Johnson, Heather v. Bankers Life and Casualty Company

Filing 139

OPINION AND ORDER denying 87 Motion to Strike; denying 90 Motion for Summary Judgment; denying as moot 130 Motion to Certify Class under Rule 23; denying as moot 137 Motion for Extension of Time. Signed by District Judge William M. Conley on 9/12/14. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
HEATHER JOHNSON, on behalf of herself
and all others similarly situated, and NANCY
WEINREIS,
Plaintiffs,

OPINION AND ORDER

v.
13-cv-144-wmc
BANKERS LIFE AND CASUALTY
COMPANY,
Defendant.
In this putative class action, plaintiffs Heather Johnson and Nancy Weinreis allege
that defendant Bankers Life and Casualty Company (“Bankers”) negligently and
intentionally misrepresented the advantages of purchasing a so-called “Medicaid
Annuity.” Before the court are several motions, including plaintiffs’ motion for summary
judgment. Because the undisputed facts demonstrate that plaintiffs have not suffered an
injury and are not at risk of suffering one, the court will deny plaintiffs’ motion for
summary judgment, deny as moot their motion for class certification, and dismiss this
action for lack of standing.

UNDISPUTED FACTS1
A. Overview of Medicaid Annuities
Medicaid Annuities are designed to exclude a portion of an individual’s assets
from consideration in determining his or her eligibility for Medicaid while providing an
immediate or deferred income stream to that individual’s designated beneficiary. For
example, the spouse of an individual who is (or may soon be) receiving care in a nursing
home may receive income as the beneficiary of the purchased annuity, while the value of
the annuity, including the income stream, is excluded for purposes of determining the
spouse’s eligibility for Medicaid. Medicaid Annuities are a “common and accepted form
of estate planning to qualify Wisconsin residents for Medicaid.” (Expert Report of Scott
Thompson (“Thompson Rept.”) (dkt. #124.) 4; see also Deposition of Kimberly A. Shaul
(“Shaul Depo.”) (dkt. #105-16) (plaintiff’s expert acknowledging that there is “nothing
illegal in Wisconsin about using an annuity to make an individual eligible for
Medicaid”).)
Under regulations adopted by the then Wisconsin Department of Health Services
as the Medicaid administrator, once a stream of income payments begins (known as
“annuitizing”), neither the corpus of the annuity nor the income stream are considered
“available” or “countable” assets in determining Medicaid eligibility. The parties agree
that this “annuitization” is crucial, because a Medicaid Annuity is only effective in
1

Unless otherwise noted, the court finds the following facts material and undisputed in light of
the court’s finding that plaintiffs lack constitutional standing to bring their claims. Many of the
parties’ proposed findings of facts are not material to the court’s disposition and, therefore, are
only included if helpful for context.

2

excluding assets from consideration of an individual’s eligibility if the annuity is paying
income. Even so, according to the uncontradicted affidavit of defendant’s expert, Scott
Thompson, however, a failure to annuitize presents no serious impediment to an
applicant’s obtaining Medicaid eligibility, since an intake social worker at a nursing home
is likely to instruct the applicant to have the beneficiary start taking income from the
annuity so as to protect it from Medicaid’s spend-down rules. (Thompson Depo. (dkt.
#148) 41-43.)
B. Bankers Medicaid Annuity
Beginning in 2004, Wisconsin law changed such that only annuities that “cannot
be surrendered” could be considered unavailable assets and therefore not counted in
determining Medicaid eligibility. (Def.’s PFOFs (dkt. #108) ¶ 12.)2 Responding to this
change in the law, Bankers designed a Medicaid Annuity to be competitive in the market,
which contained the following “Annuity Income Preservation Amendment Rider”:

2

Defendants submit several other proposed findings of facts, none of which are materially
disputed, regarding this so-called “secondary market test.” Since none are relevant to plaintiffs’
claims, except for further context, they are not set forth in this opinion. (Def.’s PFOFs (dkt.
#108) ¶¶ 11-14.)

