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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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. (Oral argument requested) 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 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS

Case 2:04-cv-00424-ROS

Document 387

Filed 01/25/2008

Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

Plaintiffs' opposition to defendants' motion for summary judgment on statute of limitations, like plaintiffs' own motion for summary judgment on statute of limitations, rests on a flawed legal premise: that an ERISA claim does not accrue as a matter of law unless and until (1) a defendant denies an individual plaintiff's claim for benefits, or (2) the plaintiff learns that he or she has a claim, and the defendant does not deny that claim. Once this flawed position is rejected, plaintiffs' arguments supporting summary judgment in their favor, and opposing summary judgment in defendants' favor, collapse. ARGUMENT Plaintiffs' Claims Accrued When They Knew Or Had Reason To Know About The Challenged Plan Amendments. All of plaintiffs' arguments flow from the premise that ERISA claims do not accrue, and the relevant statutes of limitations do not begin to run, until (1) an individual plaintiff's claims are "finally denied," Pls.' S.J. Opp. (Docket #375) at 3, or (2) the plaintiff knows or should have known "that he ha[s] a claim" and the defendant does not deny that claim, id. at 9. That premise is incorrect as a matter of law. Rather, as defendants explained in their summary judgment motion and their opposition to plaintiffs' summary judgment motion--and as this Court already has recognized--the accrual of ERISA claims, like the accrual of other federal statutory claims, is governed by the well-settled "discovery rule," whereby a claim accrues when the plaintiff knew or should have known of the facts underlying the claim. See Defs.' S.J. Mot. (Docket #340) at 5-6; Defs.' S.J. Opp. (Docket #369) at 2, Order (9/7/06) (Docket #226) at 11. ERISA's "clear repudiation" standard is not an exception to that rule, but instead an application of that rule in the ERISA context. See, e.g., Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 521 (3d Cir. 2007); Defs.' S.J. Mot. 6; Defs.' S.J. Opp. 3. A straightforward application of the discovery rule disposes of plaintiffs' core argument that the statute of limitations here did not begin to run in 1984 because "the existence of the claims for violations of the Plan and ERISA Sections 204(g) and (h) were [sic] never disclosed," Pls.' S.J. Opp. 9 (emphasis added), and in fact did not begin
1 Document 387

Case 2:04-cv-00424-ROS

Filed 01/25/2008

Page 2 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to run "until 2003," when defendants formally denied claims for benefits by some plaintiffs, id. at 7. As an initial matter, it is simply not true that statutes of limitations begin to run only when plaintiffs know or should know about their claims. A claim is a theory of legal liability based on certain facts. Once a plaintiff knows or should know about the key facts underlying a claim, the statute of limitations begins to run and the plaintiff has the obligation to develop additional facts, and claims based on those facts, within the limitations period. See, e.g., Herrera-Diaz ex rel. Herrera-Diaz v. United States, 845 F.2d 1534, 1536 (9th Cir. 1988) ("When the injury and its cause are known, the claim accrues even though the plaintiff may not then be aware that the injury may have been negligently inflicted."); Davis v. United States, 642 U.S. 328, 331 (9th Cir. 1981) (once a plaintiff has "knowledge of the fact of injury and its cause," "[t]he burden is then on plaintiff to ascertain the existence and source of fault within the statutory period"). Statutes of limitations are not delayed until plaintiffs know or should know about every last factual detail underlying a claim, or even about the existence of a claim at all. See, e.g., id. at 332 (concluding that "failure of the [defendant] to ascertain and publish the fact of its negligence is hardly sufficient to constitute fraudulent concealment" and does not affect the analysis of when plaintiff's claim accrued); see also Defs.' S.J. Opp. 6-7; see also Defs.' S.J. Mot. 9. Thus (as this Court already has explained), the statute of limitations here began to run when plaintiffs had "actual or constructive" knowledge "that their benefits were reduced by Plan amendments." Order (9/6/06) at 11; see also Romero v. Allstate Corp., 404 F.3d 212, 225 (3d Cir. 2005) (noting that "clear repudiation" occurs when "plaintiffs knew or should have known the effect" of a plan amendment "on their benefits"). It necessarily follows that plaintiffs err by arguing that the statute of limitations here could not have started to run until defendants informed them of their claims. Defendants are not required to inform plaintiffs of the existence of claims against defendants. Plaintiffs apparently believe that a defendant's denial of a plaintiff's claims prevents the statute of limitations from running, but that only underscores the folly of
Case 2:04-cv-00424-ROS 2 Document 387 Filed 01/25/2008 Page 3 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

