Free Other Notice - District Court of Arizona - Arizona

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SUSAN MARTIN (AZ#014226) DANIEL L. BONNETT (AZ#014127) JENNIFER KROLL (AZ#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs DAVID B. ROSENBAUM (AZ#009819) DAWN L. DAUPHINE (AZ#010833) OSBORN MALEDON P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] CHRISTOPHER LANDAU., Pro Hac Vice CRAIG S. PRIMIS., Pro Hac Vice ELEANOR R. BARRETT, Pro Hac Vice KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005-5793 Telephone: (202) 879-5000 [email protected] [email protected] [email protected] MICHAEL L. BANKS, Pro Hac Vice AZEEZ HAYNE, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected]

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HOWARD SHAPIRO, Pro Hac Vice PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017 Telephone: (504) 310-4088 [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. CV04-0424 PHX ROS NOTICE OF DISCOVERY DISPUTE AND JOINT STATEMENT

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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.2(j), I hereby certify that after personal consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve this matter.
MARTIN AND BONNETT, P.L.L.C.

s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer Kroll Martin & Bonnett, P.L.L.C. 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 Telephone: (602) 240-6900 ATTORNEYS FOR PLAINTIFFS

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Plaintiffs Statement: Plaintiffs respectfully request the Court to order appropriate relief for Defendants destruction of documents and failure to comply with the Court s order. (Doc. 393.) These documents may be relevant to whether the Solomon letter was the product of bad faith and improper behavior and should be accorded any deference.1 Defendants failed to produce: 1)communications between Honeywell and its lobbyists including C2 Group, Davis & Harman LLP and Akin Gump; 2)communications between Honeywell or its lobbyists and Treasury and/or the IRS, and 3)communications prior to 2006.2 In a telephone conference, Defendants disclosed that the absence of communications with Treasury was because their internal lobbyist deleted some responsive emails. While Defendants admit that at least four emails (also produced by Treasury) were deleted, Defendants have not disclosed how many additional responsive documents to Treasury or others were similarly destroyed by Mr. Zurawski and/or other Honeywell employees. (Exh. A8.) Defendants campaigned to overturn Michael and this Court s partial summary judgment order. Upon failure to influence the text of the 2005 regulations and with assistance from Treasury employees, Defendants lobbied unsuccessfully for amendments to ERISA. Despite awareness of the 2005 regulations and of Defendants position that Michael was wrongly decided, Congress reenacted and specifically amended the anticutback rule without the lobbied for changes.3 Upon failure of these efforts and in an apparent attempt to circumvent 26 U.S.C. §7805(b), the absence of retroactivity in the

