Free Statement - 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

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

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Pursuant to Local Rule 56.1(a), defendants set forth the following Separate Statement of Facts in Support of Defendants' Motion for Summary Judgment on Statute of Limitations: I. RETIREMENT PLAN COMMUNICATIONS A. 1. 1984 Communications In and around 1984, it was the usual practice of the Garrett Corporation

and the Garrett Corporation Human Resources Department to draft brochures and employee communications for the purpose of educating participants in the Garrett Corporation Retirement and Severance Plans about changes to their benefits. (Decl. of James E. McLeod ¶ 4 (attached as Ex. 1).) 2. The Garrett Corporation's customary mailing practice was to distribute

these communications to employees in one of two ways. In some cases, the Human Resources Department, which was responsible for gathering and maintaining employee information, including mailing addresses, would generate a list of employees' mailing addresses and provide the list to a third-party mailing house. The mailing house would then send the communications to individual employees through the mail. In other cases, the Garrett printing department would drop ship the communications to each of the Garrett divisions, which would then mail the communications or pass them out to their employees. (McLeod Decl. ¶ 5.) 3. In January 1984, Garrett Corporation distributed to its employees

according to its customary mailing practice a letter dated January, 1984 and enclosed in the letter two brochures regarding the Signal Companies, Inc. Retirement Plan and how that plan would affect the Garrett Corporation Employee ("the 1984 Brochures"). A copy of the 1984 Brochures is labeled HW00008541­8549. (McLeod Decl. ¶ 6); (Decl. of Eleanor R. Barrett Ex. A). 4. James McLeod, who worked as the Manager, and then Director, of

Corporate Compensation and Benefits for Garrett Corporation, recalls receiving his copy of the 1984 Brochures at home at the time that it was mailed. (McLeod Decl. ¶ 6.)
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5.

Plaintiff Barbara Allen also recalls receiving the 1984 Brochures, and

produced a copy of the 1984 Brochures, labeled BA0368­BA0376, from her files. (Barrett Decl. Ex. B at 17-21; Ex. C.) 6. The 1984 Brochures notified participants about new benefit formulas and

requirements under the newly merged retirement plan, including the fact that participants were entitled, effective January 1, 1984, to two formulas for calculating normal retirement benefits, including a formula of 1.5% times final average compensation times years of credited service minus an offset for social security benefits. (Separate

Statement of Facts in Supp. of Pls.' Cross-Mot. for Partial Summ. J. ¶ 20 (Docket #24).) 7. The May 1984 Signal Companies, Inc. Retirement Plan Summary Plan

Description was distributed to Garrett Corporation employees in the ordinary course of Garrett Corporation's business and in keeping with Garrett's customary practice with respect to summary plan descriptions. A copy of the May 1984 Summary Plan

Description is labeled HW0000981­999. (McLeod Decl. ¶ 7); (Decl. of Dawn Dauphine in Supp. of Mot. to Dismiss Am. Compl., Ex. A (Docket #60)). B. 8. 1996 Summary Plan Description In or around 1996, Honeywell's predecessor company, AlliedSignal,

produced an updated Summary Plan Description that was designed in part to address former Garrett Corporation employees' concerns related to the SBA offset to their retirement benefits. (Decl. of Craig Chapman ¶ 6 (12/7/2007) (attached as Ex. 2).) 9. This Summary Plan Description (the "April 1996 Garrett SPD") is entitled

"AlliedSignal Inc. Retirement Program--Pension Plan Provisions Covering Employees of Former Garrett and Non-Textron Locations." A copy of this document is labeled HW0005879­5914, and includes a cover memorandum dated April, 1996 at HW0005880. (12/7/2007 Chapman Decl. ¶ 4); (Barrett Decl. Ex. D). 10. The April 1996 Garrett SPD was sent by mail from Honeywell's Corporate

headquarters in Morristown, New Jersey to former Garrett employees at their homes, in keeping with Honeywell's customary mailing practice. (12/7/2007 Chapman Decl. ¶ 7­
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8.) 11. Plaintiff Barbara Allen also recalls receiving the 1996 Summary Plan

Description around April of 1996, and produced a copy of the 1996 Summary Plan Description, BA0385­BA0419, from her files. (Barrett Decl. Ex. B at 21­22; Ex. E.) II. TOLLING AGREEMENT 12. On July 7, 2003, the Former Employees of Garrett Corporation and its

Participating Subsidiary Companies ("Former Garrett Employees"), by and through their attorney, Susan Martin, and the Plan Administrators of the AlliedSignal, Inc. Retirement Plan, the AlliedSignal Secured Benefit Plan, the Honeywell Retirement Plan and the Honeywell Retirement Earnings Plan ("Honeywell"), by and through their attorney, Jeffrey G. Huvelle, entered into a tolling agreement. (Decl. of Susan Martin Ex. A (Docket #167).) 13. The parties thereby agreed to toll the applicable statute of limitations from

January 24, 2003 ... until 60 days after the Plan administrator renders a decision on the administrative appeal of the claims asserted by the Former Garrett Employees. (Id.) 14. On December 23, 2003, Honeywell and the Former Employees of Garrett

agreed to extend the tolling agreement until March 1, 2004. (Id.) 15. Plaintiffs filed this lawsuit on behalf of former salaried employees of the

Garrett Corporation and/or its participating subsidiary companies and their surviving spouses and/or beneficiaries against the Honeywell Retirement Earnings Plan, the Honeywell Secured Benefit Plan, the Honeywell Savings and Ownership Plan, the Plan Administrator of the Honeywell Retirement Earnings Plan, the Plan Administrator of the Honeywell Secured Benefit Plan, and the Plan Administrator of the Honeywell Savings and Ownership Plan March 1, 2004. (Docket #1.) III. THE HONEYWELL RETIREMENT EARNINGS PLAN 16. The Honeywell Retirement Earnings Plan, amended and restated as of

January 1, 2000, which is attached as Exhibit A to the Declaration of Lisa M. Dooley, is the version of the plan that was in effect on March 1, 2004. (Decl. of Lisa M. Dooley
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¶ 2 (attached as Ex. 3).) Respectfully submitted this 10th day of December, 2007. 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 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

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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

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