Free Statement - District Court of Arizona - Arizona

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MCINERNEY & JONES Kelly McInerney, Esq., (Nevada SBN 7443) Charles A. Jones, Esq., (Nevada SBN 6698) 18124 Wedge Parkway, #503 Reno, NV 89511 Telephone: (775) 849-3811 Facsimile: (775) 849-3866 Attorneys for Plaintiffs LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] Joanna R. Wolfe (California SBN 217409) (admitted pro hac vice) [email protected] 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 SEYFARTH SHAW LLP Andrew M. Paley (California SBN 149699) (admitted pro hac vice) [email protected] 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants Allstate Insurance Company, Allstate Property and Casualty Insurance Company, Allstate Indemnity Company, Karl Meckert and Kim Lowe UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION MDL NO. 1541 JOINT STATEMENT OF OPPOSITION TO THE LETTER SUBMITTED BY LAWRENCE WALNER REGARDING THE NETTLES CASE Assigned to the Hon. Paul G. Rosenblatt

Case 2:03-md-01541-PGR

Document 128

Filed 03/03/2006

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This statement of opposition is submitted jointly by all plaintiffs and defendants in this case in response to the letter written to the Court by Lawrence Walner in the Nettles case. Aside from the fact that Mr. Walner's letter is an improper communication and the fact that Mr. Walner does not have standing to assert anything in our case, his letter should be disregarded for a number of reasons. Defense counsel in this case presented Mr. Walner with an opportunity to join this MDL action several months ago, an opportunity which was rejected by Mr. Walner. As such, the Nettles case is not, and never has been, part of this MDL action. The Nettles case is brought under state law, as opposed to our case which is brought under the federal Fair Labor Standards Act. It would be improper to advise class members in our case of the pendency of the Nettles case pending in Cook County, Illinois because that case is not yet certified as a class action. There is no valid reason to further delay sending Notice in our action; after all, plaintiffs originally requested Notice to be sent to the adjusters several years ago. The parties have already reached an agreement on the form of Notice and a proposed order and any further delay is not warranted. Most importantly, including information about the Nettles action is sure to confuse the class members, since class members are required to opt-in to our action but would have to opt-out of the Nettles case, in the event that the Nettles case were ever certified. Class members would undoubtedly be further confused by the differences between the federal law and the state laws of fifteen different states. Mr. Walner argues that the pendency of the Nettles case may affect a class member's decision to opt-in to our action. In fact, class members may be unfairly prejudiced into thinking that they do not have to opt-in to our case because of the existence of the Nettles case, which may not be certified or may be dismissed later in litigation. It appears that Mr. Walner is actively trying to avoid having people opt-in to our action. Lastly, Mr. Walner's arguments regarding the statute of limitations is without merit, as the Court granted plaintiffs' request for equitable tolling to October 1, 1999.
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Case 2:03-md-01541-PGR

Document 128

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The parties jointly request the Court to disregard Mr. Walner's letter. The best interests of the class members are protected by sending out the Notice agreed to by the parties, without unwarranted confusion about the Nettles case, which is brought under different laws of fifteen states and has not been certified. DATED this 3d day of March, 2006. s/Kelly McInerney Kelly McInerney MCINERNEY & JONES Attorneys for Plaintiffs s/Joel E. Krischer Joel E. Krischer LATHAM & WATKINS LLP Attorneys for Defendants Allstate Insurance Company, Allstate Property and Casualty Insurance Company, Allstate Indemnity Company, Karl Meckert and Kim Lowe

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CERTIFICATE OF SERVICE I hereby certify that on March 3, 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: Clerk, United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington St., Ste. 130, SPC 1 Phoenix, AZ 85003-2118 Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, NV 89511 [email protected] Attorney for Plaintiffs Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, OH 44113 [email protected] Attorney for Plaintiffs George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [email protected] Attorney for Plaintiffs Steven M. Weiss, Esq. Law Offices of Steven M. Weiss 1250 Illuminating Building 55 Public Square, Suite 1009 Cleveland, OH 44113 [email protected] Attorney for Plaintiffs Andrea Elisabeth Watters, Esq. Watters Law Office, PC 2807 E. Broadway Blvd. Tucson, AZ 85716 [email protected] Attorney for Plaintiffs James A. Jones, Esq. Karla S. Jackson, Esq. Gillespie, Rozen & Watsky 3402 Oak Grove Avenue, #200 Dallas, TX 75204
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Case 2:03-md-01541-PGR

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[email protected] [email protected] Attorneys for Plaintiffs I hereby certify that on March 3, 2006, I served the attached document by U.S. Mail on the following, who is not a registered participant of the CM/ECF System: Lawrence Walner Law Offices of Lawrence Walner and Associates, Ltd. 150 North Wacker Drive, Suite 2150 Chicago, IL 60606

By:s/Joanna R. Wolfe

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