1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx) JONATHAN A. SHAPIRO (257199) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, CA 94304 Tel: (650) 858-6101 Fax: (650) 858-6100 jonathan.shapiro@wilmerhale.com ANDREA J. ROBINSON (PRO HAC VICE) TIMOTHY J. PERLA (PRO HAC VICE) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Tel: (617) 526-6000 Fax: (617) 526-5000 andrea.robinson@wilmerhale.com timothy.perla@wilmerhale.com Attorneys for Defendant Life Insurance Company of the Southwest 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. CASE NO.: CV 10-9198 JVS (RNBx) LIFE INSURANCE COMPANY OF THE SOUTHWEST’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SUBSTITUTED SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION Judge: Hon. James V. Selna Date: Sept. 18, 2012 Time: 1:30p.m. Courtroom: 10C Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page 1 of 5 Page ID #:15245 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 1 - MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx) NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SUBSTITUTED SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION TO THE COURT, PLAINTIFFS, AND ALL COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT Defendant Life Insurance Company of the Southwest (“LSW”) respectfully requests leave to file a substituted supplemental memorandum, declarations and exhibits thereto, attached hereto as Exhibits 1, 2, 3, and 4,1 in support of its opposition to class certification to replace the memorandum filed as Dkt. 340 on September 25, 2012. On September 18, 2012, this Court held a hearing on Plaintiffs’ Motion For Class Certification. At the conclusion of the hearing, the Court granted Plaintiffs leave to file a supplemental memorandum addressing a particular issue within seven days (by September 25). The Court also granted LSW leave to respond within seven days.2 Thus, LSW understood its filing deadline to be October 2. However, at approximately 11:30 am PDT on September 25, the Court issued minutes for the September 18 hearing stating: Counsel shall file the supplemental submission discussed on the record not 1 Exhibit 1 is the proposed supplemental memorandum; Exhibit 2 is the proposed Declaration of Timothy Perla in support thereof; Exhibit 3 is the proposed Declaration of Joel Fleming in support of the proposed supplemental memorandum; Exhibit 4 is the exhibits to the Fleming Declaration. 2 In relevant part, the transcript states: MR. FREIBERG: Okay, will do. Your Honor, further submissions with respect to this motion -- THE COURT: How much time do you want for your five percent showing? MR. BROSNAHAN: Ten days. THE COURT: How about seven. MR. BROSNAHAN: Thank you. MR. SHAPIRO: Can we have seven also? THE COURT: Yes. MR. SHAPIRO: Thank you. Tr. 66:20-67:7. Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page 2 of 5 Page ID #:15246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 2 - MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx) later than September 25. The above referenced motion shall stand submitted upon the filing of the supplemental briefs. Dkt. 338. Because this Order did not reflect LSW’s October 2 response deadline, LSW promptly sought clarification. At approximately 1:30 pm PDT, on September 25, counsel for LSW sent an email to the Courtroom Deputy Clerk requesting clarification of whether LSW’s submission was due on September 25 or on October 2. LSW did not receive a response to this email on September 25. Thus, at approximately 11:30 pm PST on September 25, in order to ensure that LSW did not miss a Court deadline for its submission, LSW filed a supplemental memorandum in support of its opposition to class certification. Dkt. 340. Because this filing was nearly simultaneous with Plaintiffs’ submission, LSW’s submission could not respond specifically to Plaintiffs’ submission. On September 26, 2012, the Court issued amended minutes stating, “Plaintiff shall file the supplemental submission discussed on the record not later than September 25, 2012 and defendants shall have until October 2, 2012 to respond.” Dkt. 341. In order to afford LSW an opportunity to respond to arguments raised in Plaintiffs’ submission, in accordance with the Court’s instruction during the September 18 hearing (and LSW’s understanding of that instruction), LSW respectfully requests that the attached memorandum, declarations and exhibits be substituted for the memorandum that LSW filed on September 25, located at Docket No. 340. Counsel for LSW met and conferred with Plaintiffs’ counsel concerning this motion, and Plaintiffs do not assent. Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page 3 of 5 Page ID #:15247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 3 - MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx) DATED: October 2, 2012 Respectfully submitted, WILMER CUTLER PICKERING HALE AND DORR LLP By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro Andrea J. Robinson Timothy J. Perla Attorneys For Defendant Life Insurance Company of the Southwest Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page 4 of 5 Page ID #:15248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 4 - MOTION TO SUBSTITUTE SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION, 10- 9198-JVS(RNBx) PROOF OF SERVICE I am a resident of the Commonwealth of Massachusetts, over the age of eighteen years, and not a party to the within action. My business address is Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109. On October 2, 2012, I served the within document(s): MOTION FOR LEAVE TO FILE SUBSTITUTED SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO CLASS CERTIFICATION I placed the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail addressed as set forth below. I personally caused to be hand delivered the document(s) listed above to the person(s) at the address(es) set forth below. I emailed the document(s) listed above to the person(s) at the address(es) set forth below.  I electronically filed the document(s) listed above via the CM/ECF system. Brian P. Brosnahan (bbrosnahan@kasowitz.com) Charles N. Freiberg j (cfreiberg@kasowitz.com) Jacob N. Foster (jfoster@kasowitz.com) KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 Harvey R. Levine (lsmh@levinelaw.com) LEVINE & MILLER 550 West C. Street, Suite 1810 San Diego, CA 92101-8596 /s/ Joel A. Fleming Joel A. Fleming Case 2:10-cv-09198-JVS -RNB Document 346 Filed 10/02/12 Page 5 of 5 Page ID #:15249