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DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
Case No. CV 10-9198 JVS (RNBx)
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890) BRIAN P. BROSNAHAN (SBN 112894) JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030
LEVINE & MILLER HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER 550 West C Street, Suite 1810 San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638
Attorneys for Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation,
Defendant.
CLASS ACTION
CASE NO.: CV 10-9198 JVS (RNBx)
Formerly Case No.: 3:10-cv -04852 JSW from Northern District of California
DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Judge James V. Selna
Date: September 10, 2012 Time: 1:30 p.m. Courtroom: 10C
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Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 1 of 5 Page ID #:9830
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DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
Case No. CV 10-9198 JVS (RNBx)
1
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
1. I am an attorney authorized to practice in the courts of California and
in the United States District Court for the Central District of California. I am a
partner of Kasowitz, Benson, Torres & Friedman, LLP, counsel for Plaintiffs in
these proceedings. I have personal knowledge of the facts stated herein and if
required could and would testify under oath thereto.
2. Attached hereto as Exhibit A is a description of the Proposed Class
and Subclasses.
3. Attached hereto as Exhibit B is a true and correct copy of a letter from
Jonathan A. Shapiro, Esq., counsel for Life Insurance Company of the Southwest
(“LSW”), to Brian P. Brosnahan, Esq., dated March 5, 2012.
4. Attached hereto as Exhibit C is a true and correct copy of a letter from
James Lux, Esq., counsel for LSW, to Brian P. Brosnahan, Esq., of Kasowitz,
Benson Torres & Friedman LLP, dated September 13, 2011.
5. Attached hereto as Exhibit D is a true and correct copy of a
SecurePlus Paragon Annual Statement for Plaintiff Kim Bruce Howlett, Bates
numbered LSW00001084-LSW00001088, dated September 26, 2008.
6. Attached hereto as Exhibit E is a true and correct copy of a S.A.L.E.
Field Compliance Guide for the National Life Group, Bates numbered
LSW00018575-LSW00018610.
7. Attached hereto as Exhibit F is a true and correct copy of a Life
Insurance Illustration, Bates numbered LSW00045475-LSW00045505, dated June
23, 2009.
8. Attached hereto as Exhibit G is a true and correct copy of an Excel
spreadsheet entitled “SecurePlus Paragon Other Charges,” Bates numbered
LSW00102303.
9. Attached hereto as Exhibit H is a true and correct copy of an Excel
spreadsheet entitled “SecurePlus Provider Other Charges,” Bates numbered
LSW00102311.
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DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
Case No. CV 10-9198 JVS (RNBx)
2
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
10. Attached hereto as Exhibit I is a true and correct copy of an email
Bates numbered LSW-E00034422-LSW-E00034424, dated September 20, 2006.
11. Attached hereto as Exhibit J is a true and correct copy of an email
Bates numbered LSW-E00037050-LSW-E00037052, dated September 20, 2006.
12. Attached hereto as Exhibit K is a true and correct copy of an email
chain, Bates numbered LSW-E00065754-LSW-E00065755, dated September 12,
2007.
13. Attached hereto as Exhibit L is a true and correct copy of an email
chain, Bates numbered LSW-E00070208-LSW-E00070209, dated June 24, 2009.
14. Attached hereto as Exhibit M is a true and correct copy of the
SecurePlus Provider Insurance Policy issued to Plaintiff Joyce Walker, Bates
numbered JW002838-JW002902, dated December 27, 2007.
15. Attached hereto as Exhibit N is a true and correct copy of a Life
Insurance Illustration prepared for Plaintiff Joyce Walker, Bates numbered
LSW00002329-LSW00002352, dated October 3, 2007.
16. Attached hereto as Exhibit O is a true and correct copy of the
SecurePlus Paragon Insurance Policy issued to Plaintiff Muriel Spooner, Bates
numbered HS00027-HS000086, dated October 5, 2007.
