Free Report re: Rule 26(f) Planning Meeting - District Court of Arizona - Arizona

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Susan Martin (AZ#014226) Jennifer Kroll (AZ#019859) MARTIN & BONNETT, PL.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 David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Amy Promislo Covert, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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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

JOINT PROPOSED CASE MANAGEMENT PLAN

Case 2:04-cv-00424-ROS

Document 111

Filed 10/14/2005

Page 1 of 18

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

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Pursuant to the Court's Order Setting Scheduling Conference and Case Management Meeting, the parties, by their undersigned counsel, hereby jointly submit this Proposed Case Management Plan.
1. The nature of the case, including the factual and legal basis of Plaintiff's claims and Defendants' defenses. (a)

Plaintiffs' Description of the Case.

The facts of this case are set forth in Plaintiffs' Amended Complaint, Statement of Facts in Support of Plaintiffs' motion for summary judgment and in the Court's July 19, 2005 Order granting in part and denying in part Plaintiffs' motion for summary judgment. Many of the legal issues were decided by the Court in Plaintiffs' favor on Plaintiffs' motion for partial summary judgment, including Plaintiffs' claims that Defendants impermissibly cutback their accrued benefits by inter alia: amending the Plan to retroactively increase the interest rate used to calculate participants' SBA Offsets; by applying a Social Security offset attributable to years of service earned prior to introduction of that offset, and by eliminating a fractional reduction to the SBA Offset for participants with more than 35 years of service. The Court also granted summary judgment on Plaintiffs' claim that Defendants violated the terms of the Plan and ERISA §§ 204(g) and (h), 29 U.S.C. §§ 1054(g) and (h) by applying the SBA Offset to the minimum benefits formulas and by amending the Plan to provide an SBA Offset to the Plan's minimum benefits formulas retroactively and without notice. The Court also dismissed certain claims, which may be subject to appeal, including inter alia: Plaintiffs' claim under Count V of the Amended Complaint that Defendants' failure to disclose the

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offsets violated ERISA 29 U.S.C. § 1022; the claim that Defendants' violated the terms of the Plan and ERISA § 204(g) and (h) with respect to the 1.25% minimum benefit formula; Plaintiffs' claims that Defendants violated ERISA § 203, and Plaintiffs' claims that Defendants violated the terms of the Plan by failing to use a 3.5% interest rate for those participants eligible to commence benefits on December 31, 1983. The claims remaining to be decided are whether amendments to the Plans imposing the Social Security offset, changing the interest rates used to calculate the SBA offset and eliminating the fractional reduction to the SBA offset constitute contract violations and violate the terms of the Plan and ERISA and are subject to redress under ERISA § 502(a)(1)(B) and (a)(3). Plaintiffs also contend that Defendants violated the terms of the Plan and ERISA's claim procedure and disclosure requirements and applicable regulations by delaying and failing to provide Plaintiffs with Plan documents. Plaintiffs also contend that Defendants violated ERISA and the terms of the Plans by imposing administrative fees on their Secured Benefits beginning in 1993. Plaintiffs also contend that Defendants violated the terms of the Plan and ERISA by failing to make Plaintiffs whole for a claim granted in the administrative process and by reducing accrued benefits by amendments made in 2000 which resulted in employees' service prior to 1984 being disregarded and caused some Plaintiffs to make benefit elections and decisions based on incorrect benefit calculations. Additionally, Plaintiffs have alleged that Defendants violated ERISA § 208. Plaintiffs also allege that in engaging in the foregoing Defendants violated the ERISA requirement for a written plan in violation of Section 402 of ERISA. The Court also has not yet decided the appropriate remedies and damages for the violations found on summary judgment.
(b)

Defendants' Description of the Case.

