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

1 2 3 4 5 6

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

7 8

IN THE UNITED STATES DISTRICT COURT
9

FOR THE DISTRICT OF ARIZONA
10 11 12 13

Barbara Allen; Richard Dippold; Melvin Jones; Donald McCarty; Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs,

14

vs.
15 16 17 18

Honeywell Retirement Earnings Plan; Honeywell Secured Benefit Plan; Plan Administrator of Honeywell Retirement Earnings Plan; and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

19 20 21 22 23 24 25 26 27 28

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS PLAINTIFFS MOTION FOR APPROVAL OF FORM AND MAILING OF NOTICE TO CLASS MEMBERS OF PENDENCY OF CLASS ACTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR APPROVAL OF FORM AND MAILING OF NOTICE TO CLASS MEMBERS OF PENDENCY OF CLASS ACTION

Plaintiffs hereby move for an order approving the form and mailing of the Notice of Pendency of Class Action as set forth below and in the Proposed Notice of Pendency of Class Action attached hereto as Exhibit A.

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 1 of 6

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

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs propose that the proposed notice attached hereto as Exhibit A be mailed by Defendants within 30 days of approval of the proposed form of notice to class members. Defendants advised that they do not agree with Plaintiffs proposal for payment or mailing by Defendants. Although, generally, a plaintiff bears the costs of sending the class notice, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974), where, as here, Plaintiffs are successful on a partial motion for summary judgment, an order directing Defendants to bear this cost is appropriate as a form of interim costs. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 390 (1970). See also Alba Conte & Herbert Newberg 3 Newberg on Class Actions § 8.6, at p. 180 (4th ed. 2002) Because Defendants routinely send mailings to pensioners such as class members and are organizationally equipped to do so here and because Plaintiffs have already succeeded on what this Court has noted are the main claims in this case, (Order dated November 18, 2005, Doc.138 at p.31), Plaintiffs request that the Court direct that notice be mailed by and paid for by Defendants. Plaintiffs further request a copy of the list of class members and current addresses to whom the notice is sent be served on Class Counsel in electronic format within 10 days of mailing. Plaintiffs further propose that the return address of the mailing be entitled Former Garrett Corp. Employees Retirement Plans Class Action Notice. Plaintiffs request that Defendants be directed to provide to Class Counsel a listing of any and all notices returned by the United States Postal Service together with the address to which the original notice was sent and provide Plaintiffs with any forwarding addresses received by Defendants within 30 days after receipt of the returned mail. In their Proposed Scheduling Order, (Doc. 246), the parties originally agreed that Plaintiffs would file a proposed notice to class members of the pendency of the

2

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 2 of 6

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

class action lawsuit in accordance with Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure on December 1, 2006 and that Defendants would submit a response to Plaintiffs proposed notice on or before December 15, 2006. Plaintiffs served a draft of their proposed notice of pendency of class action on Defendants on November 28, 2006. On November 30, 2006, Defendants served Plaintiffs with an eight page, twenty question questionnaire proposing to seek verification and responses from all of the approximately 13,000 class members who have now been identified by Defendants, regarding alleged affirmative defenses and Plaintiffs claims. Defendants also

advised that they would have comments on the proposed notice prepared by Plaintiffs at a later date. Based on Defendants representation, and in an effort to agree on the form of notice, Plaintiffs deferred filing of this motion in order to receive comments on the form of notice from Defendants. Defendants have this day advised Plaintiffs that they do not believe that the parties would be able to agree on the proposed form of notice and that they are not prepared to make comments at this time. The Proposed Form Of Notice Meets the Requirements of the Federal Rules Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure provides that: For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: the nature of the action, the definition of the class certified, the class claims, issues, or defenses, that a class member may enter an appearance through counsel if the member so desires,

3

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 3 of 6

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

that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and the binding effect of a class judgment on class members under Rule 23(c)(3). Each of these requirements is met in the attached proposed notice. Plaintiffs have drafted the notice in a question and answer format in an effort to provide information to class members in a clear and understandable manner so as not to unduly burden or confuse these class members, some of whom are retirees who are quite elderly.1 Accordingly, Plaintiffs request that the Court approve Plaintiffs proposed form of notice attached hereto as Exhibit A.

In a telephonic conference held on December 4, 2006, Plaintiffs advised Defendants that they would object to Defendants proposal for a questionnaire to be included with the class action notice for all of the reasons stated by Plaintiffs in Plaintiffs motion for protective order regarding a similar pre-certification questionnaire Defendants sought to serve on approximately 800 absent class members, (Doc.162) and by the Court in its ruling granting Plaintiffs motion for a protective order. (Doc. 165, p. 8.) Plaintiffs also reminded Defendants of the Court s statements during oral argument and its ruling on the motion for class certification that Defendants had not met their threshold burden of establishing affirmative defenses by showing any communications from Defendants that could have constituted a clear repudiation of the claims asserted in this case. (Doc. 224, p. 15; Doc. 226, p. 11 n.7, p. 15.) Plaintiffs also advised Defendants that not only had Defendants failed to meet their burden for such discovery on absent class members, but that in addition, the proposed questionnaire would unduly burden and confuse class members and would improperly encourage them to opt out of the class. See, e.g., Clark v. Universal Builders, Inc., 501 F.2d 324, 340 (7th Cir. 1974). In the event Defendants determine to pursue an effort to take discovery from the 13,000 absent class members in a questionnaire or other format , Plaintiffs will respond at that time.
1

4

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 4 of 6

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

Respectfully submitted this 7th day of December, 2006. 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 (602) 240-6900 Attorneys for Plaintiffs

5

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 5 of 6

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

CERTIFICATE OF SERVICE I hereby certify that on December 7, 2006, 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 the Defendants

s/Susan Martin

6

Case 2:04-cv-00424-ROS

Document 259

Filed 12/07/2006

Page 6 of 6