Free Statement - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
IN RE: ALLSTATE INSURANCE CO. )
FAIR LABOR STANDARDS ACT ) MDL Docket No. 1541
LITIGATION )
) JOINT STATEMENT IN
) OPPOSITION TO THE
) MARCH 23, 2006 LETTER
) SUBMITTED BY LAWRENCE
) WALNER REGARDING THE
) NETTLES CASE
)
) Assigned to the Hon. Paul G. Rosenblatt
The parties do jointly submit the following Joint Statement in Opposition to the
March 23, 2006 letter submitted by Lawrence Walner, Esq., counsel for plaintiffs in
Nettles, et al. v. Allstate Ins. Co., et al., No. 02 Cl-1 14426 (Cir. Ct. Cook County).
In a letter to this court dated March 23, 2006, Mr. Walner again requested that the
opt-in notice in In Re Allstate Insurance Company F air Labor Standards Act, MDL No.
1541 (D. Ariz) apprise recipients of the pendency of the overtime action Mr. Walner is
pursuing in the State of Illinois. Nettles, et al. v, Allstate lrts. C0., etal., No. 02 CH
14426 (Cir. Ct. Cook County). The purpose of this joint statement is to request that the
court reject Mr. Walner’s request.
The Match 23, 2006 letter was prompted by Mr. Walner’s assertion that an
“importantdeve1opment” in the Nettles case should influence the content ofthe opt-in
notice in the MDL case. The so··called “important development” is the certitication of an
Illinois-only class action that is limited to only two categories of adj usters: casualty and
auto damage.
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Despite the extremely narrow scope of the certification order in Netrles, Mr.
Walner suggests that the Nerrles class "may" be expanded to include I4 other states. Mr.
Walner reasons that because this expansion "may" occur, recipients ofthe opt-in notice in
the MDL case ought to have the option of ptusuing their potential claims in the Nertles
case.
There are two errors in Mr. Walner’s argument. First, opting into or not opting
into the MDL case does not bar an adjuster’s automatic inclusion into a Rule 23 class
which “may" be expanded in the Nettles case sometime in the future. Adjusters can
exercise an option to participate in an expanded Netrlss class simply by not opting out.
Their options are not lessened by virtue of whatever decision they might make in regard
to the MDL case. Instead, tl1eir options would be increased by opting into the MDL case.
They can opt to stay in the MDL case or opt to pursue their rights in an expanded Rule 23
class, should that expansion occur.
The second error in Mr. Walner’s argument is its premise: that an expansion of
the Nettles class is likely or even feasible. As to this issue, the court in Neuter observed:
It is still very much an open question as to whether Illinois
courts can properly certify a nationwide class in those cases
where the relationship between the parties is centered
outside of Illinois, where all ofthe relevant conduct
occi.u·red outside of Illinois, and where each state’s separate
law would have to he applied. Also, it would seem that the
nature of the relationship involved inthe case
(employer/employee) is one that most states want to
directly regulate and control. In other words, does the
government of Wisconsin want an Illinois court dictating,
on a class-wide basis, the terms of employment between a
Wisconsin employer and its Wisconsin employees?
Accordingly, plaintir`fs’ motion for class certification is
granted as to casualty and auto claims adjusters working in
2
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lllinois. Plaintiffs’ motion for class certification is denied
without prejudice as to further ccrtification.
Nettles at p. 7. It is clear that the court in Neules is highly skeptical that certification of
an overtime case beyond the borders of Illinois is either workable or desirable.
Suggesting to recipients ofthe opt-in notice in the MDL case that they might have
another forum to pursue their rights when that forum does not eurrently exist, would be
highly irresponsible and prejudicial.
The patties in the MDL case have gone to great lengths to assure that the agreed
notice is clear and concise. Mr. Wa1ner’s suggested changes would undermine that goal.
For these reasons, both the Plaintiffs and the defendants in this case urge the court
to reject l\/lr. Walner’s request.
Respectfully submitted,
/s/ GEMM: Q4/{ (Wear
Steven M. Weiss, Esq.
Law Offices of Steven M. Weiss
1009 Illuminating Building
: 55 Public Square
Cleveland, Ohio 441 13
_ Telephone: (216) 348-1800
Facsimile: (216) 348-1130
Email: [email protected]
Attorney for Plaintiffs
/s/ Qfaaf @Cr1J2:!1e·r·
Joel Krischer, Esq.
Latham 8; Watkins
633 West Fifth Street
Suite 4000
Los Angeles, CA 90071-2007
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
Email: [email protected]
Attorney for Defendants
3
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CERTIFICATE OF SERVICE
I hereby certify that on March 23, 2006, I electronically transmitted the foregoing document,
Joint Statement in Opposition to the March 23, 2006 Letter Submitted by Lawrence
Weiner Regarding the Netrles Case, to the Clerkfs Office using the CM/ECF System for
filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
George Sintsirmas, Esq. Kelly Melnerney, Esq.
6212 Coldstrearn Road Mclnerney Law Offices
Highland Heights, Ohio 44143 18124 Wedge Parkway. Suite 503
Counsel for Plaintiff Leonard Gaglione, etal. Reno, Nevada 895].]
Counsel for Plaintiffs
Mark Wintering, Esq. Francisco de Roas, et al.
Robert E. Sweeney Co., LPA
55 Public Square, Suite 1500
Cleveland, Ohio 44113
Counsel for Plaintiff Leonmd Gaglione, etal.
Andrea Elisabeth Watters, Esq.
Watters & Watters, PC
2807 East Broadway Blvd.
Tucson, AZ 35716
Counsel for Plaintiff Ruben H. Montano
James A. Jones, Esq.
Karla S. Jackson, Esq.
Gillespie, Rosen & Watsky
3402 Oak Grove Avenue, #200
Dallas, TX 75204
Counsel for Plaintiff Wunder .
Andrew Paley, Esq. `
Seyfarth Shaw, LLP
2029 Centtny Park East, Suite 3300
Los Angeles, CA 90067
Cotmsel for Defendants Allstate Insurance Co., Allstate Indemnity Co., and Allstate
Property & Casualty Co.
fs! (35mm: QW CWM
Steven M. Weiss
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