Free Motion for Leave to File - District Court of Arizona - Arizona

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David B. Rosenbaum, [Esquire]Atty. No. 009819 Dawn L. Dauphine, [Esquire]Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) [640.9345]640-9000 [email protected][ ] [email protected] Michael L. Banks, [Esquire (Pro Hac Vice)][John Ferreira, Esquire (]Pro Hac Vice[)] William J. Delany, [Esquire (]Pro Hac Vice[)] [Amy Covert]Azeez Hayne, [Esquire (]Pro Hac Vice[)] MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) [963.5000]963-5000 [email protected] [email protected] [jferreira][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. Defendants Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan and Plan Administrator No. CV04-0424 PHX ROS

AMENDED ANSWER

Case 2:04-cv-00424-ROS

Document 255-2

Filed 11/21/2006

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of Honeywell Secured Benefit Plan1 (collectively, "Defendants") by their attorneys, hereby respond to the numbered paragraphs of the Amended Class Action Complaint (the "Complaint") in this matter as follows: JURISDICTION AND VENUE
1.

The allegations in paragraph 1 are conclusions of law to which no

responsive pleading is required.
2.

The allegations in paragraph 2 are conclusions of law to which no

responsive pleading is required.
3.

Defendants admit that company records indicate that named Plaintiffs

are former salaried employees of the Garrett Corporation and/or participating subsidiary companies, and that named Plaintiffs were participants in the Garrett Retirement Plan and the Garrett Severance Plan as of December 31, 1983. Defendants admit further that

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named Plaintiffs were participants in the Signal Retirement Plan, the Garrett Secured Benefit Plan, the AlliedSignal Retirement Plan, the AlliedSignal Secured Benefit Plan, the Honeywell Retirement Earnings Plan, and the Honeywell SBA Plan. Defendants admit further that named Plaintiff Melvin Jones is a participant in the Honeywell Savings and

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Ownership Plan. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations regarding participants or parties other than the named Plaintiffs. Defendants deny all remaining allegations in Paragraph 3. Defendants admit that Barbara Allen is and was a participant in the

Garrett Retirement Plan and successor plans and the Garrett Severance Plan and successor

1
2

On ­ ] [Page ][2][ March 25, 2004, Plaintiffs filed a Voluntary Dismissal of Defendant Honeywell Savings and Ownership Ownership Plan. Plan and Plan Administrator of Honeywell Savings and

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plans. Defendants admit further that company records indicate that Ms. Allen worked for Garrett, Signal, AlliedSignal and Honeywell from in or around 1977 to in or around September 2000 and that Ms. Allen separated from employment with Honeywell. The remaining allegations in paragraph 4 are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 4.
5.

Defendants admit that Richard Dippold was a participant in the

Garrett Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. Defendants admit further that company records indicate that Mr. Dippold worked for Garrett, Signal, AlliedSignal and Honeywell from in or around 1960 to June, 2001 and that Mr. Dippold separated from employment with Honeywell. The remaining allegations in paragraph 5 are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 5.
6.

Defendants admit that Melvin Jones was a participant in the Garrett

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Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. Defendants admit further that company records indicate that Mr. Jones worked for Garrett, Signal and AlliedSignal from in or around 1955 to in or around 1993. The remaining allegations in paragraph 6 are conclusions of law to which no responsive pleading is

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required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 6.
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7.

Defendants admit that Donald McCarty was a participant in the

Garrett Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. Defendants admit further that company records indicate that Mr. McCarty worked for Garrett, Signal and AlliedSignal from in or around 1951 to in or around 1985. The remaining allegations in paragraph 7 are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 7.
8.

Defendants admit that Richard Scates was a participant in the Garrett

Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. Defendants admit further that Mr. Scates worked for Garrett, Signal and AlliedSignal from in or around 1961 to in or around 1991 and separated from employment with AlliedSignal. The remaining allegations in paragraph 8 are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 8.
9.

Defendants admit that Walter G. West was a participant in the Garrett

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Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. Defendants admit further that company records indicate that Mr. West worked for Garrett, Signal and AlliedSignal from in or around 1960 to in or around 1995 and that Mr. West separated from employment with AlliedSignal. The remaining allegations in paragraph 9

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are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in
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10.

Defendants admit that the Honeywell Retirement Earnings Plan, the

Honeywell Secured Benefit Plan and the Honeywell Saving Ownership Plan are employee pension benefit plans within the meaning of § 3(2) of ERISA, 29 U.S.C. § 1002(2), and were established and maintained for the purpose of providing retirement benefits for participants and their beneficiaries, including named Plaintiffs. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations with respect to "members of the Class."
11.

