Celedonia Yue v. Conseco Life Insurance Company

Filing 4

Filed (ECF) Appellant Conseco Life Insurance Company Mediation Questionnaire. Date of service: 02/25/2011. [7660435] (MMW)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Circuit Mediation Office
Phone [phone] Fax [phone]
http://www.ca9.uscourts.gov/mediation

MEDIATION QUESTIONNAIRE
The purpose of this questionnaire is to help the court’s mediators provide the best possible mediation
service in this case; it serves no other function. Responses to this questionnaire are not confidential.
Appellants/Petitioners must electronically file this document within 7 days of the docketing of the case.
9th Cir. R. 3-4 and 15-2. Appellees/Respondents may file the questionnaire, but are not required to do so.
Any party may provide additional information in confidence directly to the Circuit Mediation Office at
[e-mail]. Please provide the case name and Ninth Circuit case number in your
message. Additional information might include interest in including this case in the mediation program, the
case’s settlement history, issues beyond the litigation that the parties might address in a settlement context,
or future events that might affect the parties’ willingness or ability to mediate the case.
9th Circuit Case Number(s): 11-55275
District Court/Agency Case Number(s): 2:08-cv-0156-AHM-SH
District Court/Agency Location:
Case Name: Celedonia X. Yue

Central District of California, Western Division

v.

Conseco Life Insurance Company

Please briefly describe the dispute that gave rise to this lawsuit.
Plaintiff Celedonia X. Yue, owner of a universal life insurance policy issued by Conseco Life Insurance Company
("Conseco"), sued Conseco, alleging that a cost of insurance increase scheduled to take place in the 21st policy year
breached the policy terms and violated California Business & Professions Code Section 17200. The plaintiff sued
on behalf of herself and a national class of similarly situated policy owners, which was certified under Rule 23(b)(2)
in December 2009. The scheduled cost of insurance increase never became effective for the named plaintiff or any
other class member, however, because Conseco decided, for reasons unrelated to this litigation, and before the
scheduled increase became effective, not to make it effective. Despite Conseco's decision not to make the increase
effective, the district court held that the class claims were ripe and issued a declaration that the increase would
constitute a breach.

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Briefly describe the procedural history, the result below, and the main issues on appeal.
The court denied Conseco's motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) in December 2008.
In December 2009, the court granted plaintiff's motion for class certification under Rule 23(b)(2). In October 2010,
the court denied Conseco's second motion to dismiss the complaint under Rule(b)(1) and granted Conseco's motion
for partial judgment on the pleadings under Rule 12(c). In January 2011, the court granted plaintiffs' motion for
summary judgment on the third cause of action for declaratory relief under Rule 56(c). The main issues on appeal
will be: (i) whether the court erred in finding this action to be a ripe case or controversy within the meaning of
Article III; (ii) whether the court erred by granting summary judgment to the class on plaintiffs' third claim for
relief; and (iii) whether the court erred in certifying a nationwide class under Rule 23(b)(2).

Describe any proceedings remaining below or any related proceedings in other tribunals.
There are no related proceedings in any other tribunals. The district court will continue to have jurisdiction over
plaintiffs' motion for attorneys fees, which has yet to be filed.

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Provide any other information that might affect the suitability of this case for mediation.
Settlement discussions at or around the time the summary judgment motion was decided proved fruitless. Nothing
that has transpired since that point suggests that either party's positions have changed since that time.

CERTIFICATION OF COUNSEL
I certify that:

a current service list with telephone and fax numbers and email addresses
is attached (see 9th Circuit Rule 3-2).
I understand that failure to provide the Court with a completed form and
service list may result in sanctions, including dismissal of the appeal.
Signature s/ Matthew M. Walsh
("s/" plus attorney name may be used in lieu of a manual signature on electronically-filed documents.)

Counsel for Conseco Life Insurance Company
Note: Use of the Appellate ECF system is mandatory for all attorneys filing in this Court, unless they are
granted an exemption from using the system. File this document electronically in Appellate ECF by
choosing Forms/Notices/Disclosure > File a Mediation Questionnaire.

Attorneys for Plaintiffs CELEDONIA X. YUE, M.D., on behalf of the
class of all others similarly situated, and on behalf of the General
Public:
TIMOTHY P. DILLON
[e-mail]
LAW OFFICES OF TIMOTHY P. DILLON
361 Forest Avenue, Suite 205
Laguna Beach, California 92651
Telephone: [phone] / Facsimile: [phone]
ANDREW S. FRIEDMAN
[e-mail]
FRANCIS J. BALINT, JR.
fbalint@ BFFB.com
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2901 N. Central, Suite 1000
Phoenix, AZ 85012
Telephone: [phone] / Facsimile: [phone]
Attorneys for Defendants CONSECO LIFE INSURANCE COMPANY:
MATTHEW M. WALSH, SBN 175004
[e-mail]
DEWEY & LEBOEUF LLP
333 South Grand Avenue Suite 2600
Los Angeles, CA 90071-1530
Telephone: [phone] / Facsimile: [phone]
JOHN M. AERNI, Admitted Pro Hac Vice
[e-mail]
ADAM J. KAISER, Admitted Pro Hac Vice
[e-mail]
DEWEY & LEBOEUF LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Telephone: [phone] / Facsimile: [phone]