Free Lodged Proposed Document - 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS

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Plaintiffs Reply to Defendants Supplemental Brief Regarding Class Action Certification

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

In accordance with the Court s order at the June 16, 2006 conference, Plaintiffs submit this reply to Defendants supplemental brief in opposition to Plaintiffs motion for

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class action certification.

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In their third brief asserting the statute of limitations and opposing class certification, Defendants still fail to establish that the class should not be certified based on alleged affirmative defenses. The administrative claims in this case were filed on behalf of all persons similarly situated in 2002, this action has been pending since March 2004 and Plaintiffs motion for class certification has been pending for close to a year. Defendants have had ample time to review records and marshal their defense that Plaintiffs claims

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accrued before denial of Plaintiffs administrative appeal in October 2003. Yet despite the Court s allowance of a supplemental submission and despite Defendants exhaustive briefing of this issue, Defendants have not shown that Plaintiffs claims accrued prior to the denial of the administrative appeal. Not only have Defendants failed to show that class members knew or should have known that the Plan was amended to reduce their benefits and that Defendants repudiated these claims after class members were aware of their injuries, Defendants submissions reveal that Defendants misinformed class members that the SBA

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offset was not changed. Regardless of which statute of limitations applies, Plaintiffs claims are timely. In its decision on partial summary judgment, this Court determined that the claims turn on a common issue, namely the proper interpretation of the term accrued benefit for the purposes of the anti-cutback rule. (See Order, p. 13, ll. 12-14.) Defendants acknowledge that Plaintiffs anti-cutback claims were [t]he controlling legal issue, (Defendants

Amended Petition for Permission to Appeal, p. 19, attached without exhibits to the Court s
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copy for convenience), and assert that the other main claims are duplicative of those on
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which summary judgment has been granted. (Defendants Supplemental Opposition to Class Certification, p. 12 n.10.) Given these admissions, Defendants cannot prevail on their claim that the statute of limitations defense predominates or defeats commonality or typicality. Defendants argument that the Court should determine class certification based on a piecemeal look at the remaining issues of the case, divorced from the acknowledged major common claims flies in the face of Rule 23 of the Federal Rules of Civil Procedure and

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Ninth Circuit authority, under which class certification is appropriate if there is a a sufficient nucleus of common questions. Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir. 1976). See Fed. R. Civ. P. 23(b)(2),(b)(3).1 Defendants cite no authority to support the proposition that once claims are decided, they should no longer factor into the class certification analysis. Taken to its logical conclusion, if a court looked only to ever-declining issues to be litigated, class certification would never be granted. I. DEFENDANTS STATUTE OF LIMITATIONS DEFENSE IS WITHOUT MERIT Defendants claim that the statute of limitations bars class certification because it necessitates significant individualized discovery is a red herring. Defendants have the

burden to show that their own communications clearly repudiated Plaintiffs claims. Proof of Defendants classwide communications does not involve an individualized endeavor. As Defendants attempt to escape the holding of Williams by asserting that named Plaintiffs claims are not typical makes no sense. The class representatives claims are typical as named Plaintiffs comprise a cross-section of participants who retired at varying times following the Plan amendments, from shortly after the amendments, until shortly before the lawsuit was filed. Given this, Defendants cannot argue that Plaintiffs claims are not typical.
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Defendants themselves now acknowledge, (Defendants Supp. Br. p. 10 quoting Martin v. Constr. Laborer s Pension Trust For S. Cal., 947 F.2d 1381, 1384 (9th Cir. 1991)), proof of a clear and continuing repudiation is required both under the federal discovery rule as applied in ERISA cases involving statutory violations and with respect to claims for benefits under the Plan. Whether this Court determines that Plaintiffs anti-cutback claims seek benefits under the Plan or are more properly viewed under an analysis inapplicable to claims

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for benefits, the result is the same. Neither analysis supports a statute of limitations defense here. A. The Most Closely Analogous Statute of Limitations is Arizona s Six Year Contract Statute of Limitations

