Free Response in Opposition to Motion - 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 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 PLAINTIFFS OPPOSITION TO DEFENDANTS RENEWED MOTION FOR LEAVE TO SERVE QUESTIONNAIRE ON SETTLEMENT CLASS MEMBERS

Prior to the Court s ruling on the pending motions for summary judgment on the statute of limitations defense, Defendants Renewed Motion for Leave to Serve

Questionnaire on Settlement Class Members is premature, would waste valuable judicial resources and is, in any event, without merit. Because all parties agree that resolution of the motions for summary judgment that are now pending may moot this motion, (Defs. Br. p. 1), and because the motion could also be mooted by stipulations that become possible through further discovery,1 the motion should be denied.

1

Declaration of Susan Martin dated January 18, 2008 ( Martin Decl. ) Doc. 379. 1

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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 BACKGROUND By way of background, Defendants motion for summary judgment on the statute of limitations, (Doc. 340), asserts only that three Plan communications: 1) a 1984 Plan brochure; 2) a 1984 summary plan description, and 3) a 1996 summary plan description, triggered the running of the statute of limitations. Defendants make no assertion regarding the legal import of any other documents. Notwithstanding the failure by Defendants to endeavor to establish that any other communications caused the statute of limitations to commence, Defendants proposed questionnaire seeks to require the 16,500 absent class members to respond to a broad range of irrelevant, burdensome and privileged inquiries that Defendants have failed to demonstrate on this motion or in their motion for summary judgment, are warranted by necessity or have any legal import. Given the standard in this Circuit for notice and clear and unmistakable repudiation of Plaintiffs claims prior to commencement of a statute of limitations, the Court has already made clear that it is Defendants burden to establish that there were communications emanating from Defendants that triggered the running of the statute of limitations: At oral argument, Defendants contended that unlike the defendant in Williams, 529 F.2d at 1388, they presented evidence that some plan participants know or should have known of the violation. However, as Plaintiffs stated at oral argument, courts have been clear that the repudiation must be unequivocal or unmistakable. Chuck, No. 04-36094 at *8309. Much of Defendants evidence is based on speculation, and they are largely in possession of the evidence that the statute of limitations will defeat the class action. (Doc. 226, pp. 14-15.) See Chuck v. Hewlett Packard, 455 F.3d 1026, 1038 (9th Cir. 2006); Martin v. Constr. Laborers Pension Trust for S. Cal., 947 F.2d 1381,1384 (9th Cir. 1991). The Court also stated, based on a review of the very same evidence about which Defendants latest motion seeks to inquire through the proposed questionnaire that: Defendants have not established a threshold that the documents presented triggered the statute of limitations. (Id.) Defendants served discovery and deposed each of the named Plaintiffs. With respect to their prior request to take discovery against all of the absent class members, the Court 2

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stated: Defendants have the burden of establishing the statute of limitations defense. It does not appear suitable in order for Defendants to establish the defense for them to take interrogatories of each putative class member... (Doc. 226, p. 11 n. 7.) Defendants have not asserted that any communications triggered the statute of limitations on their motion for summary judgment other than the 1984 brochure, the 1984 SPD and the 1996 SPD. Despite the fact that Defendants have filed a motion for summary judgment and make no claim that any other documents triggered the statute, Defendants questionnaire seeks to burden absent class members by asking them about receipt of a host of legally inadequate or irrelevant communications. Like the failure to meet their threshold burden on this defense during the class certification proceedings, Defendants latest motion again fails to satisfy their burden to show why absent class members should be called upon to respond to inquiries about assorted documents and communications that Defendants have made no effort to establish are legally relevant to their statute of limitations defense. Defendants attempt to shift the burden to Plaintiffs by asking class members to respond to questions regarding receipt of documents and communications that Defendants have not established in the first instance are necessary and germane to their statute of limitation defense, should be denied. In addition, as set forth in the Martin Decl., (Doc. 379), even if the documents were legally relevant, Defendants newly asserted foundational evidence regarding the three documents upon which Defendants rely for their statute of limitations defense, may enable the parties to stipulate regarding receipt and distribution of those three documents to some or all class members, thereby obviating the need for the Court to expend valuable judicial resources in ruling on this motion.2 As set forth in the Martin Decl., this evidence was not

