Free Other Notice - District Court of Arizona - Arizona

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 Pending before the Court is Defendants' Motion For Reconsideration and Clarification and Alternative Motion To Allow Interlocutory Appeal (Doc. #79). Defendants challenge the portion of the Court's March 31, 2005 Order (Doc. #71) and subsequent opinion (Doc. #77) granting summary judgment in favor of Plaintiffs for its claims brought under ERISA § 204(g) ("anti-cutback claims"). Defendants move for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) based on (1) the Court's legal error in following a Ninth Circuit decision that Defendants claim is distinguishable, and (2) the enactment of new regulations interpreting section 204(g). On August 22, 2005, Defendant filed a notice of new authority with Court (Doc. #80), which included the recently enacted regulations interpreting section 204(g). The Court ordered supplemental briefing by both parties on the impact of these Regulations (Doc. #83).
1105036

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

BARBARA ALLEN, et al., Plaintiff, vs. HONEYWELL RETIREMENT EARNINGS PLAN, et al., Defendant.

No. 04-0424 PHX-ROS [PROPOSED] AMENDED ORDER

Case 2:04-cv-00424-ROS

Document 126-2

Filed 11/02/2005

Page 1 of 2

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On September 30, 2005, Defendants filed an additional notice of new authority with the Court (Doc. #107), which included a district court opinion considered persuasive authority on the issue of adopting an agency's interpretation despite contrary court precedent. On October 26, 2005, the Court heard oral argument on the issue of whether the Regulations apply, and also whether, upon issuance of a decision on this issue, the case should be certified for interlocutory appeal. Having read the briefing submitted by the parties and considered the arguments on the issue, the Court will deny Defendants' Motion for Reconsideration (Doc. #79) and grant Defendants' Alternative Motion To Certify For Interlocutory Appeal. An opinion will follow.

Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Reconsideration (Doc. #79) is DENIED. IT IS FURTHER ORDERED that Defendants' Alternative Motion for Interlocutory Appeal (Doc. #79) is GRANTED, the Court having determined under 28 U.S.C. § 1292(b) that the Court's summary judgment ruling in favor of Plaintiffs on the anti-cutback claims in Doc. #71 and Doc. #77, and its denial of Defendants' Motion for Reconsideration in this Order, involve a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order and from Doc. #71 and Doc. #77 may materially advance the ultimate termination of the litigation.

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Case 2:04-cv-00424-ROS