OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) Jonathan A. Shapiro (257199) Mintz Levin Cohn Ferris Glovsky and Popeo PC 44 Montgomery Street San Francisco, California 94104 Tel: (415) 432-6000 Fax: (415) 432-6001 JAShapiro@mintz.com Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 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 SOUTHERN DIVISION JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, and DOES 1-50 Defendant. Case No.: CV 10-9198-JVS(RNBx) DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE District Judge James V. Selna Court: 10C Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 1 of 6 Page ID #:20344 - 1 - OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) I. ARGUMENT The Court should reject Plaintiffs’ request to delay class notice, for several months, based on their intent to file vaguely described motions that are founded on a faulty premise. Based on their statements during the recent meet and confer, Plaintiffs apparently seek to resurrect every previously dismissed claim, to somehow reframe and then renew their motion to certify the recently decertified illustration claims, and to add unspecified new claims to this case as well. Yet in this motion, they offer virtually no explanation of (or justification for) the new or amended claims that they intend to pursue, nor do they address how their motion could survive obvious challenges such as timeliness (the pleading amendment deadline passed years ago). Further, Plaintiffs’ position is based on a misreading of Zhang, which does not create any new private rights of action, and does not warrant reconsidering any prior rulings. Finally, Plaintiffs do not— and cannot—establish the irreparable harm necessary to obtain the requested ex parte relief. In particular, Plaintiffs’ application should be denied for at least the following three reasons: 1. Plaintiffs’ application does not establish that their motion to amend or reconsider would have any realistic possibility of succeeding. The ex parte motion does not even describe in any meaningful way the claims Plaintiffs propose to assert (or simply repackage). And, while LSW requested a copy of a proposed amended pleading, Plaintiffs never honored the request. Plaintiffs also make no attempt to explain how a motion to amend could ever be deemed timely (years after the deadline for amendment), or withstand statute of limitations and other challenges. In short, Plaintiffs’ last-minute, vague, ex parte motion is too thin a reed to justify further delaying class notification. 2. Certainly, Zhang is the premise of Plaintiffs’ motion, yet it plainly cannot justify an amendment. At the beginning of this case, Plaintiffs tried to assert several claims for Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 2 of 6 Page ID #:20345 - 2 - OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) violations of the California Insurance Code based on technical matters such as LSW’s use in an illustration of a zero, instead of an asterisk, to show a policy without value. This Court dismissed those claims because there is no private right of action for statutory insurance code violations. See Dkt. 59 at 9; Dkt. 112 at 9. Zhang does not call that ruling into question because Zhang does not create or recognize any new private rights of action. What Zhang holds is that “the [Unfair Insurance Practices Act (UIPA)] does not immunize insurers from UCL liability for conduct that violates other laws in addition to the UIPA.” Zhang v. California Capital Insurance Co., S178542 (slip opinion) at 2. In other words, if you already have a private right of action, then the Insurance Code does not eliminate it. But you need a private right of action to begin with. Where there is no independent private right of action (i.e., what required dismissal here), Zhang holds that “[p]rivate UIPA actions are absolutely barred; a litigant may not rely on the proscriptions of section 790.03 as the basis for a UCL claim.” Id. At 23. Simply put, Plaintiffs' proposed claims lacked a private cause of action before, and Zhang does not create one.1 3. Plaintiffs have not satisfied the "irreparable prejudice" standard for ex parte relief. See Pl’s Mem. at 2 (citing Mission Power Eng'g Co v. Continential Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)). There is no irreparable harm here. 1 Contrary to Plaintiffs’ assertion, Textron (which this Court previously cited) was not disapproved in its entirety, but only “to the extent that it is inconsistent with” Zhang. Zhang (slip op.) at 21. This Court cited Textron for the proposition that a “claim based on § 10509 could not be maintained” under the UCL because there is no private right of action for violations of Section 10509. See Dkt. 59 at 9; Dkt. 112 at 9. This is the same rule adopted by both Zhang and Moradi-Shalal. Zhang (slip opinion) at 23 (“[p]rivate UIPA actions are absolutely barred; a litigant may not rely on the proscriptions of section 790.03 as the basis for a UCL claim.”); Moradi-Shalal v. Fireman's Fund Ins. Companies, 46 Cal. 3d 287, 304 (1988) (holding that there is no private right of action for violations of the UIPA). Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 3 of 6 Page ID #:20346 - 3 - OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) Plaintiffs fail to establish the required harm by arguing that the notice will cost them money. “It is well established” that “monetary injury is not normally considered irreparable.” Los Angeles Mem’l Coliseum Comm'n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (the “possibility that adequate compensatory or other corrective relief will be available at a later date … weighs heavily against a claim of irreparable harm.”) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Even if the landscape of this case were to change (whether because Plaintiffs succeed in amending, or as a result of summary judgment, or for any other reason), the Court could simply order that an update be provided to the class, as Plaintiffs recognize. See Pl’s Mem. at 3.2 II. CONCLUSION For all the foregoing reasons, Plaintiffs’ application should be denied . Dated: August 14, 2013 Life Insurance Company of the Southwest By its attorneys, /s/ Jonathan A. Shapiro Jonathan A. Shapiro (257199) Mintz Levin Cohn Ferris Glovsky and Popeo PC 44 Montgomery Street San Francisco, California 94104 Tel: (415) 432-6000 Fax: (415) 432-6001 JAShapiro@mintz.com Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Tel: (617) 526-6000 2 Courts routinely send multiple notices. See Manual Complex Lit. § 21.311 (4th ed.) (noting that “repetitive notice[s]” may be necessary where case is “rapidly evolving.”). Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 4 of 6 Page ID #:20347 - 4 - OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) Fax: (617) 526-5000 andrea.robinson@wilmerhale.com timothy.perla@wilmerhale.com Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 5 of 6 Page ID #:20348 - 5 - OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE, 10-CV-09198-JVS (RNBx) CERTIFICATE 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, MA 02114. On August 14, 2013 I served the within document(s): LIFE INSURANCE COMPANY OF THE SOUTHWEST’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER CONTINUING THE AUGUST 19, 2013 CLASS NOTICE MAILING DEADLINE I electronically filed the document(s) listed above via the CM/ECF system. Charles N. Freiberg Brian P. Brosnahan Jacob N. Foster Jeanette T. Barzelay KASOWITZ, BENSON, TORRES & FREIDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 cfreiberg@kasowitz.com bbrosnahan@kasowitz.com jfoster@kasowitz.com Harvey R. Levine Levine & Miller 550 West C Street, Suite 1810 San Diego, CA 92101 lmsh@levinelaw.com Craig A. Miller Law Offices of Craig A. Miller 225 Broadway, Suite 1310 San Diego, CA 92101 cmiller@craigmillerlaw.com /s/ Joel Fleming Joel Fleming Case 2:10-cv-09198-JVS-RNB Document 460 Filed 08/14/13 Page 6 of 6 Page ID #:20349