their position. If statutes of limitations did not begin to run as long as defendants denied plaintiffs' claims, then no defendant could ever assert a statute of limitations defense without effectively conceding liability, and statutes of limitations would be meaningless. Indeed, plaintiffs' argument that their claims cannot accrue while defendants deny those claims obviously conflicts with their argument that their claims cannot accrue until defendants deny those claims. In essence, plaintiffs are inviting this Court to read the "should have known" prong out of the "knew or should have known" standard. This Court should decline that invitation. Plaintiffs' efforts to ground their novel position in caselaw are unavailing. See Pls.' S.J. Opp. 7-9 (citing Chuck v. Hewlett Packard Co., 955 F.3d 1026, 1030-31 (9th Cir. 2006); Martin v. Constr. Laborer's Pension Trust for S. Cal., 947 F.2d 1381, 138384 (9th Cir. 1991); Johnson v. Georgia-Pacific Co., Nos. 06-35370, 06-35413, 0636033, 2007 WL 4533476, at *2 (9th Cir. Dec. 26, 2007)). As defendants have explained, these cases involve the accrual of individual benefits claims challenging the application of plan amendments in particular cases. See Defs.' S.J. Opp. 2-3; see also Defs.' S.J. Mot. 6-7. Here, in contrast, plaintiffs' claims involve plan terms that apply uniformly to all plan participants across the board, which is why plaintiffs have been allowed to pursue those claims not only on their own behalf but on behalf of a class. In light of the across-the-board nature of plaintiffs' claims, those claims accrued long before any individual denial of benefits. See, e.g., Defs.' S.J. Mot. 5-9 (citing Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1332 (9th Cir. 1996) (per curiam); Union Pac. R.R. Co. v. Beckham, 138 F.3d 325, 331 (8th Cir. 1998); Hirt v. Equitable Ret. Plan for Employees, 450 F. Supp. 2d 331, 333 (S.D.N.Y. 2006)); Defs.' S.J. Opp. 2-6 (same). It follows that plaintiffs miss the point by challenging "[d]efendants' attempt to draw distinctions between plan amendment cases and other types of ERISA cases." Pls.' S.J. Opp. 9; see also id. (asserting that defendants are arguing "that plan amendments somehow require a lesser showing than an individual benefit determination to trigger the running of the statute of limitations"). Defendants are arguing nothing of the sort. The
Case 2:04-cv-00424-ROS 3 Document 387 Filed 01/25/2008 Page 4 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

relevant distinction here is not between "plan amendment cases" and all other ERISA cases; instead, the relevant distinction here is between claims that challenge individualized applications of a plan and claims that broadly challenge plan provisions, or the implementation of those provisions, on their face. The three remaining claims here fall into the latter category, while the claims in the cases on which plaintiffs rely fall into the former category. See Defs.' S.J. Mot. 6-8; Defs.' S.J. Opp. 2-3. Because plaintiffs cannot come up with any legal explanation why some ERISA claims accrue upon formal and final denial of an individual request for benefits whereas other ERISA claims do not, they are reduced to trying to distinguish defendants' cases on the facts. See Pls.' S.J. Opp. 9-10 & n.6. According to plaintiffs, in all those cases "[n]othing was kept secret from the plaintiffs," id. at 10, whereas here defendants not only failed to inform plaintiffs of "the existence of the claims," id. at 9, but affirmatively reassured them that their accrued benefits would not be reduced as a result of the challenged amendments to the Signal Plan, id. at 10; see also id. at 2-3. But, as