While Plaintiffs cannot stipulate that the 1996 SPD was distributed to retirees, Defendants do not even contend that SPDs were routinely distributed to retirees and Plaintiffs have submitted evidence that retirees did not receive them. 3

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provided despite Plaintiffs requests during the meet and confer process contemplated by the Scheduling Order for foundational support for Defendants claims regarding distribution of documents. The Rule 30(b)(6) depositions (which the Scheduling Order defers until after the Partial Settlement becomes final), will permit Plaintiffs to inquire into Defendants factual assertions made for the first time 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. Plaintiffs believe that through the conduct of follow-up discovery, it may be possible to stipulate regarding receipt by various groupings of class members of the three aforementioned documents. Accordingly, in addition to the other reasons why Defendants motion to serve a questionnaire on all class members should be denied, to the extent that it proposes to inquire regarding receipt of the three documents on which Defendants rely in their motion for summary judgment, a ruling on Defendants proposed questionnaire may be unnecessary and should be denied on this ground as well. DEFENDANTS FAILED TO SHOW THAT ABSENT CLASS MEMBER DISCOVERY IS WARRANTED Absent class member discovery is only appropriate if it is necessary, seeks information not known to the movant, would not require the assistance of a lawyer or other expert to answer and is not directed toward winnowing the size of the class. See Barham v. Ramsey, 246 F.R.D. 60, 64-65 (D.D.C. 2007) (denying defendants request to serve interrogatories on absent class members where defendants failed to show necessity of information sought and relevance, particularly since court had already made determination that defendants lacked probable cause to arrest all the people in Pershing Park, whether or not specific individuals among them may have engaged in any earlier unlawful activity ); On the House Syndication, Inc., v. Federal Express Corp., 203 F.R.D. 452, 456-57 (S.D. Cal. 2001) (denying absent class member discovery on matters that have already been deemed irrelevant and where the information sought has not been shown to be relevant to common questions nor to be necessary for the resolution at trial. ). The party moving to include the 4

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questionnaire has the burden of proving necessity. Schwartz v. Celestial Seasonings, 185 F.R.D. 313, 316 (D.Colo.1999); Enter. Wallpaper Mfg., Co. v. Bodman, 85 F.R.D. 325, 327 (S.D.N.Y.1980) (requiring a strong showing). As the court stated in McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309, 313 (D. Conn. 1995): to permit extensive discovery would defeat the purpose of class actions ...Discovery is only permitted where a strong showing is made that the information sought (1) is not sought with the purpose or effect of harassment or altering membership of the class; (2) is directly relevant to common questions and unavailable from the representative parties; and (3) is necessary at trial of issues common to the class. (citing Manual for Complex Litigation § 30.232 (3d ed. 1995)) (further citations omitted); Bisgeier v. Fotomat Corp., 62 F.R.D. 118, 119 -121 (N.D.Ill.1973) (denying defendants request to serve interrogatories which inter alia call for irrelevant information and would appear to be, in the words of Brennan, a tactic to take undue advantage of the class members or . . . a stratagem to reduce the number of claimants. ) (citing Brennan , 450 F.2d at 1005). See Clark v. Universal Builders, 501 F.2d 324, 340-41 & n. 24 (7th Cir.1974) (reversing a trial court s dismissal of claims of absent class members who failed to respond to interrogatories where no showing was made of necessity for discovery and where the questions required legal assistance to answer and where some of the interrogatories sought information on matters already known to defendants. );Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1555-56 (11th Cir. 1986;) Dellums v. Powell, 566 F.2d 167, 187 (D.C.Cir.1977). Defendants proposed discovery fails to support their burden to make a strong showing of need, seeks information already in Defendants possession, is irrelevant, overly broad, unduly burdensome and should be denied. While Defendants claim that the discovery is sought in good faith, their complete failure to support their motion with a specific showing of need with respect to each inquiry and how receipt of the communications they cite triggered the running of the statute of limitations, is not evidence of good faith. Plaintiffs are aware of no decision, and Defendants have cited none, that permits a free ranging fishing expedition against absent class members in the hopes of coming up with a kernel of evidence 5

