Free Reply in Support of Motion - 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

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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 REPLY IN FURTHER SUPPORT OF MOTION FOR APPROVAL OF FORM AND MAILING OF NOTICE TO CLASS MEMBERS AND IN OPPOSITION TO DEFENDANTS CROSSMOTION TO SERVE QUESTIONNAIRES ON CLASS MEMBERS

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Plaintiffs submit this reply in further support of their motion for approval of the proposed notice to class members and in opposition to Defendants proposed alternative notice. Defendants alternative notice misrepresents the case, the prior rulings and Plaintiffs claims.1 Plaintiffs also oppose Defendants cross-motion to include 19 interrogatories with the notice. This is not Defendants first attempt to take discovery from absent class members. The Court granted Plaintiffs motion for a protective order with respect to Defendants

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previous attempts, (Doc. 175), and reaffirmed that ruling in its class certification opinion. (Doc. 226 p. 11 n.7.) Nevertheless, Defendants proposed to include written interrogatories with the notice and then filed a motion seeking Court approval when Plaintiffs objected. Defendants cross-motion violates the Court s Standard Instructions Regarding Discovery Disputes, which instructs the parties to call the Court s Judicial Assistant if there is a discovery dispute and not [to] file a motion/pleading unless directed by the Court (emphasis in original). Although Defendants had no permission to file the pleading and

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Plaintiffs have not been directed by the Court to respond to the pleading, Plaintiffs do so out of an abundance of caution. Defendants cross-motion should also be denied because:

Although Plaintiffs agreed to consult with Defendants on Plaintiffs form of notice prior to filing it and postponed filing the motion for approval of Plaintiffs notice in order to afford Defendants ample opportunity to comment, (Doc. 246, Exh. A, p. 2; Doc. 258), Defendants declined to provide Plaintiffs with any comments and instead chose to object to Plaintiffs proposed notice in a brief to the Court accompanied by an alternative form of notice. Had Defendants commented as they initially agreed they would, Plaintiffs would have been in a position to agree to certain changes. Plaintiffs have carefully considered all of Defendants proposals and have attached a revised proposed form of class notice as Exhibit A hereto, which incorporates some of Defendants suggestions. A redlined version showing changes from Plaintiffs initial submission is attached hereto as Exhibit B.
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1.

The interrogatories are burdensome, confusing, irrelevant, cumulative, vague,

will likely require the assistance of an attorney or other expert to complete, appear designed to encourage class members to opt-out thereby decreasing the size of the class, will unfairly delay the progress of this case and will circumvent and frustrate the effect of class action certification; 2. As with Defendants prior requests to conduct discovery of absent class

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members which were denied by the Court, Defendants have still failed to show that a single communication constitutes a clear repudiation of the claims asserted in this case so as to trigger the running of the statute of limitations or laches; 3. In the event Defendants can show a clear repudiation of the claims asserted

in this action, the Court can then direct appropriate further proceedings if a dispute arises regarding which class members received a particular document or communication;2 4. Defendants seek discovery about documents and communications that are

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largely in their possession or were made or authored by Defendants agents and employees and have made no showing of the necessity for discovery from absent class members; 5. The interrogatories would elicit privileged information and require Class

While Defendants attempt to justify their request for discovery rely by noting Plaintiffs refusal to stipulate that various class members received various communications, (Defs. Br. p. 13 n.5), Defendants refused Plaintiffs requests to provide any facts supporting Defendants distribution of documents. Here, as elsewhere, Defendants are seeking to shift to Plaintiffs their burden to establish a threshold affirmative defense.
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Counsel to analyze and redact for privilege more than 290,000 possible separate responses.3 I. PLAINTIFFS PROPOSED NOTICE SHOULD BE APPROVED Plaintiffs proposed notice provides a neutral, clear and concise description of the action. Defendants objections regarding the class definitions, claims and defenses are without merit, given that Plaintiffs notice incorporates verbatim the class definitions set forth in the Court s order granting class certification. (Doc. 226 p. 4.) Defendants proposed

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notice improperly suggests that the class has not been defined by striking the clause that Judge Silver certified the following class and subclasses and replacing it with the clause, Plaintiffs have requested that the class be defined to include... the very classes the Court certified in detail at p. 4 of its opinion. Unlike Defendants notice, the description of the claims in Plaintiffs notice follows the description of the claims contained in the Court s prior rulings.4 The purpose of a class notice is to present a fair recital of the subject matter of the

Defendants have produced four class lists, totaling 15,288 participants.

