Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

OSBORN MALEDON
A PR O FESSI O NA L A SSO CIA TI O N A T T O R N E Y S A T LA W

1 2
______________________

3
The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2793 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050

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

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, DC 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

RENEWED MOTION FOR LEAVE TO SERVE QUESTIONNAIRE ON SETTLEMENT CLASS MEMBERS AND SUPPORTING MEMORANDUM

Case 2:04-cv-00424-ROS

Document 342

Filed 12/10/2007

Page 1 of 7

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

As explained more fully in the Motion for Summary Judgment on Statute of Limitations, filed concurrently herewith, the Three Remaining Claims in this litigation are time-barred as a matter of law. 1 Communications distributed to plaintiffs as early as 1984, more than twenty years before plaintiffs filed this lawsuit, provided more than sufficient information to put plaintiffs on notice of the impact on their benefits of the Social Security offset, the Secured Benefit Account offset, and the Minimum Benefits formula that now form the basis for their claims. In light of these communications, no further discovery is needed to establish that plaintiffs knew or should have known of the facts underlying their claims. But if this Court were to adopt a different legal standard than that proposed by defendants, or otherwise conclude that these communications standing alone were insufficient to trigger the statute of limitations on plaintiffs' claims, defendants respectfully submit that limited class discovery would be warranted to allow them to further develop their statute of limitations defense. Pursuant to the Court's order at the November 2, 2007 status conference (Decl. of Eleanor R. Barrett Ex. F, at 39-40), and the November 14, 2007 scheduling order (Docket #322), the parties have met and conferred to discuss the possibility of serving a questionnaire on members of the class to accomplish this limited purpose. Because the parties have been unable to reach an agreement on this issue, and in the alternative to the relief requested in their Motion for Summary Judgment, defendants hereby move the Court for permission to serve a questionnaire on members of the settlement class. MEMORANDUM OF POINTS AND AUTHORITIES Defendants may take discovery of absent class members by interrogatory or questionnaire if it "serves a legitimate purpose." Manual for Complex Litigation at § 21.41 (4th ed. 2004); see also Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979) (noting that "[d]iscovery of absentee class members ... is available to fill gaps" in the record) (internal citation omitted), vacated on other grounds sub nom. Lombard v.
The "Three Remaining Claims" in this case are the Social Security Offset Claim, the SBA Offset Claim, and the Minimum Benefits Claim. (Class Action Partial Settlement Agreement (Ex. A to Joint Mot. for & Mem. in Supp. of Prelim. Approval of the Partial Settlement) (Docket #312), at 18.)
1

2 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 2 of 7

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

Marcera, 442 U.S. 915 (1979); Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1006 (7th Cir. 1971) (affirming order allowing discovery of absent class members). In particular, such discovery is allowed when: (1) the discovery is necessary; (2) the discovery seeks information that is not known to the proponent or available from other sources; (3) responding to the discovery requests would not require the assistance of counsel or other technical advice; and (4) the discovery is sought in good faith. See, e.g., Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977) (noting that "the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available, at least when the information requested is relevant to the decision of common questions, when the interrogatories or document requests are tendered in good faith and are not unduly burdensome, and when the information is not available from the representative parties"); Manual for Complex Litigation § 21.41. A questionnaire may be used for the specific purpose of assisting defendants to gather information they need to formulate their defense. See, e.g.,

Schwartz v. Celestial Seasonings, Inc., 185 F.R.D. 313, 316, 320 (D. Colo. 1999) (granting defendants' motion for leave to include questionnaire with notice to class members where the questionnaire related to an issue that "must be addressed by Defendants to allow them to formulate defenses"). Defendants believe that plan-wide communications distributed in 1984, well beyond any conceivably applicable limitations period, establish that each of the Three Remaining Claims is time-barred as a matter of law. But in the event that this Court were to disagree with defendants' articulation of the legal standard that governs the accrual of plaintiffs' claims or conclude that fact issues preclude summary judgment, defendants respectfully request discovery for the limited purpose of establishing what plaintiffs knew, and when they knew it, regarding their claims. Plaintiffs, in other words, cannot have it both ways: they cannot simultaneously argue that fact issues defeat defendants' motion for summary judgment, and then challenge defendants' right to conduct limited discovery to address those very fact issues.
3 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 3 of 7

