Free Reply in Support of Motion - District Court of Arizona - Arizona


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David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [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] 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 Telephone: (973) 274-3258 [email protected]

Christopher Landau, P.C., Pro Hac Vice Craig S. Primis, P.C., 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]

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

REPLY BRIEF IN SUPPORT OF RENEWED MOTION FOR LEAVE TO SERVE QUESTIONNAIRE

Case 2:04-cv-00424-ROS

Document 396

Filed 02/01/2008

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Plaintiffs oppose defendants' renewed motion to serve a questionnaire on the theory that because defendants' motion for summary judgment on the statute of limitations is based on three documents, no other evidence can "have any legal import." Pls.' Opp. (Docket #378) at 2; see also id. at 3 ("Defendants have filed a motion for summary judgment and make no claim that any other documents triggered the statute," so that any other such documents are now "irrelevant"). But that theory is a logical non sequitur. It is certainly true that defendants believe that this Court can resolve the statute of limitations issues based on the undisputed record, which is why they filed a motion for summary judgment in the first place. But if that belief is wrong, defendants are entitled to prove that individual class members knew or should have known enough for their claims to accrue well beyond any conceivable limitations period. A questionnaire is warranted to allow defendants to develop additional evidence for that purpose, in the event that summary judgment is ultimately denied. That does not mean, contrary to plaintiffs' assertion, that this motion is "premature." Id. at 1. This Court has established a discovery cutoff of 90 days after final approval of the proposed settlement. See Amended Fifth Revised Scheduling Order (11/14/07) (Docket #322) at 3. Defendants need permission to serve the questionnaire now so that they can complete the relevant discovery before that cutoff; they do not have the luxury of simply waiting, because by the time the summary judgment motions are resolved, it may be too late. Plaintiffs certainly cannot put defendants in a box, arguing now that a questionnaire is premature while arguing later that a questionnaire is untimely. To the extent that plaintiffs now suggest that the statute of limitations defense in this case is somehow limited to the documents upon which defendants' summary judgment motion is based, they are clearly incorrect. Every day in the courts of this country, litigants move for summary judgment on the basis of what they believe to be legally sufficient facts. If a litigant proves to be wrong on this score, and a court deems additional facts necessary, the litigant is not limited to the facts on which he or she sought summary judgment. Summary judgment is not a game of Russian roulette: a
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litigant who unsuccessfully seeks summary judgment is not thereafter precluded from developing additional facts. Tellingly, plaintiffs cite no authority whatsoever for their suggestion along these lines. The denial of defendants' motion for summary judgment, in other words, would not dispose of defendants' statute of limitations defense; instead, it would simply open the door for defendants to develop and present additional evidence to support the defense. See, e.g., Romero v. Allstate Corp., 404 F.3d 212, 225 (3d Cir. 2005) (denying defendants' motion for summary judgment, but declining to dismiss statute of limitations defense because "facts may be developed from which one could conclude that clear repudiation did occur at a time which renders the subsequent assertion of the claim untimely"). Plaintiffs' related argument that defendants cannot present additional evidence on the statute of limitations because this Court has already rejected other theories and evidence that defendants might present, see Pls.' Opp. 2, is also manifestly incorrect. In its order granting class certification, the Court limited its analysis to the question of whether defendants had established that individual issues could defeat the commonality and typicality requirements for class treatment; it expressly declined to reach any conclusions on the merits of the statute of limitations defense. See Order (9/6/06) (Docket #226) at 12. And, although the Court expressed some general concerns about the sufficiency of the evidence presented at that stage of the litigation, see id. at 15; see also Class Cert. Hr'g Tr. (8/4/06) (Docket #224) at 15 ("I don't have anything from you today that would show ... that this information was clearly distributed to [class members], they had the opportunity to review it, they should have understood it, and from that point, then they have waived their rights.") (emphasis added), it did not analyze that evidence in any detail or conclude that evidence of planwide communications, if bolstered by additional foundational evidence regarding distribution or circulation to class members, could not establish that plaintiffs' claims are time-barred as a matter of law. Thus, the Court's decision on class certification plainly does not foreclose defendants' ability to develop and present additional evidence beyond the
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documents cited in the summary judgment motion to support their defense. Once this Court disposes of the foregoing arguments, the need for additional discovery about when plaintiffs knew or should have known the facts underlying their claims becomes clear. As the questionnaire motion explained, defendants have