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For example, although Defendants object to Plaintiffs description of the granted claims as the main claims in Plaintiffs proposed notice, (Defs Br. p. 6), the Court used the word main to describe the issue of whether the Defendants violated ERISA's anticutback rule through certain amendments to the Garrett Retirement Plan as the main issue in this case. Allen v. Honeywell Retirement Earnings Plan, 382 F.Supp.2d 1139, 1172 (D.Ariz. 2005). A description of the remaining pending claims and the dismissed claims are also described in the notice in language that closely tracks the language from the Court s rulings. (Doc. 226 pp. 2-3.) Allen, 382 F.Supp.2d at 1172-73. Similarly, 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. (Defs. Br. Attachment 1, p. 2.) 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). Id. at 1173. The Court did not rule that the merger of the two retirement plans (which was
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suit and to inform all class members of their opportunity to be heard.

In re Gypsum

Antitrust Cases, 565 F.2d 1123, 1125 (9th Cir. 1977) (citations omitted); Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 338 (2d Cir. 2006); Erhardt v. Prudential Group, Inc., 629 F.2d 843, 846 (2d Cir. 1980); In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir.1977); Issen v. GSC Enterprises, Inc., 538 F.Supp. 745, 750 (N. D. Ill. 1982). Plaintiffs proposed notice is faithful to these objectives.

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In contrast, Defendants alternative notice fails to provide a neutral, understandable and concise description of the case by: incorrectly describing Plaintiffs claims and the claims already granted by the Court; omitting one of Plaintiffs remaining claims; incorrectly summarizes some of the other remaining claims, and attempting to change the class definitions and issues already certified. A. Defendants Description of the Claims Is Inaccurate and Misleading Defendants have not indicated the basis for their objection to Plaintiffs proposed description of the remaining claims. However, Defendants alternative description entirely omits Plaintiffs contract claims under ERISA § 502(a)(1)(B) and (a)(3). The Court clearly certified for class treatment the following: Whether amendments to the Plans imposing the Social Security offset, challenging the interest rate used to calculate the Secured Benefit Account ( SBA ) offset and eliminating the fractional reduction in the SBA offset constitute contract violations and violate the terms of the Plan and ERISA under § 502(a)(1)(B) and (a)(3). effective on December 31, 1983), violated ERISA § 204(g).
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(Doc. 226 p. 2.) Defendants alternative notice fails to include this claim. Defendants also erroneously characterize Plaintiffs claims regarding amendments adopted in 2000, (Defs. Br. Attachment 1 p. 4), which Plaintiffs assert unlawfully eliminated service credit for periods prior to 1984 and caused some participants to make benefit elections and decisions based on incorrect benefit calculations. (Exhibit A, p. 7 ¶ 5.)

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Defendants proposed description erroneously claims that participants were allowed to choose whether to receive benefits with or without an SBA offset and with or without service credit prior to 1984. This is contrary to the facts and contrary to Plaintiffs claims in this lawsuit. The 2000 Plan amendments resulted in some employees losing years of credited service earned prior to 1984. This was not a choice. Aside from their inappropriate argument of merits issues in the class notice, Defendants assertion is factually incorrect. The 2000 Plan changes challenged by Plaintiffs were mandatory and altered the application of the SBA offset by disregarding pre-1984 service if benefits without the offset would be higher than total service with the SBA offset. (See Declaration of Amy Promislo, Doc. 16 Exh. P, at HW0000630-31.) The choice Plaintiffs were given was whether to enter Honeywell s cash balance plan or remain under the existing plan and that choice was influenced by Defendants improper calculation of Plaintiffs benefits under the existing Plan. Defendants description of Plaintiffs claims is wrong. B. Defendants Challenge To An Alleged Overly Inclusive Class Is Without Merit Defendants are attempting to challenge the scope of the class already certified after

