STUART ]. REILLY, P.C.
2 PO Box 80410
Phoenix, Arizona 85060-0410
3 Telephone: 602/912-9200
4 E-mail: [email protected]
Stuart]. Reilly, #005275
5 Attorney for Plaintiff
6
7
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10 S ll )
tuart J. Rei y,
11 ) Case No. CIV 02-2218 PHX BTM
Plaintiff, )
12 ) PLAINTIFF’S RESPONSE TO
vs. ) DEFENDANTS’ MOTION TO
13 ) STRIKE PORTIONS OF THE
14 Charles M. Brewer, Ltd. Profit Sharing Plan ) DECLARATION OF THOMAS
and Trust, a retirement plan, Charles M. ) SHARDLOW FILED MAY 17, 2006
15 Brewer, Ltd. Restated Pension Plan, a )
retirement plan, and Charles M. Brewer, )
16 )
Defendants. )
17 )
)
18 )
19 )
20 . . . . . . .
Plaintiff submits his Response to Defendants’ Motion to Strike Portions of the
21
Declaration of Thomas Shardlow filed May 17, 2006.
22
1. Response to Motion to Strike
23
Mr. Shardlow’s declaration was not beyond the scope of permissible rebuttal testimony.
24
In fact, each of the paragraphs of Mr. Shardlow’s declaration is directly responsive to testimony
25
26 _1_
PLA1NT1PP’s RESPONSE TO DEPENDANTs MOTION TO STRIKE PoRT1oNs OF THE
DECLARATION OF THOMAS SHARDLOW FILED MAY 17, 2006
REILLY v. CME, LTD. PROFIT SHARING PLAN AND TRUST, ET AL
Ca 2:02-cv-02218-BTIVI-LSP Document 299 Filed 06/O7/2006 Page 1 of 4
l of Kurt Piper that was elicited during Defendants’ evidence presentation (e. g. the utilization of
2 Alternative IID by the Brewer, Ltd. Plans).
3 At this Court’s request, Plaintiff identified at least two areas that warranted rebuttal,
4 namely the issue of discrimination relative to Alternative IID and Mr. Piper’s testimony
5 regarding loan calculations. But those were not intended to be the only areas of rebuttal. Mr.
6 Piper testified that, in his opinion, Alternative IID was available to the Brewer, Ltd. Plan
7 because the time period "after the plan is amended to comply with TRA ’86" actually meant
8 after the effective date of the amendment. (April 26, 2006, l0l;2 — l02;l4) Mr. Shardlow
9 should be allowed to offer his opinion, as an employee benefits expert with decades of
l0 experience dealing with IRS regulatory language, that the IRS did not intend that "after the plan
ll is amended" to be expanded by something as uncertain as the inference of the subject of the
12 regulation. In sum, Mr. Shardlow’s declaration did not replow old ground. If he had been
13 physically available he would have been able to directly rebut Mr. Piper’s testimony on more
l4 than just the questions of discrimination and loan calculation.
15 2. Response to Objection to Specific Paragraphs of the Declaration
16 Defendants’ reliance on Dauberi v. Merrell Dow Pharmaceuticals, [hc., 509 U.S. 5y79,
17 ll3 S.Ct. 2786, l25 L.Ed.2d 469 (l993) and Kumho Tire Co., Lid v. Carmichael, 526 U.S.
18 l37, ll9 S.Ct. ll67, l43 L.Ed. 238 (l999) is difficult to comprehend. Mr. Shardlow’s
19 experience in the area of ERISA is unassailable. It is equally true that the subject of ERISA is
20 so complex that the trier of fact can benefit form the testimony of someone who has spent
21 virtually his entire professional career dealing with it on a daily, in depth basis. This is most
22 certainly not a case of a practitioner of "junl< science" whose sole purpose is to testify on a
23 matter of dubious relevance.
24
25
26 _2_
PLAINTIFF’S RESPONSE ro DErENDANrs Morrorv ro srrzrxiz Porarrorvs or rm;
DEcLARArroN or rnoMAs snARDLow Frm) MAY ri, 2006
Ga 2;02-CV-02218-BrM*YEi%`E>V‘CbB¢EL’r§3%l‘E§H§R‘NG€h3Ef`6“é’iB‘%?0%T0â€â€œ page 2 Or 4
1 Regarding his opinion that if the IRS intended the operation language to be read to
2 mean after the ejfective date, it would have plainly and unequivocally said as much.