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(2nd Am. Compl., Ex. A (dkt. #55-1) 9.) Bankers began selling annuities with the Rider
after it was approved by the Wisconsin Office of the Commissioner of Insurance (“OCI”)
in 2004. (Def.’s PFOFS (dkt. #108) ¶ 28.)
From 2004 through 2008, Bankers sold 3,599 Medicaid Annuities with the Rider
to 1,568 unique customers (some bought more than one) through 200-400 different
agents across Bankers’ seven offices. The parties agree that the Rider was effective in
insuring that Bankers’ Annuities with annuitized income streams (annuities that had
begun paying out) were deemed unavailable or non-countable for determining eligibility
of an individual applying for Medicaid in Wisconsin.
C. Johnsons’ Purchase of Bankers Annuity
In late 2007 or early 2008, plaintiff Heather Johnson and her deceased husband,
Gary Johnson, purchased a Bankers annuity with the Rider from Bankers’ agent, Craig

4

Chapp.3 Plaintiff contends that during a meeting, Chapp represented that the Rider
would protect the assets of the annuity from Medicaid thereby allowing the Johnsons to
take advantage of government aid and benefits for which they were eligible without
having to use the assets of the annuity to pay for a nursing home or any other type of
long-term care.

Heather Johnson testified at her deposition, however, that she

understood the express language quoted above in the Rider to mean that the Bankers
annuity would not automatically make the Johnsons eligible for Medicaid, but that it
“may yes or may no” be deemed an excluded asset if Mr. Johnson applied for Medicaid.
(Def.’s Resp. to Pls.’ PFOFs (dkt. #110) ¶ 4 (citing Deposition of Heather Johnson
(“Johnson Depo.”) (dkt. #117) 114:1-10).)4
Gary Johnson passed away in August 2008. Sometime after his death, likely in
late fall 2010, Chapp called Heather Johnson to inform her of his discovery that the
Rider was “ineffective.” (Def.’s Resp. to Pls.’ PFOFS (dkt. #110) ¶ 10 (citing Johnson
Depo. (dkt. #117) 131-132.)

Because Mr. Johnson died before seeking Medicaid,

however, Ms. Johnson admitted in her deposition that she does not know if the Rider
would have shielded their assets in the Bankers annuity from Medicaid spend down rules.
(Def.’s Resp. to Pl.’s PFOFs (dkt. #110) ¶ 4 (citing Johnson Depo. (dkt. #117) 127.)
Defendant’s expert, however, concedes that the annuity was not annuitized (paying out)

3

The court will address below in its opinion defendant’s unsuccessful attempt to dispute that Ms.
Johnson participated in the purchase of an annuity.
4

Ultimately, for reasons explained below, any disputes over Johnson’s understanding of the
Rider, Chapp’s specific representations to the Johnsons during the sale’s meeting, or whether
Chapp was following a “uniform script” are not material.

5

at the time of Mr. Johnson’s death. (Pls.’ Reply to Pls.’ PFOFs (dkt. #129) ¶ 8 (citing
Deposition of Scott Thompson (“Thompson Depo.”) (dkt. #118) 42-43.)

PRELIMINARY MATTER
Pursuant to Federal Rule of Civil Procedure 37(b)(2), plaintiffs move to strike the
testimony and expert report of Robert L. Klein as a sanction for Bankers’ alleged
misconduct during discovery. (Dkt. #87.) Klein’s testimony and report goes to whether
this action may be certified as a class action. Because the court will dismiss this case
based on the named plaintiffs’ lack of standing, it need not reach the motion for class
certification and, arguably, this motion to strike. Given plaintiffs’ allegations and the
seriousness of a request for sanctions, however, the court will briefly explain its reasons
for addressing and denying the motion.
Plaintiffs object to Bankers providing Klein with the full list and contact
information of those persons who purchased Bankers’ Annuities with the Rider to
conduct a survey regarding (1) why each purchased the annuity and (2) what they were
told at the time of purchase.

(Pls.’ Br. in Supp. of Mot. to Strike (dkt. #88) 3.)

Plaintiffs contend that Bankers’ release of this data and Klein’s subsequent contact of
putative class members runs counter to certain representations made by defendant in
opposing plaintiffs’ requests for discovery concerning class members’ contact information.
As described in the court’s prior order dealing with plaintiffs’ motion to compel
this information, the court rejected plaintiffs’ argument that defendant had an obligation
to disclose class members’ actual contact information, viewing this issue as distinct from

