Free Reply in Support of Motion - 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

REPLY BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR RECONSIDERATION (Oral argument requested)

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Plaintiffs' opposition brief cannot, and does not, deny the key point warranting reconsideration: the Treasury Letter interprets the 1977 Treasury Regulation in a way that cannot be squared with this Court's ruling granting plaintiffs summary judgment on their anti-cutback claims. Rather, plaintiffs attack the Treasury Letter itself, calling it "clearly erroneous," and "merit[ing] no respect." Opp. 3, 8, 18, 19 (Doc. #361). These arguments, as shown in Section I below, are groundless. And plaintiffs themselves apparently recognize this point, because they proceed to unveil an entirely new theory as an alternative ground to defend the grant of summary judgment in their favor: the theory that "[t]he challenged Retirement Plan amendments dramatically reduced Plaintiffs' accrued benefits overall." Id. at 3 (emphasis modified). This new argument too, as shown in Section II below, is groundless. Accordingly, this Court should grant the motion for reconsideration. I. The Treasury Letter Warrants Reconsideration. Plaintiffs' main argument against reconsideration is that the Treasury Letter "is not ... entitled to any form of deference" or "respect" from this Court. Opp. 3, 17 (capitalization modified). This Court, however, has already rejected that argument. In denying plaintiffs' request for discovery on the Treasury Letter, this Court noted that the Letter "states the agency's position on the meaning of a 1977 regulation interpreting ERISA's anti-cutback provision, 29 U.S.C. § 1054(g)(1), which is at the heart of this lawsuit." Order (12/18/07), at 1 (Doc. #349). Under bedrock principles of

administrative law, agencies have broad discretion to interpret their own regulations, and their interpretation is "`controlling'" upon a court "`unless [1] plainly erroneous or [2] inconsistent with the regulation.'" Id. at 2 (citing and quoting Auer v. Robbins, 519 U.S. 452, 461 (1997), and Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006)); see also Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007); Martin v. OSHRC, 499 U.S. 144, 150-51 (1991); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Such deference to an agency's interpretation of its own regulations, as the Supreme Court has emphasized, is
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even greater than the deference due to an agency's interpretation of its organic statute. See, e.g., Udall, 380 U.S. at 16. Plaintiffs try to avoid such deference by arguing that the Treasury Letter "conflict[s] with the clear and unambiguous terms of the regulations and [is] clearly erroneous." Opp. 18. Plaintiffs are mistaken. They base this argument primarily on a statement in the 2005 Regulation that it "completely replaces" previous regulations. Opp. 7, 8, 18 (quoting 70 Fed. Reg. 47109, 47110 (Aug. 12, 2005)). In plaintiffs' view, that statement means that all previous regulations are stripped of any legal effect, even with respect to past transactions. Id. But, as the Treasury Letter makes clear, that interpretation of the 2005 Regulation is manifestly incorrect: that Regulation "completely replace[d]" previous regulations on a going-forward basis, but did not strip them of legal effect with respect to transactions that took place while they were in effect. See Treasury Letter, at 1 (Doc. #323, Tab A). Indeed, the "Effective Date" provision of the 2005 Regulation is explicit on this point: "Plan amendments adopted before August 12, 2005 [the effective date of the 2005 Regulation] are to be evaluated in light of the applicable authorities without regard to these regulations." 70 Fed. Reg. at 47115. Because the 1977 Regulation was the "applicable authorit[y]," id., at the time the Plan amendments at issue here took effect on January 1, 1984, the 2005 Regulation only confirms its applicability. Plaintiffs thus err by arguing that the 2005 Regulation created a regulatory vacuum with respect to amendments that took effect before that Regulation. In addition, plaintiffs challenge as "clearly erroneous" the Treasury Letter's characterization of the 2005 Regulation and the 1977 Regulation as "virtually identical." Opp. 8-10, 18-19. But, as noted in the Motion for Reconsideration, the two Regulations are virtually identical in all material respects. See Recon. Mot. 10 (Doc. #323)