Prior to 1984, the Garrett Corporation (which, through numerous corporate acquisitions, is now a part of Honeywell International Inc.) maintained a pension plan for its employees, which was known as the Supplemented Retirement and Severance Program
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for Employees of the Garrett Corporation. This program consisted of two integrated plans: the Garrett Retirement Plan and the Garrett Severance Plan. These two plans were coordinated with one another to provide a total retirement benefit to eligible employees in what is commonly referred to as a "floor-offset" arrangement. On December 31, 1983, the Garrett plans were merged into plans maintained by Garrett's corporate parent, The Signal Companies, Inc. The effect of these mergers was to increase the retirement benefits for Garrett employees. Benefits that had accrued as of December 31, 1983 were not reduced as a result of the plan mergers and amendments. Despite an overall increase in their accrued benefits, Plaintiffs challenge changes made to discrete components of the post-merger benefit formula. In the Amended Complaint, Plaintiffs allege a panoply of ERISA violations in an attempt to gain pension benefit improvements that were neither promised nor contemplated by the plan sponsor. Specifically, the Amended Complaint alleges that Defendants violated ERISA's anti-cutback provision and the terms of the Retirement Plan by changing the interest rate used to calculate participants' Secured Benefit Account offsets under the Retirement Plan, by applying a Social Security offset in calculating participants' benefits, and by eliminating a fractional reduction to the Secured Benefit Account offset for participants with more than 35 years of service (the "Anti-Cutback Claims"). Plaintiffs also allege that Defendants violated ERISA's anti-cutback rule and notice requirement and violated the terms of the Retirement Plan by applying the Secured Benefit Account offset to the minimum benefit formulas and by later clarifying in a plan restatement that the Secured Benefit Account offset applies to the minimum benefit formulas without providing sufficient notice under ERISA (the "Minimum Benefit Claims"). Additionally, Plaintiffs allege that Defendants violated the terms of the Retirement Plan and ERISA by (1) delaying and failing to provide them with certain plan documents, (2) imposing administrative fees on participants' Secured Benefit Accounts, and (3) reducing accrued benefits by an amendment in 2000 that purportedly resulted in

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employees' service prior to 1984 being disregarded1 Defendants previously filed a Motion to Dismiss the Complaint, which Plaintiffs opposed and countered with a Motion for Partial Summary Judgment. By Order dated July 19, 2005, the Court granted in part and denied in part both Defendants' Motion to Dismiss and Plaintiffs' Motion for Partial Summary Judgment. The Court concluded that Plaintiffs were entitled to summary judgment on their Anti-Cutback Claims and their Minimum Benefit Claims. The Court also dismissed numerous claims asserted in the Amended Complaint. Defendants filed a Motion for Reconsideration and Clarification and Alternative Motion to Allow Interlocutory Appeal, which is currently pending. In this Motion, Defendants requested that the Court reconsider its ruling on Plaintiffs' claim that the challenged plan amendments violated ERISA's anti-cutback rule. Alternatively, Defendants requested that the Court certify this issue for interlocutory appeal to the United States Court of Appeals for the Ninth Circuit. Additionally, Defendants sought clarification of the Court's July 19, 2005 Order, and requested confirmation that, in granting summary judgment, the Court ruled only that Defendants had breached ERISA Sections 204(g) and (h), 29 U.S.C. §§ 1054(g) and (h) by making the challenged plan amendments, and did not intend to foreclose Defendants from taking discovery on, and asserting affirmative defenses related to, individual putative class members' claims. The following claims remain to be decided: (1) whether Defendants failed to respond on a timely basis to a written request for certain plan documents, (2) whether Defendants improperly failed to account for administrative fees that had been deducted from participants' Secured Benefit Accounts in calculating the Secured Benefit Account offset, (3) whether Defendants violated ERISA and the terms of the Plan by purportedly reducing accrued benefits by an amendment in 2000, and (4) whether Defendants violated the terms of the retirement plan by changing the interest rate used to calculate participants' Secured Benefit Account offsets under the Retirement Plan, by applying a
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Plaintiffs also alleged numerous other violations of ERISA, all of which were dismissed by the Court.

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Social Security offset in calculating participants' benefits, and by eliminating a fractional reduction to the Secured Benefit Account offset for participants with more than 35 years of service, in violation of ERISA Section 502(a)(1)(B).2 Additionally, Defendants have asserted various affirmative defenses to Plaintiffs' claims, including the application of the statute of limitations to claims that are based on plan amendments that were adopted more than 20 years ago.
2. A list of the elements of proof necessary for each count of the Complaint and each Affirmative Defense and, if applicable, each Counterclaim. For those claims in which the burden of proof shifts, the elements that the party must prove to prevail must be listed. The list of the elements of proof must contain citations to relevant legal authority (i.e. United States statutory and/or administrative law, U.S. Supreme Court cases, Ninth Circuit Court of Appeals case law, Arizona State case and statutory law, and other authority as dictated by the conflict of law rules). (a)

Plaintiffs' Statement of the Elements of Proof.

