Free Motion for Miscellaneous Relief - 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, D.C. 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

DECLARATION OF ELEANOR R. BARRETT IN SUPPORT OF REQUEST FOR DENIAL OR CONTINUANCE OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS UNDER RULE 56(F)

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Filed 01/11/2008

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I, Eleanor R. Barrett, declare as follows: 1. I am an attorney at the law firm of Kirkland & Ellis LLP, attorneys for

defendants, and am duly authorized to make this declaration. I know the following to be true through my work in this case, and if requested could and would competently testify as such. 2. On December 10, 2007, defendants filed a Motion for Summary Judgment

on Statute of Limitations (Docket #340) and a Renewed Motion for Leave to Serve Questionnaire on Settlement Class Members (Docket #342). On the same day, plaintiffs filed a Motion for Summary Judgment Dismissing Defendants' Statute of Limitations Defense. (Docket #343.) 3. Plaintiffs' motion seeks summary judgment on the theory that the statute

of limitations on their claims did not begin to run until some class members' administrative claims were finally denied in October 2003. Pls. Mot. 1. 4. As set forth in their motion for summary judgment, defendants believe that

planwide communications distributed in 1984 establish that each of plaintiffs' Three Remaining Claims is time-barred as a matter of law. Defs. Mot. at 9-16. Defendants also believe that plaintiffs' motion for summary judgment should be denied because plaintiffs have not set forth any basis on which this Court should dismiss defendants' statute of limitations defense. See Defs.' Opp. to Pls.' Mot. for S.J. (filed concurrently herewith). But in the event that the Court disagrees, the questions of whether and when plaintiffs had sufficient information to put them on notice of their claims would remain a disputed question of fact. Defendants request the opportunity to take limited Rule 56(f) discovery to further address these questions. 5. Specifically, defendants seek to conduct limited discovery from class

members to establish what they knew, and when they knew it, about their claims via a questionnaire. As set forth more fully in their Renewed Motion for Questionnaire, additional relevant information lies in the hands of class members, including, inter alia, whether class members received planwide communications distributed in 1995; which
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class members participated in the presentations, meetings, and seminars that Honeywell's predecessor company held to address employee concerns on the SBA offset; which class members consulted with attorneys outside the applicable limitations period; which class members received individual benefit statements; and which class members received other benefits estimates. 6. To the extent that the Court elects not to grant defendants' motion for

summary judgment or deny plaintiffs' motion for summary judgment as a matter of law, I believe that the information outlined above will raise genuine issues of material fact as to when plaintiffs' claims accrued. Therefore, I believe that plaintiffs' present motion for summary judgment should be denied or continued as premature under Federal Rule of Civil Procedure 56(f). I declare under penalty of perjury that, to the best of my knowledge and belief, the foregoing is true and correct. Dated: January 11, 2008

KIRKLAND & ELLIS LLP

By: /s/Eleanor R. Barrett Attorney for Defendants

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CERTIFICATE OF SERVICE I do certify that on January 11, 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

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