The Order directed Defendants to provide non-privileged documents requested in Int. 11 and the subpoenas no later than February 15, 2008. (See Exh. A1-A8.) Defendants also violated a Feb. 7, 2008 resolution of an earlier dispute in which the parties agreed that the Court required Defendants to provide all documents covered by the subpoenas and discovery requests including, inter alia: any communications relating to accrued benefits under ERISA or the regulations thereunder and any issues related to this case or Michael v. Riverside Cement (Exh. A4.) 2 On Feb. 21, 2008, 6 days after the deadline and after two additional letters by Plaintiffs and a telephone conference, Defendants produced some pre-2006 documents. 3 See Pension Protection Act of 2006, P.L. 109-290, 120 Stat. 780, at § 107; Tax Technical Corrections Act of 2007, P.L. 110-172, 121 Stat. 2473.
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2005 regulations and this Court s summary judgment order, Treasury employees assisted Defendants and Congressional staffers in drafting the solicitation letter and it appears that Treasury employees also communicated with Honeywell and staffers about the text of the draft Solomon response. Plaintiffs have been prejudiced; Defendants cannot meet their burden to show lack of prejudice. The Court granted Plaintiffs an opportunity to conduct discovery without presaging the admissibility of the documents. Concrete evidence demonstrates a high probability that the destroyed and withheld documents contain evidence relating to communications or meetings involving Treasury employees that would be relevant and favorable to Plaintiffs on the issues the Court has permitted Plaintiffs to address. (See, e.g., Doc. 363 Exh. A, at 905-TREAS00020 forwarding request by Honeywell for a meeting (after the initial Solomon letter was drafted without any reference to the 1977 regulations), and comment by Treasury employee that they need[ed] to meet with Honeywell; Exh. E2, stating Treasury would provide comments to Honeywell s lobbyist orally. ) Defendants claim that Plaintiffs have not been prejudiced because Treasury produced some documents, fails to meet Defendants burden to show the absence of prejudice. Plaintiffs are entitled to complete discovery and to present all pertinent evidence regarding the conduct by Treasury employees and circumstances of the Solomon letter, including efforts to circumvent the statutory prohibition on the retroactivity of regulations and the degree of participation by Honeywell and Treasury in the solicitation letter and by Honeywell and Congressional staffers in the Solomon letter.4 Treasury s compliance with the subpoena, which predated the Court s order, did not relieve Defendants of their obligation to comply with the Court s order so that Plaintiffs may present a complete picture regarding all relevant facts. See, e.g., Nationwide Mut. See, e.g., Honeywell s email promising statutory fixes that don t scream retroactivity, (Exh. B, at HWINTL000148), and Honeywell s lobbyists statement a year after the summary judgment order was entered and after Defendants first motion for reconsideration and petition for an interlocutory appeal had been denied that Honeywell s case has not yet reached the district court decision stage. (See Exh. D2.)
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Fire. Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999) (defendants must meet burden to show absence of prejudice). As the official Plan Administrator, Honeywell is a defendant and under a duty to preserve documents. Honeywell was the Defendant Plan Administrator at least until Oct. 2005, (see Doc. 366 pp. 2-4), more than a year and a half after this action was commenced. It was under a duty to preserve documents even before the lawsuit was filed and definitely when Interrogatory 11 and Request for Production No. 12 were served on July 25, 2005.5 Honeywell has also maintained that Honeywell believed litigation was virtually certain by August 2002. (Doc. 225 Exh. B ¶ 17.) Defendants argument that Int. 11 was narrowed in a way that somehow relieved Honeywell of the duty to preserve and produce documents related to the anti-cutback rule is meritless. Defendants agreed to produce documents regarding the subject matter of each claim asserted by Plaintiffs in the administrative process. In Oct. 2005, Plaintiffs clarified, without objection: We continue to request all documents or communications to or from the Defendants as that term is defined, and/or consultants or attorneys with respect to the subject matter of Plaintiffs administrative claims. (Doc. 357 Exh. B.) Int. 11 required preservation

of all documents related to the primary subject of Plaintiffs administrative claims: the anti-cutback rule and the regulations thereunder. Given Defendants express objective to overturn the ruling in this case, any claim that it was unforeseeable that documents related to that endeavor could be relevant is simply not plausible. The fact that the Court initially denied the motion to enforce the subpoena does not excuse Defendants Honeywell s later delegation of its plan administrator title did not permit it to evade its duties to preserve documents while the case is pending. See Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001) (party cannot escape duty to preserve evidence by delegating its duties to third parties). See also Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (party has obligation to give notice of possible destruction of evidence). Honeywell remains a fiduciary and has acted for or on behalf of the Plan or Plan Administrator. Int. 11 (which defined Defendants to include employees, agents, representatives or other person or entity who has acted for or on behalf of the Plan or Plan Administrator ) required Honeywell to refrain from destroying documents relevant to the subject matter of Plaintiffs administrative claims.
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destruction of documents they were required to preserve under the Federal Rules and Int. 11. In addition to this motion, the documents may be relevant to litigation of the remaining claims and discovery on these matters is ongoing. In destroying these documents, Defendants acted at their peril. Litigants owe an uncompromising duty to preserve what they know or reasonably should know will be relevant evidence in a pending lawsuit . Cal. Practice Guide: Federal Civil Procedure Before Trial § 11:125 (citations omitted); Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006); Glover v. BIC Corp., 6 F.3d 1318, 1329-30 (9th Cir. 1993) (bad faith not required to remedy spoliation).6 Defendants agreement to preserve Honeywell lobbyists computer hard drives is inadequate as they refused to preserve other possible repositories including external drives, laptop computers and PDA devices. (Exh.A6,A7.)7 Defendants refusal to produce documents between Honeywell and its numerous lobbyists is without merit and especially problematic given the document deletions.8 Defendants sole excuse, (their incorrect contention that Plaintiffs did not ask for them), Defendants cases are inapposite. Akiona v. U.S., 938 F.2d 158 (9th Cir. 1991) (destruction of documents pursuant to a document retention policy years before facts giving rise to suit); Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806 (9th Cir. 2002) (loss of slides that plaintiff delayed pursuing where other evidence was available and loss was unintentional); Ingham v. U.S., 167 F.3d 1240 (9th Cir. 1999) (destruction of copies where originals were available and where, after discovery, no showing other documents destroyed). 7 Unlike Akiona, the deletions appear to violate Honeywell s document retention policy: [r]egularly scheduled records destruction shall be halted when it becomes clear that there is a reasonable likelihood of litigation and can be resumed when the legal matter is no longer likely or has ended. (Exh. C, at HWINTL001360.) The policy requires legal projects, including Correspondence governmental agencies to and from to be kept for what appears to be ten years after completion. (Id. at HWINTL001468, LEG 250.) Although unofficial emails may be destroyed, unofficial is defined as casual in nature such as Thank you messages. (Id., at HWINTL001360.) In contrast, see Zurawski summary of Congressional lobbying efforts and request for input on Honeywell s draft proposed legislation. (Doc. 363, Exh. A, at 905-TREAS00002.) 8 Lobbying activities are not privileged merely because the lobbyist is a lawyer. See, e.g., In re Grand July Subpoenas, 179 F.Supp.2d 270, 285 (S.D.N.Y. 2001).
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ignores Int. 11 and the Feb. 7, 2008 agreement, (Exh. A),9 and improperly claims the definition of Honeywell in the subpoena, which was broad enough to also include Akin Gump and Honeywell s agents, is somehow mutually exclusive of the obligation under Paragraph 1(F) to disclose all communications between Honeywell and its lobbyists. Subparagraph 1(F) seeks communications between Honeywell and its lobbyists. Honeywell s strained effort to narrow the subpoena should be rejected. The Court has already ordered Defendants to produce the documents sought on this motion. Defendants claim that they have nothing to hide is not the appropriate legal standard but provides all the more reason why Defendants should be directed to comply with the Court s order to provide all responsive non-privileged communications. Plaintiffs respectfully request that the Court deny Defendants motion for