The allegations in paragraph 11 are conclusions of law to which no

responsive pleading is required.
12.

The allegations in paragraph 12 are conclusions of law to which no

responsive pleading is required.
13.

The allegations in paragraph 13 are conclusions of law to which no

responsive pleading is required. CLASS ACTION ALLEGATIONS
14.

Defendants admit that named Plaintiffs purport to bring this action as

a class action pursuant to Federal Rule of Civil Procedure 23. Defendants deny that named Plaintiffs satisfy the requirements of Federal Rule of Civil Procedure 23 or that a class should be certified in this case. The remaining allegations in paragraph 14 are conclusions of law to which no responsive pleading is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph [14.]
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15.

The allegations in paragraph 15 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 15.
16.

The allegations in paragraph 16 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 16.
17.

The allegations in paragraph 17 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 17.
18.

The allegations in paragraph 18 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 18. GENERAL ALLEGATIONS
19.

Defendants admit that the Garrett Retirement Plan and the Garrett

Severance Plan were "employee pension benefit plans" within the meaning of § 3(2)(A) of ERISA and that the Garrett Retirement Plan was a "defined benefit plan" within the meaning of § 3(35) of ERISA. Defendants deny that the Garrett Severance Plan was a "defined benefit plan" within the meaning of § 3(35) of ERISA. The remaining allegations in paragraph 19 purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in
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paragraph 19 and refer to the documents cited therein for the full contents and context thereof.
20.

The allegations in paragraph 20 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 20 and refer to the documents cited therein for the full contents and context thereof.
21.

The allegations in paragraph 21 purport to characterize written

documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 21 and refer to the documents cited therein for the full contents and context thereof.
22.

The allegations in paragraph 22 purport to characterize written

documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and

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characterizations in paragraph 22 and refer to the documents cited therein for the full contents and context thereof.
23.

The allegations in paragraph 23 purport to characterize written

documents, the terms of which speak for themselves and, therefore, no further response is
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required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 23 and refer to the documents cited therein for the full
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24.

Defendants admit only that the offsets for the Garrett Severance Plan

benefits under the Garrett Retirement Plan were calculated pursuant to the terms of the relevant plan document, the terms of which speak for themselves. The remaining allegations in paragraph 24 purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 24 and refer to the documents cited therein for the full contents and context thereof.
25.

The allegations in paragraph 25 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 25 and refer to the document cited therein for the full contents and context thereof.
26.

The allegations in paragraph 26 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is
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required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 26 and refer to the document cited therein for the full contents and context thereof. The allegations in paragraph 27 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and
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characterizations in paragraph 27 and refer to the document cited therein for the full contents and context thereof.
28.

The allegations in paragraph 28 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 28 and refer to the document cited therein for the full contents and context thereof.
29.

The allegations in paragraph 29 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 29 and refer to the document cited therein for the full contents and context thereof.
30.

Defendants admit that no additional contributions were made to the

Garrett Severance Plan after December 31, 1983. The remaining allegations in paragraph 30 purport to characterize a written document, the terms of which speak for themselves

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and, therefore, no further response is required. To the extent that a response is required, Defendants deny the remaining allegations and characterizations in paragraph 30 and refer to the document cited therein for the full content and context thereof. The allegations in paragraph 31 are conclusions of law to which no

responsive pleading is required. The allegations in paragraph 31 also purport to characterize a written document, the terms of which speak for themselves and, therefore,
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allegations and characterizations in paragraph 31 and refer to the document cited therein for the full contents and context thereof.
32.

The allegations in paragraph 32 are conclusions of law to which no

responsive pleading is required. The allegations in paragraph 32 also purport to characterize a written document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 32 and refer to the document cited therein for the full contents and context thereof.
33.

The allegations in paragraph 33 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 33 and refer to the document cited therein for the full contents and context thereof.
34.

The allegations in paragraph 34 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is
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required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 34 and refer to the document cited therein for the full contents and context thereof. The allegations in paragraph 35 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and
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characterizations in paragraph 35 and refer to the document cited therein for the full contents and context thereof.
36.

The allegations in paragraph 36 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 36 and refer to the document cited therein for the full contents and context thereof.
37.

