Barnes v. AT&T Pension Benefit Plan-NonBargained Program

Filing 253

STIPULATION AND ORDER REGARDING PRODUCTION OF DATA FOR PLAN PARTICIPANTS & BENEFICIARIES; Signed by Judge Marilyn Hall Patel on 4/18/2011. (awb, COURT STAFF) (Filed on 4/18/2011)

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R. Joseph Barton, CA Bar No. 212340
Email: [e-mail]
Bruce F. Rinaldi, CA Bar No. 55133
Email: [e-mail]
Robyn M. Swanson, Admitted Pro Hac Vice
Email: [e-mail]
COHEN MILSTEIN SELLERS & TOLL P LLC
1100 New York Avenue, N.W.
West Tower, STE 500
Washington, DC 20005
Telephone:
[phone]
Facsimile:
[phone]

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Michelle L. Roberts, CA Bar No. 239092
Email: [e-mail]
Claire Kennedy-Wilkins, CA Bar No. 231897
Email: [e-mail]
SPRINGER-SULLIVAN & ROBERTS LLP
410 – 12th Street, Suite 325
Oakland, CA 94607
Telephone: [phone]
Facsimile:
[phone]

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Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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QUILLER BARNES,
Plaintiff,

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v.

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Case No. 08-04058 MHP
STIPULATION & [PROPOSED] ORDER
REGARDING PRODUCTION OF DATA FOR
PLAN PARTICIPANTS & BENEFICIARIES

AT&T PENSION BENEFIT PLAN NONBARGAINED PROGRAM,

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Defendant.
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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

WHEREAS Plaintiffs previously requested data regarding certain participants and
beneficiaries in the AT&T Pension Benefit Plan – NonBargained Program (“the Plan) including
by issuing subpoenas on November 16, 2010 to the Plan’s third-party providers and/or

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consultants, Fidelity Investments Institutional Services Co. (“Fidelity”) requesting production of

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certain documents and data regarding certain participants and beneficiaries of the AT&T Pension

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Benefit Plan (the “Fidelity Subpoena”), which is attached hereto for reference, and issued a

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substantially similar subpoena to Aon Corporation (“Aon”) on November 16, 2010 requesting

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production of certain documents and data regarding certain participants and beneficiaries of the

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AT&T Pension Benefit Plan (the “Aon Subpoena”);

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WHEREAS Fidelity and Aon have objected to Plaintiff’s subpoenas and/or refused to

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produce any responsive data regarding the participants and beneficiaries and the Plan filed a

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motion for a protective order in the District of Massachusetts seeking to prevent production of

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such data because, among other reasons, no Agreement or Protective Order governing the

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Confidentiality of documents and data had been entered in this action;

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WHEREAS this Court entered an Order on March 1, 2011 modifying the definition of the

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class to include certain participants who received or will receive their pension from the Plan in

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the form of a deferred annuity and their beneficiaries;

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WHEREAS Defendant represents that the Plan is in possession of or has the ability to

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obtain through Fidelity, Aon or another third-party vendor, and can produce the electronic data

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regarding the participants and beneficiaries in the Plan, including all of the data to be provided

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pursuant to this Stipulation (to the extent that such information or data exists for any particular

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participant or beneficiary) and that the Plan has requested or will request such data from its

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vendors who are in possession of such data and that the Plan will make its best efforts to have

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those vendors provide the data agreed to be produced pursuant to this Stipulation;

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WHEREAS Defendant contends that any data for participants other than those who are

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included in the Class is not relevant to any claims or defenses in this lawsuit including data for

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participants terminating employment on or after March 22, 1996 and rehired on or after

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November 1, 1997 and Plaintiff does not agree with this contention, but the Parties enter into this

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Stipulation for the purpose of reaching compromise;

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
undersigned counsel for the Parties to the Action as follows:
Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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Definitions

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1.