described above, defendants had no duty to inform plaintiffs of their claims, or to endorse plaintiffs' theories of liability. The question here, as in Pisciotta, Union Pac. R.R., and Hirt, is when plaintiffs knew or should have known enough facts to put them on inquiry notice of their claims. And the lesson of those cases is that ERISA claims can accrue before an individual denial of benefits where (as here) a claim broadly challenges plan provisions, or the implementation of those provisions, on their face. Plaintiffs thus err by arguing that "the statute of limitations was found not to run in plan amendment cases more closely analogous than the ones cited by defendants." Pls.' S.J. Opp. 10. Indeed, the cases on which plaintiffs rely only highlight their

confusion regarding the appropriate accrual standard. Two of those cases, Meagher v. International Ass'n of Machinists & Aerospace Workers Pension Plan, 856 F.2d 1418 (9th Cir. 1988), and Frommert v. Conkright, 433 F.3d 254 (2d Cir. 2006), do not even implicate the discovery rule. Instead (in contrast to this case) they involve fiduciary duty

Case 2:04-cv-00424-ROS

4 Document 387

Filed 01/25/2008

Page 5 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

claims, as to which a stricter, "actual knowledge" accrual standard applies. See 29 U.S.C. § 1113; Meagher, 856 F.2d at 1422-23; Frommert, 433 F.3d at 272. And the non-fiduciary cases that plaintiffs cite (but do not attempt to apply or explain, see Pls.' S.J. Opp. 10-12) do not contradict defendants' point that planwide communications that explain the impact of plan amendments on plan participants' benefits can trigger the statute of limitations with respect to claims challenging the planwide operation, or implementation, of those amendments. Thus, in Northern Cal. Retail Clerks Unions and Food Employers Joint Pension Trust v. Jumbo Markets, Inc., 906 F.2d 1371, 1372-73 (9th Cir. 1990), the Ninth Circuit held that the statute of limitations "did not begin to run" until plaintiffs "had reason to know" of the underpayment that formed the basis for their claim; because the record was "unclear" on this point, the court remanded so that date could be determined. In the other cases cited by plaintiffs (all of which are from outside this Circuit), the courts either did not consider the impact of planwide communications on the statute of limitations, see, e.g., Cotter v. Eastern Conference of Teamsters Ret. Plan, 898 F.2d 424, 429 (4th Cir. 1990); DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F. Supp. 258, 265 (S.D.N.Y. 1997), or concluded that the relevant communications did not contain enough information to put plaintiffs on notice of their claims, see, e.g., Laurenzano v. Blue Cross & Blue Shield of Mass., Inc. Ret. Income Trust, 134 F. Supp. 2d 189, 209 (D. Mass. 2001). The upshot of the foregoing is that the entire first section of plaintiffs' opposition--in which they argue that the 1984 brochure describing the Signal Plan amendments at issue not only "negates" a statute of limitations defense but "conclusively establishes the timeliness of Plaintiffs' claims"--misses the mark. See Pls.' S.J. Opp. 15. That argument is based on the premise that a statute of limitations cannot run as long as defendants deny a claim, regardless of whether plaintiffs know or should know enough facts to put them on notice of that claim. It is certainly true that the 1984 brochure told plaintiffs that no individual participant's accrued benefits would be reduced as a result of the Signal Plan amendments at issue here. That statement, of
Case 2:04-cv-00424-ROS 5 Document 387 Filed 01/25/2008 Page 6 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

course, is by definition true in light of the Signal Plan's "saving clause," which is why plaintiffs' anti-cutback claims fail on the merits. See Defs.' Reply in Supp. of Recon. Mot. (Docket #368) at 6-7; see also Decl. of Kurt Denlinger ¶ 9 (Docket #368-2). But even putting aside that fundamental point, the 1984 brochure's general statement that the merger would not result in any reduction of accrued benefits does not override the 1984 brochure's more specific statements informing participants about the operation of the Signal Plan. What matters for purposes of the statute of limitations is when plaintiffs had actual or constructive knowledge of the facts they now claim give rise to liability. Thus, to the extent the 1984 brochure informed plan participants about specific components of the amendments that plaintiffs now characterize as unlawful reductions in their accrued benefits, plaintiffs' claims accrued then and there. The statement in the 1984 brochure that the amendments would not result in a reduction of any participant's accrued benefits, in other words, does not excuse plaintiffs from reading the rest of the 1984 brochure to see what the amendments actually did to their benefits. II. Plaintiffs' Three Remaining Claims Are Time-Barred. Under a proper application of the federal discovery rule, there can be no question that plaintiffs knew or should have known about each of their three remaining claims well beyond any conceivably applicable limitations period. Plaintiffs' arguments to the contrary are both unavailing and inconsistent with their arguments on the merits. In particular, plaintiffs insist that the 1984 communications could not have triggered the statute of limitations because the "impact" of a plan amendment on benefits "cannot be determined until retirement." Pls.' S.J. Opp. 3. But just weeks ago, plaintiffs filed a brief and a declaration opposing defendants' motion for reconsideration on the anti-cutback claims on the ground that "[t]he net effect of the challenged amendments was a dramatic reduction in accrued benefits" on January 1, 1984, the very day those amendments took effect. Pls.' Recon. Opp. (Docket #356) at 13. Indeed, plaintiffs' expert filed a declaration in which he purported to perform detailed and specific
Case 2:04-cv-00424-ROS 6 Document 387 Filed 01/25/2008 Page 7 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