17. Attached hereto as Exhibit P is a true and correct copy of a Life
Insurance Illustration prepared for Plaintiff Muriel Spooner, Bates numbered
LSW00001984-LSW00002007, dated July 27, 2007.
18. Attached hereto as Exhibit Q is a true and correct copy of excerpts
from the deposition of Stephanie Burmester taken on May 1, 2012.
19. Attached hereto as Exhibit R is a true and correct copy of excerpts
from the deposition of Matthew DeSantos taken on November 14, 2011.
20. Attached hereto as Exhibit S is a true and correct copy of excerpts
from the deposition of Elizabeth MacGowan taken on October 31, 2011.
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DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
Case No. CV 10-9198 JVS (RNBx)
3
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
21. Attached hereto as Exhibit T is a true and correct copy of excerpts
from the deposition of Victoria McDonald taken on May 2, 2012.
22. Attached hereto as Exhibit U is a true and correct copy of excerpts
from the deposition of Michael B. Richardson taken on May 3, 2012.
23. Attached hereto as Exhibit V is a true and correct copy of excerpts
from the deposition of Susan Rusnock taken on May 2, 2012.
24. Attached hereto as Exhibit W is a true and correct copy of LSW’s
Responses to Plaintiffs’ Second Set of Requests for Admission, dated February 23,
2012.
25. Attached hereto as Exhibit X is a true and correct copy of an exemplar
of a life insurance illustration produced by LSW as Bates numbers LSW00000159-
LSW00000170. This document was produced by LSW as part of (and is excerpted
from) a package submitted by LSW to the California Department of Insurance
(“DOI”) in 2005 in connection with the introduction of the Provider policy. As
shown by a comparison with the Provider illustration given to Plaintiff Joyce
Walker, the exemplar illustration submitted to the DOI omits any reference either to
(1) the Account Value Enhancement that purportedly begins in Year 10 of the
policy, or (2) the reduction in the Monthly Administrative Charge that purportedly
begins in Year 11. Compare Ex. X at LSW00000162 & LSW00000169, with Ex. N
at LSW00002336 & LSW00002349.
26. Attached hereto as Exhibit Y is a true and correct copy of an exemplar
of a life insurance illustration produced by LSW as Bates numbers LSW00000467-
LSW00000481. This document was produced by LSW as part of (and is excerpted
from) a package submitted by LSW to the California DOI in 2006 in connection
with the introduction of the Paragon policy. As shown by a comparison with the
Paragon illustration given to Plaintiff Muriel Spooner, the exemplar illustration
submitted to the DOI omits any reference either to the reduction in the Monthly
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DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
Case No. CV 10-9198 JVS (RNBx)
4
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
Administrative Charge that purportedly begins in Year 11. Compare Ex. Y at
LSW00000480, with Ex. P at LSW00002004.
27. Attached hereto as Exhibit Z is Plaintiffs’ Trial Plan in Support of
Plaintiffs’ Motion for Class Certification.
28. Attached hereto as Exhibit AA is a table, “Table 1A,” depicting the
impact of S&P 500 volatility on the policy value of Plaintiff Muriel Spooner.
29. Attached hereto as Exhibit BB is a table, “Table 1B,” depicting the
impact of S&P 500 volatility on the policy value of Plaintiff Muriel Spooner.
30. Counsel for Plaintiffs recently became aware of Maraldo, et al. v. Life
Insurance Company of the Southwest, United States District Court for the Northern
District of California, Case No. 11-CV-4972-YGR, filed October 7, 2011.
Plaintiffs presume that LSW would have filed a Motion to Transfer if it believed
this putative class action presented the same claims alleged here. Plaintiffs
understand that Maraldo involves a different type of insurance policy (universal
life) and is a vanishing premium case based on oral representations. Maraldo v.
Life Insurance Co. of the Southwest, U.S. Dist. LEXIS 45572, at *17-18 (N.D. Cal.
Mar. 30, 2012).
Dated: May 14, 2012 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
By: /s/ Brian P. Brosnahan Brian P. Brosnahan
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