3 Mr. Shardlow described the foundation for his opinion (Shardlow Declaration, 2: l7-3 :4).
4 The difference between the date of an amendment and the effective date
5 of an amendment is a recurring issue under employee benej7ts law and
is by no means limited to an interpretation of the availability of
6 Alternative IID. Indeed, Notice 88-l3l as a whole was focused precisely
on the difference between the date of plan amendments for TRA ’86 and
7 the effective date of such amendments. In my opinion the IRS would
never use the language "after to the date of the amendment" to mean
8 "after the effective date of the amendment" because those terms have
such well accepted (and different) meanings to the IRS and the employee
9 benefits community. I am unaware 0f a single instance in which the
10 IRS has ever issued any notice, announcement, Revenue Ruling or any
other written guidance in which the term "after the date of amendment"
ll or similar language was ever used to mean "after the effective date of the
amendment." (Emphasis added)
12 In sum, Defendants’ indiscriminate, repetitive employment of the objections lack of
13 foundation, speculation, etc. are particularly inapplicable to Mr. Shardlow’s testimony.
14 Mr. Shardlow took pains to identify the foundation for his expert opinion.
15 coNcLUsroN
16 Defendants’ motion to strike is not well taken. Mr. Shardlow confined his declaration
17 to subjects that were proper areas of rebuttal given the extensive testimony of Kurt Piper during
18 the defense presentation. Furthermore, the argument that Mr. Shardlow’s opinions lack
19 foundation simply ignores the uncontested fact that he has devoted more than 20 years of his
20 legal career to dealing with the precise subjects upon which he is opining.
21 Defendants’ motion to strike should be denied.
22
23
24
25
26 _3_
1>rArNrrFr’s REsr>oNsE ro DEFENDANTS Morrorv ro srnrkrs Ponrrorvs or rms
DECLARATION or THOMAS snARDrow Frm) MAY rv, 2006
rusrrrx v. civns, LTD. mom SHARING PLAN AND rrzusr, ET AL
Ca 2:02—cv—02218—BT|VI-LSP Document 299 Filed 06/07/2006 Page 3 of 4
1 RESPECTFULLY SUBMITTED this 7th day of June 2006.
2 STUART J. REILLY, P.C.
3
4 s/ Stucirij Reilly
Stuart J. Reilly
5 Attorney for Plaintiff
6
7
8 CERTIFICATE OF SERVICE
9 I hereby certify that on June 7th 2006, I electronically transmitted the attached document to the
10 Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic
Filing to be electronically mailed to:
1 1
Ed Hendricks, Esq.
12 Michael K. Dana, Esq.
MEYER HENDRICKS PLLC
13 3003 North Central Avenue, Suite 1200
Phoenix, AZ 85012
14
15 Michael Vanic, Esq.
C. Frederick Reish, Esq.
16 REISH LUFTMAN REICHER & COHEN
11755 Wilshire Blvd., 10th Floor
17 Los Angeles, CA 90025-1539
18 Courtesy copy of the attached document mailed this 7th day of June 2006 to:
19 Hon. Barry Ted Moskowitz
20 United States District Court
5160 Courthouse
21 940 Front Street
San Diego, CA 92101
22
s/ Marisa J Reilly
23
24
25
26 _4_
PLAINTIFF’S RESPONSE TO DEFENDANTS Morrorv TO srRrr
Rrarrrv v. civns, LTD. PROFIT SHARING PLAN AND rnusr, ET AL
Ca 2:02-cv-02218-BTIVI-LSP Document 299 Filed 06/O7/2006 Page 4 of 4
Case 2:02-cv-02218-BTM-LSP
Document 299
Filed 06/07/2006
Page 1 of 4
Case 2:02-cv-02218-BTM-LSP
Document 299
Filed 06/07/2006
Page 2 of 4
Case 2:02-cv-02218-BTM-LSP
Document 299
Filed 06/07/2006
Page 3 of 4
Case 2:02-cv-02218-BTM-LSP
Document 299
Filed 06/07/2006
Page 4 of 4
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