Free Reply in Support of Motion - 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

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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

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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 Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 Howard Shapiro, Pro Hac Vice PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017 Telephone: (504) 310-4088 Amy Covert, Pro Hac Vice PROSKAUER ROSE LLP One Newark Center 1085 Raymond Blvd. Newark, NJ 07102 Telephone: (973) 274-3258 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. I. Introduction Plaintiffs erroneously assert that Defendants' proposed Notice to Class members misrepresents this case, the Court's prior rulings, and Plaintiffs' claims. (Opp. at 1.) Yet No. CV04-0424 PHX ROS DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF CROSS-MOTION TO APPROVE DEFENDANTS' PROPOSED FORM OF NOTICE AND MAILING OF QUESTIONNAIRE TO CLASS MEMBERS

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Document 277

Filed 02/27/2007

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it is Plaintiffs who mischaracterize not only what has occurred in this case, but what Defendants' Notice seeks to accomplish. Defendants' Notice provides a complete and objective description of the information necessary to enable class members to understand this complicated case, and should be approved for the reasons set forth fully in the Cross-Motion. Further, this Court should allow Defendants to include a Questionnaire with the Class Notice. This Court has determined that Defendants may present "affirmative defenses related to individual putative class members' claims,"1 and, to accomplish this, Defendants must obtain information from class members regarding the extent to which they knew or should have known about the plan amendments that they now challenge. II. The Court Should Approve Defendants' Proposed Form of Notice. To ensure that potential class members make fully informed decisions about class participation, Defendants seek approval of a Notice in the form submitted with their Cross-Motion. (Dkt #264, Att. 1.) Plaintiffs incorrectly assert that Defendants' Notice is inaccurate and misleading. Plaintiffs, in fact, are guilty of the ills of which they accuse Defendants. For example, in Footnote 4 of the Opposition Brief, Plaintiffs state: Defendants' alternative notice erroneously asserts that the Court ruled in favor of Plaintiffs' claims that the `merger' of the Retirement Plans violated ERISA's anti-cutback rule. . . . This is incorrect. The Court granted partial summary judgment on Plaintiffs' claims that retroactive amendments in the February 4, 1984 (or October 1985) Signal Retirement Plan unlawfully reduced accrued benefits in violation of ERISA § 204(g). . . . The Court did not rule that the merger of the two retirement plans (which was effective on December 31, 1983), violated § 204(g). (Opp. at 3 n.4.) In stark contrast to Plaintiffs' recharacterization, and consistent with Defendants' proposed Notice, this Court specifically stated as follows: Plaintiffs allege that the merger of the Garrett Retirement Plan into the Class Cert. Order at 9-14, dkt. # 226; see also Reconsid. Order, Nov. 18, 2005, at 3, dkt. # 138 (confirming that the Court's July 19, 2005, ruling "did not intend to foreclose Defendants from . . . asserting affirmative defenses related to individual putative class members' claims").
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Signal Retirement Plan reduced or eliminated their accrued benefits in violation of ERISA's anti-cutback rule, 29 U.S.C. § 1054(g). . . Bound by dispositive Ninth Circuit precedent, the Court grants summary judgment to Plaintiffs on these claims. Allen v. Honeywell Retirement Earnings Plan, 382 F. Supp. 2d 1139, 1149 (D. Ariz. 2005) (emphasis added). Similarly, the Court held that Plaintiffs are entitled to summary judgment on their claim "that Defendants violated 29 U.S.C. § 1054(g) by amending the Garrett Retirement Plan. . . ." Id. at 1173. Contrary to Plaintiffs' assertion, the Court did not hold that retroactive amendments in the February 4, 1984 (or October 1985) Signal Retirement Plan violated ERISA § 204(g). The Court should not endorse Plaintiffs' attempt to obscure and distort the record in this case. Plaintiffs also refute Defendants' proposed language with respect to Plaintiffs' claim that Defendants violated ERISA's anti-cutback rule by "amending the Garrett Retirement Plan to retroactively increase the interest rate used to project a portion of participants' Secured Benefit Accounts forward to age 65 for the purposes of calculating the Secured Benefit Account offset," Allen, 382 F. Supp. 2d at 1173. (See Opp. at 6; Cross-Motion, dkt # 264, Att. 1 at 2-3.) Incredibly, Plaintiffs criticize Defendants' inclusion of the phrase, "for participants who terminated their employment or retired with the Company before age 65." (Opp. at 6.) Yet, in the Amended Complaint, Plaintiffs specifically limit their anti-cutback claim pertaining to the projection of the Secured Benefit Account offset to "participants who terminated employment before age 65 (which is normal retirement age under the Plans)." (Dkt#47, Amend. Complt. ¶ 23.) Moreover, in analyzing the mechanics of the Secured Benefit Account offset, the Court explained that "[s]ometimes participants retire or separate from employment before reaching age 65," and further explained that for a hypothetical employee who retires at age 60, "[t]o calculate the amount of the Secured Benefit Account offset, the Retirement Plan required the Secured Benefit Account to be projected forward from age 60 to age 65 . . ." 382 F. Supp. 2d at 1145. The Court's ruling that the amendment to "the Garrett Retirement Plan to retroactively increase the interest rate used to project a portion of a
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participant's Secured Benefit Account forward to age 65 for the purpose of calculating the Secured Benefit Account offset" is clearly limited to those participants who "retire or separate from employment before reaching age 65." 382 F. Supp. at 1173, 1145. Plaintiffs' attack on Defendants' proposed Notice distorts the clear record in this case and should be disregarded by the Court. III. The Court Should Permit Defendants to Submit the Proposed Questionnaire. A. The Court's prior rulings do not preclude inclusion of a questionnaire.