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extensive proceedings and improperly attempt to argue the import of the Court s ruling at this juncture. Plaintiffs proposed notice endeavors to describe the Court s ruling concisely and in layperson s language as follows: 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. (Exh. A p. 2-3.) Defendants argument that this description is misleading lacks merit. Their proposed alternative form of notice attempts to rewrite and narrow the Court s holding on summary judgment by inserting detailed limitations found nowhere in the Court s opinion. The Court ruled 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 Account forward to age 65 for the purposes of calculating

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the Secured Benefit Account offset... Allen, 382 F.Supp.2d at 1173. Defendants propose to add the clause for participants who terminated their employment or retired with the Company before age 65, (Defs. Br. Attachment 1, pp. 2-3) to the end of the foregoing sentence and then call it the Court s ruling. Defendants addition of this language is inappropriate, endeavors to narrow the class the Court certified and seeks to inject issues that should be determined at the damages phase of the case, which is when the impact of Defendants utilization of the changed interest rates in the projection of class members

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SBA offsets will be front and center. Adopting Defendants words of limitation in the
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description of the Court s ruling is improper and misleads class members about the current posture of the litigation. Plaintiffs believe that their proposed form of notice, which attempts to summarize in concise form and layperson terms the gist of the Court s holding is preferable and unlike Defendants proposal, is not misleading, overly restrictive or incorrect. In addition, Defendants argument that the class is overly inclusive is untimely and should be rejected on this basis as well. Defendants were on notice of Plaintiffs description

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of the classes, which the Court certified, since August 26, 2005, when the motion for class certification was filed. (Doc.84 pp. 1-2.) The class certification proceedings were extensive and included: preliminary discussion during a Court conference held on April 13, 2006, (Doc. 155, pp. 1-31); Defendants filing of two oversized briefs in opposition and in supplemental opposition to the motion, (Doc. 146, Doc. 214), and oral argument in which Defendants were given a full and fair opportunity to present their opposition. (Doc. 224.) Before the oral argument on Plaintiffs class certification motion, the Court gave the parties

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a preliminary draft of the Court s opinion, allowed both parties time to read the opinion and asked Defendants to advise the Court, why you think I m wrong. (Doc. 224 p. 4 ll. 12-17.) Incredibly, in the face of the extensive proceedings and the Court s comprehensive opinion, Defendants now contend that they may challenge the scope of the class and the issues certified arguing: To date, however, the Court has not yet issued an Order defining the Class or any exclusions, nor has it foreclosed Defendants from challenging the definitions of the classes or any sub-classes. (Defs. Br. p. 2.)

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Once again, Defendants are seeking to reargue a matter that was fully litigated in
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what appears to be a disturbing pattern of attempting to re-litigate every issue in this lawsuit at every turn.5 Defendants attempts to redefine the classes and recast the scope of the class certification order are untimely and without merit.6 II. DEFENDANTS SHOULD BEAR THE COST OF NOTICE Defendants fail entirely to address the Supreme Court case or the treatise cited by Plaintiffs on p. 2 of their moving brief,7 (Doc. 259), which each support Plaintiffs contention Defendants should be required to mail and bear the costs of notice. See also Catlett v. Missouri Highway and Transp. Com'n, 589 F.Supp. 949, 951-52 (D. Mo.1984) (collecting cases).8 The only case cited by Defendants where summary judgment had been granted to the plaintiff class and the court denied a request that the defendant pay the cost

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of notice supports Plaintiffs position here given the size of the class and the fiduciary duty owed by Defendants. See H.W. Urban GmbH v. Republic of Argentina, 2006 WL 587333