In order to prevail on their claims for benefits under ERISA § 502(a)(l)(B), Plaintiffs will establish that they were entitled to benefits under the terms of the Plan, that they made a claim for benefits and that those benefits were incorrectly denied. 29 U.S.C. § 1 132(a)(l)(B). See Order dated July 19th, 2005 p.30 determining that de novo review applies to Plaintiffs' claims relating to the prior merged plans. See. e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989); Crotty v. Cook, 121 F.3d (9th Cir. 1997). See also ABA Section of Labor and Employment Law, Employee Benefits Law 972 (2d ed. 2000). Plaintiffs will establish that other appropriate equitable relief is also appropriate, including declaratory and injunctive relief for Defendants' violations of ERISA. ERISA § 502(a)(3); 29 U.S.C. § 1132(a)(3). See also Employee Benefits Law at 891. The Court has discretion to assess statutory penalties if a participant establishes
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In Plaintiffs' Description of the Claims, Plaintiffs assert for the first time that Defendants violated ERISA Section 208, 29 U.S.C. § 1058. Defendants note that the Amended Complaint does not include a claim that Defendants violated ERISA Section 208, 29 U.S.C. § 1058. Additionally, in Plaintiffs' Description of the Claims, Plaintiffs assert that Defendants violated ERISA Section 402, 29 U.S.C. § 1102. Defendants note that the Amended Complaint does not include any substantive allegation that Defendants violated ERISA Section 402, 29 U.S.C. § 1102. The only mention of ERISA Section 402 is made in conclusory fashion in the "Wherefore" clause at the end of the Amended Complaint; no reference to Section 402 is made in Counts I ­ V of the Amended Complaint.

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that she made a request for documents that the administrator must furnish under ERISA and Defendants fails to comply with that request. Plaintiff must produce evidence that a party is the plan administrator. Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223 (9th Cir. 2000). Given that Plaintiff has already prevailed on several claims, the remaining elements of proof are with respect to damages. Plaintiffs will prove that they suffered damages and the amount of those damages. ERISA § 502(a)(1)(B), (a)(3); 29 U.S.C. § 1132(a)(1)(B), (a)(3). See also Employee Benefits Law at 891-92. Plaintiffs believe that all of Defendants' affirmative defenses are barred by their failure to raise them either in the administrative appeal (with the exception of the statute of limitations) and the failure to assert either the statute of limitations or any other affirmative defense in opposition to Plaintiffs' motion for summary judgment. (See Plaintiffs' Response to Defendants' motion for reconsideration and clarification.) Plaintiffs also believe that even if the statute of limitations could be asserted, Defendants have cited the wrong statute of limitations and that Plaintiffs' claims are timely in that they have been brought within six years of knowledge of the facts giving rise to the claim. Martin v. Construction Laborer's Pension Trust, 947 F.2d 1381, 1394 (9th Cir. 1991) ("A suit to enforce rights under a pension plan accrues, and the statute of limitations begins to run when there has been a clear and continuing repudiation of rights under the pension plan which is made known to the beneficiary.")
(b)

Defendants' Statement of the Elements of Proof.
(1)

Recovery Of Retirement Benefits Under ERISA Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)

To prevail on their claims for benefits under ERISA § 502(a)(l)(B), 29 U.S.C. § 1132(a)(1)(B), Plaintiffs must prove that they were entitled to benefits under the terms of the Retirement Plan, that they made a claim for benefits and that the Plan Administrator's denial of their claim for benefits was arbitrary and capricious. 29 U.S.C. § 1132(a)(l)(B). See. e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989);
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Hensley v. Northwest Permanente P.C. Ret. Plan & Trust , 258 F.3d 986, 1001 (9th Cir. 2001).
(2)

No Decrease To Plaintiffs' Accrued Benefits

To prevail under ERISA Section 204(g), Plaintiffs must establish that their accrued benefits were decreased as a result of the challenged amendment. 29 U.S.C. § 1054(g).
(3)