The allegations in paragraph 37 are conclusions of law to which no

responsive pleading is required. The allegations in paragraph 37 also purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent that a response is required, Defendants deny the allegations and characterizations in paragraph 37 and refer to the documents cited therein for the full content and context thereof.
38.

The allegations in paragraph 38 are conclusions of law to which no

responsive pleading is required. The allegations in paragraph 38 also purport to
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characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 38 and refer to the documents cited therein for the full contents and context thereof.

24 25 26 27 28 [1] 39.

Defendants admit that in January, 1984 it disseminated two brochures

describing the January 1, 1984 merger of the Garrett Retirement Plan and the Signal
[Page ][11][ ­Inc. Retirement Plan. The remaining allegations in paragraph 39 purport to Companies, ] 11 Document 255-2 Filed 11/21/2006 Page 11 of 26

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characterize a written document, the terms of which speak for themselves and, therefore, no further response is required. To the extent that a response is required, Defendants deny the remaining allegations and characterizations in paragraph 39 and refer to the documents cited therein for the full contents and context thereof.
40.

Defendants admit that they calculated benefits for Plaintiffs in

accordance with the terms of the relevant plan document, and that, where appropriate, Defendants applied a social security offset to years of credited service under the Garrett Retirement Plan. The remaining allegations in paragraph 40 purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 40 and refer to the document cited therein for the full contents and context thereof.
41.

The allegations in paragraph 41 purport to quote and characterize a

written document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations

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and characterizations in paragraph 41 and refer to the document cited therein for the full contents and context thereof.
42.

The allegations in paragraph 42 purport to quote and characterize a

written document, the terms of which speak for themselves and, therefore, no further
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response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 42 and refer to the document cited therein for the full
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43. 44. 45. 46.

Denied. Denied. Denied. The allegations in paragraph 46 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, and to the extent paragraph 46 suggests that this was the only governing document, Defendants deny those allegations in paragraph 46.
47.

Defendants deny that Plaintiffs did not receive copies of any of the

requested Plan documents until October 1, 2003. Defendants aver further that within 60 days of Plaintiffs' counsel's request for documents, Defendants produced approximately 1,500 pages of plan documents and continued to search for additional Plan documents. Defendants admit that they produced a copy of the Signal Retirement Plan, effective January 1, 1984, on October 1, 2003. To the extent that Plaintiffs allege in paragraph 47 that they were not provided with documents on a timely basis that they were entitled to receive as a matter of law, these allegations are denied. The remaining allegations in

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paragraph 47 purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 47 and refer to the documents cited therein for the full contents and context thereof.

24 25 26 27 28 [1] 48. 49.

Denied. The allegations in paragraph 49 purport to characterize a written

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required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 49 and refer to the document cited therein for the full contents and context thereof.
50.

The allegations in paragraph 50 are conclusions of law to which no

responsive pleading is required.
51.

The allegations in paragraph 51 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 51 and refer to the document cited therein for the full contents and context thereof.
52.

The allegations in paragraph 52 relate to claims that were dismissed

by the Court's Order dated July 19, 2005 and, therefore, no further response is required.
53.

It is admitted that the Plan Administrators applied an SBA offset,

where appropriate, in calculating some participants' minimum benefits. The remaining allegations of paragraph 53 are denied.

19 20 21 22 23 54.

The allegations in paragraph 54 relate to claims that were dismissed

by the Court's Order dated July 19, 2005 and, therefore, no further response is required.
55.

The allegations in paragraph 55 relate to claims that were dismissed

by the Court's Order dated July 19, 2005 and, therefore, no further response is required.
24 25 26 27 28 [1] 56.

The allegations in paragraph 56 relate to claims that were dismissed

by the Court's Order dated July 19, 2005 and, therefore, no further response is required.
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57.

The allegations in paragraph 57 relate to claims that were dismissed

by the Court's Order dated July 19, 2005 and, therefore, no further response is required.
58.

It is admitted that as of January 1, 1984, a fractional offset was not

used to calculate benefits for employees with 35 or more years of service. The remaining allegations of paragraph 58 are denied.
59.

The allegations in paragraph 59 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 59 and refer to the document cited therein for the full contents and context thereof.
60.

The allegations in the first sentence of paragraph 60 are conclusions

of law to which no responsive pleading is required. The allegations in the first sentence of paragraph 60 also purport to characterize a written document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in the first sentence of

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paragraph 60 and refer to the document cited therein for the full contents and context thereof. The remaining allegations of paragraph 60 are denied.
61.