Plaintiffs assert that the Court should foreclose Defendants from asking questions of class members because Defendants failed to defeat class certification. This argument lacks merit, because Defendants are entitled to assert their defenses even in a class action. In their pleadings opposing class certification, Defendants demonstrated that the applicable accrual standard is when Plaintiffs knew or should have known of the injuries underlying their claims. (Dkt # 146, dkt #186.)2 Thus, to determine if individual class members' claims are time-barred, Defendants must determine when class members received information that did or should have put them on notice of the facts underlying their claims. Moreover, contrary to Plaintiffs' assertion, the laches defense requires no showing of clear repudiation. Rather, at issue are each class member's knowledge and the reason for his or her delay in filing suit. Although the Court determined that Defendants had not made a showing sufficient to defeat class certification regarding the individualized inquiries required to prove these affirmative defenses, the Court's class certification ruling does not eliminate the need for individual inquiries to ascertain the class members' requisite knowledge in the context of proving these defenses.

See also Miller v. Fortis Benefits Ins. Co., - F.3d -, 2007 WL 210370, *3 (3rd Cir. 2007) (under applicable federal discovery rule, non-fiduciary cause of action accrues when the plaintiff knew or should have known of the defendants' repudiation, which can occur prior to a formal benefit denial).
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The information requested in the questionnaire is not available in Defendants' documents, and cannot be obtained without inquiring from the class members. In the twenty-three years that have passed since the events that form the basis of this litigation, the company has been through numerous mergers, acquisitions, and divestitures. It is unrealistic to expect Defendants to be able to identify individuals who have the requisite knowledge regarding what documents were distributed, and when. In contrast, the recipients of those documents will know what they received. For example, Defendants previously demonstrated that various documentation put putative class members on notice, including benefit statements provided to plan participants in 1984 and 1985 (e.g., dkt #146, Dauphine Decl. Ex. J;); memoranda distributed in October and November 1995 (e.g., dkt #146, Dauphine Decl., Ex. P); a brochure distributed in January 1984 that described the merger of the Garrett and Signal plans (dkt #146, Dauphine Decl., Ex. H; Am. Compl., dkt #47, ¶¶ 39-41); and summary plan descriptions (dkt #146, Dauphine Decl., Ex. I).3 Only if Plaintiffs are willing to stipulate that all class members received those documents may the Court, consistent with due process, forego questionnaires on this issue. The Court has not precluded Defendants from pursuing their limitations and laches defenses. To the contrary, the Court recognized expressly that Defendants are not foreclosed from proving these affirmative defenses, and that these defenses are likely to dominate this litigation. Class Cert. Order at 9-14, dkt. # 226; see also Reconsid. Order, Nov. 18, 2005, at 3, dkt. # 138. Plaintiffs cannot accurately point to any Court order precluding a class questionnaire, and it is misleading for them to assert otherwise. Plaintiffs themselves acknowledge that the "Court has not indicated that discovery will never be appropriate..." (Opp. at 15.) Nevertheless, citing the transcript of counsels' telephone See Allen v. Honeywell Ret. Earnings Plan, 382 F. Supp. 2d at 1170 (holding that the summary plan descriptions "adequately disclose[d] the Secured Benefit Account offset.").
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conference with the Court (dkt # 175, at 15), Plaintiffs assert that the Court "granted a protective order." No such order ever issued.4 Moreover, the Court during this telephone conference neither issued a ruling nor expressed an opinion limiting Defendants' right to take discovery of class members after certification, nor did the Court place any permanent restriction on discovery from class members. This hearing was limited to discussion of what discovery was appropriate to assist the Court in making its class certification decision. The Court's prior discovery rulings do not govern the issues raised by Defendants' Cross-Motion.5 Further, although in its class certification opinion the Court states that it "does not appear suitable" for Defendants to serve interrogatories or take depositions of each putative class member to establish their affirmative defenses (dkt # 226 at 11 n.7), the propriety of including a questionnaire with Class Notice was not at issue, was not briefed, and was not the subject of the Court's comment. None of the authorities cited by Plaintiffs holds that questionnaires are never permissible. Rather, the authorities confirm that questionnaires are permissible when necessary, tendered in good faith, and not unduly burdensome or too complicated to understand without legal advice.6 Plaintiffs' attempt to distinguish the authority relied