Statutory Violation of ERISA Section 502(c), 29 U.S.C. § 1132(c)

Under ERISA, the Court has discretion to impose a penalty on a plan administrator for failure to provide plan documents to a participant within thirty days of a request. 29
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U.S.C. § 1132(c)(1). To prevail on such a claim, Plaintiffs will need to show that they
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requested pertinent documents in writing from the plan administrator and that the plan
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administrator failed and refused to provide Plaintiffs with the requested pertinent plan
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documents. Moran v. Aetna Life Ins. Co., 872 F.2d 296 (9th Cir. 1989).
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Statute of Limitations

To invoke the affirmative defense of the statute of limitations, Defendants must prove that Plaintiffs had factual information or knowledge of changes to the plans more
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than 3 years before commencing suit under ERISA Section 413, 29 U.S.C. § 1113.
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Laches

To invoke the affirmative defense of laches, Defendants must establish an "inexcusable delay in the assertion of a known right and that [Defendants] have been
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prejudiced." Trustees for Alaska Laborers-Construction Indus. Health and Security Fund
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v. Ferrell, 812 F.2d 512, 518 (9th Cir. 1987).
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Release

To invoke the affirmative defense of release, Defendants must establish that some Plaintiffs or putative class members knowingly and voluntarily relinquished their claims
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against Defendants by executing releases. Cirillo v. ARCO Chemical Co., 862 F.2d 448
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(3d Cir. 1988).
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(7)

Failure To Exhaust Administrative Procedures
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An ERISA plaintiff "must avail himself or herself of a plan's own internal review procedures before bringing suit in federal court. Diaz v. United Agric. Employee Welfare Benefit Plan and Trust, 50 F.3d 1478, 1483-84 (9th Cir. 1995). Where a plaintiff fails to do so, federal courts should dismiss his or her claim unless the plan's internal procedures do not provide an adequate remedy, or exhaustion would be futile. Id., see also Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980); Alloco v. Metro. Life Ins. Co., 256 F. Supp. 2d 1023, 1032-33 (D. Ariz. 2003) (Silver J.). (8) Estoppel Estoppel is available as a defense to ERISA claims. Bergt v. Retirement Plan For Pilots Employed By Markair, Inc., 293 F.3d 1139, 1146 n.3 (9th Cir. 2002). "When a person, knowing his rights, takes no steps to enforce those rights until the adverse party

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has, in good faith, changed his position such that he could not be restored to his former
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state if the rights are enforced, the delay becomes inequitable and the person is estopped
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from asserting the rights." 28 Am.Jur. 2d Estoppel and Waiver § 64. In addition, a person
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who accepts a benefit is estopped from repudiating an accompanying or resulting
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obligation. 28 Am.Jur. 2d Estoppel and Waiver § 65.
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Waiver

A plaintiff waives the right to assert arguments in support of a claim for benefits that he or she did not raise before the plan administrator while exhausting his or her
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administrative remedies. See, e.g., Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653 (7th Cir. 2005) (finding that plaintiffs waived an argument they did not raise in their

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administrative claim for benefits).
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A plaintiff may also waive ­ voluntarily relinquish ­ his or her rights to a benefit.
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See, e.g., 28 Am.Jur. 2d Estoppel and Waiver s 197. The party asserting waiver must
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show that the plaintiff (1) was aware of (2) an existing right, and (3) had an actual
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intention to relinquish the right. See, e.g., 28 Am.Jur. 2d Estoppel and Waiver § 200.
26 27 28 3. The factual and legal issues genuinely in dispute, and whether they can be narrowed by stipulation or motion.
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A. The parties agree that the following factual and legal issues are in dispute: (1) Civ. P. 23(b)(2) or, alternatively, 23(b)(3). (2) Whether Defendants violated the terms of the Plans by amending the Plans to retroactively increase the interest rate used to calculate participants' SBA Offsets; by applying a Social Security offset attributable to years of service earned prior to introduction of that offset, and by eliminating a fractional reduction to the SBA Offset for participants with more than 35 years of service. (3) Whether Defendants violated the terms of the Plan and ERISA by imposing administrative fees on Secured Benefits. (4) Whether Defendants violated the terms of the Plan and ERISA by failing to make any changes or pay damages with respect to the claim granted by the Plan Administrator. (5) Whether Defendants violated the terms of the Plan and ERISA by purportedly reducing accrued benefits through amendments made in 2000, which allegedly resulted in employees' service prior to 1984 being disregarded. (6) Whether Plaintiffs are entitled to statutory penalties for Defendants' alleged failure to disclose documents and the amount of those penalties. (7) Whether Plaintiffs are entitled to declaratory and/or injunctive relief for Defendants' violations of the terms of the Plan and ERISA. (8) The appropriate remedies including the amount of Plaintiffs' damages, if any.
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Whether the class and subclasses should be certified under Fed. R.

