANNETT CO., INC., Defendants. ______________________________________________________________________________ DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY AND A BRIEF SUR-REPLY IN OPPOSITION TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Gannett Retirement Plan and Gannett Co., Inc. respectfully request leave to submit supplemental authority and a brief sur-reply to plaintiffs' cross-motion for summary judgment: (1) to bring to the Court's attention two recent and relevant court decisions which bear on the issues being decided in this case; and (2) to address briefly their application in this case in light of certain arguments raised in plaintiffs' reply papers. Defendants further state as follows: 1. Defendants filed a timely motion for summary judgment seeking dismissal of the

claims in this case, and plaintiffs subsequently filed a cross-motion for summary judgment in their favor. Following the submission of papers by both plaintiffs and defendants, decisions were issued by two other District Courts addressing the critical legal issue in this case: Whether or not a hybrid pension plan by design violates anti-age discrimination provisions of the

Case 1:03-cv-02671-RPM

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Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1054(b)(1)(H). The United States District Court for the District of Connecticut issued a Memorandum of Decision dated January 24, 2008 in Custer v. Southern New England Telephone Co., 2008 U.S. Dist. LEXIS 5067 (D. Ct. 2008) and the District Court for Western District of Washington issued a Decision and Order in Buus v. WAMU Pension Plan, 2007 U.S. Dist. LEXIS 95729 (W.D. Wash. 2007). Both of these court decisions should be considered by this Court. 2. Defendants further request permission to address in a brief sur-reply the

application of this new authority to the current case. In particular, defendants seek permission to address more fully plaintiffs' claim-- raised primarily and belatedly in their final reply-- that the overwhelming weight of authority upon which defendants rely in support of their motion for summary judgment should not be followed by this Court because the hybrid plan in question contains a pension equity formula as opposed to a cash balance formula. 3. Although briefly mentioned in an earlier submission, plaintiffs had not articulated

any basis for this purported distinction until their final reply. Accordingly, defendants did not address why the difference in the hybrid formulas is insignificant for purposes of determining whether the plan at issue violates the anti-age discrimination provisions of ERISA. 4. There is no prejudice to plaintiffs in granting this request as they have had an

opportunity to brief this issue, and oral argument of the pending motion and cross-motion has not yet been scheduled. 5. Further, to prevent any delay, defendants have already prepared a proposed sur-

reply, a copy of which is attached to this Motion.

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6.

Pursuant to D.C.COLO.LCivR 7.1(A), defendants' counsel has discussed the

proposed filing of a sur-reply with plaintiff's counsel, who indicated that plaintiffs may object. Dated: January 29, 2007 By: /s/ Margaret A. Clemens Margaret A. Clemens Nixon Peabody LLP Clinton Square, P.O. Box 31051 1300 Clinton Square Rochester, NY 14603-1051 Telephone: (585) 263-1000 Fax: (585) 263-1600 [email protected]

/s/Michael S. Beaver Michael S. Beaver Holland & Hart LLP 8390 E. Crescent Parkway #400 Greenwood Village, CO 80111 Telephone: (303) 290-1600 Fax: (303) 290-1606 [email protected] Attorneys for Gannett Retirement Plan and Gannett Co., Inc.

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C ERTIFICATE O F S ERVICE
I hereby certify that on January 29, 2008, I electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert F. Hill [email protected] John H. Evans [email protected] Douglas R. Sprong [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participants name: N/A

s/ Michael S. Beaver Michael S. Beaver Attorney for Defendants Holland & Hart LLP 8390 East Crescent Parkway, Suite 400 Greenwood Village, CO 80111-2800 Telephone: (303) 290-1600 Fax: (303) 290-1606 [email protected]
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