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

Filing 315

ORDER SETTING TELEPHONIC CMC. PLAINTIFF COUNSEL TO COORDINATE CALL. Case Management Statement due by 10/26/2012. Further Case Management Conference set for 11/2/2012 11:30 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 9/4/12. (bpf, COURT STAFF) (Filed on 9/4/2012)

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R. Joseph Barton, CA Bar No. 212340
Email: [e-mail]
Bruce F. Rinaldi, CA Bar No. 55133
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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Attorneys for Plaintiff & the Class
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Patrick W. Shea, Admitted Pro Hac Vice, NY Bar No. 4587176
Email: [e-mail]
PAUL HASTINGS LLP
75 East 55th Street
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
[Additional counsel listed on the next page]

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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,

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Plaintiff,
v.
AT&T PENSION BENEFIT PLAN NONBARGAINED PROGRAM,

Case No. 08-04058 EMC
SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT
ORDER SETTING TELEPHONIC CMC
FOR 11/2/12 at 11:30 a.m.

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Defendant.
Judge Edward M. Chen

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C OHEN , M ILST EIN ,
S ELLERS & T OLL
P.L.L.C.
ATTO RNEY S AT LAW
WAS HI NG TO N

SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT
BARNES V. AT&T, CASE NO. 08-04058 EMC

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Michelle L. Roberts, CA Bar No. 239092
Email: [e-mail]
SPRINGER-SULLIVAN & ROBERTS LLP
410 – 12th Street, Suite 325
Oakland, CA 94607
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff & the Class
QUILLER BARNES

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Stephen H. Harris, CA Bar No. 184608
Email: [e-mail]
M’Alyssa C. Mecenas, CA Bar No. 272075
Email: [e-mail]
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]

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Regan A.W. Herald, CA Bar No. 251879
Email: [e-mail]
PAUL HASTINGS LLP
55 Second Street, 24th Floor
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
AT&T PENSION BENEFIT PLAN – NONBARGAINED PROGRAM

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C OHEN , M ILST EIN ,
S ELLERS & T OLL P.L.L.C.
ATTO RNEY S AT LAW
WAS HI NG TO N

SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT
BARNES V. AT&T, CASE NO. 08-04058 EMC

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Pursuant to the Court’s instruction during the Parties’ June 22, 2012 case management

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conference that the Parties report to the court within 60 days regarding outstanding issues, the

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Parties to the above-entitled action jointly submit this case management statement addressing the

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issues of class certification, class notice, discovery, and ADR.

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1.

Class Certification:

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a.

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Prior to time that Count III was added to the Complaint in this case (alleging violations of

Plaintiff’s Position

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ERISA’s anti-forfeiture, and actuarial equivalence requirements), Plaintiff had sought and the

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Court granted class certification as to Count II and IV. See Barnes v. AT&T Pension Benefit Plan

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– Nonbargained Program, 270 F.R.D. 488 (N.D. Cal. 2010). Based on information obtained in

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discovery and positions taken by Defendant, Plaintiff sought to amend the complaint to add Count

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III. See Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 273 F.R.D. 562 (N.D.

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Cal. 2011). At the time that the Court granted Plaintiff’s motion to amend the Complaint to add

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Count III, the Court advised that Plaintiff would need to separately seek class certification for

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new counts brought on behalf of the Class. See Barnes, 273 F.R.D. at 570 at n.6. At the time that

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the class was originally certified, Defendant had averred that the class consisted of 285

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participants (plus their beneficiaries). See Barnes, 270 F.R.D. at 499 at n. 2. After the Court

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certified the class, Defendant then averred in interrogatories that the Class consisted only of 10

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participants (plus their beneficiaries), including 7 participants who elected to take lump sums at

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first retirement and 3 participants who have or would receive deferred annuities. See Def’s MSJ,

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Dkt. No. 295 at p. 8. For those who elected to receive deferred annuities, Defendant has now

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agreed to pay the benefits in Section 3.4(d)(3). See Dkt. No. 312 at 1. Based on Defendant’s

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statement under oath that the number of participants in the Class who took lump sums at first

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termination is 7 participants (plus their beneficiaries) and Plaintiff’s belief that any decision on

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the legality of plan terms will, as a practical matter, affect any of the other similarly situated

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participants, Plaintiff does not intend to file a motion to certify Count III on behalf of the Class.

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///

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C OHEN , M ILST EIN ,
S ELLERS & T OLL
P.L.L.C.
ATTO RNEY S AT LAW
WAS HI NG TO N

-1-

SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT
BARNES V. AT&T, CASE NO. 08-04058 EMC

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b.