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to support an affirmative defense. Were parties to class actions permitted to conduct discovery against absent class members on such a thin and speculative basis, they would succeed in effectively defeating the class action device and the rights of class members to join together in a lawsuit. It is particularly inappropriate as directed against this class, the vast majority of whom are retirees, many or whom are significantly advanced in years and for whom the request to respond to these questions will pose a significant burden. It defies logic that Defendants can argue that they need information about communications that they do not claim in their motion for summary judgment triggered the running of the statute of limitations. Equally illogical is Defendants claims that this information could reside only with class members when the relevant communications, of necessity, must come from Defendants in order to trigger the running of the statute. Defendants claim that Plaintiffs are opposing summary judgment because of factual issues is a distortion of the record. Plaintiffs have consistently advocated that all legal issues concerning Defendants alleged affirmative defenses should be determined by the Court and that any factual issues surrounding receipt of documents should be deferred to a later date if Defendants statute of limitations defense should survive summary judgment. Contrary to Defendants claims, (p. 3), it is Defendants who have failed to support their right to conduct discovery by establishing the legal import of the communications. Defendants do not specifically list the documents or communications they seek to inquire about, but instead provide a grouping of five communications, all of which were previously considered by the Court and found to be lacking and none of which support granting of the right to serve a questionnaire. As previously set forth in Plaintiffs Reply in Further Support of Class Certification, (Doc. 168), and in Plaintiffs Reply to Defendants Supplemental Brief Regarding Class Action Certification, (Doc. 209, 215), and as once again summarized below, the following evidence that Defendants seek to inquire about in their proposed questionnaire, (Defs. Br. pp. 4-5), is legally irrelevant and does not support Defendants request to conduct absent class member discovery.

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1995 Communications to Class Members and Meetings3 Defendants have made no showing that any 1995 communications could have triggered the running of the statute of limitations. Mr. Chapman s 2006 declaration, (Doc. 188 ¶¶ 10-21), describes 1995 communications and meetings in great detail. Nothing about his declaration provides any indication that the Company disclosed that the SBA offset had been amended to change the interest rate used to project the offset from termination of employment to age 65. Needless to say, no 1995 communications repudiated Plaintiffs claims. Indeed, the opposite is true. As Plaintiffs previously demonstrated, in the written communications distributed in 1995 and communications made during the meetings, Defendants affirmatively represented to employees that the offsets had not changed. Defendants also repeatedly acknowledged that the communications regarding the SBA offset prior to 1995 were inadequate and confusing. For example, in the four town hall meetings for active employees in the Phoenix/Tempe area held in September 1995, Defendants exhibited the following slide, which assured employees that the SBA offset was unchanged: Summary SBA is confusing Plan has not changed As always, if SBA withdrawn, Retirement Plan benefit will be reduced (Plaintiffs Separate Statement of Material Facts Not in Dispute in Support of Plaintiffs Motion for Summary Judgment Dismissing Defendants Statute of Limitations Defense, Doc. 344 ¶ 16 and Defendants response, Doc. 370 ¶ 16.) The written speaker notes

accompanying the slide presentation underscored the message that the Plan had not changed. The narrative states: The bottom line is that the plan has not changed. (Plaintiffs Separate Statement of Material Facts Not in Dispute in Support of Plaintiffs Motion for Summary Judgment Dismissing Defendants Statute of Limitations Defense, Doc. 344 ¶ 17 and

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Defs Br., pp. 4-5, Bullet Points 1 and 2 7

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Defendants response, Doc. 370 ¶ 17.)4 By way of further example, the November 1995 communication addressed only to Phoenix-area SBA participants entitled Facts About the SBA misinforms participants by stating there was no change in the coordination between the SBA and the Retirement Plan: However, the coordination of the Retirement and Severance benefits remained intact. (Doc. 188, Exhibit 19, at HW 0019553.) Citing the 2006 Rojas and Chapman declarations, Defendants claim there were presentations, seminars and benefits meetings in or around 1995 but give no indication about what in those meetings gave notice to class members about the amendments at issue here. Ms. Rojas describes those seminars and submits the materials that were handed out during those seminars. (Doc. 191 ¶¶ 14-16, Exh. 7.) Defendants have identified no statement that they claim constituted notice and repudiation. Here again, it is not for Plaintiffs or for this Court to guess, but for Defendants to bring forth with specificity, the evidence in support of their statute of limitations defense justifying the need to inquire further from absent class members if they attended a certain meeting. Absent such a showing, the requested discovery should be denied. A Document Asking Participants to Call an Attorney5 Defendants have pointed to one document contained in the file of a former employee,