Defendants rely on cases that have nothing to do with the statute of limitations in arguing that Plaintiffs claims for benefits as a result of the anti-cutback violations should not be treated as claims for benefits under the Plan within the Arizona statute of limitations for written contracts, Ariz. Rev. Stat. § 12-548. Plaintiffs anti-cutback claims under ERISA § 204(g) seek benefits that were wrongfully reduced by Plan amendment. Section 204(g) provides: The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan... 29 U.S.C. § 1054(g) (emphasis supplied). As Judge Posner discussed in May Department Stores Co. v. Fed. Ins. Co., 305 F.3d 597, 601 (7th Cir. 2002) cited in Plaintiffs class certification reply brief, ERISA governs the contract between the plan and the beneficiaries. Plaintiffs seek Plan benefits that were reduced by Plan amendment. To suggest that these claims should not be analyzed under the statute of

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limitations applicable to benefits claims disregards the nature of the claims. Contrary to Defendants arguments, Plaintiffs are not asserting that all statutory claims should be treated as claims for benefits. Some statutory claims deal clearly with non-benefits related issues such as ERISA s funding requirements, obligations of employers to make contributions to a plan, improper investments and prohibited transactions. See, e.g., Northern Cal. Retail Clerks Unions and Food Employers Joint Pension Trust Fund v. Jumbo Markets, Inc., 906

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F.2d 1371 (9th Cir. 1990) (seeking unpaid contributions due under collective bargaining agreement). But, where as here, the claim for the statutory violation seeks Plan benefits wrongfully reduced in violation of ERISA, the most closely analogous statute of limitations is Arizona s statute of limitations for violation of contract. The contract statute of limitations makes the most sense because: a) Plaintiffs anti-cutback claims are brought under both ERISA § 502(a)(1)(B) and § 502(a)(3); b) the statutory claims relate directly to Plaintiffs rights to benefits under the Plan, and seek payment of benefits as well as declaratory and

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other appropriate relief; c) Plaintiffs have a separate count, which Defendants characterize as duplicative, that alleges that the Plan amendments violated promises under the terms of the Plan without regard to ERISA § 204(g) and d) it makes little sense to apply different statutes of limitations to different legal theories seeking the same relief. See McElwaine v. US West, Inc., 176 F.3d 1167, 1170 (9th Cir. 1999) ( The statute of limitations for an ERISA benefits action is based on the applicable statute of limitations for a contract claim in the forum state. Arizona, the forum state, has a six year statute of limitations. ) (citing Flanagan

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v. Inland Empire Electrical Workers Pension Plan & Trust, 3 F.3d 1246, 1252 (9th Cir.
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1993)).2

See also Laurenzano v. Blue Cross and Blue Shield of Massachusetts, Inc.

Retirement Income Trust,134 F.Supp.2d 189, 209 (D.Mass. 2001) ( this Court does not consider ERISA § 502(a)(1)(B) and ERISA § 502(a)(3) so different as to justify such radically different treatment. The two causes of action differ in that one depends on a defendant's interpretation of the plan, while the other depends on a court's interpretation of the law, yet the causes of action do not differ significantly with respect to when they could

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be brought to court. ). Most recently, in a similar claim for benefits based upon failure to provide a statutorily required notice of suspension of benefits, Judge Martone held that Arizona s six year contract statute of limitations applied.3 Loewy v. Retirement Committee, No. CV 03-2284 PHX FJM , Order dated March 28, 2005, Doc. 103 (attached as Exhibit A to Plaintiffs Reply in Further Support of Class Certification, pp. 18-19).