(comparing 26 C.F.R. § 1.411(d)-3(b) (1977) with 26 C.F.R. § 1.411(d)-3(b) (2005)). The point of the two Regulations is the same: ERISA's anti-cutback rule applies to plan amendments as a whole, not to discrete components of plan amendments viewed in isolation. See generally 70 Fed. Reg. at 47110-11 (noting that "the rules in [the 1977
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Regulation] generally have been carried over to [the 2005 Regulation], except to the extent needed to reflect statutory changes" not relevant here). And that simple point warrants reconsideration of this Court's summary judgment ruling under the 1977 Regulation, just as this Court acknowledged that its ruling would have been different under the 2005 Regulation if it had retroactive effect. See Order (11/18/05), at 8 (Doc. #138). To the extent that plaintiffs suggest that the 1977 Regulation does not apply here because "the cutback in benefits [was] effectuated by various discrete amendments adopted on different dates reducing the Plaintiffs' accrued benefits," Opp. 3, they are wrong. As plaintiffs themselves concede, their anti-cutback claims are based on

amendments to the Signal Plan with the same adoption date and the same effective date: On February 4, 1984, the Signal Retirement Plan was amended effective January 1, 1984 to admit Garrett Retirement Plan participants for the first time and to change the benefits formulas in several respects at issue here. Among the amendments adopted at that time were the decreases in accrued benefits that the Court found violated the anti-cutback rule, including the amendments increasing the interest rate used to calculate the Retirement Plan's offset of the value of Retirees' Severance Plan benefits and introduction of a Social Security offset applied to years of service before its adoption. Id. at 4-5. Because these are the amendments that form the basis for plaintiffs' anticutback claims, they are the only amendments relevant to those claims. Plaintiffs' suggestion that amendments to the Garrett Plan are also somehow relevant, see id. at 4, is puzzling, since plaintiffs themselves admit that their anti-cutback claims do not challenge any amendments to the Garrett Plan, see id. at 4-5. To be sure, the accrued benefits provided by the Signal Plan amendments effective on January 1, 1984 must be compared to the accrued benefits provided by the previous Garrett Plan to determine whether the challenged Signal Plan amendments violated ERISA's anti-cutback rule, but that does not mean that any amendments to the Garrett Plan are somehow at issue. Plaintiffs also argue in passing that the Treasury Letter "cannot be considered an `agency interpretation' in any legitimate respect," because it "is nothing more than an
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information letter." Opp. 5 n.4 & 18 n.14. But there is a reason why plaintiffs bury that argument in two footnotes: it is plainly incorrect. As this Court has already recognized, even informal agency interpretations of regulations are entitled to judicial deference. See Order (12/18/07), at 2 ("`Where an agency interprets its own regulation, even if through an informal process, its interpretation of an ambiguous regulation is controlling under Auer.'") (quoting Bassiri, 463 F.3d at 930 (emphasis added)); see also Long Island Care at Home, 127 S. Ct. at 2349 (applying Auer deference to a Department of Labor "Advisory Memorandum" that was "issued only to internal Department personnel and which the Department appear[ed] to have written in response to this litigation"). Plaintiffs also argue that defendants' reliance on National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005), is misplaced, because that case "dealt solely with the impact of an agency construction of a statute that was entitled to Chevron deference." Opp. 11. But this case also deals with an agency construction of a statute that is entitled to judicial deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). As this Court previously recognized, "[i]n deciding Michael [v.

Riverside Cement Co. Pension Plan, 266 F.3d 1023 (9th Cir. 2001)], the Ninth Circuit did not find that its interpretation was the only one warranted under the statute. Consequently, the agency regulation should be afforded Chevron deference, and according to Brand X, this is true despite the Ninth Circuit's contrary interpretation as set forth in Michael." Order (11/18/05), at 8. What this Court concluded with respect to the 2005 Regulation is equally true with respect to the 1977 Regulation: the Regulation is entitled to Chevron deference notwithstanding Michael. Plaintiffs simply miss the point by insisting that the Treasury Letter is not entitled to Chevron deference. See Opp. 12 ("There is certainly no support in the Brand X opinion for the proposition that an informal letter that was not made public by the agency, purporting to interpret a thirty year old regulation two years after the regulation was `entirely replace[d],' could, if entitled to some form of deference, authorize setting aside controlling appellate court precedent."). No one is seeking Chevron deference for the Treasury Letter, as opposed
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to the 1977 Regulation. Defendants are seeking Auer deference for the Treasury Letter, which in turn establishes that the import of the 1977 Regulation is the same as the import of the 2005 Regulation, which this Court has already determined to be entitled to Chevron deference under Brand X. Finally, plaintiffs raise a variety of procedural arguments against reconsideration. See Opp. 10-11. What plaintiffs cannot and do not deny, however, is that this Court has plenary authority to reconsider a nonfinal ruling, like its ruling granting plaintiffs summary judgment on their anti-cutback claims, prior to the entry of final judgment. See Fed. R. Civ. P. 54(b). And plaintiffs provide no reason why this Court should not follow the law on this important issue as authoritatively interpreted by the Treasury Department. Plaintiffs' suggestion that defendants were required to bring the BNA article publicly disclosing the Treasury Letter to this Court's attention within ten days of its publication, see Opp. 10, is baseless. The Local Rules do not require motions for reconsideration based on "a controlling or significant change in the law" to be brought within 10 days of the relevant development. Similarly, this Court has never "rejected" defendants' arguments about the 1977 Regulation, Opp. 11, which may explain why plaintiffs provide no citation for that assertion. To the contrary, this Court never