For purposes of this Stipulation, the following definitions will apply:

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(a)

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Group (“PTG”) Pension Plan who (1) terminated their employment on or after

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March 22, 1996 (“First Termination”); (2) were eligible for an Accelerated

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Transition Benefit (“ATB”), which, because they had not attained the requisite age

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or years of service, was subject to a discount; (3) elected to receive their pension

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as a lump sum payment at their First Termination; and (4) were subsequently

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rehired by a company that participated in the PTG Plan (or a successor plan) on or

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before October 31, 1997 and (i) either worked an additional five years or otherwise

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bridged service under 7.4 of the Plan or (ii) are still employed at a Participating

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Company;

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(b)

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terminated their employment on or after March 22, 1996 with a company that

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participated in the PTG Plan; (b) were eligible for an ATB, which, because they

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had not attained the requisite age or years of credited service, was subject to an

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ATB discount; (c) did not receive their pension as an annuity at their First

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Termination; and (d) were subsequently rehired by a company that participated in

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the PTG Plan (or a successor plan) on or before October 31, 1997 and either (i)

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worked at least five additional years or otherwise bridged service under Section

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7.4 of the Plan or (ii) are still employed at a Participating Company;

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(c)

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“Second Termination,” “PTG Plan,” and “PTG Participating Company” have the

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same definitions as set forth in the Fidelity Subpoena.

“Lump Sum Payee Participants” means participants in the Pacific Telesis

“Annuitant Participants” means participants in the PTG Plan who (a)

The terms “ATB,” “Special ATB,” “CAM benefit,” “First Termination,”

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Participant Data for Lump Sum Payee Participants

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2.

By April 29, 2011, the Plan will produce the following data for the Lump Sum

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Payee Participants to Lead Class Counsel in Excel format (and indicate that the data is for Lump

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Sum Payee Participants):

C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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(a)

name;

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(b)

social security number;

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(c)

birth date;

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(d)

sex/gender;

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(e)
current/last known address (and, if known, address at termination of
employment);
(f)
the net credited service (“NCS”) start date for purposes of determining
eligibility for a pension;
(g)
the date(s) on which any such person’s employment commenced with and
terminated with each and every PTG Participating Company and the name of each
such PTG Participating Company and the dates of his or her employment with
each and every PTG Participating Company (a.k.a. Service History with PTG
Participating Companies);
(h)
the current employment status of the person as active employee, former
(i.e. deferred vested or terminated) employee, or retiree;
(i)

whether such person is alive or deceased (and if deceased, date of death);

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(j)

the name of such person’s beneficiary;

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(k)

the date of First Termination;

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(l)

NCS at date of First Termination;

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(m)

rate of compensation at date of First Termination;

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(n)
cash balance at date of First Termination(if applicable and to the extent one
was calculated);

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(o)
cash balance accrued benefit at date of First Termination (if applicable and
to the extent one was calculated);
(p)

ATB at date of First Termination;

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(q)
any other data and factors used to calculate ATB at date of First
Termination;

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(r)

date of rehire;

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(s)

date of Second Termination;

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(t)

NCS at date of Second Termination;

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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(u)

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(v)
cash balance at date of Second Termination (if applicable and to the extent
one was calculated);

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rate of compensation at date of Second Termination;

(w)
cash balance accrued benefit at date of Second Termination (if applicable
and to the extent one was calculated);

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(x)
Special ATB at date of Second Termination (if applicable and to the extent
one was calculated);

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(y)

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CAM benefit at date of Second Termination (if applicable and to the extent
one was calculated);

(z)
any redetermined ATB amount at date of Second Termination (if
applicable and to the extent one was calculated);

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(aa) any other data and factors used or necessary to determine eligibility for a
cash balance, CAM benefit, redetermined ATB or Special ATB at date of Second
Termination (if applicable);

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(bb) any other data and factors necessary to determine the amount of a cash
balance, CAM benefit, redetermined ATB or Special ATB at date of Second
Termination (if applicable).

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Participant Data For Annuitant Participants
3.