calculations of the supposed reductions in accrued benefits as of that date. Needless to say, plaintiffs cannot on the one hand argue that they suffered a dramatic reduction in accrued benefits on the very day the challenged amendments took effect, while on the other hand arguing that whether the challenged amendments reduced their accrued benefits at all could not be determined until they retired. Although defendants agree with plaintiffs' current position that an individual's accrued benefits under a floor-offset plan cannot be determined until retirement (which is why there was no unlawful reduction in accrued benefits in this case, see Reply in Supp. of Recon. Mot. 11; Denlinger Decl. ¶ 8), that does not mean that plaintiffs' claims did not accrue until then. Once again, for statute of limitations purposes, the court must look to the facts asserted by plaintiffs as the basis for liability, and determine when they had actual or constructive knowledge of those facts. And the key point here is that plaintiffs are challenging plan provisions, and the implementation of those provisions, on their face, and not the application of those provisions in individual cases. Thus, the fact that an individual participant's benefits cannot be calculated until retirement does not mean that plaintiffs' classwide challenges to plan provisions, and the implementation of those provisions, did not accrue until individual class members retired. In other words, this is not a case, like Romero, in which "the fact that the amendment affects a particular employee or group of employees cannot be known until some later event." 404 F.3d at 223. In Romero, plaintiffs challenged a narrow set of amendments that would have applied to them only if they were later forced to change from employee to independent contractor status. They did not know, and could not have known, that the amendments would apply to them until years after the amendments went into effect. Id. at 224-25. Here, by contrast, plaintiffs challenge plan terms--the Social Security Offset to the normal retirement benefits formula, the SBA Offset, and the application of the SBA Offset to the Minimum Benefits formula--that applied generally to all former Garrett Plan participants from the date of the amendment. Thus, the relevant comparison here is not to Romero, but to Pisciotta, Union Pac. R.R., and Hirt, all of which arose out of
Case 2:04-cv-00424-ROS 7 Document 387 Filed 01/25/2008 Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

challenges to plan amendments that applied across the board to all plan participants. See Pisciotta, 91 F.3d at 1332 (claims arising out of benefit freeze); Union Pac. R.R., 138 F.3d at 331-32 (claims arising out of plans' general definition of "Credited Service"); Hirt, 450 F. Supp. 2d at 333-34 (participants' and beneficiaries' claims accrued when plan distributed SPD that disclosed conversion to cash balance plan). See generally Defs.' S.J. Mot. 7-8. In any event, plaintiffs' argument by its own terms would not preclude summary judgment in defendants' favor with respect to the many thousands of class members who left the company beyond any applicable limitations period. See Decl. of Kurt Denlinger ¶ 6 (attached as Ex. A); see also, e.g., Romero, 404 F.3d at 225 (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 not occur at a time which renders the subsequent assertion of the claim untimely"); Northern Cal. Retail Clerks, 906 F.2d at 1372-73 (reversing and remanding grant of summary judgment in defendants' favor so district court could determine the date on which plaintiffs had reason to know of their claims). 1 In addition to their general arguments on their remaining claims, plaintiffs advance several arguments as to each of their specific claims. All are unavailing. A. Social Security Offset Claim

