Celedonia Yue v. Conseco Life Insurance Company

Filing 33

Filed (ECF) Appellee Celedonia X. Yue in 11-55275, Appellant Celedonia X. Yue in 11-55359 citation of supplemental authorities. Date of service: 01/26/2012. [8047032] [11-55275, 11-55359] (TPD)

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Timothy P. Dillon The law offices of Timothy p. Dillon 1925 century park East Suite 1700 Los Angeles, CA 90067 310.553.9400 - Telephone 310.553.9405 – Facsimile January 26, 2012 Molly Dwyer, Clerk United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Re: Yue v. Conseco Life Insurance Company Nos. 11-55275(L), 11-55359 Dear Ms. Dwyer: Plaintiff-Appellee Yue (“Plaintiff”) respectfully responds to Defendant-Appellant Conseco Life Insurance Company’s (“Conseco”) submission of Mazza v. American Honda Motor Co., Inc. __F.3d __, No. 09-55376, 2012 WL 89176 (9th Cir. Jan. 12, 2012) as supplemental authority. First, nothing in Mazza departs from longstanding Ninth Circuit precedent that Article III standing analysis turns on the status of representative party, not absent class members. See, e.g., Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc); Stearns v. TicketMaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011); Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979 (9th Cir. 2011); accord Second Br. at 45. Mazza cites both Bates and Stearns without suggesting any deviation from established Ninth Circuit law. 2012 WL 89176, at *10-11. Nor could the panel in Mazza overrule the en banc decision in Bates. Second, Mazza addresses Article III standing in the context of a Rule 23(b)(3) predominance analysis involving damages claims that required proof of reliance. 2012 WL 89176, at *10-11. Our case involves certification under Rule 23(b)(2) for declaratory relief premised on a standardized insurance contract, without damages or any predominance or reliance requirements. See Second Br. at 45 (quoting Adv. Committee Note to 1966 amendment to Rule 23 (“Action or inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is threatened to only as to one or a few members of the class, provided it is based on grounds which have general application to the class.”)). Molly Dwyer, Clerk United States Court of Appeals for the Ninth Circuit January 26, 2012 Page 3 Third, here as in Mazza, every member of the certified class does in any event satisfy Article III’s standing requirement, because the Class is defined as all persons owning the life insurance policies subjected to Conseco’s challenged cost of insurance increase; all members suffered injury when those policies were allegedly reduced in value by Conseco’s cost increase. ER 50, 53, 54. See Mazza, 2012 WL 89176, at * 11; accord Second Br. at 15-16, 27-31, 45-46. Respectfully submitted, /s/ Timothy P. Dillon Timothy P. Dillon TPD/ll cc: Adam J. Kaiser, Esq. Harvey Kurzweil, Esq.

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