By April 29, 2011, the Plan will produce the following data for the Annuitant

Participants to Lead Class Counsel in Excel format:

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(a)

name;

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(b)

social security number;

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(c)

birth date;

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(d)

sex/gender;

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(e)

current/last known address (and, if known, address at termination of
employment);

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(f)

NCS start date for purposes of determining eligibility for a pension;

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(g)

the date(s) on which any such person’s employment commenced with and
terminated with each and every PTG Participating Company and the name
of each such PTG Participating Company and the dates of his or her
employment with each and every PTG Participating Company (a.k.a.
Service History with PTG Participating Companies);

(h)

the current employment status of the person as active employee, former
(i.e. deferred vested or terminated) employee, or retiree;

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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(i)

whether such person is alive or deceased (and if deceased, date of death);

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(j)

the name of such person’s beneficiary;

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(k)

the date of First Termination;

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(l)

NCS at date of First Termination;

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(m)

rate of compensation at date of First Termination;

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(n)

cash balance at date of First Termination (if applicable and to the extent
one was calculated);

(o)

cash balance accrued benefit at date of First Termination (if applicable and
to the extent one was calculated);

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(p)

ATB at date of First Termination;

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(q)

any other data and factors used to calculate the ATB at date of First
Termination;

(r)

date of rehire;

(s)

date of Second Termination (if applicable);

(t)

NCS at date of Second Termination;

(u)

rate of compensation at date of Second Termination;

(v)

cash balance at Second Termination (if applicable and to the extent one
was calculated);

(w)

cash balance accrued benefit at date of Second Termination (if applicable
and to the extent one was calculated);

(x)

Special ATB at Second Termination (if applicable and to the extent one
was calculated);

(y)

CAM benefit at date of Second Termination (if applicable and to the extent
one was calculated);

(z)

redetermined ATB amount at date of Second Termination;

(aa)

any other data and factors used or necessary to determine eligibility for a
cash balance, CAM benefit, redetermined ATB and/or Special ATB at date
of Second Termination (if applicable);

(bb)

any other data and factors used or necessary to calculate the amount of cash
balance, CAM benefit, redetermined ATB and/or Special ATB at date of
Second Termination (if applicable).

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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Beneficiary Data

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4.

By April 29, 2011, the Plan will produce the following data to Lead Class Counsel

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in Excel format for the beneficiaries of the Lump Sum Payee Participants and the beneficiaries of

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the Annuitant Participants : (a) name, (b) social security number, (c) birth date, (d) current or last

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known address, (e) email address (if known) and (f) whether such person is alive or deceased.

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Raw Data

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5.

At the time that the Plan produces the data set forth in Paragraphs 2-4, the Plan

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will identify the sources of any underlying data used for purposes of compiling the data in

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Paragraphs 2-4 and the instructions or parameters used in extracting such data, including the

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queries that were used to extract the data from the Plan’s Access database, and shall produce in

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Excel format any data that Fidelity or Aon provided to the Plan and any data extracted as a result

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of the queries from the Plan’s Access database which, in either case, was used to compile the data

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in Paragraphs 2-4. Each of the queries, instructions and parameters used to extract the data and

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the underlying data shall be considered Confidential under the terms of the Protective Order in

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this case.

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Confidentiality of Production of Data Regarding Participants & Beneficiaries

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6.

Data regarding a particular individual’s social security number, birth date, rate of

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compensation, and amount of benefit(s) calculated or received shall be designated as Attorneys

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Eyes Only under the Protective Order agreed to by the parties. Calculations or summaries of such

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data that reveal only aggregate numbers and do not reveal sensitive information of individual

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participants will not be subject to such restrictions.

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Disclosures of Persons Knowledgeable About the Data Maintained and Compiled

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7.

