Free Reply in Support of Motion - District Court of Arizona - Arizona

Case 2:04-cv-00424-ROS

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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; Plan ) Administrator of Honeywell Secured Benefit ) Plan, ) ) Defendants. ) )

No. CV04-0424 PHX ROS

NOTICE OF PENDENCY CLASS ACTION

OF

THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ CAREFULLY. 1. Why Should I Read This Notice? This notice was sent to you because your rights may be affected by a class action lawsuit pending in United States District Court for the District of Arizona entitled Barbara Allen et. al. v. Honeywell Retirement Earnings Plan et. al., Civil Action No. 04-0424-PHXROS. You have been identified as a member of the Class certified in this lawsuit because you are a former participant of the Retirement Plan for Employees of the Garrett Corporation and Its Participating Subsidiaries ( Garrett Retirement Plan ) and the Severance Plan for Employees of the Garrett Corporation and Its Participating Subsidiaries ( Garrett Severance Plan ) ( Garrett Plans ) who became a vested participant in the Signal Companies Inc. Retirement Plan ( Signal Retirement Plan ) or the Garrett Secured Benefit Account of the

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Signal Companies, Inc. Savings and Stock Purchase Plan ( SBA Plan ), or you are a surviving spouse and/or beneficiary of such a participant and you are eligible, receiving or will become eligible to receive benefits under the Plans. Depending on the outcome of this lawsuit, you may receive a monetary settlement and/or an increase in your retirement benefits, or, if Defendants are successful on appeal or on their affirmative defenses, you will be barred from bringing your own lawsuit alleging the same claims asserted in this case. Even if you meet this definition, you are not a Class member if you are a participant, or the surviving spouse or the beneficiary of a participant, who never held a vested benefit in the Signal Retirement Plan and took a complete distribution of your Secured Benefit Account before 1993. 2. What Is This Lawsuit About? The lawsuit claims that Defendants violated the Employee Retirement Income Security Act ( ERISA ) and the terms of the Garrett Retirement and Severance Plans and applicable successor plans by, among other things, reducing participants accrued benefits, failing to give notice of reductions in future benefit accruals, applying improper offsets to your pension benefits thereby reducing your benefits and failing to provide requested documents on a timely basis. The Plaintiffs seek on behalf of themselves and all class members retroactive payment of retirement benefits wrongfully withheld, prospective increases in the amount of benefits Class members receive and injunctive and declaratory relief. In July 2005, the Court ruled in Plaintiffs favor on Plaintiffs main claims. The Court ruled in favor of Plaintiffs on the claims that retroactive changes to the Plans, including changes to the Secured Benefit Account offset and the application of a Social Security offset to benefits attributable to years of service worked prior to the adoption of the offset, unlawfully reduced Plaintiffs benefits. The Court also granted Plaintiffs claims that the terms of the Plan and ERISA were violated by applying a Secured Benefit Account offset to

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the minimum benefits formula and by amending the minimum benefits formula retroactively and without notice. Although the Court ruled in Plaintiffs favor on Plaintiffs main claims, certain other claims brought by Plaintiffs were dismissed, including the following claims: (1) Plaintiffs' claim that Defendants changes to the Plans violated ERISA s vesting rules; (2) Plaintiffs' claim that Defendants changes to the Plan violated ERISA s rules governing the rates and formulas under which benefits are required to accrue; (3) Plaintiffs' claim that the Defendants violated the terms of the Signal Retirement Plan by failing to apply a 1.25% Minimum Benefit Formula for certain participants; (4) Plaintiffs' claim that the Defendants violated the terms of the Signal Retirement Plan--

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specifically § 4.10(c)--by failing to apply a 3.5% projection rate to Garrett participants eligible to commence benefits as of December 31, 1983; (5) Plaintiffs' claim that the Defendants violated an ERISA notice requirement by failing to provide notice of the amendment of the Signal Retirement Plan to refer to the "Garrett Division" rather than the "Garrett Corporation"; (6) Plaintiffs' claim that the Defendants violated ERISA s anti-cutback rule by amending the Signal Retirement Plan to refer to the "Garrett Division" rather than the "Garrett

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Corporation"; (7) Plaintiffs' claim that the Defendants violated certain ERISA disclosure requirements by failing to timely provide them with copies of benefit calculation worksheets, and (8) Plaintiffs' claim that Defendants violated certain ERISA disclosure requirements by failing to adequately disclose certain information in their summary plan descriptions.