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Prior to the June 16, 2006, conference with the Court, Plaintiffs requested that the Court issue a protective order to preclude discovery of absent class members (Dkt # 162, Dkt. # 171), but the Court never issued a protective order.
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Plaintiffs assert incorrectly that Defendants' Cross-Motion violates the Court's Standard Instructions Regarding Discovery Disputes (Opp. p. 1). The Instructions relate to meet and confer obligations in connection with discovery motions filed under Fed.R.Civ.P. 37. Defendants' Cross-Motion is not a discovery motion pursuant to Rule 37, as Defendants are not seeking to compel responses to tendered discovery, and no discovery dispute exists to which the Instructions would be applicable. Rather, Defendants' motion addresses a class action management issue. Furthermore, this is not the type of dispute where a "meet and confer" would lead to an appropriate resolution, since Plaintiffs take the blanket position that no questionnaire should be sent to class members. A "meet and confer" regarding the content and scope of the questionnaire would be futile at this point.
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See, e.g., Cooper v. Pacific Life Ins. Co., 2005 WL 1866166, at *2-3 (S.D. Ga. 2005) (questionnaire disallowed where defendant failed to show necessity); Clark v. Universal
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upon by Defendants is similarly misguided, because in each of the decisions, the courts considered several factors in determining whether the discovery was appropriate.7 In the circumstances at issue in this case, all of the cited authority supports the inclusion of a questionnaire. Furthermore, if the questionnaire is not included with the class notice, the cost and burden of obtaining the information with be substantially greater. The class notice provides a singular opportunity for communication to all class members, and failure to take advantage of this opportunity will increase the potential for confusion as this case progresses. B. Plaintiffs' Objections Have No Merit

The questionnaire is the most efficient way for Defendants to obtain the information needed to present their defenses. The alternative, which is to allow Defendant to call every class member to testify regarding his or her knowledge at trial, may be more burdensome, although Defendants note it would be well within their due process rights.8 In response to Plaintiffs' general objections set forth on pages 2-3 of their Opposition, Defendants note as follows:

Builders, 501 F.2d 324, 340-41 & n.24 (7th Cir. 1974) (interrogatories disallowed because answers required legal advice or were already known by defendants); Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977) (in dicta, court notes that discovery from absent class members allowed where tendered in good faith, not unduly burdensome, and not available from representative parties).
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See, e.g., Schwartz v. Celestial Seasonings, 185 F.R.D. 313, 316 (D. Colo. 1999) (in addition to consideration of reliance element, court permits discovery because information was not unduly burdensome or otherwise available); Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971) (discovery appropriate when directed at obtaining information relevant to defenses, and nothing suggested procedures were unfair tactic or stratagem to reduce number of claimants; class counsel's acquiescence was just one of several factors considered); Transamerican Refining Corp. v. Dravo Corp., 139 F.R.D. 619, 622 (S.D. Tex. 1991) (limitation on discovery was based on limited time available before close of discovery).
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While Defendants agree that the burden of this discovery testimony highlights why adjudicating this matter as a class action is not superior under 23(b)(3), that is no reason
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The federal rules allow discovery when it is "reasonably calculated to lead

