In re: AXA Equitable Life Insurance Company

Filing 693

SUGGESTION OF DEATH, UNOPPOSED MOTION FOR SUBSTITUTION, AND ORDER, The Clerk of Court is directed to substitute "Mary J. McDonough, as trustee of the Currie ChildrenTrust" in the place of "Allen Dyer, as trustee ofthe Currie Children Trust" as plaintiff and class representative in this case. (Mary J. McDonough, as trustee of the Currie ChildrenTrust added. SO ORDERED., Allen Dyer terminated.) (Signed by Judge Jesse M. Furman on 5/18/23) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:
AXA EQUITABLE LIFE INSURANCE
COMPANY COI LITIGATION
This document relates only to 16-cv-740

ECF CASE
No. 16 Civ. 740 (JMF)
No. 17 Civ. 4767 (JMF)
No. 17 Civ. 4803 (JMF)
No. 17 Civ. 9355 (JMF)
No. 18 Civ. 2111 (JMF)

SUGGESTION OF DEATH, UNOPPOSED MOTION FOR SUBSTITUTION, AND
[PROPOSED] ORDER
Counsel for Class Plaintiffs in the above-referenced action gives notice and suggests
upon the record, pursuant to Federal Rule of Civil Procedure 25(a)(1), the death of Allen Dyer,
trustee for the Currie Children Trust, who as trustee was a Class Representative for the
Nationwide Contract Class and the Nationwide Section 4226 Class, and was also pursuing
individual claims in this Action for violations of California’s Elder Abuse and Dependent Civil
Protection Act, Cal. Wel. & Inst. Code § 15600, et seq., and of California’s Unfair Competition
Law (CUCL), Cal. Bus. & Prof. Code § 17200, et seq. alongside Barbara Currie, as personal
representative of the estate of Malcolm Currie. See ECF Nos. 592 & 593.
Mr. Dyer served as a plaintiff in this Action since March 16, 2018. Mr. Dyer was the
Trustee of the Currie Children Trust, the owner of an AUL II policy with a face amount of
$4,200,000 (Policy No. 156220683), that is one of the policies at issue in this Action. He passed
away on September 21, 2022.

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Both the Class and individual claims were brought by the Currie Children Trust, through
its trustee, Mr. Dyer, and may be maintained for its benefit through Mr. Dyer’s successor trustee.
“As far as what the Supreme Court has referred to as ‘the common law of trusts’ is concerned, it
is hornbook law that an action brought by a trustee is not ordinarily abated by his failure to
continue in his office. When a trustee party leaves office, an action is ordinarily revived in the
name of the successor representative.” Corbin v. Blankenburg, 39 F.3d 650, 653 (6th Cir. 1994)
(citations and internal quotation marks omitted).
Further, in the class action context, courts routinely permit substitution of deceased class
representatives. See, e.g., Duncan v. Unity Life and Accident Ins. Ass’n, 2003 WL 1907959, at *1
n.1 (S.D.N.Y. Apr. 18, 2003) (permitting daughter of deceased class representative to be
substituted as class representative); McLaughlin on Class Actions § 4:36 (“[C]ourts have
consistently granted plaintiffs leave to substitute new representatives where . . . a class has
already been certified and the certified representative becomes unavailable (e.g., dies . . .)”).
The Currie Children Trust provides that upon Mr. Dyer’s death, the then-living
beneficiaries of the Trust may designate a successor trustee. Mary J. McDonough has been
designated as successor trustee by the Trust’s living beneficiaries. Accordingly, pursuant to Rule
25(a), it is hereby requested that “Mary J. McDonough, as trustee of the Currie Children Trust”
be substituted in place of “Allen Dyer, as trustee of the Currie Children Trust” as a plaintiff and
Class Representative in this Action, so that the Currie Children Trust’s Class and individual
claims survive and this Action on its behalf may proceed.
I hereby certify that I have contacted Counsel for Defendant concerning the request in
this Motion, and that Defendant does not oppose the Substitution, without prejudice to any
defenses that Defendant may assert in this Action.

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Dated: May 17, 2023
/s/ Halley W. Josephs
Seth Ard
Mark Musico
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32ndFloor
New York, NY 10019-6023
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Steven G. Sklaver (pro hac vice)
Rohit D. Nath (pro hac vice)
Glenn Bridgman (pro hac vice)
Halley W. Josephs
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067-4405
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

The Clerk of Court is directed to substitute “Mary
J. McDonough, as trustee of the Currie Children
Trust” in the place of “Allen Dyer, as trustee of
the Currie Children Trust” as plaintiff and class
representative in this case.

Class Counsel

SO ORDERED, THIS 18th DAY OF

May

Hon. Jesse M. Furman

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, 2023