Defendants deny that no notice was given to plan participants of the

1993 amendment to the Signal Retirement Plan. The remaining allegations in paragraph
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61 purport to characterize written documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required,
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Defendants deny the remaining allegations and characterizations in paragraph 61 and refer to the documents cited therein for the full contents and contexts thereof.
62. 63. 64. 65.

Denied. Denied. Denied. The allegations in paragraph 65 purport to characterize written

documents, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 65 and refer to the documents cited therein for the full contents and context thereof.
66. 67.

Denied. The allegations in paragraph 67 purport to quote a written document,

the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 67 and refer to the document cited therein for the full contents and context

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thereof.
68.

The allegations in paragraph 68 purport to characterize a written

document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and

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characterizations in paragraph 68 and refer to the document cited therein for the full contents and context thereof.
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69.

Defendants admit that after June 1993, administrative fees were

deducted from participants' Secured Benefit accounts. The remaining allegations of paragraph 69 are denied.
70.

Defendants admit that as of the date of the filing of the Complaint,

Defendants had not made "corrective payments" or provided information to Plaintiffs' counsel regarding the calculation and the amounts of the corrective payments they are prepared to make. The remaining allegations in paragraph 70 purport to characterize a written document, the terms of which speak for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the remaining allegations and characterizations in paragraph 70 and refer to the document cited therein for the full contents and context thereof.
71.

Defendants admit that Exhibit B to the Garrett Retirement Plan was

provided to Plaintiffs' counsel. The remaining allegations in paragraph 71 are conclusions of law to which no responsive pleading is required. The allegations in paragraph 71 also purport to characterize a written document, the terms of which speak

19 20 21 22 23 72. 24 25 26 27 28 [1]

for themselves and, therefore, no further response is required. To the extent a response is required, Defendants deny the allegations and characterizations in paragraph 71 and refer to the document cited therein for the full contents and context thereof. Defendants deny that they delayed in providing any benefit

calculation worksheets that were required to be produced under ERISA. The remaining allegations in paragraph 72 purport to characterize written documents, the terms of which
[Page ][17][ ­ ] speak for themselves and, therefore, no further response is required. To the extent a 17 Document 255-2 Filed 11/21/2006 Page 17 of 26

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response is required, Defendants deny the remaining allegations and characterizations in paragraph 72 and refer to the documents cited therein for the full contents and context thereof. COUNT I VIOLATIONS OF ERISA AND THE TERM OF THE PLAN
73.

Defendants incorporate the responses contained in paragraphs 1

through 72 of this Answer as if fully set forth herein.
74. 75.

Denied. The allegations in paragraph 75 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 75. COUNT II VIOLATIONS OF VESTING, NONFORFEITABILITY AND ACCRUAL OF BENEFIT PROVISIONS OF ERISA INCLUDING §§ 203 AND 204, 29 U.S.C. §§ 1053, 1054 AND APPLICABLE REGULATIONS
76.

Defendants incorporate the responses contained in paragraphs 1

through 75 of this Answer as if fully set forth herein.
77.

The allegations in paragraph 77 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required,
23 24 25 26 27 28 [1]

Defendants deny the allegations in paragraph 77 and refer to the statute cited therein for the full contents and context thereof.
78. [Page ][18][ ­ ] 18 Document 255-2 Filed 11/21/2006 Page 18 of 26

The allegations in paragraph 78 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required,

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Defendants deny the allegations in paragraph 78 and refer to the statute cited therein for the full contents and context thereof.
79.

The allegations in paragraph 79 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 79 and refer to the statute cited therein for the full contents and context thereof.
80.

The allegations in paragraph 80 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 80 and refer to the statute cited therein for the full contents and context thereof.
81.

The allegations in paragraph 81 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 81 and refer to the statute cited therein for the full contents and context thereof.
82.

Denied. The allegations in paragraph 83 are conclusions of law to which no

19 20 21 22 23 83.

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 83. COUNT III

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VIOLATIONS OF ERISA REQUIREMENTS GOVERNING THE RATE OF BENEFIT ACCRUALS, § 204 OF ERISA, 29 U.S.C. § 1054
84. [Page ][19][ ­ ] 19 Document 255-2 Filed 11/21/2006 Page 19 of 26

Defendants incorporate the responses contained in paragraphs 1

through 83 of this Answer as if fully set forth herein.

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85 ­ 89.

