Free Statement - 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 Separate Statement of Material Facts Not in Dispute in Support of Plaintiffs Motion for Partial Summary Judgment Dismissing Defendants Statute of Limitations Defense

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Plaintiffs hereby submit their separate statement of material facts not in dispute in support of their motion for summary judgment on the statute of limitations in accordance with Local Rule 56.1(a). 1. Plaintiffs first requested Plan documents from Defendants in June 2001 and

asked for, inter alia, the Signal Company s Retirement Plan plan document as in effect in 1983 and thereafter and all amendments thereto. (Doc. 33, Declaration of Marie Gangone in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment, Exh. 1.)

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2.

On or about August 15, 2001, Defendants provided the Signal Retirement Plan (Doc 33, Declaration of Marie

documents dated October 28, 1985 and May 1, 1986.

Gangone in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment, Exh. 5.) 3. It took Defendants until October 2003, over two years, three months after

Plaintiffs requested the applicable Signal Plan documents for Defendants to provide the
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document they claim constituted the official Plan document first applicable to Garrett Plan participants: a Signal Retirement Plan document dated February 4, 1984 purporting to be effective as of January 1, 1984. (Doc 33, Declaration of Marie Gangone in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment, Exh. 1,17.) 4. Plaintiffs did not receive the requested 1983 Signal Plan document until

November 2006, several years after this lawsuit was commenced. (Declaration of Jennifer Kroll dated December 10, 2007 ¶ 3.) 5. Exhibit B was added to the Garrett Plan by amendment VI dated December 1,

1981. (Doc. 16., Declaration of Amy Promislo in support of Motion to Dismiss Plaintiffs Complaint, Exh. A, at HW 0000136-HW0000205.) Exhibit B is part of the Garrett Plan and necessary to compute the Normal

Retirement Benefit, which is calculated utilizing both a participant s Potential Retirement Income from the Plan and the Participant s Actual Retirement Income from the Plan. (Id. at HW 0000032-HW0000042.) Both Sections of the Garrett Plan refer to Exhibit B as necessary and direct that benefits shall be calculated pursuant to the tables set forth in Exhibit B (and any necessary interpolations or extrapolations from these tables)... (Id.)
7. Class counsel requested Defendants to provide a copy of Exhibit B on

repeated occasions beginning in 2001. (See Doc. 33, Declaration of Marie Gangone in

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Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment, Exh. 5, 6, 7, 8.) 8. At one point counsel for Defendants produced what was apparently a signed

1976 Plan document (before Amendment VI that amended the Plan to provide for Exhibit B), stating Although we cannot be certain, this suggests that Exhibit B does not exist and may never have existed. (Doc. 55, Declaration of Susan Martin in Further Support of

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Plaintiffs Motion for Summary Judgment, Exh. 4.) 9. It took until June 2003, two years following Plaintiffs initial requests for Plan

documents and after Plaintiffs claims were initially denied for Defendants to furnish Exhibit B to the Garrett Retirement Plan. (Doc 33, Declaration of Marie Gangone in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment, Exh. 1,17.) 10. Plaintiffs claims were first asserted under the Plan s claims procedures on

July 26, 2002. (Doc. 16, Declaration of Amy Promislo in support of Motion to Dismiss Plaintiffs Complaint, Exh. I.) 11. Plaintiffs claims were finally determined in an appeal to the Plan by decision

dated October 29, 2003. (Doc. 16., Declaration of Amy Promislo in support of Motion to Dismiss Plaintiffs Complaint, Exh. L.)

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12.

From January 24, 2003 through March 1, 2004, the action was tolled pursuant

to a tolling agreement between the parties. (Doc. 167, Declaration of Susan Martin ¶ 7, Exh. A.) 13. Each of the named Plaintiffs worked for Honeywell or its predecessor

companies in Arizona. (See, e.g., Doc. 89 Declaration of Richard Scates ¶ 3; Deposition of Melvin Jones, attached hereto as Exh. A, pp. 11-12.)

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14.

The Garrett Retirement and Severance Plan Summary Plan Description

provided on page 6 that employees become eligible to participate in the Retirement Plan [a]t the time [they] are hired as a permanent full-time employee of the Garrett Corporation. (Doc. 26, Affidavit of Jennifer Kroll in support of motion for partial summary judgment, Exhibit A.) 15. Defendants claimed that a combined total of about 1000 employees may have

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attended four town hall meetings. (Doc. 188 ¶ 11.) 16. In the presentation about the retirement plan at the town hall meetings,

Defendants provided a printout of slides to attendees which stated, inter alia: Summary SBA is confusing Plan has not changed As always, if SBA withdrawn, Retirement Plan benefit will be reduced Evaluate your options carefully to make the most of these plans (Doc. 187, Decl. of Craig Chapman, Exhibit 3, p. 21, at HW0019505.)
17.

The written narrative accompanying the town hall meeting slide presentations

included the message that the plan had not changed: The bottom line is that the plan has not changed. (emphasis in original). (Doc. 210, Decl. of Jennifer Kroll in Support of Plaintiffs'

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Reply to Defendants' Supplemental Brief Re: Class Action Certification, Exhibit B, at HW0021194.) 18. The January 1984 Signal Retirement Plan brochure makes no reference to the

phantom growth of the SBA offset to age 65 if a participant leaves employment prior to that age. (Doc. 16, Declaration of Amy Promislo in support of Motion to Dismiss Plaintiffs Complaint Ex. G; Doc. 147, Declaration of Dawn Dauphine in Support of Defendants Opposition to Plaintiffs Motion for Class Certification, Exh. H. )

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19.

The Signal Retirement Plan and successor plans provide that a participant s

Primary Social Security Benefit is calculated by using a table of amounts for varying pay ranges... (Doc. 16, Declaration of Amy Promislo in support of Motion to Dismiss Plaintiffs Complaint, Exh.E, at HW0000327-28, HW0000336, Sections 1.39 and 4.2.) 20. The tables necessary to determine how the Social Security offsets were

calculated were first provided to Class Counsel on June 16, 2006. (Declaration of Jennifer
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Kroll dated December 10, 2007 ¶ 2, Exh. A.) Respectfully submitted this 10th day of December, 2007. 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 December 10, 2007, 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 One Newark Center, 18th Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants s/.J. Kroll

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