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In light of Plaintiff’s decision not to move for class certification on Count III, the Parties

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agree to resolve the remaining claims and defenses with respect to Plaintiff only, pursuant to the

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current Scheduling Order.

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2.

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Parties’ Joint Statement

Class Notice
In light of the Court’s Order on the parties cross-motions for summary judgment (Dkt. No.

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309), and Plaintiff’s decision not to seek class certification of Count III, Class Counsel believed

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that it would be appropriate pursuant to Rule 23(d)(1)(B) to send notice to the Class members

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advising them of Plaintiff’s decision to not pursue Count III as a class claim, and that absentee

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class members may need to take some action to protect their rights, such as seeking to intervene

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and/or filing a separate individual claim. Class Counsel proposed submitting a form of

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supplemental notice for the Court’s approval.

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The Parties have conferred regarding this issue. Defendant has stated that it will agree

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that any time-based defense that Defendant could assert against the absentee class members with

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respect to the claims asserted in Count III shall be tolled from the date of this joint case

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management statement up through the date the Court rules on Count III with respect to Plaintiff.

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The Parties intend to enter a formal agreement to this respect. In light of Defendant’s agreement,

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the Parties agree that it is not necessary to send supplemental class notice to the Class at this time,

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but Plaintiff and Class Counsel believe it may be necessary to do so after a ruling on Count III.

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3.

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Discovery:
Fact discovery in this case closes on September 10, 2012. On April 27, 2011, Plaintiff

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served a fourth set of interrogatories on Defendant regarding its affirmative defenses. Defendant

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never responded to these interrogatories. In light of the parties’ agreement to address issues of

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plan interpretation first, Plaintiff agreed that discovery regarding Defendant’s affirmative

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defenses could be deferred until after the Court’s decision on the cross-motions for summary

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judgment. See Dkt. No. 258 at 8. Defendant has agreed to respond to Plaintiff’s interrogatories

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regarding Defendant’s affirmative defenses with respect to Plaintiff only and expects to provide

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responses to Plaintiff’s Fourth Set of Interrogatories before the current fact discovery cut-off date,
SUPPLEMENTAL JOINT CASE
-2MANAGEMENT STATEMENT

C OHEN , M ILST EIN ,
S ELLERS & T OLL P.L.L.C.
ATTO RNEY S AT LAW
WAS HI NG TO N

BARNES V. AT&T, CASE NO. 08-04058 EMC

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September 10, 2012. Because Count I was not certified as a class claim, summary judgment on

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Count II was granted on behalf of Defendant and Plaintiff does not seek to certify Count III as a

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class claim, responses to Plaintiff’s interrogatories regarding Defendant’s affirmative defenses

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with respect to any other Class member are unnecessary at this stage.

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4.

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ADR:
During the June 22, 2012 case management conference, the Court asked the parties about

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pursuing ADR. The Parties agree that a subsequent settlement conference would likely be most

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useful, if at all, after the parties have exchanged expert reports. At that juncture, the Parties will

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confer to determine whether they wish to engage in another settlement conference.

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Dated: August 22, 2012

COHEN MILSTEIN SELLERS & TOLL PLLC
By: /s/
R. Joseph Barton, CA Bar No. 212340
Bruce F. Rinaldi, CA Bar No. 55133

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Attorneys for Plaintiff
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Dated: August 22, 2012

PAUL HASTINGS LLP

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By: /s/
Patrick W. Shea, Admitted Pro Hac Vice, NY Bar
No. 4587176

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Attorneys for Defendant
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SIGNATURE ATTESTATION

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I, Michelle L. Roberts, hereby attest that that I have obtained the concurrence in the filing of the

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document from the other signatories on this document.

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Dated: August 22, 2012

SPRINGER-SULLIVAN & ROBERTS LLP

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By: /s/
Michelle L. Roberts, CA Bar No. 239092

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ATTO RNEY S AT LAW

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C OHEN , M ILST EIN ,
S ELLERS & T OLL P.L.L.C.

UNIT
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IT IS SO ORDERED that a telephone CMC is set for 11/2/12 at 11:30 a.m. Plaintiff counsel shall
call defendant then the Court at 415-522-2117. An updated CMC statement shall be filed by
S DISTRICT
10/26/12.
TE
C
TA
SUPPLEMENTAL JOINT CASE
________________________D
-3ERE
O ORD
MANAGEMENT STATEMENT
Edward M. Chen IT ISSSMODIFIED
A
BARNES V. AT&T, CASE NO. 08-04058 EMC
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U.S. District Judge
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