reconsideration, or, alternatively, that the Court enter an order for such relief as the Court in its discretion deems appropriate for Defendants spoliation and failure to comply with the Jan. 31, 2008 order, including directing Defendants to produce all responsive communications between Honeywell and all of its lobbyists and others, directing Defendants to preserve all possible storage sites for the deleted information and to pay for a computer expert selected by Plaintiffs to search for responsive deleted communications. Plaintiffs also request that they be allowed to depose Honeywell s lobbyists after the Partial Settlement becomes final and file their supplemental brief after such depositions. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420-21 (1971) (overruled on other grounds). Plaintiffs respectfully request that the briefing schedule be extended to allow depositions and Defendants compliance with this Court s order. Plaintiffs respectfully request such further relief as the Court deems just and proper.

The subpoena requests production of documents to or from [a]ny lobbying, political, advocacy or other organization and employees, representatives, attorneys, agencies, divisions, offices or departments thereof. (Doc. 357, Exh. C.) Defendants admission that documents to the ERISA Industry Committee are required proves the point. ERIC lobbied for Honeywell just as the other lobbyists called for under Paragraph 1(F) and required under Int. 11.
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Honeywell Statement: This Court should reject plaintiffs request for appropriate relief as nothing more than a transparent attempt to derail resolution of Honeywell s motion for reconsideration. The Court directed plaintiffs to brief a discrete legal issue whether there is a strong showing of bad faith or improper behavior by the Department of Treasury but plaintiffs obviously cannot meet that demanding standard. So instead, Plaintiffs reckless and discovery

they are trying to turn this into a sideshow about discovery. accusations that Honeywell engaged in

destruction of evidence

misconduct, like their reckless accusations of improper conduct by Treasury officials, are entirely false. Honeywell has complied with its discovery obligations and the Court s rulings. Plaintiffs have now received documents from the Treasury Department, Honeywell, and Honeywell s lobbyists at the law firm of Akin Gump. These documents show that Honeywell has exercised its constitutional right to seek clarification of the law from appropriate government officials, and thus negate plaintiffs accusations of bad faith on the part of Treasury officials. Accordingly, there is no basis for further delaying resolution of the pending motion for reconsideration. Plaintiffs have all the discovery they need to address the legal standard. Plaintiffs submission incorrectly suggests that they are left without evidence to assess whether Treasury acted in bad faith or engaged in improper behavior in issuing the Treasury Letter. This is simply not so. For starters, contrary to plaintiffs suggestions, Honeywell did not draft or propose language for the Treasury Letter, plaintiffs have no evidence to the contrary, and, in any event, it would not have been improper for it to do so. Rather, Honeywell s communications with government officials relating to the