Additionally, Defendants make no effort to tailor their questionnaire to those for whom the questions may be relevant, instead asking all 16,500 class members whether they ever attended any presentations, meetings or seminars sponsored by the Company at which the Retirement Plan or Severance Plan was discussed. Further, despite the existence of written speaker notes and a slide presentation and the fact that Defendants clearly have witnesses like Mr. Chapman to recount what was said at the 1995 meetings of approximately 1000 Phoenix area active employees, Defendants propose to ask all 16,500 class members if they attended any of the meetings and to describe what was said at those meetings. (Doc. 342, Exhibit A, Question 7.)
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Defs Br., p. 5, Bullet Point 3, citing Doc. 192, Exh. A, at HW0019478-79. 8

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which Defendants erroneously misrepresent as a solicitation from an attorney.6 However, Defendants have not shown that it put any class members on notice of Plaintiffs claims or the repudiation of Plaintiffs claims by the Defendants. One single anonymous document appearing to complain about the mere existence of an SBA offset (as opposed to the issue here an amendment changing the interest rate used to calculate the SBA offset from

termination of employment to age 65) and about the company s poor record of communication, does not show that participants were on notice of the claims asserted here or, in the unlikely event that they were, that Defendants clearly repudiated Plaintiffs claims. It is nonsensical to claim that class members somehow gained knowledge of their claim and knowledge of Defendants repudiation of their claims when Defendants have not pointed to any evidence of disclosure or repudiation of Defendants changes in the interest rates used to calculate the SBA offsets. Defendants endeavor to inquire into consultations with attorneys also seeks to solicit obviously privileged information. While Defendants are free to offer any information about their communications with attorneys, they cannot inquire as they attempt to do in Question 9, about whether class members ever consulted an attorney regarding the calculation of your benefits or your rights under the Retirement Plan or Severance Plan. Such an inquiry,

regarding the subject matter of a consultation with an attorney, calls for privileged information and is improper and irrelevant. It is Defendants burden to show that Plaintiffs were on notice of their claims. They cannot avoid that burden by seeking to claim that disgruntled employees should have known information unless the Defendants can also show that they conveyed the information that Plaintiffs should have known. Even if Defendants could demonstrate that a small handful of Phoenix area active employees might have been on what Defendants describe as inquiry notice in 1995, the record makes clear that far from
6

The document states that it is not a solicitation for the above law firm but from a concerned employee who feels that outside legal representation is needed to regain what was once thought of as a separate benefit, and make the company more responsible to effectively communicate benefits. (Doc. 192, Exh. A, at HW0019478-79.) 9

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repudiating any claims, Defendants admit that they affirmatively advised those employees that the SBA offset had always been there and that nothing had changed. (Plaintiffs Separate Statement of Material Facts Not in Dispute in Support of Plaintiffs Motion for Summary Judgment Dismissing Defendants Statute of Limitations Defense, Doc. 344 ¶¶ 16, 17 and Defendants response, Doc. 370 ¶¶ 16, 17.) Benefit Calculation Worksheets and Estimates of Participants Benefits7 Defendants endeavor to resurrect the legally dead inquiry concerning receipt by participants of a detailed final statement of his or her benefits. Defendants made no

argument on their motion for summary judgment that these benefit calculation worksheets somehow triggered the running of the statute of limitations defense and Plaintiffs have shown that these incomprehensible and incomplete documents did nothing of the sort. The calculation worksheets, (see, e.g., Dauphine Decl. Doc. 147, Exhibits T and U), are fundamentally unintelligible, confusing and incomplete. They range in length from 17-20 pages, require the reader to Look up Factors from Tables that still have never been

provided to Plaintiffs or to Plaintiffs counsel and do not disclose the interest rates used to calculate the offsets. (Declaration of Susan Martin dated June 12, 2006, Doc. 167 ¶ 5.) With respect to these worksheets, this Court already noted Plaintiffs argument that receipt of a benefit calculation worksheet could not constitute any sort of repudiation: In view of the complexity of the calculations showing the error by Defendants, it seems unreasonable to assume that Plaintiffs might have been able to figure out that they had claims and what they were by reviewing a complex thicket of obscure mathematical formulations, footnotes and calculations with cross references to nonexistent tables in the 17-20 page benefit calculation worksheets. (Doc. 226, Order on class certification, pp. 10-11.) Even if Plaintiffs somehow could have divined interest rates that may have been embedded in formulas that were used to calculate their SBA offsets from some worksheets which did contain actuarial factors (some but not all), they would have needed a scientific