B.
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Regardless of Which Statute of Limitations Applies, Defendants Failed to Prove Knowledge or Constructive Knowledge and the Clear Repudiation Required To Trigger the Running of the Statute of Limitations

Regardless of which statute of limitations applies, Defendants failed to show the accrual of these claims outside any limitations period. Defendants supplemental brief Ignoring McElwaine, Defendants wrongly assert that the Ninth Circuit has not yet decided which of the Arizona contract statutes of limitations is most analogous to a claim for benefits. (p. 8.) That issue has been settled since 1999. The only other alternative applied by the Third Circuit in Romero v. Allstate, 404 F.3d 212, 220-21 (3d Cir. 2005) was Pennsylvania s six year general catchall statute of limitations. The analogous statute in Arizona is four years. Ariz. Rev. Stat. § 12-550.
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repeatedly omits a central part of the standard under the federal discovery rule in ERISA cases, that there must be a clear and continuing repudiation of rights under the pension plan which is made known to the beneficiary. Martin v. Constr. Laborer s Pension Trust For S. Cal., 947 F.2d 1381, 1384 (9th Cir. 1991). Instead, Defendants brief superficially discusses a knew or should have known standard divorced from any analysis of the requirement to show knowledge of the injury that Plaintiffs benefits were reduced by Plan amendments.

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A plaintiff cannot be charged with knowledge, actual or constructive, until the defendant shows that it clearly repudiated the plaintiff s claims. If Plaintiffs were either ignorant of the Plan amendments or if Defendants failed to repudiate the claims after Plaintiffs had knowledge of them, the statute of limitations cannot be triggered. This standard applies to Plaintiffs claims. Romero v. Allstate, 404 F.3d 212 (3d Cir. 2005). In Romero, the Third Circuit reversed the dismissal, on statute of limitations grounds, of an ERISA § 204(g) claim, holding that the federal discovery rule, which includes the clear repudiation concept,

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applies in the specific context of the ERISA § 204(g) claims alleged here, and finding that there had been no clear repudiation made known to the Romero plaintiffs, even though the amendments in that case were adopted seven years before the suit was filed. Id. at 224. On appeal, the Romero plaintiffs argued successfully that the statute of limitations could not possibly run on an ERISA § 204(g) claim until a participant was notified about the (See Main Brief of Plaintiffs-Appellants in Romero v.

existence of that amendment.

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Allstate, No. 04-2161 (3d Cir.), Exhibit A, hereto, p. 31.)4 See Thomas v. SmithKline Beecham Corp., 297 F.Supp.2d 773, 786 (E.D.Pa. 2003) (a necessary component of a repudiation sufficient to trigger the running of the statute of limitations is knowledge of an entitlement, or potential entitlement, to benefits under the plans ..... [P]rior to receiving copies of the relevant plans, defendants' classification could not be a clear repudiation because plaintiffs were not aware of any claim or potential claim to benefits being

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repudiated. ). In DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F.Supp. 258, 265 (S.D.N.Y. 1997), the court declined to adopt a new legal standard requiring Plan participants and beneficiaries, likely unfamiliar with the intricacies of pension plan formulas and the technical requirements of ERISA, to become watchdogs over potential Plan errors and abuses. In DeVito, a plan participant applied for a pension in 1981 and began receiving benefits in 1982. Id. at 261. In April 1989, following plaintiffs counsel s inquiries, the plan

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rejected the DeVito plaintiff s claim that the plan s Social Security offset violated ERISA. Id. Despite the plaintiff s receipt of pension benefits for seven years, the court held that the cause of action was timely because the earliest date which could arguably have been

The Romero plaintiffs, (who were represented by Defendants counsel here), also argued that [p]laintiffs anti-cutback claims cannot be deemed untimely unless they were brought more than six years after plaintiffs were clearly informed that their benefits were being repudiated as a consequence of Allstate s unlawful amendments, and that [t]he general rule for ERISA claims is that the statute of limitations begins to run only after a claim for benefits is formally denied. In the absence of a formal denial of benefit, courts uniformly apply the federal discovery rule. Under that rule, the statute of limitations begins to run only after a plaintiff s claim has been clearly repudiated. (Exhibit A hereto, pp. 29-31 & p. 16.)
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considered a clear repudiation was in 1989, when the defendant confirmed its calculation of Plaintiff's pension over her objection. Id. at 264. See Greeley v. Fairview Health

