Free Declaration - 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 Attorneys for Plaintiffs

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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS DECLARATION OF SUSAN MARTIN IN OPPOSITION TO DEFENDANTS' RENEWED MOTION FOR LEAVE TO SERVE QUESTIONNAIRE ON SETTLEMENT CLASS MEMBERS

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Honeywell Retirement Earnings Plan; Honeywell Secured Benefit Plan; Plan Administrator of Honeywell Retirement Earnings Plan; and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

Pursuant to 28 U.S.C. § 1746, Susan Martin affirms under penalty of perjury: 1. I am an attorney for the Plaintiffs in the above entitled action. I have

reviewed and am fully familiar with the file in this case. I am of legal age, under no legal disability and if called as a witness could competently testify to the matters set forth herein from my own personal knowledge. 2. I submit this declaration to place before the Court , Plaintiffs' belief that

Defendants' motion may be mooted by the Court's ruling on the Summary Judgment motions addressed to the statute of limitations defense and, alternatively, by the potential ability of the parties to stipulate regarding receipt of the three documents upon which Defendants rely for their statute of limitations defense.

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3.

The Rule 30(b)(6) depositions and other depositions (which the

Scheduling Order defers until after the Partial Settlement becomes final), will permit Plaintiffs to inquire into Defendants' factual assertions first made on December 10, 2007, in connection with Defendants' motion for summary judgment on the statute of limitations defense, (Doc. 341, Exh. 1 and 2), regarding distribution of the 1984 brochure, the 1984 summary plan description and the 1996 summary plan description. These factual assertions were first disclosed to Plaintiffs through the declarations filed by James McLeod and Craig Chapman. (Id.) Plaintiffs believe that through the conduct of follow-up discovery it is likely they will be able to stipulate and significantly narrow factual disputes regarding distribution and possible receipt by various groupings of class members of the three aforementioned documents. 4. Accordingly, in addition to the legal reasons why Defendants' motion

to serve a questionnaire on absent class members should be denied, to the extent that questionnaire proposes to inquire regarding receipt on the three documents on which Defendants rely for their motion for summary judgment, a ruling on Defendants' proposed questionnaire may be unnecessary and should be denied on this ground as well. Defendants' Refusal To Provide Foundational Support 5. At the status conference held in this matter on November 2, 2007,

counsel for Defendants referenced the fact that Plaintiffs would not stipulate that certain communications were distributed to class members. In response, Class Counsel advised the Court that "we would be happy if there was some foundation proposed by the Defendants to consider a stipulation....that people did or did not receive documents." (Doc. 316 p. 32 1.20.) 6. Following that conference, on several occasions in November 2007,

Plaintiffs met telephonically and conferred in good faith with Defendants on this issue. Plaintiffs requested several times during these meetings that Defendants

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provide some factual foundation or support for the proposition that communications were distributed to class members. 7. Defendants demurred, claiming that the 2006 declarations of Craig

Chapman (Doc. 188) and Maureen Rojas (Doc. 191) constituted sufficient foundation for Plaintiffs to stipulate that various documents had been received. Plaintiffs reviewed those declarations and advised Defendants that they did not provide foundational support that would enable Plaintiffs to enter into a stipulation. The 2006 Chapman declaration merely stated that an October 1995 memorandum had been "distributed to all employees" (¶ 37) without identifying the manner of distribution

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or the definition of "all employees" and that two fliers were mailed to Phoenix-area SBA participants' homes in November 16, 1995. (¶ 39.) The 2006 Rojas declaration merely referred to fliers sent to Phoenix-area SBA participants. (¶ 13.) Plaintiffs advised Defendants that these averments were inadequate even as to the fliers and memo because they failed to explain or identify the employees or participants receiving the information and the 2006 Chapman declaration failed to explain the method of distribution. Despite requests by Plaintiffs for additional foundational evidence that would enable Plaintiffs to consider a stipulation regarding distribution of communications to class members, Defendants offered none and the parties were unable to resolve the dispute. 8. Both prior to and following the filing of Defendants' renewed motion,

Plaintiffs also proposed to Defendants on several occasions that the parties defer the motion on the questionnaire, without prejudice, pending the Court's ruling on the statute of limitations motions. Defendants did not agree. 9. The McLeod and Chapman declarations filed on December 10, 2007

refer for the first time, to certain practices regarding the distribution of communications to employees. (Doc. 341, Exh. 1, p. 2,¶5; Doc. 341 Exh. 2, p. 2 ¶7-8.) McLeod who worked for Garrett from 1982 through 1986, states that he believes the January 1984 brochure and the May 1984 summary plan description, (two of the three
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documents upon which Defendants rely for their affirmative defense), were mailed. While it is not clear from his declaration that these two documents were mailed to all employees, McLeod indicated he received his brochure through the mail although he makes no mention of his receipt of the May 1984 SPD through the mail. 10. The December 2007 Chapman declaration, likewise alleges for the first

time that the 1996 summary plan descriptions were mailed to employees. Based on this evidence, which was not offered to Plaintiffs during the meet and confer process, Plaintiffs believe that upon an opportunity to further inquire regarding these averments, it is likely that they may be able to stipulate that certain class members

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received some of these documents. There is no claim by Defendants that retirees were furnished with SPDs. Plaintiffs have submitted evidence that retirees (as opposed to active employees) were not furnished with SPDS. However, even if it can be established that these three documents were submitted to active employees, burdening 16,500 absent class members, or even a small sample of class members, with the burden to respond to written interrogatories asking whether they received those documents, is not necessary or appropriate and may be moot. 11. Accordingly, Plaintiffs respectfully request that Defendants' motion to

serve the questionnaire be denied subject to renewal if the Court fails to dismiss Defendants' statute of limitations defense, rules that the three documents are legally relevant, and the parties, following discovery, are unable to stipulate to receipt of the three documents at issue. Respectfully submitted this 18 th day of January, 2008

s/Susan Martin Susan Martin

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CERTIFICATE OF SERVICE I hereby certify that on January 18, 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 th One Newark Center, 18 Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants

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