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With respect to each of the claims already determined by the Court, the only issues remaining to be decided are the amount of damages and other remedies and whether Defendants assertions of certain affirmative defenses, if accepted by the Court, could bar some or all of the recovery for some or all Class members. In addition to the matters already resolved by the Court s July 19, 2005 opinion, there are some additional claims still to be determined. Plaintiffs additional claims to be

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determined seek judgment on alternative legal grounds for the claims already granted and also seek judgment and remedies for: Defendants failure to provide Plan documents; Defendants imposition of administrative fees on Plaintiffs Secured Benefits Accounts; Defendants failure to remedy the claim granted in the administrative process; Defendants Plan amendments in 2000 that resulted in a loss of pre-1984 service credit for some participants, and Defendants violation of ERISA written plan requirements. 3. Why Is this a Class Action?

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In a class action, one or more people called Class Representatives sue on behalf of a class of others who have similar claims. In a class action, one court resolves issues for everyone in the class except for those who choose to exclude themselves. Judge Roslyn O. Silver is the Judge who is presiding over this Class Action. On September 7, 2006, Judge Silver entered an order certifying the lawsuit as a Class Action and appointing the named Plaintiffs, Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West as the Class Representatives. Judge Silver certified the following Class

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and Subclasses:
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All former participants of the Retirement Plan for Employees of the Garrett Corporation and Its Participating Subsidiaries ( Garrett Retirement Plan ) and the Severance Plan for Employees of the Garrett Corporation and Its Participating Subsidiaries( Garrett Severance Plan ) ( Garrett Plans ) who became vested participants in the Signal Companies Inc. Retirement Plan ( Signal Retirement Plan ) or the Garrett Secured Benefit Account of the Signal Companies, Inc. Savings and Stock Purchase Plan ( SBA Plan ), their surviving spouses and/or beneficiaries who are or may become eligible for benefits under the Plans. Subclass A: Members of the Class for whom the calculation of minimum benefits under the Signal Retirement Plan without an offset based on their benefits under the Secured Benefit Plan ( SBA Offset ) would have resulted or will result in a higher benefit than the benefit paid or to be paid. Subclass B: Members of the Class who had more than 35 years of credited service under the Plans and whose retirement benefits were calculated without a fractional reduction in the SBA Offset. Subclass C: Members of the Class who were active employees on or after July 1, 2000. Subclass D: Members of the Class who had administrative expenses deducted from their SBA benefits. This Class and Subclasses were certified for the following claims granted in favor of Plaintiffs on summary judgment:

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1.

Plaintiffs claims that Defendants violated 29 U.S.C. § 1054(g) by amending the

Garrett Retirement Plan to retroactively increase the interest rate used for the purpose of calculating the Secured Benefit Account offset; applying a Social Security offset attributable to years of service worked prior to introduction of that offset; and eliminating the fractional reduction to the Secured Benefit Account offset for participants with more than 35 years of service;

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2.

Plaintiffs' claim that the Defendants violated 29 U.S.C. §§ 1054(g) and (h) by

amending the Signal Retirement Plan to provide for a Secured Benefit Account offset to the Plan's minimum benefit; 3. Plaintiffs' claim that the Defendants violated the terms of the Signal Retirement Plan

by applying a Secured Benefit Account offset to the Plan's minimum benefit formulas. The Class and Subclasses were also certified for the following pending claims:

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1.

Plaintiffs claims that Defendant s retroactive application of amendments to the Plans

imposing the Social Security offset, changing interest rates used to calculate the SBA offset and eliminating the fractional reduction to the SBA offset constitute breach Defendants contractual promises to Plaintiffs; 2. Plaintiffs claims that Defendants violated the terms of the Plan and ERISA s claim

procedure and disclosure requirements and applicable regulations by delaying and failing to provide Plaintiffs with Plan documents; 3. Plaintiffs claims that Defendants violated ERISA §§ 204(g) and (h) and breached

their contractual promises to Plaintiffs by imposing administrative fees on their Secured Benefits beginning in 1993; 4. Plaintiffs claims that Defendants violated the terms of the Plan and ERISA by failing

to adjust Plaintiffs benefits and pay them retroactive benefits plus interest for the claim granted in the administrative process; 5. Plaintiffs claims that Defendants violated ERISA and the terms of the Plan by

reducing accrued benefits by amendments made in 2000 which resulted in employees service prior to 1984 being disregarded and caused some Plaintiffs to make benefit elections and decisions based on incorrect benefit calculations, and

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6.