See, e,g., Doc.255, Defendants motion to amend answer currently pending before the court; see also Section III, infra, regarding Defendants latest request to serve discovery on absent class members.
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Defendants request for a Subclass E is likewise untimely and should be denied for Defendants failure to raise it on the class certification motion. In any event, the parties appear to be close to a resolution of the issues that Defendants claim necessitate a Subclass E as part of their good faith effort to resolve discovery disputes.
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Mills v. Electric Auto-Lite Co., 396 U.S. 375, 390 (1970); Alba Conte & Herbert Newberg 3 Newberg on Class Actions § 8.6, at p. 180 (4th ed. 2002)
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Six (6) Mexican Workers v. Arizona Citrus Growers, 641 F.Supp. 259, 262 (D. Ariz. 1986), (cited at Defs. Br. p. 11), supports Plaintiffs position. There the court ordered the defendants to pay the costs of notice citing, inter alia, Catlett.
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(S.D.N.Y. 2006) (declining to impose costs where they were minimal and no special duty was owed, leaving open the right to seek reimbursement if they mount up substantially ). Further, Defendants are well situated to provide notice promptly and efficiently given their responsibility to issue monthly benefit payments, plan information and yearly tax forms to the individuals in the Plans. Because they are better equipped to handle the mailing efficiently, it is appropriate to direct Defendants to send and pay for the notice. See

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Newberg on Class Actions § 8:8, at p. 188 (citing Openheimber Fund, Inc. v. Sanders, 427 U.S. 340 (1978)).9 III. DEFENDANTS MOTION TO CONDUCT DISCOVERY OF ABSENT CLASS MEMBERS SHOULD BE DENIED In opposing class certification on the grounds that their affirmative defenses required individual inquir[ies], (Doc. 146 p. 1), Defendants were given multiple opportunities to establish a threshold showing that the statute of limitations or other affirmative defenses

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might bar Plaintiffs claims and they failed to do so. Defendants submitted voluminous documents as well as declarations from: a Director of Human Resources, who served in that capacity or as a Manager of Human Resources since 1986, (Doc. 188 ¶ 2-3); a Manager of

In addition, Defendants have proposed that 19 interrogatories containing multiple subparts be included with the notice. As currently formatted, the interrogatories violate Local Rule 33.1(a) because they fail to leave adequate blank space for responses. If properly formatted, the questionnaire would be much longer than the current six pages. Although Plaintiffs oppose the inclusion of a questionnaire, if the Court determines to allow one, Defendants should bear the cost. See In re Franklin Nat. 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).
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Retirement Plans, who supervised employees whose responsibilities included counseling employees and retirees concerning the benefits plans, (Doc. 187 ¶ 2-4); a Manager of Executive and Electronic Communications who also held the position of Human Resources Communications Specialist, (Doc. 191 ¶ 1-2); two Legal Assistants, (Doc. 190 ¶ 1; Doc. 192 ¶ 1), and the custodian of records for imaged benefits files. (Doc. 193.) In considering the class certification motion, after discussing Defendants arguments and evidence in detail,

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the Court held that commonality and typicality were not defeated and that Defendants had not met their burden to show individualized inquiries predominated: Much of Defendants evidence is based on speculation and they are largely in possession of the evidence that the statute of limitations will defeat the class action. Thus, Defendants have not established a threshold that the documents presented triggered the statute of limitations. (Doc. 226 p. 15) The Court further held: Defendants have the burden of establishing the statute of limitations defense. It does not appear suitable in order for Defendants to establish the defense for them to take interrogatories of each putative class member or take each of their depositions. (Doc. 226 p. 11 n.7; See also p. 10 n.6.) Citing Chuck v. Hewlett Packard Co.,455 F.3d 1026 (9th Cir. 2006), the Court found that Defendants have a burden to establish a repudiation that is unequivocal or unmistakable in order to trigger the running of the statute of limitations and that Defendants had not made a threshold showing in satisfaction of that burden.