In its Order dated July 19, 2005, the Court dismissed Count III of the

Complaint in its entirety. Accordingly, no responsive pleading to paragraphs 85-89 is required.2 COUNT IV VIOLATIONS OF ERISA DISCLOSURE REQUIREMENTS AND CLAIMS PROCEDURE REQUIREMENTS AND APPLICABLE REGULATIONS
90. Defendants incorporate the responses contained in paragraphs 1 through 89

of this Answer as if fully set forth herein. 91.

The allegations in paragraph 91 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 91 and refer to the statute cited therein for the full contents and context thereof.
92.

The allegations in paragraph 92 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 92 and refer to the statute cited therein for the full contents and context thereof.
93.

The allegations in paragraph 93 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 93 and refer to the statute cited therein for the full contents and context thereof.

The Court's July 19, 2005 Order dismissed Plaintiffs' anti-backloading claim (Op. at 28-29, [Page ][20][ ­ ] 48), which is set forth in Count III of the Amended Complaint. (Am. Compl. ¶¶ 84-89.) The July 19 Order, however, inadvertently indicates that Plaintiff's anti-backloading claim is contained in Count II. (Op. at 48.) 20
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94.

The allegations in paragraph 94 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 94 and refer to the statute cited therein for the full contents and context thereof.
95.

The allegations in paragraph 95 purport to quote statutory provisions

and, therefore, no responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 95 and refer to the statute cited therein for the full contents and context thereof.
96.

The allegations in paragraph 96 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the allegations in paragraph 96 and refer to the statute cited therein for the full contents and context thereof.
97. 98.

Denied. The allegations in paragraph 98 are conclusions of law to which no

responsive pleading is required. To the extent a response is required, Defendants deny the
19 20 21 22 23 24

allegations in paragraph 98. COUNT V VIOLATIONS OF ERISA AND THE TERMS OF THE PLANS RESULTING FROM DEFENDANTS' FAILURE TO DISCLOSE THE SBA OFFSETS, MINIMUM BENEFIT FORMULAS AND PLAN CHANGES 99 ­ 102. In its Order dated July 19, 2005, the Court dismissed Count V of the

25 26 27 28 [1]

Complaint in its entirety. Accordingly, no responsive pleading to paragraphs 99-102 is required. ­ ] [Page ][21][
21 Document 255-2 Filed 11/21/2006 Page 21 of 26

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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 [1]

Defendants deny that Plaintiffs are entitled to the relief sought in the Complaint's "Wherefore" clause, including paragraphs (A) through (H) of the "Wherefore" clause, or any other relief. Defendants deny each and every allegation of the Amended Complaint unless specifically admitted herein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs' [claims against Defendants are]and putative class members' claims for alleged statutory violations of ERISA became barred, in whole or in part, by the applicable [statutes]statute of limitations[, including without limitation one or more of the following: 29 U.S.C. § 1113, ARS § 12-541, ARS § 12-548, and ] one year after each such individual knew or, in the exercise of reasonable diligence, should have known of the injury underlying his or her claims. ARS § 12-541(5). Alternatively, Plaintiffs' and putative class members' statutory claims became barred, in whole or in part, by the applicable statute of limitations four years after each such individual knew or, in the exercise of reasonable diligence, should have known of the injury underlying his or her claims. ARS § 12-550. Plaintiffs' and putative class members' claims for benefits under the terms of the plans became barred, in whole or in part, by the applicable statute of limitations one year after each such individual knew or, in the exercise of reasonable diligence, should have known of a clear repudiation of the rights he or she believed he or she held under the terms of the plan or, at the latest, no later than one year after each individual commenced receipt of his or her retirement benefit. ARS § 12-541(3). Alternatively, Plaintiffs' and putative class members' claims for benefits under the terms of the ] [Page ][22][ ­ plans became barred, in whole or in part, by the applicable statute of limitations four years after each such individual knew or, in the exercise of
22 Document 255-2 Filed 11/21/2006 Page 22 of 26