addressed those arguments. In light of the Treasury Letter, it is entirely appropriate for this Court now to address those arguments, and accordingly grant reconsideration of its ruling granting plaintiffs summary judgment on their anti-cutback claims. II. Plaintiffs' New Alternative Theory Provides No Basis For Denying Reconsideration. Because plaintiffs have no real argument against reconsideration based on the Treasury Letter, they try to defend the summary judgment ruling in their favor on a new alternative ground: the theory that "[t]he challenged Retirement Plan amendments dramatically reduced Plaintiffs' accrued benefits overall." Opp. 3 (emphasis modified). This theory is entirely different than the theory on which this Court granted summary judgment in plaintiffs' favor, which assumed that the challenged amendments violated
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ERISA's anti-cutback rule even though "the Signal Retirement Plan's floor-offset formula applied as a whole gives [plaintiffs] a greater net annual retirement benefit than the Garrett Retirement Plan's floor-offset formula applied as a whole." Allen v.

Honeywell Ret. Earnings Plan, 382 F. Supp. 2d 1139, 1150 (D. Ariz. 2005) (emphasis added); see also id. ("[Plaintiffs] admit that they are better off on the whole after the amendments than they were before."); id. ("Plaintiffs want to have their cake and eat it too: they wish to keep all of the upward adjustments contained in the Signal Retirement Plan, while eliminating any of the downward adjustments."). Plaintiffs' new theory fails as a matter of both law and fact. On the law, the theory fails because the Signal Plan included a "saving clause" that specifically precluded any reduction in participants' accrued benefits: [T]he "Accrued Benefit" as of December 31, 1983 of any Employee or Former Employee who was a participant in any plan which merged with this Plan effective January 1, 1984 shall not be less than his "Accrued Benefit" as of December 31, 1983 determined under the terms of such other plan .... 1984 Signal Plan § 4.10(c)(ii), at HW 351-52 (Doc. #16, Ex. E) (emphasis added). By guaranteeing each plan participant the greater of benefits as determined under the old Garrett formula or the new Signal formula, this provision ensured that no plan participant would suffer a cutback as a result of the merger of the two plans. It necessarily follows as a matter of law and logic that the challenged amendments to the Signal Plan could not have violated ERISA's anti-cutback rule, and thus plaintiffs cannot prevail on their anti-cutback claims. To be sure, the saving clause would not preclude plaintiffs from pursuing individual claims that the Signal Plan was not properly implemented, i.e., that their benefits were improperly calculated under the plan's terms. But plaintiffs are not pursuing such claims here; rather, their claims are directed solely against the challenged amendments themselves. See Opp. 4-5. In light of the saving clause, those claims must fail. Indeed, such clauses have been "consistently approved by the IRS since at least 1981" precisely to give plan sponsors a "safe harbor"
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to ensure that a plan amendment would not violate ERISA's anti-cutback rule. Brody v. Enhance Reinsurance Co. Pension Plan, No. 00 Civ. 9660, 2003 WL 1213084, at *9 (S.D.N.Y. Mar. 17, 2003) (citing Rev. Rul. 81-12, 1981-1 C.B. 228). In its original ruling granting plaintiffs summary judgment on their anti-cutback claims, this Court held that the saving clause did not defeat plaintiffs' claims in light of the Ninth Circuit's decision in Michael. See 382 F. Supp. 2d at 1157-58. In particular, the Court explained that the saving clause by its terms "protects only the product of the unamended benefit formula--i.e., the participant's net annuity under the unamended formula up to the point of the amendment." Id. at 1157 (emphasis added). Because this Court interpreted Michael to preclude a reduction in any individual component of a benefit formula, in addition to a participant's net benefits, the saving clause accomplished nothing under those circumstances. See id. at 1157-58 (stating that