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Defs Br., p. 5, Bullet Points 4 and 5 10

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calculator and knowledge of complex actuarial interest rate principles in order to do so. Here again, mere knowledge of the interest rates used to calculate the SBA offsets under the Signal Plan would not have triggered the running of the statute of limitations. This is not a case challenging high interest rates per se. The rates are only relevant in relation to the rates required by the Garrett Plan and amended by Defendants and those were not disclosed on the worksheets or anywhere else. The same deficiencies regarding the benefit calculation worksheets preclude their use to show a clear repudiation of the Social Security offset claims. The worksheets refer to tables and or calculators used to calculate the Social Security offset that were never provided to participants and were not even provided to Class Counsel, despite repeated requests, until more than two years into this litigation. Without these tables, it is impossible to determine how the Social Security offsets were calculated and it could not have been clear that offsets were applied retroactively. The complicated, unintelligible and incomplete worksheets simply do not constitute an unmistakable repudiation of the Social Security offset claims. Even if the law were to impose on workers the obligation to decipher complex mathematical formulas or have their claims forever barred (an unlikely proposition), Plaintiffs could not have done so based on Defendants benefit calculations worksheets because the information contained in the worksheets was indecipherable and incomplete. It was certainly an option for Defendants to provide upon termination of employment or retirement, a summary of how each retiree s benefits were calculated written in language an average Plan participant could understand. Defendants did not to do so. The benefit calculations worksheets do not come even close to satisfying Defendants obligation to provide clear notice and unmistakable repudiation of the claims asserted by Plaintiffs. Accordingly, Defendants motion seeking to ask all 16,500 absent class members about whether they received benefit calculation worksheets and estimates should be denied. DEFENDANTS QUESTIONNAIRE IS FLAWED AND INAPPROPRIATE Even if Defendants could support their right to engage in some form of discovery against absent class members, the questions they seek to serve on all 16,500 class members 11

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are inappropriate. Each of the questions seeks information that is not possibly relevant to the statute of limitations defense. For example, Questions 1, 2, 3, 6, 7 and 8 broadly ask participants about receipt of any and all categories of communications about their retirement benefits at home, at work or at other meetings with no attempt to demonstrate need, relevance or to limit time-frame or scope and which would elicit privileged responses. If the Court rules that the three communications relied on by Defendants in their motion for summary judgment on the statute of limitations somehow triggered the statute of limitations, only then would the issue as to who received those three documents become relevant. Likewise, Questions 4 and 5 are inappropriate, assume facts not in evidence, are confusing and make no sense. As Plaintiffs argued in opposition to Defendants motion for summary judgment, mere knowledge that there was an SBA offset under the Plan does not disclose to class members that the Plan was amended to retroactively reduce accrued benefits by changing the interest rate used to calculate the offset. Similarly, mere knowledge of the fact that there was a Social Security offset under one of the Plan formulas is not enough to trigger the running of the statute of limitations on Plaintiffs claim that their accrued benefits were reduced by retroactive application of that offset to service before its adoption. Further, the question asks participants when they learned Social Security benefits were taken into account even though many participants never had Social Security benefits taken into account because their benefits were higher under the minimum benefits formulas. Accordingly, Question 4's request to identify when participants learned about the SBA offset and Question 5's request to detail when participants learned that the Plan took Social Security benefits into account are inappropriate. Question 9 simply cannot be answered except by revealing privileged information. The question asks participants if they ever consulted with an attorney regarding the calculation of your benefits or your rights under the Retirement Plan or Severance Plan. Because it seeks only privileged communication, it is inappropriate. Questions 10 and 11 ask participants about receipt of retirement calculation estimates and benefit statements Because, as set forth above, none of these communications triggered 12

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the running of the statute of limitations, the questions are simply irrelevant and do not meet the standard for permitting discovery against absent class members. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that Defendants motion be denied. Respectfully submitted this 18th day of January, 2008. MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 Attorneys for Plaintiffs

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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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