to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Nothing in the rules requires a Defendant to prove that it will find a document or information that will conclusively establish a defense. · Plaintiffs' apparent suggestion of a two-phased approach (Opp. at 2 ¶3),

would abridge Defendants' due process rights by preventing Defendants from presenting their defenses and would prevent the parties from complying with the Court's prior Order that the case be completed by the end of the year. A two-phased approach simply cannot be accommodated in that time. · Plaintiffs' assertion that Defendants seek documents that are "largely" in

their possession ignores that certain critical information can only be learned from class members, such as the identity of individuals who attended seminars, benefits meetings, and exit interviews. Similarly, documents created by class members (e.g., letters to government agencies) are relevant to Defendants' limitations defenses, but were never in Defendants' possession before being produced here by the Named Plaintiffs. Furthermore, oral conversations may only be revealed through discovery. Finally, "actual knowledge" of each class member can only be ascertained through discovery. · The questionnaire does not seek privileged information, and can be

narrowed to avoid disclosure of privileged information, if necessary. That class counsel may have to review the answers does not justify denial of discovery critical to defenses. See infra, p. 10. If class counsel consents, privilege concerns can be handled through a claw back provision, such as the one the parties have already negotiated to facilitate documents being produced by Defendants. Plaintiffs' specific objections to questions 5 (incorrectly referred to by Plaintiffs as "6"), 7, 14, 15, 18 and 19 (Opp. at 15-16), also lack merit. There is nothing objectionable about any of these questions, as all are reasonably calculated to lead to to prejudice Defendants' due process and other rights. Rather, that is reason to revisit the certification decision.
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admissible evidence regarding the limitations and laches defenses. Whether and when a class member believed they were entitled to greater benefits than Defendants provided is directly relevant to the limitations and laches defenses.9 These questions do not seek privileged material on their face, but privilege issues can be cured by (1) narrowing the questionnaire, (2) an instruction from class counsel to class members on how to answer the questions (which could itself be a generic communication), and/or (3) a claw back provision. Although these questions do not require class members to "have an understanding of the Retirement Benefits features," Plaintiffs objection is meritless. Indeed, given ERISA's requirement that plan administrators furnish clearly understandable summary plan descriptions to participants,10 participants cannot be allowed to feign ignorance about the plan terms where, as here, summary plan descriptions have been furnished. 11 Furthermore, the questions are neither confusing nor incomprehensible. In any event, this is a matter of wording, and does not address the threshold issue of the right to serve a questionnaire. C. The Questionnaire Will Not Impose An Undue Burden.