Michael "construed the formula rather than the product of the formula to be the protected accrued benefit"). But, of course, that rationale for refusing to give effect to the saving clause falls away if the Court reconsiders its reliance on Michael in light of the Treasury Letter and the 1977 Regulation. Plaintiffs contend that the saving clause does not defeat their claims for several reasons. See Opp. 15-17. None has merit. First, plaintiffs argue that the clause "[o]n its face does not apply to this situation." Opp. 16. That is so, plaintiffs assert, because "[t]he Garrett Plan merged with the Signal Plan on December 31, 1983," and the saving clause by its terms "applies to `Plans that merged as of January 1, 1984.'" Id. Putting aside the fact that plaintiffs thereby misquote the relevant language--the saving clause applies to plans that merged with the Signal Plan "effective," not "as of," January 1, 1984--their argument fails because the undisputed record here shows that the Signal Plan was amended to accept participants from the former Garrett Plan effective on January 1, 1984. Signal Plan Preamble & § 2.1(b), at HW 315, 333 (Doc. #16, Ex. E); see also Allen, 382 F. Supp. 2d at 1146 ("On February 4, 1984, the Signal Retirement Plan was amended and restated,
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effective January 1, 1984, to admit former participants in the Garrett Retirement Plan ...."). As a matter of law and logic, the Garrett Plan could not have merged into the Signal Plan unless and until the Signal Plan was amended to accept the former Garrett Participants. Thus, the former Garrett Plan participants are indisputably within the scope of the saving clause. Second, plaintiffs insist that the saving clause only protects their benefits under the Signal Plan on December 31, 1983, before they even joined the Signal Plan. According to plaintiffs, "[a] promise that the Signal Plan's benefits on December 31, 1983 will not be less than the Garrett Plan's benefits on December 31, 1983 provides no protection from reduction in accrued benefits by the Signal Plan on January 1, 1984." Opp. 16-17. But that only underscores that plaintiffs' interpretation of the saving clause is nonsensical: obviously, their benefits under the Signal Plan could not be calculated before they even joined that Plan, and a promise that their benefits as of December 31, 1983 would not be less than their benefits as of December 31, 1983 would be meaningless. Although plaintiffs apparently believe that their absurd interpretation of the saving clause somehow helps them, quite the opposite is true. Courts do not interpret plan provisions (just as they do not interpret contracts or statutes) in nonsensical or absurd ways. See, e.g., Clair v. Harris Trust & Sav. Bank, 190 F.3d 495, 499 (7th Cir. 1999). Rather than interpreting the saving clause in plaintiffs' nonsensical manner, the Plan Administrator interprets the clause to prevent post-amendment benefits from being less than pre-merger benefits. See Letter from B. Marcotte to S. Martin (10/29/03), at HW 524 (Doc. #16, Ex. O). Given the choice between interpreting the clause to make sense or nonsense, a court should choose sense--especially where, as here, the sensible interpretation complies with ERISA and is advanced by the plan administrator, whose interpretation is entitled to deference. See, e.g., McDonald v. Pan Am. World Airways, Inc., 859 F.2d 742, 744 (9th Cir. 1988) (judicial inquiry in interpreting plan provisions is "not into whose interpretation is most persuasive, but whether the plan administrator's interpretation is unreasonable").
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Third, plaintiffs contend that the saving clause "does not purport to protect all of Plaintiffs' accrued benefits in this case." Opp. 17 (emphasis added). In particular, plaintiffs assert that the definition of "Accrued Benefit" in the Signal Plan applies only to benefits under Section 4.2 of the Signal Plan, not benefits under other Sections. See id. But the only benefits that remain at issue are benefits under Section 4.2: plaintiffs' SBA Offset claim arises out of the interest rate language in Section 4.2(e); their Social Security Offset claim arises out of the definition of benefits in Section 4.2(b); and their Minimum Benefits claim arises out of the interplay between Sections 4.2(c) and 4.2(e). See 382 F. Supp. 2d at 1146-47. Accordingly, this argument is a red herring that gets plaintiffs nowhere. Fourth, plaintiffs concede that "the 2005 regulations provide[] that a plan [can] avoid violating Section 411(d)(6) through a provision under which a participant's accrued benefit could not be less than it was before the `applicable amendment date,'" but assert that "no parallel provision exists under the 1977 regulation." Opp. 17. That assertion is misleading at best. Since at least 1981, the Commissioner of the Internal Revenue Service (IRS) has interpreted § 411(d)(6) (and thus ERISA § 204(g)), see 29 U.S.C. § 1202(c); Central Laborers' Pension Fund v. Heinz, 541 U.S. 739, 746-47 (2004), to allow the use of "saving clauses" like the one here to prevent plan amendments from impermissibly reducing accrued benefits. See Rev. Rul. 81-12, 19811 C.B. 228. As the IRS explained: [An] acceptable method is to provide that the actuarial equivalent of the accrued benefit on or after the date of the change is determined as the greater of (1) the actuarial equivalent of the accrued benefit as of the date of change computed on the old basis or (2) the actuarial equivalent of the total accrued benefit computed on the new basis. Id. Because that interpretation is at the very least reasonable--it has been relied upon by a court in granting summary judgment on an ERISA anti-cutback claim based on a saving clause, see, e.g., Brody, 2003 WL 1213084, at *8-10, it was cited with approval in the legislative history of a subsequent amendment to ERISA, see S. Rep. No. 98-575,
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at 27 n.29 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2573 n.29, and it was reaffirmed and incorporated into formal agency guidance in the 2005 Treasury Regulation, see 26 C.F.R. § 1.411(d)-3(a)(4) (2005), Example 2--it is entitled to judicial deference. See, e.g., Omohundro v. United States, 300 F.3d 1065, 1067-68 (9th Cir. 2002) (per curiam) (deferring to reasonable IRS Revenue Ruling). Fifth, plaintiffs argue that the saving clause does not apply here because "approximately 102 former Garrett Plan participants were actually paid or are scheduled to be paid benefits under the Signal Plan that are less than the benefits those participants had accrued under the Garrett Plan in 1983 on the day before the amendments." Opp. 14. But that is, at most, an argument that the plan administrator failed properly to apply the saving clause in particular cases, not that the saving clause itself is ineffective or inapplicable. As noted above, plaintiffs' anti-cutback claims here challenge plan