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(9) (10)

The amount of attorneys' fees and prejudgment interest, if any. Whether the Plan Administrator properly denied Plaintiffs' claims for additional benefits under the Retirement Plan.

(11)

Whether Plaintiffs are entitled to any additional benefits under the Retirement Plan.

(12)

Whether Defendants failed to respond on a timely basis to a request for documents in violation of ERISA Section 104(b)(4), 29 U.S.C. § 1024(b)(4), and whether Plaintiffs are entitled to statutory penalties under ERISA Section 502(c)(1), 29 U.S.C. § 1132(c)(1).

B. Defendants state that the following additional factual and legal issues are genuinely in dispute. Defendants contend that these defenses were properly asserted as affirmative defenses in the Answer to the Amended Complaint as required by the Federal Rules of Civil Procedure and some of these defenses were also raised in opposition to Plaintiffs' Motion for Partial Summary Judgment. Plaintiffs disagree that the following issues are in dispute because Plaintiffs contend that the following issues have either already been determined by this Court's July 19, 2005 order and are therefore conclusively determined or that Defendants are precluded from raising or litigating these issues by their failure to assert these issues as a basis for denial of Plaintiffs' administrative claims or as a basis for denial of Plaintiffs' cross motion for summary judgment. (1) Whether the Plan Administrator's decision to deny Plaintiffs' benefit claims was arbitrary and capricious. (2) Whether Plaintiffs' claims are barred because their accrued benefits have not been decreased. (3) Whether Plaintiffs' claims are barred by the applicable statute of limitations. (4) (5) Whether Plaintiffs' claims are barred by the doctrine of laches. Whether Plaintiffs released their claims against Defendants.
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(6)

Whether Plaintiffs' claims are barred to the extent that they failed to exhaust the internal administrative procedures under the terms of the applicable plans.

(7)

Whether equity requires that Plaintiffs be estopped from recovering additional benefits under the retirement plan.

(8)

Whether Plaintiffs waived their rights to additional benefits under the Retirement Plan.

Whether These Issues Can Be Narrowed By Stipulation or Motion: The parties believe that motions for summary judgment may narrow some of these issues. The jurisdictional basis of the case, citing specific statutes.

This Court has jurisdiction over this action pursuant to 29 U.S.C. § 1132(e), (f), and 28 U.S.C. § 1331.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Whether there are dispositive issues to be decided by pretrial motions and hearings including evidentiary hearings pursuant to Daubert and/or Fed. R. Evid. 702. 6. 5. Parties, if any, which have not been served, as well as parties which have not filed an answer or other appearance. Unless counsel can otherwise show cause, the Proposed Case Management Plan shall be accompanied by a proposed order dismissing any party that has not been served, or appropriate pleadings seeking default judgment against any non-appearing party.

None. The names of parties not subject to the Court's jurisdiction.

None.

Plaintiffs have filed a motion for class action certification. Plaintiffs anticipate that, with leave of Court, many of the remaining issues will be decided on motions for summary judgment following discovery. Plaintiffs also anticipate that the formula for calculating damages may be decided on summary judgment motions, with leave of Court. As noted above, Defendants have filed a Motion for Reconsideration and
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Clarification and Alternative Motion to Allow Interlocutory Appeal, which is currently pending. Defendants have not yet determined whether they will be filing a motion for summary judgment in this matter.
8. Whether the case is suitable for reference to arbitration, to a master, and/or to a United States Magistrate Judge for all further proceedings.