Treasury Letter fall into three categories: (i) discussions with congressional staffers and Treasury seeking a clarifying provision in the 2006 Pension Protection Act; (ii) later discussions with Congress about seeking clarification directly from Treasury; and (iii) communications with Treasury about a bipartisan letter from congressional committee chairs seeking clarification of the 1977 simultaneous-amendment regulation.
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Plaintiffs now have in their possession

as the result of third-party subpoenas to

Treasury, Honeywell, and Akin Gump documents concerning Honeywell s activities in each of these areas. And, most important for the legal question articulated by the Court, plaintiffs have in their possession more than 100 pages of internal Treasury and IRS communications deliberating over the correct reading of the 1977 regulation, which resulted in the Treasury Letter. For its part, on February 15, 2008, Honeywell produced more than 500 pages of documents obtained from hard drives, email servers, and files of the principal Honeywell personnel involved in lobbying efforts relating to the Treasury Letter. Honeywell s document production (a subset of which is included in Ex. D) included email communications copying both congressional staffers and Treasury officials, as well as Honeywell lobbyists. Furthermore, contrary to plaintiffs claims that they received no documents reflecting communications with Treasury, Honeywell produced the bullet point summary that Honeywell personnel used to lay out their analysis to staff members on Capitol Hill and at Treasury. In addition, when plaintiffs later demanded communications from 2005, Honeywell produced another 1000 pages of material (notwithstanding its irrelevance to the issue plaintiffs may brief) in an unsuccessful effort to avoid this dispute and the attendant burdens on the Court. Plaintiffs allegations against Honeywell are baseless and unwarranted.

Plaintiffs request for relief rests on three claims: (i) that plaintiffs requested, but Honeywell did not produce, communications between Honeywell and Akin Gump, (ii) that Honeywell needed to retain all of its communications with the government over the last two years, even before it received a subpoena, and (iii) that Honeywell a nonparty needed to respond to an interrogatory addressed to the defendant plans and narrowed by agreement to exclude this material. None of these claims has any merit. First, plaintiffs fault Honeywell for not producing communications with its lobbyists at Akin Gump. Putting aside any privilege issues, the fundamental point is that plaintiffs subpoena did not request those documents. Plaintiffs requested interest

communications with lobbying, political, advocacy or other organizations
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groups like the ERISA Industry Committee or AARP not Honeywell s own lobbyists and lawyers. (ERIC is a third-party advocacy organization, not a lobbyist or agent of Honeywell, contrary to plaintiffs claim.) Honeywell s reading is confirmed by the fact that all of the categories specified in the subpoena target communications between Honeywell and third parties (not Honeywell s own representatives). That reading of the request is also the only logical one, as the subpoena specifically defines Honeywell to include its attorneys, including the law firm Akin Gump Strauss Hauer & Feld LLP and any of [its] employees, agents, [or] representatives. It would be nonsensical to read the

request for documents received from or sent by Honeywell to include, in effect, Honeywell. Plaintiffs belated effort to re-draft their subpoena should be rejected. Second, plaintiffs unfounded. accusations that Honeywell destroyed documents are

Plaintiffs identified four emails between Honeywell and Treasury that

Treasury produced but that were not within Honeywell s document production. (Ex. E.) Of those four, only one relates to the 2007 Treasury Letter (the other three relate to lobbying of Congress on legislation in 2006), and that email sought only to set up a meeting. As Honeywell explained to plaintiffs, when Honeywell got the subpoena, these emails no longer resided in Honeywell s electronic files, and, consistent with Honeywell s general document retention policies, would not have been retained in the ordinary course. Honeywell did not admit that Mr. Zurawski deleted these emails. Upon receiving the subpoena, Honeywell collected and produced the responsive communications that had been retained about its lobbying efforts. Plaintiffs accusations of discovery misconduct rest on the illogical view that Honeywell s in-house lobbyists should have anticipated plaintiffs subpoena months before it arrived. To establish a duty to retain, plaintiffs have to show, at a minimum, that Honeywell had some notice that the documents are potentially relevant. Akiona v.