amendments themselves, not the subsequent application of those amendments. To the extent that any individual participant received lower benefits as a result of the challenged amendments because the saving clause was not properly applied, such participant would have an individual claim for additional benefits under ERISA § 502(a)(1)(B), not a classwide anti-cutback claim under ERISA § 204(g). Such errors are rectified upon discovery. See Denlinger Decl. (attached hereto). In any event, even if defendants were wrong that the saving clause entitles them to judgment as a matter of law on plaintiffs' anti-cutback claims, under no circumstances can plaintiffs establish as a matter of law that "the Court's summary judgment ruling was appropriate under a `net effect' analysis as well as under Michael." Opp. 14. At the very least, plaintiffs' assertions that the challenged amendment resulted in cutbacks for some plan participants would raise genuine issues of material fact not amenable to resolution on summary judgment. Plaintiffs' arguments on this score are based on the Declaration of their putative expert, Claude Poulin. See Opp. 13-15. But, as explained in the attached Declaration of Kurt Denlinger, defendants vigorously dispute the factual and legal assumptions on which the Poulin Declaration is based, and hence, to the extent
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this Court were to conclude that the Signal Plan's saving clause does not foreclose plaintiffs' anti-cutback claims as a matter of law, those claims cannot be resolved on summary judgment under a "net effect" analysis. See Denlinger Decl. (attached hereto). Plaintiffs themselves recognized this point in their original cross motion for partial summary judgment, where they characterized the question whether the challenged plan amendments increased or decreased benefits as a "question of fact." Pls.' Cross-Motion for Partial S.J. (Doc. #23), at 15 n.16. As explained in the Denlinger Declaration, although the Poulin Declaration suffers from a multitude of flaws, at the most fundamental level it errs by calculating benefits "as if each participant had terminated employment on January 1, 1984." Poulin Decl. ¶ 16(b) (Doc. #353). This hypothetical calculation is contrary to the facts and the Plan. The former participants in the Garrett Plan who joined the Signal Plan effective January 1, 1984 in fact have ended their employment at many different dates, and some are still employed. Under the Signal Plan (as under the Garrett Plan), a participant's accrued benefits cannot even be calculated before termination of the participant's active employment, as both plans require that the SBA Offset "shall be calculated at the earlier of the time the Participant reaches Normal Retirement Date or the time the Participant has a Separation from ... Service." Signal Plan § 4.2(e)(i)(b), at HW 337 (Doc. #16, Ex. E); see also Garrett Plan §§ 3.2, 4.1(a)(1) & (c), at HW 31-32, 33, 38-39 (Doc. #16, Ex. A). Thus, the Poulin declaration, which uses a hypothetical termination date to conclude that hypothetical benefits were reduced, does not create a genuine issue of fact, much less establish as a matter of law that "[t]he net effect of the challenged amendments was a dramatic reduction in accrued benefits" as a matter of law. Opp. 13. CONCLUSION For the foregoing reasons, defendants respectfully request this Court to reconsider its grant of summary judgment in favor of plaintiffs on their anti-cutback claims, and grant defendants' corresponding motion to dismiss those claims.

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Respectfully submitted this 10th 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 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 Christopher Landau, P.C. Craig S. Primis, P.C. Eleanor R. Barrett KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 Attorneys for Defendants

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CERTIFICATE OF SERVICE I do certify that on January 10, 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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