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

This Court should allow the proposed questionnaire (attached as Exhibit A), to be sent out to class members because it seeks information relevant to defendants' statute of limitations defense that is not otherwise available to defendants. This case presents difficult and unique evidentiary problems given that (1) plaintiffs waited more than twenty years after the events in question to bring their claims; and (2) by definition, many of the very people who know about and were responsible for the events in question and the communications that informed plaintiffs of the basis for their claims are themselves class members. Despite these significant obstacles, defendants have used their best efforts to gather information, and have identified a series of communications made to employees, including in-person meetings and presentations regarding the impact of the Secured Benefit Account on former Garrett employees' retirement benefits. (Decl. of Maureen Rojas (Docket #191)); (Decl. of Craig Chapman (6/30/2006) (Docket #188)); (Decl. of Cindy Burnelko (Docket #187)). They have also collected and

identified a series of communications made by class members, including an inquiry to the Department of Labor and various letters from plan participants regarding the SBA offset. (See, e.g., Decl. of Marie Gangone (Docket #190).) To the extent that the actions of at least some participants plainly demonstrate that had inquiry notice of the claims now being asserted in this case, this underscores defendants' point that sufficient facts were available to all class members such that they had at least inquiry notice of their claims as a matter of law. And additional relevant and (depending on this Court's ruling on defendants' motion for summary judgment, possibly necessary) information lies in the hands of class members. For example: · In 1995, numerous SBA account holders argued in meetings, petitions and discussions that the SBA offset was improper and was a "take away" of their benefits. Honeywell's predecessor company responded by engaging in a

concerted effort to communicate. (6/30/2006 Chapman Decl.); (Rojas Decl.). Only class members know which, if any, of these communications they
4 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 4 of 7

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 · · · ·

received. Also in 1995, Honeywell's predecessor company held presentations, seminars, and benefits meetings to address employees' concerns. (6/30/2006 Chapman Decl. ¶¶ 10-20); (Rojas Decl. ¶¶ 3, 14-16). Here again, the

information as to which meetings and presentations particular employees attended can only be ascertained through discovery from class members. Defendants have also discovered (and placed in the record) some evidence regarding attorneys' solicitation of participants, and participants' consultation with attorneys, regarding the precise claims that plaintiffs waited until 2004 to bring in this court. (See, e.g., Decl. of Diane Sucharski, Ex. A (Docket #192), at HW0019478-79 (solicitation that was posted in AlliedSignal Phoenix location from "Law Firm Of William M. Spence, P.C." to SBA account holders).) Defendants believe that, upon retirement, each participant received a detailed, final statement of his or her benefits. While defendants have provided

evidence that this was the case during particular periods (see, e.g., Decl. of James E. McLeod ¶ 9 (Ex. 1 to Defs.' Separate Statement of Facts in Supp. of Summ. J. on Statute of Limitations)), given high levels of employee turnover, they have not been able to find a witness to testify as to Honeywell's practice over the entire 23-year span that relates to this litigation. Information from class members may help determine which of the plaintiffs received these statements. Defendants also believe that estimates of participants' pension benefits, including estimated SBA offsets, were available upon request. (McLeod

Decl. ¶ 9.) The only way to establish which class members requested such benefits estimates is to ask them directly. Moreover, responding to the questionnaire should not pose any hardship to the class. Defendants will pay the cost of distributing the questionnaire to class members.
5 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 5 of 7

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

And the attached proposed questionnaire has been redrafted since defendants originally submitted it in January of this year. In its new form, it asks only 11 questions related to the specific topics identified above. These questions are phrased in plain English and ask only what plaintiffs recall regarding their own experiences since 1984; as such, class members should not need expert or legal assistance to respond. Finally, it should go without saying that defendants' request for a questionnaire is made in good faith. In their partial settlement agreement with plaintiffs, defendants have agreed not to seek to decertify the class. (Class Action Partial Settlement Agreement (Ex. A to Joint Mot. for & Mem. in Supp. of Prelim. Approval of the Partial Settlement) (Docket #312), at ¶ 2.07.) Thus, the request for a questionnaire seeks only to obtain evidence necessary to address plaintiffs' claims on the merits, not to disturb or modify the definition of the class. CONCLUSION For the foregoing reasons, defendants respectfully request this Court to grant Defendants' Renewed Motion for Leave to Serve Questionnaire on Settlement Class Members. Respectfully submitted this 10th day of December, 2007. OSBORN MALEDON, P.A. 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 Howard Shapiro PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017
6 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 6 of 7

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
7 Case 2:04-cv-00424-ROS Document 342 Filed 12/10/2007 Page 7 of 7
1852219_1

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, DC 20005-5793 Attorneys for Defendants

CERTIFICATE OF SERVICE I do 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 all CM/ECF registrants.

s/Kelly Dourlein