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plaintiffs’ right to contact members of the putative class. (9/30/13 Op. & Order (dkt.
#80) 2-3 (discussing Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981); Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 354 (1978)).) Still, relying on Oppenheimer, the court found
that plaintiff had demonstrated that disclosure of a subset of customer contact
information may be relevant to Rule 23 issues, and therefore granted plaintiffs’ motion in
part, requiring disclosure of a randomly-selected list of 50 customers. (Id. at 3-4.)
Nevertheless, plaintiffs argue that the subsequent disclosure of the full customer
list to Klein and his contact of some subset of the individuals on that list runs counter to
positions taken by defendant in opposing plaintiffs’ requests for a similar disclosure.
First, plaintiffs contend that defendant represented to the court that the collection and
disclosure of this information would be “tedious,” “time-consuming” and “costly,” yet
apparently then undertook exactly this task for its own expert’s use in this case. (Pls.’ Br.
(dkt. #88) 2-3.) As defendant points out in its opposition to the motion for sanctions,
however, it never raised burden as a basis for opposing plaintiffs’ request for disclosure.
(Def.’s Opp’n (dkt. #104) 24-25.) Rather, the language quoted by plaintiffs referred to
Bankers statements about document discovery concerning the Rider generally. (Id. at 25
n.18.) Moreover, even if burden had been raised along with representations as to time
and cost, the court’s subsequent order that Bankers produce a randomly-selected list of
50 obviously reduced those burdens, if not wholly than rationally. Regardless, the court
can find no basis to conclude these representations were made in bad faith.
Second, plaintiffs contend that defendant opposed plaintiffs’ request in part
because of concerns about their customers’ privacy rights and relatedly concerns about
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dragging “putative class members into the discovery fold.”

(Pls.’ Br. (dkt. #88) 2

(quoting defendants’ opposition). While this argument fairs better than the first, the
court is satisfied Bankers privacy or harassment concerns may have been real, but were
ameliorated by having a third-party research company retained by defendant’s expert
contact a select group of putative class members, rather than Bankers’ attorneys or
Bankers itself. Moreover, as Bankers argues, Gulf Oil and its progeny allow for contact
with putative class members, absent concerns for abuse which are not -- or, at least, do
not appear to be -- present here. If plaintiffs truly wished to conduct a more robust
survey -- extending beyond the 50 customers ordered disclosed by the court -- they could
have made this argument to the court in a subsequent motion seeking more disclosure,
particularly after learning of the broader disclosure to Bankers’ expert, rather than
seeking to bar defendant’s expert from testifying altogether.
Even if the court were persuaded by the substance of plaintiffs’ argument, Rule
37(b)(2)(C) only allows for sanctions for conduct in violation of a court order. Here, the
court ordered defendant to produce a random selection of 50 customers, which it did.
While plaintiffs hint that the court could also rely on its inherent authority to sanction
defendant, the court does not find that any arguable lack of candor by defendant rises to
the level of willful abuse of the judicial process or bad faith in conducting litigation
warranting sanctions under the court’s inherent authority. Tucker v. Williams, 682 F.3d
654, 662 (7th Cir. 2012) (“Sanctions imposed pursuant to the district court's *662
inherent power are appropriate where a party has willfully abused the judicial process or

8

otherwise conducted litigation in bad faith.”). Accordingly, the court will deny plaintiffs’
motion to strike the expert report and testimony of Robert Klein.

OPINION
In considering plaintiffs’ motion for summary judgment as the party with the
burden of proof at trial, the evidence must be “so one-sided that [they] must prevail as a
matter of law.” Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 662 (7th Cir. 2011)
(quoting Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 42 (7th Cir.
1992)). This is a high burden, but the court need not reach the merits of plaintiffs’
arguments because the undisputed record demonstrates that neither plaintiff suffered an
actual injury or is at risk of suffering an imminent injury as required to meet the first
element of constitutional standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992).5
Defendant actually raises two standing challenges in opposition to plaintiffs’
motion for summary judgment. The first, directed only at plaintiff Heather Johnson,
concerns non-constitutional or prudential standing based on whether she has an interest
in this action, as opposed to her late-husband Gary Johnson, whose estate is not named
as plaintiff. See, e.g., Edgewood Manor Apartment Homes v. RSUI Indem. Co., 733 F.3d 761,
771 (7th Cir. 2013) (“There are constitutional minimums for standing to sue in federal

5

While the court does not reach the merits of plaintiffs’ claims, the court notes that Wisconsin
does not recognize a claim for strict responsibility for misrepresentation or negligent
misrepresentation based on a failure to disclose. See Eberts v. Goderstad, 569 F.3d 757, 765 (7th
Cir. 2009) (citing Kaloti Enter., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶ 13 n.3, 283 Wis. 2d 555,
699 N.W.2d 205).