endeavored and will continue to endeavor to collect as much relevant information as they can from sources other than class members. But these efforts are complicated by the unique circumstances of this case, including the facts that plaintiffs waited more than twenty years after the events in question to bring their claims and that many former employees who know about or were responsible for communications to employees are class members. Thus, as to the limited number of specific events and communications described in defendants' motion, the only way for defendants to establish evidence of receipt or knowledge of a particular classwide communications is to ask class members directly. See Renewed Mot. for Questionnaire (Docket #342) at 4-5. Critically, other than generally asserting that the questionnaire seeks "information already in Defendants' possession," plaintiffs do not explain how defendants could obtain the specific information they seek as to (for example) which class members attended meetings to address employee concerns about the SBA offset in 1995, or which class members requested and received individual benefit estimates, id. at 5, through any means other than a questionnaire. Plaintiffs also err by arguing that various communications about which defendants seek discovery were insufficient to trigger the statute of limitations. See Pls.' Opp. 7-8, 10-11. Those arguments hinge on plaintiffs' erroneous position that a statute of limitations cannot begin to run until (1) plaintiffs know or should know about their claims (as opposed to the key facts underlying their claims), and (2) plaintiffs know every last detail underlying their claims. Defendants have already explained why

plaintiffs' position on these points is wrong, and will not repeat that explanation again here. In addition, plaintiffs' arguments distort the facts in key respects. For example,
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plaintiffs selectively quote from a 1995 communication without addressing the portions of that document addressing the mechanics of the SBA offset. See Defs.' S.J. Opp. (Docket #369) at 9. And plaintiffs argue that the benefit calculations and estimates could not have put them on notice of their purported injuries, even though named plaintiff Barbara Allen has testified that a benefit estimate that she received actually led her to believe that the plan was calculating her benefits incorrectly. See Dep. of Barbara Allen (11/10/05) at 116 (attached as Ex. A). Similarly, plaintiffs err by arguing that the proposed questionnaire seeks "obviously privileged information." Pls.' Opp. 8-10. The questionnaire inquires only whether and when plaintiffs consulted an attorney regarding their benefits; it does not inquire into the substance of any such communications. See Defs.' Proposed

Questionnaire (Docket #342, Ex. A), Question 9. This information--which is no more than a litigant would have to provide to invoke the privilege in the first place--is not privileged as a matter of black-letter law. See, e.g., In re Michaelson, 511 F.2d 882, 888 (9th Cir. 1975) ("[I]t has generally been held that ... the existence of the attorney-client relationship is not privileged or protected by the attorney-client privilege."). Plaintiffs' remaining objections to the proposed questionnaire--that it is "overly broad" and "unduly burdensome," Pls.' Opp. 5--are also unavailing. Contrary to

plaintiffs' characterization of the proposed questionnaire as a "free ranging fishing expedition against absent class members in the hopes of coming up with a kernel of evidence to support an affirmative defense," id. at 5-6, the document asks just eleven questions, in plain English, about individual class members' personal knowledge of events and topics specifically identified in defendants' motion. To complete it would not "pose a significant burden" to any class member, whether retired or not. Finally, defendants agree in principle that stipulating to defendants' distribution, and class members' receipt, of certain plan documents might lessen, or even obviate, defendants' need to pursue discovery through a questionnaire. See Pls.' Opp. 3-4. But the proposed stipulation to which plaintiffs allude, which would cover only the 1984
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brochure, 1984 SPD, and 1996 SPD, is patently inadequate. Defendants have already established the distribution and receipt of those documents as a matter of undisputed fact. See Defs.' Reply Statement of Facts (Docket #388) at 1-3 & ΒΆΒΆ 2-7, 10-11. As discussed above, the proposed questionnaire seeks evidence as to other potential communications and mechanisms through which plaintiffs either knew or should have known of their claims outside of the applicable limitations period. Therefore, plaintiffs' assertion that the questionnaire motion "could ... be mooted by stipulations that become possible through further discovery," Pls.' Opp. 1, is misleading at best, and provides no basis for denying the motion. If the Court grants the motion, plaintiffs of course remain free to stipulate to whatever they wish. But they cannot defeat the motion with vague suggestions that they may eventually agree to stipulate to something. CONCLUSION For the foregoing reasons, defendants respectfully request this Court to grant defendants' renewed motion for leave to serve a questionnaire on the settlement class members. Respectfully submitted this 1st day of February, 2008. OSBORN MALEDON, P.A. By: /s/David B. Rosenbaum David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Michael L. 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 70112-4017 Amy Covert PROSKAUER ROSE LLP One Newark Center, 18th Floor Newark, NJ 07102-5211
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Case 2:04-cv-00424-ROS Document 396 Filed 02/01/2008 Page 7 of 7
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Christopher Landau, P.C. Craig S. Primis, P.C. Eleanor R. Barrett KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005-5793 Attorneys for Defendants

CERTIFICATE OF SERVICE I do certify that on February 1, 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 all CM/ECF registrants.

s/Kelly Dourlein