At the time that the data in Paragraphs 2-5 are produced, the Plan will identify in

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writing to Lead Class Counsel (a) the name and address of the person(s) at the Plan and/or AT&T

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whom the Plan believes most knowledgeable about the participant and beneficiary data that was

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compiled and produced to and by the Plan (or AT&T) in this litigation; and (b) the name,

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employer (i.e. vendor/contractor) and address of the person(s) at any vendor (including Aon) that

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provided the Plan with any data or information in connection with the data requested or produced

C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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pursuant to Paragraphs 2-5 of this Stipulation whom the Plan believes most knowledgeable about

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the participant and beneficiary data that was compiled and produced to and by the Plan (or

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AT&T) in this litigation.

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8.

The Plan waives objections under Rule 30(a)(2)(ii) to the extent that Plaintiff

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subsequently issues a notice of either a Rule 30(b)(6) deposition of the Plan or a subpoena for

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deposition to any person identified pursuant to Paragraph 7 who has previously been deposed in

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this litigation so long as those depositions address matters related to the participant and

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beneficiary data, the composition or size of the Class or the difference in calculating benefits

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before and after the 1997 Amendment. Defendant reserves all rights to object to such depositions

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on any other basis.

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Subsequent Production of Data for Other Participants

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9.

To the extent that the data required to be produced in this Stipulation does not

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include data for persons who are included in the Class, Defendant agrees to supplement and

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provide the data described in this Stipulation for such participants and beneficiaries.

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10.

Plaintiff reserves the right to subsequently request data for participants and

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beneficiaries of the Plan not required to be produced by this Stipulation, but agrees not to make

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such request until after Plaintiff has received the data required to be produced by this Stipulation.

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Defendant reserves the right to object on any basis to production of data for participants and

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beneficiaries not included in the Class.

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WHEREFORE the Parties, by and through their undersigned counsel, hereby request that

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this Stipulation be entered as an Order of the Court.

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Dated: April 15, 2011

Agreed to by:

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

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COUNSEL FOR PLAINTIFF & THE
CLASS

COUNSEL FOR AT&T PENSION BENEFIT
PLAN – NONBARGAINED PROGRAM

By:

By: /s/ Patrick W. Shea (with permission)
Patrick W. Shea, NY SB No. 4587176,
Pro Hac Vice
PAUL HASTINGS JANOFSKY &
WALKER LLP
75 E. 55th Street, First Floor
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

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/s/ R. Joseph Barton
R. Joseph Barton, CA Bar No. 212340
Bruce F. Rinaldi CA Bar No. 55133
Robyn M. Swanson (pro hac vice)
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Avenue, N.W.
Suite 500
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Michelle Lee Roberts CA Bar No. 239092
Claire Kennedy-Wilkins CA Bar No.
231897
SPRINGER-SULLIVAN & ROBERTS
LLP
410 - 12th Street
Suite 325
Oakland, CA 94607
Telephone: [phone]
Facsimile: [phone]

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Stephen H. Harris, CA SB No. 184608
M'Alyssa Christianne Mecenas,
CA SB No. 272075
PAUL HASTINGS, JANOFSKY &
WALKER LLP
515 S. Flower Street
25th Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Scott J Paisley, CA SB No. 94236
AT&T SERVICES, INC.
525 Market Street
Suite 2001
San Francisco,, CA 94105
Telephone: [phone]
Facsimile: [phone]
Rebecca K. Kimura, CA SB No. 220420
Susan T Kumagai, SB No. 127667
LAFAYETTE & KUMAGAI LLP
100 Spear Street
Suite 600
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS

UNIT
ED

S

April
So ORDERED this 18th day of _____, 2011.
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______________________________
DERED
SO OR
IT IS Marilyn H. Patel
Hon.
United States District Judge
. Patel
arilyn H
Judge M

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S DISTRICT
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C OHEN , M ILSTEIN ,
S ELLERS & T OLL
P.L.L.C.
ATTORNEYS AT LAW

Case No. 08-04058 MHP

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STIPULATION RE: PRODUCTION OF
DATA FOR PLAN PARTICIPANTS