United States, 938 F.2d 158, 161 (9th Cir. 1991). Plaintiffs cannot meet that standard. Lobbying activities by Honeywell to clarify a legal rule have no bearing on the underlying facts of the case, and ordinarily would not be subject to discovery. Indeed,
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this Court initially denied discovery into these very materials. See Order (12/18/07) at 3. Honeywell s inability to anticipate that the information might later be discoverable was, at a minimum, perfectly reasonable and provides no valid basis for relief. Contrary to plaintiffs suggestion that there is something inherently suspicious about a company like Honeywell petitioning the Executive Branch, such activity is both routine and entirely appropriate in a democracy, and the mere fact that Honeywell provided information to the government to seek a clarification in the law does not give rise to an expectation, reasonable or otherwise, that there would be fact discovery into that First Amendment exercise in a case involving pension plan changes that occurred 20 years ago. Relatedly, Honeywell was not the plan administrator in 2006 and 2007 when the relevant communications occurred, and Honeywell s in-house lobbyists had no role in the plan administration or benefits planning at issue in this case. Where, as here, there is no indication of bad faith, the moving party must establish that its ability to bring or prosecute its case was prejudiced by the loss of evidence. Ingham v. United States, 167 F.3d 1240, 1246 (9th Cir. 1999); see also Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 824-25 (9th Cir. 2002). Plaintiffs have not been prejudiced by any failure to retain the emails with Treasury because they received those emails from Treasury, and have provided no reason to believe that Treasury did not produce all such communications it received from Honeywell. Plaintiffs suggestion that there may be some additional highly favorable evidence is pure conjecture. If anything, the documents demonstrate the contrary. And, as this Court and the Ninth Circuit have previously recognized, even assuming that Honeywell had an obligation to retain this information prior to receipt of the subpoena, this type of unintentional loss of documents for innocent reasons does not give rise to the type of relief plaintiffs seek. See Med. Lab, 306 F.3d at 824. The cases plaintiffs cite are not to the contrary. In Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801 (6th Cir. 1999), the court emphasized that (under Ohio law) a finding that evidence was altered or destroyed for the purpose of rendering it
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inaccessible or useless to the defendant is required to establish spoliation. Id. at 804. Even if Ohio law applied, plaintiffs could not make such a threshold showing here. Indeed, this case is a far cry from the type of situation where a party intentionally deleted files and created a computer program to write over deleted documents. v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). Third, plaintiffs erroneously suggest that Honeywell, a non-party to the action, failed to respond appropriately to an interrogatory and a document request. Fundamentally, this argument is flawed because the interrogatory and request for production on which plaintiffs rely were not served on, and do not apply to, Honeywell, which is not a party to this litigation. That is why plaintiffs sought their discovery from Honeywell in November 2007 via a third-party subpoena. Even if plaintiffs could show that the interrogatory and document request somehow applied to non-party Honeywell, plaintiffs cannot claim that the lobbying documents at issue come within their scope. Plaintiffs overbroad interrogatory and document requests were limited by later communications between the parties in which plaintiffs narrowed their requests to documents and communications from defendants consultants or attorneys about relevant plan amendments administrative claims in this case. and/or Plaintiffs Leon

Oct. 24, 2005 Ltr. from S. Martin to A. Hayne,

(Docket #357, Ex. B), at 2. The communications sought here are outside that scope. At bottom, there is no basis for the appropriate relief that plaintiffs have requested. The accusations of misconduct against Honeywell like plaintiffs

accusations of misconduct against Treasury are simply false. Moreover, plaintiffs requests for additional preservation measures are unnecessary, given the reasonable preservation measures that Honeywell has already undertaken. Most importantly, and going to plaintiffs real motivation in raising this dispute, the extraordinary request that the Court deny or defer briefing on the reconsideration motion is entirely without merit. Plaintiffs have delayed the resolution of defendants motion for reconsideration long enough, and they should be required to adhere to the schedule that the Court has set.
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Respectfully submitted this 25th day of February, 2008.
MARTIN AND BONNETT, P.L.L.C.

s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer Kroll Martin & Bonnett, P.L.L.C. 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 Telephone: (602) 240-6900 ATTORNEYS FOR PLAINTIFFS

OSBORN MALEDON, P.A s/David Rosenbaum David Rosenbaum Dawn L. Dauphine 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Christopher Landau, pro hac vice Eleanor R. Barrett, pro hac vice Craig Primis, pro hac vice Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Michael L. Banks, pro hac vice William J. Delany, pro hac vice Azeez Hayne, pro hac vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected] [email protected]
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Howard Shapiro, pro hac vice PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017 Telephone: (504) 310-4088 [email protected] Amy Covert, pro hac vice Proskauer Rose, LLP One Newark Center, 18th Floor Newark, NJ 07102-5211 Telephone: (973) 274-3258 [email protected]

ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on February 25, 2008, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the Following CM/ECF registrants: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 Michael Banks Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro Proskauer Rose LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Amy Covert Proskauer Rose LLP One Newark Center, 18th Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants s/J. Kroll

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