Services, 2006 WL 1851132, at *2 (D.Minn. 2006). See also Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1267 (9th Cir. 1998) (summary judgment in claim for illegal medical testing reversed, holding that facts that plaintiffs voluntarily gave blood and urine samples, submitted to occupational preplacement examinations and answered

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written questions as to whether they had venereal disease,

menstrual problems, or sickle

cell anemia , were hardly sufficient to establish that plaintiffs either knew or should have known that the particular testing would take place. ); Hoesterey v. City of Cathedral City,945 F.2d 317, 320 (9th Cir. 1991) (statute of limitations for wrongful termination based on failure to provide legally sufficient pre-termination procedures could not be triggered before termination unless employee received notice that was unequivocal, and communicated in a manner such that no reasonable person could think there might be a retreat or change in

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position prior to the termination of the employment decision. In the absence of such unequivocal notice, it would only be on the last day of employment that [the plaintiff]could become aware that the decision was final and that no further process could be forthcoming prior to termination. ); Trotter v. International Longshoremen's and Warehousemen's Union, Local 13, 704 F.2d 1141, 1143 (9th Cir. 1983) (statute of limitations for violation of the
Labor-Management Reporting and Disclosure Act based on improper medical benefits

assessment began to run when plaintiff was advised of the assessment); Cotter v. Eastern
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Conference of Teamsters Retirement Plan, 898 F.2d 424 (4th Cir. 1990) (plaintiff s cause of
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action did not accrue until he learned by attending deposition that he would have been entitled to collect benefits while working for related entity). It was not enough for Defendants to show that class members may have known that there were offsets or even that they were unhappy or complained about them. It was also not enough for Defendants to show that they told some employees in 1995 what the actual interest rates were without disclosing that the interest rates had been amended. At a

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minimum, before the statute of limitations could run, Plaintiffs were entitled to know that the Plan was amended and applied to reduce benefits and that Defendants repudiated Plaintiffs claims. Defendants suggestion that Plaintiffs might have been able to figure out their claims through reviewing a complex thicket of obscure mathematical formulations, footnotes and calculations with cross references to nonexistent tables in the 17-20 page benefit calculation worksheet would eliminate the word clear from the clear repudiation standard. Even if, in the rare instance, someone with advanced mathematical prowess could decipher what

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Defendants did, it is simply not the kind of notice and clear repudiation that can trigger the running of the imitations period. Pension plans cannot fail to disclose unlawful plan amendments and then defeat participants rights by arguing that pensioners somehow should have figured out what happened through mathematical detective work.

II.

DEFENDANTS PROOF FAILS TO ESTABLISH KNOWLEDGE AND CLEAR REPUDIATION Defendants distributed no documents to class members that clearly disclosed their

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rights under the Garrett Plan or repudiated (clearly or otherwise) the anti-cutback claims.
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At no time did Defendants ever disclose to class members that the Garrett Retirement Plan required a 3 ½% Credited Interest rate and that Defendants amended and applied the changed interest rate to reduce their benefits. Likewise, Defendants never disclosed that the Plan prohibited Social Security offsets and that the amendments imposing the Social Security offset would be applied to reduce benefits attributable to service before its adoption.5 Given this Defendants lack of disclosure, Defendants cannot establish that they clearly repudiated

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Plaintiffs claims in advance of the denial of the administrative appeal. Similarly, Defendants do not even attempt to argue that Plaintiffs had knowledge that the Plan did not provide for an SBA offset of the minimum benefit formula or that Plaintiffs knew that Defendants secretly amended the Plan in 1993 to insert an SBA offset that they applied retroactively. Not only does the evidence submitted by Defendants fail to establish knowledge of the injury and clear repudiation, the evidence shows that Defendants affirmatively represented to employees that the offsets had not changed. Defendants repeatedly

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acknowledged that the communications regarding the SBA offset prior to 1995 were inadequate and confusing and in communications to active employees in the Phoenix/Tempe area in 1995, affirmatively led class members to believe that the SBA offsets had not changed. In the four town hall meetings held in September 1995, Defendants exhibited the following slide, which assured employees that the SBA offset was unchanged:

