Free Response - 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.
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No. CV04-0424 PHX ROS

DEFENDANTS' RESPONSE TO PLAINTIFFS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS

Case 2:04-cv-00424-ROS

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Pursuant to Local Rule 56.1(b), defendants set forth the following Response to Plaintiffs' Separate Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment on Statute of Limitations: 1. Disputed in part. Beginning in June 2001, Susan Martin, Esq., on behalf

Richard Scates, a named plaintiff in this action, and two other participants who are not named plaintiffs in this action, requested information from the defendant plan administrator of the Honeywell Retirement Earnings Plan, including the Signal Company's Retirement Plan plan document as in effect in 1983 and thereafter and all amendments thereto. Decl. of Marie Gangone ¶ 3 & Exs. 1-5 (Docket #33). Plaintiffs' assertion that plaintiffs first requested information from Defendants in June 2001 is not supported by the documents they cite. 2. Disputed in part. The evidence that plaintiffs cite in support of their

allegation is inadmissible for the purpose of establishing the facts that plaintiffs allege. On August 15, 2001, defendants sent Ms. Martin (in her capacity as attorney for Richard Scates, a named plaintiff in this action, and two other participants who are not named plaintiffs in this action) copies of various documents, including "The Signal Company Inc. Retirement Plan" dated May 1, 1985 and January 1, 1986. Gangone Decl., Ex. 11. 3. Disputed in part. On October 1, 2003, in response to Ms. Martin's

requests on behalf of Mr. Scates and two other participants who are not named plaintiffs in this action, Honeywell provided Ms. Martin with a copy of The Signal Companies, Inc. Retirement Plan effective January 1, 1984 and offered Ms. Martin the opportunity to supplement her administrative appeal on behalf of several hundred "Retirees." Gangone Decl. ¶ 6 & Ex. 17. 4. 5. 6. Disputed. Plaintiffs' allegation conflicts with the cited declaration. Undisputed. Disputed in part. Plaintiffs' allegation is vague and ambiguous as to the

"Plan" and the "Sections of the Garrett Plan" and misquotes the Retirement Plan For Employees Of The Garrett Corporation And Its Participating Subsidiary Companies (the
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"Garrett Retirement Plan"). The Normal Retirement Benefit in the Garrett Retirement Plan is computed using a participant's Potential Retirement Income from the Severance Plan and the participant's Actual Retirement Income from the Severance Plan. Decl. of Amy Promislo, Ex. A, at HW 32-33 (Docket #16). The Garrett Retirement Plan states that "[a] Participant's Potential Retirement Income from the Severance Plan shall be calculated pursuant to the tables set forth in Exhibit B (and any necessary interpolations or extrapolations from those tables)" and that "[a] Participant's Actual Retirement Income from the Severance Plan shall be based on the tables set forth in Exhibit B (and any necessary interpolations and extrapolations from these tables)." Id. at HW 38-41. 7. Disputed in part. Ms. Martin, in her capacity as attorney for Richard

Scates, a named plaintiff in this action and two other participants who are not named plaintiffs in this action, requested defendants to provide her with a copy of "Exhibit B" to the Garrett Retirement Plan on September 5, 2001, and again in letters dated December 17, 2001 and December 20, 2001. Gangone Decl., Exs. 5, 7, 8. 8. 9. 10. Undisputed. Disputed. The documents plaintiffs cite do not support their allegation. Disputed in part. Plaintiffs' allegation is vague and ambiguous as to what

"claims" they contend were "first asserted under the Plan's claims procedure on July 26, 2002." On July 26, 2002, Ms. Martin submitted a benefit claim setting forth the same claims that plaintiffs are pursuing in this litigation as "counsel to several hundred former Garrett Corporation salaried employees or their surviving spouses (`Retirees') who were participants in the Retirement Plan for Employees of the Garrett Corporation and its Participating Subsidiaries ... and the Severance Plan for Employees of the Garrett Corporation and its Participating Subsidiaries." Promislo Decl., Ex. I; Gangone Decl. ¶ 5. 11. Disputed in part. Plaintiffs' allegation is not supported by the July 1, 2003

letter they cite. Brian Marcotte, the Plan Administrator for the Honeywell Retirement Earnings Plan, finally denied the Retirees' claims on October 29, 2003. Promislo Decl.,
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Ex. O. 12. 13. Undisputed. Disputed in part. The evidence that plaintiffs cite supports their allegation

only as to named plaintiffs Richard Scates and Melvin Jones. 14. 15. Undisputed. Disputed. Plaintiffs' allegation is not supported by the declaration they

cite. That declaration states that "over 1000 employees were scheduled to attend" four town hall meetings for Phoenix-based employees held in September 1995. Decl. of Craig Chapman ¶ 11 (Docket #188). 16. 17. 18. Undisputed. Undisputed. Disputed. Plaintiffs' allegation is vague and ambiguous in that plaintiffs

do not explain what they mean by "the phantom growth of the SBA offset to age 65 if a participant leaves employment prior to that age." 19. 20. Undisputed. Disputed in part. Plaintiffs' allegation conflicts with the cited declaration.

Tables of estimated Social Security benefits for the period 1983 through 1986 were provided to Ms. Martin on June 16, 2006. Decl. of Jennifer Kroll, Ex. A (Docket #345). Respectfully submitted this 11th 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
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Case 2:04-cv-00424-ROS

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, D.C. 20005-5793 Attorneys for Defendants

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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