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Prior to the Court s ruling on class certification, the Court allowed Defendants to
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conduct complete discovery on the six named Plaintiffs. In May 2006, following named Plaintiff discovery, Defendants attempted to serve Interrogatories and Requests for Production on approximately 800 putative absent class members who were represented by Class Counsel. The Court denied Defendants request and granted Plaintiffs motion for a protective order stating: I'm not persuaded that you have a strong likelihood of establishing a statute of limitations problem such that you could effectively overcome commonality and [typicality] in this case, or numerosity. I am not persuaded, based upon the documentation you have provided me, and also the documentation the plaintiff has provided me, which I have considered, that any further depositions or discovery should be taken. (Doc. 175 p. 7.) Despite the repeated insufficiency of Defendants efforts to make a threshold showing on their affirmative defenses and without any further documentation to remedy their failure, Defendants filed a formal discovery motion (without leave of Court) for permission to serve a 19 question and multiple subpart questionnaire on all 15,288 class members and to require its inclusion in the class notice. Six of Defendants proposed questions (# 2, 4, 5, 9, 15, 17) are virtually identical to the interrogatories at issue on the motion for a protective order granted by the Court. The remaining 13 questions are overly broad and largely incomprehensible and ask class members to describe documents that were requested in Defendants proposed May 2006

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requests for production, many of which are already in Defendants possession10 or to describe in greater detail information regarding the same discovery Defendants were denied leave to serve in May 2006.11 In the face of the Court s ruling that Defendants made no threshold showing that any communication by Defendants triggered the statute of limitations and that Defendants are largely in possession of the information they are seeking, Defendants motion borders on frivolous. In the absence of any proof that Defendants,

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through their documents or communications, clearly repudiated the claims in this case, permitting this type of discovery defeats the purpose of class certification and will paralyze the progress in this case so that Defendants may embark on nothing more than a fishing excursion. In addition to being burdensome and confusing, Defendants questionnaire would unfairly encourage class members to opt-out, deny them the benefits of the lawsuit, reduce the size of the class, require Class Counsel to individually review for privilege approximately 290,000 separate responses and fails to meet any of the requirements imposed

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by the courts prior to allowing discovery against absent class members.12 Compare Doc. 162, Exhibit A proposed requests for production 2,3 with Defs. Br. Attachment 3, Question 2-3
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See,e.g., Defs. Br. Attachment 3, Question 6, asking for more detail regarding Question 5. Question 5 is identical to Defendants previous proposed Interrogatory 4. (Doc. 162, Exh. A.)
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The questions primarily seek information regarding Defendants own documents and communications. Defendants motion also makes no showing that their own records do not contain the documents or communications they claim put Plaintiffs on notice of clear repudiation. See, e.g., Cooper v. Pacific Life Ins. Co., 2005 WL 1866166, at *2 -3 (S.D.Ga. 2005) (denying leave to conduct discovery where the discovery was available by other means).
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Absent class member discovery is appropriate only if it is necessary, seeks information not known to the movant, would not require the assistance of a lawyer or other expert to answer and is not directed toward winnowing the size of the class. See Clark v. Universal Builders, 501 F.2d 324, 340-41 & n. 24 (7th Cir.1974) (reversing a trial court s dismissal of claims of absent class members who failed to respond to interrogatories where no showing was made of necessity for discovery, where the questions required legal

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assistance to answer and where some of the interrogatories sought information on matters already known to defendants. ) ; Dellums v. Powell, 566 F.2d 167, 187 (D.C.Cir.1977); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1555-56 (11th Cir. 1986). The party

moving to include the questionnaire has the burden of proving necessity." Schwartz v. Celestial Seasonings, 185 F.R.D. 313, 316 (D.Colo.1999); Enter. Wallpaper Mfg., Co. v. Bodman, 85 F.R.D. 325, 327 (S.D.N.Y.1980) (requiring a strong showing); McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309, 313 (D. Conn. 1995) ( Discovery of absent

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class members, while not forbidden, is rarely permitted ...to permit extensive discovery would defeat the purpose of class actions ...Discovery is only permitted where a strong showing is made that the information sought (1) is not sought with the purpose or effect of harassment or altering membership of the class; (2) is directly relevant to common questions and unavailable from the representative parties; and (3) is necessary at trial of issues common to the class. ) (citing Manual for Complex Litigation § 30.232 (3rd ed. 1995)) (further citations omitted); Bisgeier v. Fotomat Corp. 62 F.R.D. 118, 119 -121