To the contrary, Defendants argued in this case that the Social Security offset formula after the 1984/1985 Plan amendments was identical mathematically to the Garrett Retirement Plan benefit formula. (Reply Brief in Support of Defendants Motion to Dismiss Plaintiffs Complaint, p. 14.)
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Summary ! SBA is confusing Plan has not changed As always, if SBA withdrawn, Retirement Plan benefit will be reduced Evaluate your options carefully to make the most of these plans (Declaration of Craig Chapman, Exhibit 3, p. 21, at HW0019505.) The written speaker notes accompanying the slide presentation underscored the message that the Plan had not changed. The narrative states: The bottom line is that the plan has not changed. (Declaration of Jennifer Kroll in Support of Plaintiffs Reply to Defendants Supplemental Brief in Opposition to Class Action Certification, ( Kroll Decl. ) Exhibit B, at HW0021194, emphasis in original.) Other talking points within the same presentation

bolstered the no change message, portraying that there was nothing new about the SBA: Today, as it was in 1983, the SBA is considered part of the Retirement Plan. *** In 1984, severance assets were moved to the savings plan, the interest was locked in, and the same transfer/withdrawal options were continued That was the company s goal in creating the SBA to preserve the same options employees always had. (Id. at HW 0021176-77, emphasis supplied.)6

The company also expressly and repeatedly admitted in 1995 that previous communication on this benefit has been unsatisfactory. This has undoubtedly contributed to misunderstanding of what has truly been an attractive and flexible portion of our retirement program for eligible employees. (Declaration of Craig Chapman, Exhibit 19, at HW0019549.)
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Far from providing knowledge of the injury and a clear repudiation of them, Defendants communications never disclosed the Garrett Plan s credited interest rates or that the Plan had been amended to reduce benefits, but rather misrepresented to employees that the offset had not changed, thereby discouraging them from making further inquiries.7 Likewise, the Fall 1995 videotape8 presentation by Mr. Pat McCarthy submitted by Defendants portrays the SBA offset and the Social Security offset as unchanged. The Fall

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1995 presentation given by Mr. McCarthy emphasizes Defendants

lack of communication

regarding the SBA offset, (Exhibit 7 to the Declaration of Maureen Rojas, at HW 0019402), and portrays the offset as unchanged. (Id. at HW 0019405.) For example, one of the slides states with respect to the SBA account, It was Aready [sic] Integrated @ Garrett (1978). (Id.) Mr. McCarthy also states in the presentation that things had not changed: Integration. Oops. Boy, that s terrible. Offsets. Yeah, Social Security is an offset. Secured Benefit Plan was an offset, and it stayed that way in 1983, and maybe you are aware and maybe you weren t that it already was offset back in the Old Garrett Plan. (Kroll Decl., Exhibit A, p. 8, l. 24-p. 9 l. 3.)9

This type of affirmative misrepresentation presents yet another ground for tolling of the statute of limitations, had it been running. See El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040 (9th Cir. 2003). Defendants filed the Fall 1995 video on July 17, 2006 in place of a compact disc they mistakenly filed which contained a Honeywell presentation given in the year 2000. Even assuming arguendo that some 1995 communications to Phoenix area employees somehow constituted a clear repudiation that triggered the running of the statute of limitations, this could have affected only a small number of class members compared to the total numbers in the class, which Plaintiffs believe total approximately 12,500. As set forth in the Declaration of Richard Scates in Support of Plaintiffs Reply to Defendants
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Defendants appear to rely on one sentence in a November 1995 communication addressed only to Phoenix-area SBA participants entitled Facts About the SBA that says the actuarial formula for calculating the monthly value of the SBA came into effect on Jan. 1, 1984, and uses an annuity factor generally favorable to plan participants.
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(Declaration

of Craig Chapman, Exhibit 19, at HW 0019553.) This sentence is irrelevant to the issue at hand. The relevant sentence is the one immediately preceding it, which again misinforms