The proposed Questionnaire will require some effort by class members and class counsel, but this does not justify rejection of the questionnaire. Class Counsel chose to
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Defendants maintain that the statute of limitations period begins to accrue upon a clear repudiation by Defendants, which in this case was in 1984 when Defendants first advised Plaintiffs of what their pension benefits would be under the amended Plan, and at the very latest occurred upon receipt of each class member's initial benefit payment. However, to the extent that the Court disagrees with Defendants' contentions, then it is necessary to explore when and what facts each class member knew or should have known in connection with their claims.
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See ERISA Section 102, 29 U.S.C.§ 1022. See also Bergt v. Retirement Plan for Pilots Employed by Markair, Inc., 293 F.3d 1139, 1143 (9th Cir. 2002) (SPD is statutorily established means of informing participants of plan terms and benefits, and participants' primary source of information). See, e.g., Miller v. Fortis Benefits Ins. Co., - F.3d -, 2007 WL 210370, *5 (3rd Cir. 2007) (although participants are not required to be watchdogs over potential plan errors, need for vigilance is triggered when receipt of benefits alerts participant to miscalculation).
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initiate a class action, which is necessarily a complex and arduous undertaking, and must bear the responsibilities associated with this type of litigation. To assert that the Questionnaire should be disallowed because it would "require Class Counsel to individually review for privilege approximately 290,000 separate responses" (Opp. at 12, 15) ignores the realities of any class action proceeding. Indeed, Defendants have already produced 439,365 documents, totaling 2,331,021 pages, which Defendants' counsel have had to review and redact for privilege. Class Counsel cannot expect to be immune from similar obligations arising from a task she undertook voluntarily. Moreover, answering the questions will not impose an undue burden upon the individual class members, as they are seeking significant, individual monetary recoveries. Unlike typical class actions in which individual recovery is minimal,12 each individual class member here is seeking a significant financial reward.13 In light of this fact, Plaintiffs' assertion that the questionnaire would "encourage class members to optout" (Opp. at 2, 12) is not convincing.14 IV. Cost of Notice Plaintiffs cite no authority that would justify departing from the established rule that plaintiffs must bear the cost of providing notice to class members. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (in class actions under Fed.R.Civ.P. 23(b)(3), absent special circumstances, party seeking class certification must bear cost of See, e.g., Thomas E. Willging and Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 NOTRE DAME L. REV. 591, 605-606 (January 2006) (noting where federal class actions result in monetary recoveries, median recovery per class member is $517).
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See, e.g., dkt #146, Dauphine Decl., Ex. G, showing estimated SBA account balance for named plaintiff McCarty of $17,761.17 on 12/31/83; Ex. M, showing estimated SBA account value for named plaintiff Allen of $54,250.59 on 8/1/04 retirement date; Ex. T, showing estimated SBA account balance for named plaintiff Jones of $18,637.67 on 12/31/83.
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Prematurely, Plaintiffs complain about the format of the questionnaire. If the Court allows Defendants to include a questionnaire, it will be formatted to comply with the Court's order.
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notice); MANUAL FOR COMPLEX LITIGATION § 21.311 (4th ed. 2004) (same). No exceptional circumstances exist that justify departure from the usual rule. Plaintiffs' reliance on In Re Franklin Nat'l Bank Securities Litigation, 73 F.R.D. 25, 27 (E.D.N.Y. 1976), vacated on other grounds, 574 F.2d 662 (2d Cir. 1978), is inapt. There, the court applied the normal rule that plaintiffs are required to bear the cost of providing notice to the class, and further held that if the notice included a voluntary proof-of-claim form, as proposed by the defendants, the plaintiffs would be required to pay only half the cost of mailing. Id. No proof of claim is included in the Class Notice. Moreover, courts have ordered plaintiffs to pay for the cost of notice, even when the notice included a proof-of-claim form. See Unicorn Field, Inc. v. Cannon Group, Inc., 60 F.R.D. 217, 227-28 (S.D.N.Y. 1973) (proof-of-claim form must be mailed to class members along with class notice and plaintiffs are required to bear the cost). Accordingly, it would be inappropriate for the Court to shift the cost of notice in this action to Defendants.15 V. Conclusion

For the foregoing reasons, Defendants request that the Court issue an Order (1) approving the form of Defendants' Proposed Notice; and (2) granting leave to Defendants to enclose a questionnaire with the Class Notice. Respectfully submitted this 27th day of February, 2007. OSBORN MALEDON P.A. By:s/Dawn L. Dauphine David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794

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If the Court permits Defendants to enclose the proposed questionnaire with the Class Notice, Defendants will pay one half of the cost of providing the Notice to class members.
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Case 2:04-cv-00424-ROS Document 277

Michael L. Banks (Pro Hac Vice) William J. Delany (Pro Hac Vice) Azeez Hayne (Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro (Pro Hac Vice) PROSKAUER ROSE LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112-4017 Amy Covert, Pro Hac Vice PROSKAUER ROSE LLP One Newark Center 1085 Raymond Blvd. Newark, NJ 07102 Attorneys for Defendants

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Case 2:04-cv-00424-ROS

CERTIFICATE OF SERVICE I hereby certify that on February 27, 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: Susan Martin Martin & Bonnett P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, Arizona 85012-2517 Attorneys for Plaintiff Upon receipt of the Notice of Electronic Filing, a copy of the attached document and Notice of Electronic Filing will be hand delivered to the Honorable Roslyn O. Silver.

s/Susanne Wedemeyer

Document 277

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