Plaintiffs do not seriously dispute that the 1984 communications provided them with each of the facts underlying their Social Security Offset claim and clearly communicated the effect of the Social Security Offset on their benefits. See Defs.' S.J. Mot. 10-14. Instead, their only responses on this score are to suggest in passing that the Similarly, plaintiffs' argument that the 1984 communications do not establish that defendants clearly repudiated plaintiffs' claims because the evidence in the record does not state that they were sent to retirees, Pls.' S.J. Opp. 3 n.2, is a red herring. The accrued benefits of Garrett Plan participants who had retired before January 1, 1984, the effective date of the merger of the Garrett Plan into the Signal Plan, are calculated under the Garrett Plan formula. See Signal Companies, Inc. Ret. Plan, at HW315 (Docket #16, Ex. E). Accordingly, such persons did not become "vested participants in the Signal Retiremnt Plan," and, accordingly, are not members of the class. See Joint Mot. for Prelim. Approval of Partial Settlement (Docket #312) at 2-3.
Case 2:04-cv-00424-ROS 8 Document 387 Filed 01/25/2008 Page 9 of 14
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Social Security Offset claim did not accrue in 1984 because the 1984 brochure stated (accurately) that plaintiffs' accrued benefits would not decrease as a result of the plan amendments, see Pls.' S.J. Opp. 3 ("Absent a retraction of the assurances made in the 1984 brochure, the mere presence of the Social Security offset in the 1984 and 1996 SPDs could not serve to repudiate the claims in this case."), and to assert that "mere knowledge of the existence of the Social Security offset formula in this case did not put Plaintiffs on notice that it would be applied retroactively to reduce their accrued benefits," id. at 4. Those arguments fail for the reasons explained above and because the 1984 brochure and the 1984 SPD both stated clearly that the Social Security Offset would be applied to past service accrued under the Garrett Plan. See Defs.' S.J. Mot. 1013; see also Defs.' S.J. Opp. 8. Thus, plaintiffs' Social Security Offset claim is timebarred, and defendants are entitled to judgment on that claim as a matter of law. B. SBA Offset Claim

Plaintiffs' argument on the SBA Offset Claim resurrects an argument that this Court has already considered and rejected: that defendants were required to disclose the specific interest rates used to calculate the SBA Offset. Plaintiffs attempt to distinguish their earlier argument by asserting (without citation) that their inadequate disclosure claim "alleged that Defendants violated ERISA's minimum disclosure requirements by failing to advise plaintiffs of the existence of any SBA offset," not the interest rates used to calculate the SBA offset. Pls.' S.J. Opp. 5 (emphasis in original). But the record plainly belies that assertion--the Court specifically noted that plaintiffs' main argument on that claim was that the disclosure was inadequate because it "did not disclose the interest rate used to calculate the Secured Benefit Account offset." Allen, 382

F. Supp. 2d at 1169 (emphasis added); see also, e.g., Pls.' Opp. to Defs.' Mot. to Dismiss Am. Compl. (Docket #68) at 4 (arguing that "Defendants never advised that the interest rates had been changed and never included any information in the SPD that advised participants" of the 7.5% interest rate used to calculate the SBA offset). As this Court already held, that argument has "no merit." Allen, 382 F. Supp. 2d at 1170.
9 Document 387 Filed 01/25/2008 Page 10 of 14

Case 2:04-cv-00424-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs' SBA Offset argument is also flawed in another, even more fundamental, respect. Plaintiffs contend (again, without citation or explanation) that the Court's holdings that "[t]he SPDs adequately alerted plaintiffs to the offset," id. at 1170, and that the SPDs "were not misleading," id. at 1171, do not "amount to a finding of a repudiation of that claim," Pls.' S.J. Opp. 6. But, as noted above, all the law requires is that defendants put plaintiffs on notice of the effect of an amendment on their accrued benefits. See Order (9/6/06) at 11; Romero, 404 F.3d at 225; Defs.' S.J. Mot. 6-9; Defs.' S.J. Opp. 6-7. The Court's ruling that the SPDs "adequately alerted Plaintiffs to the offset," Allen, 382 F. Supp. 2d at 1170, confirms that the SPDs, and the 1984 SPD in particular, put plaintiffs on notice of the effect of the SBA offset on their accrued benefits under the amended plan. See also id. at 1171 ("[T]he SPDs appropriately described the impact of the offset."). At that point, plaintiffs had enough information to investigate and develop their claims. Indeed, as the Court observed, "[a] participant who was concerned or curious about the mechanics of the Secured Benefit Account offset had an opportunity to obtain or review more detailed information." Id. at 1170 (citing 29 U.S.C. §§ 1024(b)(2), 1024(b)(4)). But plaintiffs failed to do so in 1984 or at any reasonable point thereafter. Thus, their SBA Offset Claim is also time-barred as a matter of law. C. Minimum Benefits Claim