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participants by stating there was no change in the coordination between the SBA and the Retirement Plan: However, the coordination of the Retirement and Severance benefits remained intact. (Id.) Moreover, Defendants sent to any employee who requested it, a copy of the same video presentation that advised participants that there were no changes to the SBA and Social Security offsets. (Declaration of Maureen Rojas ¶ 18-19.) Given

Defendants failure to disclose the amendments and Defendants repeated assertions that the Supplemental Brief in Opposition to Class Action Certification ¶ 5-6 and in the Declaration of Melvin Jones in Support of Plaintiffs Reply to Defendants Supplemental Brief in Opposition to Class Action Certification ¶ 5-6, these communications were never sent to retired participants. Additionally, according to Defendants legacy databases, 7,900 out of 9,357 class members retired prior to October 1995. Of those who were still active employees in October 1995, only people in the Phoenix/Tempe area were alleged to have been sent the letter and/or video. (Declaration of Craig Chapman ¶ 37-43; Declaration of Maureen Rojas ¶ 17-19.) Defendants argued strenuously on summary judgment and the Court agreed that references to the 3.5% annuity conversion factor and actuarial formula for calculating the value of the SBA was not disclosure of a 3 ½% interest rate but was merely an apples to apples comparison for calculating how much of an annuity can be provided with a single sum of money (i.e., the Secured Benefit Account)... and at what rate the Secured Benefit Accounts can be invested for the participants remaining lifetimes (i.e., the post-retirement interest rate). (Defendants Motion to Dismiss Plaintiffs Complaint and Supporting Memorandum, p. 19.)
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SBA offset has not changed there is simply no possibility that these 1995 communications somehow triggered the running of the statute of limitations or could form a basis for a claim of laches.11 Defendants appear to make the disingenuous assertion that because three employees out of a class of approximately 12,500 questioned the calculation of their benefits12 they must have known information that other class members should have known too. This attempt

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to shift the burden of Defendants statute of limitations defense also fails. Defendants have the burden to show the existence of an affirmative defense and they must do so by evidence of their own clear repudiation.13 The fact that two employees questioned the SBA offset

Laches cannot bar Plaintiffs claims because Defendants, having failed to notify Plaintiffs of any rights they had under the Garrett Plans and having concealed the fact that those plans were amended to reduce their benefits retroactively , should not be able to invoke the equitable doctrine of laches designed to bar litigants who sit on known rights from asserting them where prejudice would result. In addition, laches is no bar to legal relief. Although Defendants cite a 2000 case for the proposition that ERISA remedies are equitable in nature, Thomas v. Oregon Fruit Prods Co., 228 F.3d 991, 997 (9th Cir. 2000), the case was decided prior to Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 221 (2002) in which the Supreme Court made a sharp distinction between equitable and legal relief, holding that a suit for reimbursement under a subrogation agreement sought legal relief --the imposition of personal liability on respondents for a contractual obligation to pay money... Since Plaintiffs seek payment of benefits wrongfully withheld, laches presents no bar to these claims. Mr. Kerkman questioned fees on the SBA account, Mr. Six questioned the SBA offset calculation and Mr. Kinney appeared to question the phantom projection of the offset after he withdrew his SBA account. As Plaintiffs demonstrated in their reply, (p. 9 n.6), in 1995, Defendants recounted all notices they sent to participants about the SBA offset. None of them put Plaintiffs on notice of the claims asserted here. Defendants also admitted that a Honeywell attorney maintained a file on SBA offset complaints. (Declaration of Diane Sucharski ¶ 3-4.) No communications showing a clear repudiation have been introduced.
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does not translate into knowledge by the class and clear repudiation by Defendants. Moreover, even with respect to these two participants, there was no clear repudiation.14 The fact that three employees might on instinct have felt that something was not right in no way translates into knowledge 12,500 other employees should have known or clear repudiation by Defendants. CONCLUSION In Plaintiffs moving and reply briefs and as set forth above, Plaintiffs have demonstrated that class certification is appropriate and that Defendants alleged affirmative