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reasonable diligence, should have known of a clear repudiation of the rights he or she believed he or she held under the terms of the plan or, at the latest, no later than four years after each individual commenced receipt of his or her retirement benefit. ARS § 12-544(3). Plaintiffs' and putative class members' claims for statutory penalties under ERISA § 502(c), 29 U.S.C. § 1132(c), became barred, in whole or in part, by the applicable statute of limitations one year after each such individual knew or, in the exercise of reasonable diligence, should have known that the plan administrator had failed or refused to provide the requested documents within 30 days after the request. ARS § 12-541. SECOND AFFIRMATIVE DEFENSE Plaintiffs' and putative class members' claims against Defendants are barred, in whole or in part, by any releases that such individuals executed[ by Plaintiffs and/or any purported class member]. THIRD AFFIRMATIVE DEFENSE3 Plaintiffs' and putative class members' claims against Defendants are barred because [Plaintiffs']the benefits they accrued [benefits]as of the dates of the challenged amendments have not been decreased. FOURTH AFFIRMATIVE DEFENSE Plaintiffs' [claims against Defendants]and putative class members' claims for benefits under the terms of the plans are barred, in whole or in part, to the extent that they failed to exhaust the procedures for asserting claims for benefits under the terms of the applicable plans. 3 Although Plaintiffs' and the putative class members bear the burden of proof of an abundance of caution.
23 Document 255-2 Filed 11/21/2006 Page 23 of 26

[Page ][23][ ­ ] issue, Defendants plead this element of their prima facie case here out on this

[2] Case 2:04-cv-00424-ROS

1 2

FIFTH AFFIRMATIVE DEFENSE Plaintiffs' and putative class members' claims against Defendants are

3

barred, in whole or in part, by the doctrine of laches.
4 5 6 7 8 9 10 11 12 13

SIXTH AFFIRMATIVE DEFENSE Plaintiffs' and putative class members' claims against Defendants are barred, in whole or in part, by the doctrine of estoppel. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs' and putative class members' claims against Defendants are barred, in whole or in part, by the doctrine of waiver. EIGHTH AFFIRMATIVE DEFENSE Defendants contend that the Plan Administrator's interpretation that an SBA

14

offset applies to the Minimum Benefit formula under the terms of the Signal
15

Retirement Plan is entitled to deference and is correct. In its July 19, 2005 Opinion,
16

the Court found that the "provided in subparagraph (b)" language of §4.2(e)(i)(b) of
17

the Signal Retirement Plan unambiguously excludes the Minimum Benefit formula.
18

To the extent that the Plan is so construed, that construction creates a scrivener's
19

error, and the relevant plan provision should be reformed to conform to the settlor's
20

original intent.
21 22 23 24 25 26 27 28 [1]

NINTH AFFIRMATIVE DEFENSE Defendants contend that the Plan Administrator's interpretation that an SBA offset applies to the Minimum Benefit formula under the terms of the Signal Retirement Plan is entitled to deference and is correct. In its July 19, 2005 Opinion, the Court found that the "provided in subparagraph (b)" language of §4.2(e)(i)(b) of
[Page ][24][Retirement Plan unambiguously excludes the Minimum Benefit formula. the Signal ­ ] 24 Document 255-2 Filed 11/21/2006 Page 24 of 26

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1 2 3 4 5

To the extent that the Plan is so construed, that construction renders that provision ultra vires and unenforceable, and the relevant plan provision should be reformed to strike the unauthorized plan terms. TENTH AFFIRMATIVE DEFENSE4 Plaintiffs' and putative class members' claims under ERISA § 204(h), 29

6

U.S.C. § 1054(h), are barred, in whole or in part, to the extent that claimants fail to
7

establish that they suffered likely prejudice or harm from Defendants' alleged
8

failure to provide a § 204(h) notice.
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [1]

WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor, and against Plaintiffs, on all causes of action, and further request that the Court: (a) (b) 1132(g); and (c) Grant such further relief as it deems proper. Dismiss Plaintiffs' claims with prejudice; Award Defendants costs and attorneys' fees pursuant to 29 U.S.C. §

4

Although [Page ][25][ ­ ] Plaintiffs' and the putative class members bear the burden of proof
25

on this issue, Defendants plead this element of their prima facie case here out of an abundance of caution.
Document 255-2 Filed 11/21/2006 Page 25 of 26

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[]DATED this [10th]21st day of [August, 2005.]November, 2006 OSBORN MALEDON P.A.
By: s/[ William J. Delany] David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833

[Osborn Maledon P.A.]
OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) [640.9345]640-9000 [email protected] [email protected]

[OF COUNSEL:]

Michael L. Banks, [(]Pro Hac Vice[)] William J. Delany, [(]Pro Hac Vice[)]

[John G. Ferreira (Pro Hac Pending)] [Amy Covert (] Azeez Hayne, Pro Hac Vice[)]
MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103

[(215) 963-5387/5426] [Attorneys for Defendants]

[Page ][26][ ­ ] 26 Document 255-2 Filed 11/21/2006 Page 26 of 26

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