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)

Timothy P. Dillon
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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.