Plaintiffs claims that Defendants violated the ERISA s written plan requirements,

ERISA § 402 4. How Do I Know If I Am in the Class? You are in the Class if you meet one of the definitions set forth above and Defendants are not successful in their efforts to exclude you on the basis of an affirmative defense that they have raised in this lawsuit. Defendants contend that you might be excluded from the Class because of the statute of limitations or because you may have released your claims or because of other similar allegations. The fact that you received this notice is not a guarantee that you are in the Class. 5. What Are My Rights and Obligations as a Class Member? If you are a member of the Class, the following will apply: 1. If you wish to remain a member of the Class, you do not have to do anything at this time. 2. Plaintiffs and their attorneys will act as your representatives and your counsel during this case. The Court appointed the following Class Counsel: Martin & Bonnett, P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012 Telephone: (602) 240-6900 You are not required to retain your own attorney, although you may enter an appearance through your own attorney, if you so desire. 3. The Court will exclude you from the Class if you request an exclusion as explained below. 4. If you do not request exclusion from the Class, this lawsuit and the results of this lawsuit will be binding upon you. Your participation in any recovery will depend on the results of this lawsuit. In the event no recovery is obtained for the Class, you will be bound by that result.

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5. You will be entitled to an additional notice in the event of a proposed settlement. For this reason, as well as to participate in any recovery, you are requested to notify Class Counsel of any corrections or changes in your name and address. 6. How Do I Exclude Myself From the Lawsuit? If you do not want to remain a member of the Class and you want to opt out of the lawsuit, then you must exclude yourself from the Class. To exclude yourself, you must sign, print your name, date and mail a copy of the EXCLUSION REQUEST attached to this notice, postmarked no later than [60 days after mailing] to this address: Lawsuit Exclusions c/o Martin & Bonnett, P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012 If you mail a timely and valid request for exclusion, you will not get any monetary payment that may be awarded under this lawsuit, and you cannot object to any proposed settlement. You will not be bound by anything that happens in this lawsuit if you exclude yourself. If you want to remain eligible to participate in a recovery or settlement as a member of the Class, you are not required to do anything and you should NOT send a request for exclusion. 7. Where Can I Get Additional Information? This notice contains only a summary of the pending lawsuit. The pleadings and other records in this litigation may be examined and copied at any time during regular office hours at the office of the Clerk, U.S. District Court for the District of Arizona, Sandra Day O Connor U.S. Courthouse, 401 West Washington Street, Suite 130, Phoenix, AZ 850032118. Many of the pleadings are also available on the Court s website for registered users of the Court s electronic filing system through the Public Access to Court Electronic Records (PACER) program. PACER Logins are available to the public at:

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www.pacer.psc.uscourts.gov/register.html. The Court s electronic filing system may be accessed for individuals with a PACER login at: https://ecf.azd.uscourts.gov/. ANY QUESTIONS YOU HAVE CONCERNING THE MATTERS

CONTAINED IN THIS NOTICE AND ANY CORRECTIONS AND CHANGES OF ADDRESS, SHOULD NOT BE ADDRESSED TO THE COURT. INSTEAD, DIRECT ANY QUESTIONS IN WRITING TO: CLASS COUNSEL MARTIN & BONNETT, P.L.L.C. 3300 N. CENTRAL AVE., SUITE 1720 PHOENIX, AZ 85012 If you wish to remain in the Class and wish to communicate with Class Counsel as your attorneys in this litigation, you may do so by writing or calling any of the following attorneys: Susan Martin Daniel L. Bonnett Jennifer Kroll Martin & Bonnett, P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012 Telephone (602) 240-6900 Facsimile (602) 240-2345 Some information and pleadings in this lawsuit are also available through the Garrett Retirees Action Committee, www.garrettaction.com. The Court does not endorse any of the information contained on this website. IF YOU HAVE ANY QUESTIONS ABOUT THIS LAWSUIT OR THIS NOTICE, DO NOT CONTACT THE COURT.

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8. What Is My Time Limit to Exclude Myself From the Lawsuit? If you wish to be excluded from the Class, you must return the completed EXCLUSION REQUEST by mail postmarked on or before [60 days from the date of mailing]. IF YOU WANT TO REMAIN IN THE CLASS, YOU DO NOT NEED TO DO ANYTHING AND YOU SHOULD NOT SEND IN THE EXCLUSION REQUEST.

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EXCLUSION REQUEST READ THE ENCLOSED LEGAL NOTICE CAREFULLY BEFORE FILLING OUT THIS FORM. DO NOT FILL OUT THIS FORM IF YOU WANT TO REMAIN A MEMBER OF THE CLASS IN THIS LAWSUIT.

The undersigned has read the notice of class action dated [insert date], and does NOT wish to remain a member of the Plaintiff Class certified in the case of Barbara Allen et. al. v. Honeywell Retirement Earnings Plan et. al., Civil Action No. 04-0424-PHX-ROS.

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Date: _____________________ Signature:_____________________________________________________ Typed or Printed Name:__________________________________________ If you want to exclude yourself from the Class, you must complete and return this form by mail, postmarked on or before [date] to: Lawsuit Exclusions Martin & Bonnett, P.L.L.C. 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012 A separate request for exclusion should be completed and timely mailed for each person electing to be excluded from the Class and/or Subclasses.

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