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(N.D.Ill.1973) (denying defendants request to serve interrogatories which inter alia call
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for irrelevant information and would appear to be, in the words of Brennan, a tactic to take undue advantage of the class members or . . . a stratagem to reduce the number of claimants. ) (citing Brennan v. Midwestern United Life Ins., Co. 450 F.2d 991, 1005 (7th Cir. 1971)). Cases cited by the Defendants, (Defs. Br. P. 15 n.9), are not to the contrary and do

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not support Defendants motion. In Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971), (Defs Br., p. 14), class counsel did not contest the discovery requests and impliedly conceded that the discovery at issue was proper and relevant to [defendants s] claim that it was not liable to the class. The Brennan court emphasized that absent class members should not be required to submit to discovery as a matter of course... Id. at 1005. In Transamerican Refining Corp. V. Dravo Corpo., 139 F.R.D. 619, 622 (S.D. Tex. 1991), the court only allowed interrogatories to be served on 50 of the 6,000 class members regarding facts that could not have been known to the defendants. Schwartz v. Celestial Seasonings, 185 F.R.D. 331 (D. Colo. 1999), a securities litigation case, is inapposite factually because unlike here, it appears that reliance was a central element of the plaintiffs claims and that information was required from the class members to determine the dollar amount of the damages. (See Doc. 226 p. 13 in which the Court already distinguished the need for individualized inquiry required in a securities action from this action and finding in contrast, Here, Defendants contend that the individualized inquiry involves the statute of limitations itself, which is their burden. In addition, Plaintiffs do not allege fraud such that an individualized inquiry may be inherently part of the claim. ).
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Defendants due process concerns, (Defs. Br. pp. 13-15), are entirely premature. The Court has not indicated that discovery will never be appropriate, only that on the statute of limitations and other affirmative defenses such as laches that hinge on Defendants ability to establish a clear repudiation, class-wide discovery puts the cart before the horse. In the event that Defendants can show that a document or communication constituted a clear repudiation, and if there are factual disputes regarding who received that communication,

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then, assuming Defendants can establish relevancy, need, and unavailability, the Court can enter an appropriate order permitting limited discovery at that time. In addition to failing to meet their burden to conduct class-wide discovery, Defendants request to serve the questionnaire with the Class notice should be denied because the questions themselves are objectionable. Defendants proposed questions would require, inter alia, class members to recount conversations participants had with anyone concerning the offsets, (Question 7), their beliefs about the propriety and legality of the offsets, (Questions 14, 15, 18), what information led them to those beliefs, (Questions 14, 18), and would require Class Counsel to sift through more than 290,000 responses to redact them for privilege and produce a privilege log. The questions would also require class members to respond, without any showing by Defendants, to broad, unduly burdensome, cumulative and open-ended discovery questions regarding their conversations with everyone concerning the offsets and any concerns about any feature of their retirement benefits. (Questions 14, 15, 18). These questions also require class members to have an understanding of the Retirement Benefits features or have someone explain those features
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to them before answering. One question even asks class members to recount the dates of death (if known) of participants with whom they had any discussion identified in the previous 18 interrogatories, (Question 19), surely a burdensome and harassing inquiry, not justified by any showing of necessity. The questions are also confusing to the point of being incomprehensible. For example, Question 6 essentially asks all of the information the class member was asked to describe in the prior question, which also seeks as much information

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as you remember and to have the class member identify the information you no longer recall. How does one proceed to describe that which cannot be recalled and why ask to

describe what cannot be recalled in two questions? Defendants proposed interrogatories do not even remotely approximate the kind of necessary, narrowly tailored and limited discovery of absent class members that courts have sanctioned. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court approve their proposed form of notice and that Defendants cross-motion be denied. Respectfully submitted this 2nd day of February, 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 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on February 2, 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 William Delaney John G. Ferreira Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Amy Covert Proskauer Rose LLP One Newark Center, 18th Floor Newark , NJ 07102-5211 Howard Shapiro Proskauer Rose, LLP 909 Poydras St., Suite 1100 New Orleans, LA 70112 Attorneys for Defendants

s/Susan Martin

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