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defenses lack merit.15 Plaintiffs have also shown that Defendants waived their right to raise For example, Mr. Kinney, after being provided with incorrect and inapplicable plan documents was admonished that he must be certain to ask the right question to the right person who can also help you to formulate the right question if you don t know it in order to get the right answer. (Declaration of Connie Zwiller, Exhibit C, at HW0019343.) Similarly when Mr. Six inquired about the fact that the Garrett SPD withdrawn contribution rate appeared to be inconsistent with Defendants calculation of his benefits, he was given the same message that the Plan had not changed. He was never advised that the Plan had amended the Credited Interest rate: Some of your correspondence has suggested that the literature you have received from Garrett is inconsistent with the actual terms of the Plan. We have reviewed all of the literature you have questioned and disagree. We do not see any inconsistency. In addition, the literature begins by saying that it is a summary of the Signal Retirement Plan and not designed to replace the specific wording of the plan. (Id. Exhibit A, at HWBF00477228.) Although Defendants complain that the statute of limitations issue is not ripe for decision, (Defs br. 13), it is Defendants who have opposed class certification solely on the basis of alleged affirmative defenses that they acknowledge are now front and center in this lawsuit. (Id. p. 1.) Defendants have asked the Court to consider the merits of Defendants arguments as a basis for denial of class certification and consideration of the merits is inextricably intertwined with the certification decision. From the standpoint of guiding a litigation plan and avoiding duplicative proceedings to further rehash the same legal issues that have been exhaustively briefed on this motion, it is entirely appropriate for the Court to
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the affirmative defenses of laches and release against any class members and waived all affirmative defenses against named Plaintiffs by failing to assert them in opposition to Plaintiffs motion for partial summary judgment. In the event that the statute of limitations was triggered prior to a ruling on Plaintiffs administrative claims, Plaintiffs have shown that their claims were tolled both by agreement and by operation of law. For these reasons and for the reasons set forth in Plaintiffs motion for class certification and reply, Plaintiffs

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respectfully request the Court to certify the class in accordance with the amended proposed order lodged herewith and to designate Plaintiffs counsel as class counsel. Plaintiffs request such further relief as is equitable and just. Respectfully submitted this 20th day of July 2006. MARTIN & BONNETT, P.L.L.C.

By: s/Susan Martin Susan Martin resolve the statute of limitations issues. See Cooper v. Southern Co., 390 F. 3d 695, 712 (11th Cir. 2004) (trial court did not err in ruling on merits of evidence when it conducted (as it was required to do in this case) a rigorous analysis of the evidence proffered by the parties at the class certification stage ); Cf. Coopers & Lybrand v Livesay, 437 US 463, 469 (1978) ( Evaluation of many of these questions entering into determination of class action questions is intimately involved with the merits of the claim. ); Z-Seven Fund, Inc. v Motorcar Parts & Accessories, 231 F.3d 1215, 1219 (9th Cir. 2000), ( The more complex determinations required in Rule 23(b)(3)class actions entail even greater entanglement with the merits. ) (quoting Coopers, 437 U.S. at 469 n.12); Love v Turlington, 733 F.3d 1562, 1564 (11th Cir. 1984); Nelson v US Steel Corp., 709 F.2d 675, 679 (5th Cir. 1983), ( Evidence relevant to the commonality requirement is often intertwined in the merits. ); LaBauve v Olin Corp., 231 F.R.D. 632, 644 (S.D. Ala. 2005) ( It is also true, however, that merits and Rule 23 issues are often intertwined... ).

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Daniel L. Bonnett Jennifer L. Kroll 3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on July 20, 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 and : Michael Banks William Delaney John G. Ferreira. Azeez Hayne. Amy Promliso Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103

Attorneys for the Defendants
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G:\WORK\Allied\Court\Pleadings\supp reply final version.wpd

s/J.Kroll

Case 2:04-cv-00424-ROS

Document 209

Filed 07/20/2006

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