The parties agree that the case is not suitable for reference to arbitration, a special master, or a Magistrate Judge at this time. The parties will continue assessing these options as the case progresses.
9. The status of related cases pending before other judges of this Court or before other courts.

There are no related cases pending before other judges of this court or before other courts.
10. Suggested changes in the timing, form, or requirement for disclosure under Rule 26(a) Fed.R.Civ.P., including a statement of when initial disclosure were made or will be made.

Plaintiffs propose that the parties exchange initial disclosure statements on November 11, 2005.
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Defendants propose that the parties exchange initial disclosure statements on
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November 30, 2005.
19 20 21 22 11. Suggested changes, if any, on the limitations imposed by Fed.R.Civ.P. 30, 31 and 33.

This case involves multiple complex legal issues, including the calculation of damages, the procedures for amending and maintaining plan documents and the history of
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Plan amendments. Accordingly, Plaintiffs request leave to extend the number of
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interrogatories to 50.
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Defendants oppose Plaintiffs request to expand the number of interrogatories to 50.
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Most of the relevant information can be obtained through requests for production of
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documents and depositions. Defendants do not anticipate seeking any changes on the
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limitations imposed by Federal Rules of Civil Procedure 30, 31 and 33, but a determination on that issue cannot be made until pending motions are decided.
12. The scope of discovery, the date discovery should be completed, and whether discovery should be conducted in phases or should be limited to or focused upon particular issues. For example, when dispositive motions will be filed counsel should consider limiting discovery to the issue to be addressed in the motion until the Court has ruled on it.

Plaintiffs believe that there is no basis to limit the scope of discovery and that discovery should proceed on all outstanding issues including liability and damages.
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Plaintiffs propose that discovery be completed by May 26, 2006.
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Defendants believe that discovery should be stayed pending the Court's
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determination of Defendants' Motion for Reconsideration and Clarification and
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Alternative Motion to Allow Interlocutory Appeal, and/or pending interlocutory appeal, if
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granted. In the absence of a stay, due to the multitude of complex issues in this putative
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class action, Defendants propose that discovery be completed by September 30, 2006.
14 15 16 17 18 19 20 21 22 23 24 13. The final date for supplementation of discovery, that shall be scheduled two to three weeks after the close of discovery. Under no circumstances will the final date for supplementation occur after the date for filing dispositive motions. The parties and counsel are reminded of the duty pursuant to Fed.R.Civ.P. 26(e) to supplement all Rule 26(a) disclosures and all responses to discovery requests before the date of the close of discovery or on the final date for supplementing discovery. Fed.R.Civ.P. 26(a) (3) disclosures of witnesses and exhibits which may be offered at trial must be disclosed before the close of discovery or, if agreed, on the final date for supplementation. This requirement supersedes the "30 days before trial" disclosure deadline in Fed.R.Civ.P. 26(a) (3). Therefore, (1) failure to timely supplement Rule 26(a) disclosures, including the witnesses and exhibits for trial, (2) failure to timely supplement responses to any valid discovery request, and (3) attempts to include witnesses or exhibits in the Joint Proposed Final Pretrial order that were not previously disclosed in a timely manner shall result in the exclusion of such evidence at trial or the imposition of other appropriate sanctions pursuant to Fed.R.Civ.P. 37, the Local Rules of the District Court, and the inherent power of the Court.

Plaintiffs propose that the final date for supplementation of discovery should be June 16, 2006.
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As noted above, Defendants believe that discovery should be stayed pending the
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Court's determination of Defendants' Motion for Reconsideration and Clarification and
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Alternative Motion to Allow Interlocutory Appeal, and/or pending interlocutory appeal, if
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granted. In the absence of a stay, Defendants propose that the final date for supplementation of discovery should be October 20, 2006.
14. The proposed deadlines for (a) disclosure of experts and testimony under Rule 26 (a)(2) of the Fed.R.Civ.P. ; (b) the filing of procedural motions including motions to amend, consolidate, and join additional parties; (c) the filing of one dispositive motion per party; (d) and the lodging of the Joint Proposed Pretrial Order.

Plaintiffs propose the following deadlines:
(a) 8 9

Disclosure of experts and testimony under Rule 26(a)(2) of the Fed.R.Civ.P.: March 1, 2006 and disclosure of rebuttal experts by April 7, 2006.