Plaintiffs' argument on the Minimum Claim merely restates (in some places, word for word) the argument from their motion for summary judgment. Compare Pls.' S.J. Mot. 9 with Pls.' S.J. Opp. 7. Because defendants fully addressed that argument in their opposition to plaintiffs' motion, see Defs.' S.J. Opp. 10-12, there is no need to dwell on it here. Suffice it to say that defendants were not required to concede the validity of plaintiffs' Minimum Benefits Claim for the statute of limitations to begin running, and that the 1984 SPD "sufficiently disclosed a[] Secured Benefit Account offset to the minimum benefit formulas." Allen, 382 F. Supp. 2d at 1172. Plaintiffs' Minimum Benefits Claim is accordingly time-barred.
10 Document 387 Filed 01/25/2008 Page 11 of 14

Case 2:04-cv-00424-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

A One-Year Statute of Limitations Applies To Plaintiffs' Claims. As defendants have previously noted, the Court can decide this motion without

reaching the issue of which statute of limitations applies. See Defs.' S.J. Mot. 9; see also Defs.' S.J. Opp. 12-14. But if the Court does reach that issue, it should hold that Delaware's one-year statute of limitations for employee benefits claims applies here in light of the express choice-of-law provision in the plan under which plaintiffs are bringing these claims. See Defs.' S.J. Mot. 3-4. Only two points in plaintiffs' argument that Arizona's six-year statute of limitations applies, Pls.' S.J. Opp. 12-16, merit discussion here. First, controlling Ninth Circuit precedent forecloses plaintiffs' argument that a plan's choice-of-law provision cannot, as a matter of law, control which statute of limitations governs an ERISA claim. See Wang Labs., Inc. v. Kagan, 990 F.2d 1126, 1128-29 (9th Cir. 1993) (holding that ERISA plan's choice-of-law provision governs statute of limitations notwithstanding Des Brisay v. Goldfield Corp., 637 F.32d 680 (9th Cir. 1981)); see also Fenberg v. Cowden Auto. Long Term Disability Plan, Nos. 05-17192, 06-15132, 2007 WL 4386126, at *1 (9th Cir. Dec. 17, 2007) (mem.). Second, plaintiffs' assertion that the 2000 Honeywell Retirement Earnings Plan does not supply the relevant choice-of-law provision is wrong. The timeliness of plaintiffs' claims is measured as of the date they filed suit. Thus, to determine which plan's choice-of-law provision applies, it is only logical to look to the plan that was in effect on that date. Moreover, unlike the other versions of the plan, and contrary to plaintiffs' assertion that the plan is "not directly at issue in this case," Pls.' S.J. Opp. 14, the Honeywell Plan is a defendant in this case. By contrast, plaintiffs provide no explanation for their view that the version of the plan under which plaintiffs' rights to benefits purportedly vested should govern this analysis. That is because no viable explanation or authority exists. CONCLUSION For the foregoing reasons, defendants respectfully request this Court to grant summary judgment in their favor on plaintiffs' three remaining claims.
11 Document 387 Filed 01/25/2008 Page 12 of 14

Case 2:04-cv-00424-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted this 25th day of January, 2008. OSBORN MALEDON 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 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

Case 2:04-cv-00424-ROS

12 Document 387 Filed 01/25/2008

Page 13 of 14

1 2 3

CERTIFICATE OF SERVICE I do certify that on January 25, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00424-ROS Document 387 Filed 01/25/2008 Page 14 of 14
1906137_1

Notice of Electronic Filing to all CM/ECF registrants.

s/ Kelly Dourlein