Free Other Notice - District Court of Arizona - Arizona

EXHIBIT G

Case 2:04-cv-00424-ROS

Document 482-8

Filed 08/21/2008

Page 1 of 3

David B. Rosenbaum, Atty. No. 0098 19 Dawn L. Dauphine, Atty. No. 010833 OSBORN W E D O N , P.A. 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 drosenbaum@,omlaw.com [email protected] Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Amy Covert, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (2 15) 963-5000 [email protected] wdelanv~morganlewis. com [email protected] [email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs . Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants. No. CVO4-0424 PHX ROS

DEFENDANTS' SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (ORAL ARGGENT REQUESTED)

Pursuant to the Court's Order, Defendants file this Supplemental Brief, which is supported by the Declarations of Dawn L. Dauphine, Craig Chapman, Maureen Rojas,

Cindy Burneko, Marie Gangone, Connie Zeller, Diane Sucharski, all filed this same date.

Case 2:04-cv-00424-ROS

Document 482-8

Filed 08/21/2008

Page 2 of 3

5.

Consultation with Attorneys.

Other evidence demonstrating actual or constructive knowledge includes documents revealing that employees consulted with counsel regarding the SBA offset. Perhaps the most glaring instance is the case of Jack Gilmore (and those unidentified individuals on whose behalf he purported to act), and his exchange with attorney Blair Brininger, Esq. regarding the offsets at issue in this case. (See Docs. # 146, 172 Ex. S at
B A 1~ 1- B A 135.)u In 1999, Mr. Gilmore sought advice from Mr. Brininger regarding 3 ~

the offsets. (Id. at BA2131.) Mr. Brininger replied to Mr. Gilmore:
Thank you for sending me copies of your documents. I have reviewed them and think you may have a case. However, l a m concerned that back in 1984 everyone knew that Allied was doing this. The statute of limitations, at most, would be 6 years for breach of fiduciary duty. . . . I believe time is of the essence.

(Id. (emphasis added).) Mr. Gilmore, undeterred by Mr. Brininger's advice, responded as follows: Thank you for reviewing our material we sent you and also thank you for the phone call. I know we have a case, but we have to find someone who believes in us andJind ways around the ERISA laws. I know there has to be some loop holes in the law that will benefit us. . . . (Id. at BA2 132 (emphasis added).) Mr. Gilmore likely had conversations with Ms. Allen and an unknown number of other putative class members about his discussions with an
'

attorney.'6 (See Dauphine Decl. Ex. 13 at 193-199 (Plaintiff Allen testifying that she had talked with Mr. Beilert about his attempts to contact an attorney).) It is these types of facts that will need to be explored to adjudicate the defenses if this case is expanded beyond the six Named Plaintiffs.
Mr. Gilmore produced this document to the Department of Labor and to other individuals, thereby waiving any privilege that may have attached to it. Plaintiff Allen produced this document to Defendants in tbis litigation
'6

For example, Mr. G i o r e , toget& with Paul Beilert, had gathered a group of "over 100" individuals to challenge the offset. (See Docs. # 146, 172 Ex. S at BA1905-06.)

Case 2:04-cv-00424-ROS

Document 482-8

Filed 08/21/2008

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