10 (b) 11 12 (c) 13 14

The filing of procedural motions including motions to amend, consolidate, and join additional parties: May 15, 2006. The filing of one dispositive motion per party: 30 days after the close of discovery. Plaintiffs request permission to file an additional dispositive motion. Plaintiffs' first dispositive motion was filed

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before any discovery had taken place and was solely limited to issues
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upon which discovery was not necessary. Accordingly, Plaintiffs
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request that they be permitted to file an additional dispositive motion
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on or before 30 days after the close of discovery.
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The lodging of the Joint Proposed Pretrial Order: 60 days after the Court's ruling on any pending dispositive motions.

As noted above, Defendants believe that this action should be stayed pending the
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Court's resolution of Defendants' Motion for Reconsideration and Clarification and
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Alternative Motion to Allow Interlocutory Appeal, and/or pending interlocutory appeal, if
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granted. In the absence of a stay, Defendants propose the following dates:
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(a)

Disclosure of experts and testimony under Rule 26(a)(2): The parties shall disclose their experts, if any, on March 15, 2006, and their
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rebuttal experts, if any, on May 1, 2006.
(b) (c)

The filing of procedural motions: May 15, 2006. The filing of one dispositive motion per party: November 14, 2006, or 45 days after the close of discovery, whichever comes later.

(d)

The lodging of the Joint Proposed Pretrial Order: 60 days after the Court's ruling on any pending dispositive motions.

15. The estimated date the case will be ready for trial, the anticipated length of trial, and any suggestions for shortening the trial.

Plaintiffs propose 30 days after the lodging of the Joint Proposed Pretrial Order. Anticipated length of trial will depend on the issues for trial. The parties may be able to stipulate to many of the facts, narrowing the factual issues, if any, for trial. As noted above, Defendants believe that this action should be stayed pending the Court's determination of Defendants' Motion for Reconsideration and Clarification and Alternative Motion to Allow Interlocutory Appeal, and/or pending interlocutory appeal, if granted. In the absence of a stay, Defendants anticipate that this case will be ready for trial 30 days after the lodging of the Joint Proposed Pretrial Order, and estimate that the trial will require 7 trial days. Whether a jury trial has been requested.

The parties agree that no timely jury demand has been filed.
17. The prospects for settlement, including requests for a settlement conference before another United States District Court Judge or Magistrate Judge, or other requests of the Court for assistance in settlement efforts.

Currently, it does not appear that a settlement conference would be productive. The parties will consider requesting a settlement conference before another United States District Court Judge or Magistrate Judge, or private mediator as the case progresses.
18. In class actions, the proposed dates for class certification proceedings and other class management issues. Such certification will result in the case being reassigned to the complex tract for case management purposes. 16 Document 111 Filed 10/14/2005 Page 16 of 18

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Plaintiffs have filed a Motion for Class Certification. Defendants' Opposition to Plaintiffs' Motion for Class Certification is due on November 28, 2005.
19. Whether any unusual, difficult, or complex problems or issues exist which would require that this case be placed on the complex tract for case management purposes.

This putative class action case involves a myriad of complex issues arising under ERISA. The case involves events that occurred over twenty years ago and involved
7

several of Honeywell's predecessor companies, which makes discovery more onerous and
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time consuming for Defendants. The case also involves multiple named Plaintiffs and
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Defendants. For these reasons, Defendants believe that the case should be placed on the
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complex track for case management purposes.
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1-PH/2300676.4

20.

The e-mail address of respective counsel or parties.

For Plaintiffs' counsel: [email protected] [email protected] [email protected] For Defendants' counsel: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
21. Any other matters that counsel believes will aid the Court in resolving this dispute in a just, speedy, and inexpensive manner.

Not at this time. Respectfully submitted this 14th day of October, 2005.
17 Document 111 Filed 10/14/2005 Page 17 of 18

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MARTIN & BONNETT, PLLC By:s/Susan Martin Susan Martin (AZ#014226) Jennifer Kroll (AZ#019859) 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Attorneys for Plaintiffs

OSBORN MALEDON, P.A. By:s/David Rosenbaum David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Amy Promislo Covert, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants

1-PH/2300676.4

18 Document 111 Filed 10/14/2005 Page 18 of 18

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