9

court; there are also ‘prudential’ standing requirements, one of which is that the plaintiff
generally must assert his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.” (internal quotation marks and citation
omitted)). This is the same argument raised in defendant’s motion to dismiss.

The

second challenge involves both plaintiffs and concerns whether they have suffered an
actual or will suffer an imminent injury necessary to establish constitutional standing.

I. Prudential Standing
Bankers asserts that Gary Johnson, not plaintiff Heather Johnson, purchased the
Bankers Annuity at issue in this case. (Def.’s Resp. to Pls.’ PFOFs (dkt. #110) ¶ 1.) In
response, Ms. Johnson contends that the court already decided this issue as part of its
decision on defendant’s motion to dismiss.
The court actually found in its opinion and order Heather Johnson had standing
as alleged, the complaint having alleged that: (1) she “was present for the agent’s sales
pitch when the alleged misrepresentation occurred; (2) she and her husband jointly
decided to cash out their old annuity despite penalties to purchase the Bankers annuity;
and (3) the Johnsons used joint [marital] assets to purchase the annuity.” (9/20/13 Op.
& Order (dkt. #79) 9 (citations to amended complaint omitted).) Now, at summary
judgment, defendant contends that at least the first allegation was not in fact true,
because Ms. Johnson was not involved in the purchase decision. In support, defendant
points to the following passages from her deposition:
Q. And the Bankers annuity with the rider was a new
product, and all you knew about it was what an insurance
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salesman told you about it; and so Mr. Johnson naturally,
because he was a wise and prudent, smart man, did some due
diligence about the investment before he made it; right?
A. Yes.
...
Q. Okay. Okay. [The application for the annuity is] signed
on December 18th, 2007. Do you see that?
A. Yes.
Q. Were you there when this document was filled out and
signed?
A. I believe so.
Q. Now, if you turn just a few pages, you’ll see there’s a
Sample Calculation of Index Credit.
A. Yes.
Q. Not, if you look, Mr. Johnson signed this, and this is
dated December 19th.
A. Yeah.
...
A. No. When Gary bought his annuity in ’07, I bought . . .
(Def.’s Resp. to Pls.’ PFOFs (dkt. #110) (citing Deposition of Heather Johnson
(“Johnson Depo.”) (dkt. #117) 103:10-16, 123:9-20, 166:18.)
However, none of these passages raise a genuine issue of material fact as to
whether plaintiff Heather Johnson was present for the sales pitch, much less made a joint
decision with her husband to purchase the annuity or that marital assets were used to
purchase it. Moreover, in her affidavit submitted in support of plaintiffs’ motion for
summary judgment, Johnson avers that (1) she and her husband purchased the annuity;

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(2) she was present at the meeting with Mr. Chapp; and (3) the annuity was purchased
with funds liquidated from another annuity they had purchased together. (Affidavit of
Heather Johnson (dkt. #93) ¶¶ 1, 3, 6.) As such, the court finds that Heather Johnson
satisfies the prudential standing requirement of being the real party in suit, or that at the
very least, a genuine issue of material fact exists on this issue.

II. Constitutional Standing
While Johnson may meet the requirements for prudential standing, both her claim
and that of co-plaintiff Nancy Weinreis falter when it comes to meeting their burden to
prove an injury sufficient for constitutional standing.

See Edgewood Manor Apartment

Homes, 733 F.3d at 771 (“The party invoking federal jurisdiction bears the burden of
establishing the[] elements” for standing and plaintiff “can no longer rest on . . . ‘mere
allegations’ at summary judgment.”) (quoting Lujan, 504 U.S. at 561).
The question of standing is a jurisdictional prerequisite under Article III of the
Constitution. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771
(2000).6 To establish standing, a plaintiff must demonstrate:

6

The challenge to standing was raised in defendant’s opposition to plaintiffs’ motion for
summary judgment, and not as part of defendant’s own motion. In light of this posture, entering
judgment in favor of the non-moving party might normally be problematic under Fed. R. Civ. P.
56(f), providing certain limits on judgment independent of a motion. Here, however, the court
has an independent duty to ensure that plaintiffs have standing, and therefore Rule 56(f) is not
implicated. U.S. v. $304,980.00 in U.S. Currency, 732 F.3d 812, 817-18 (7th Cir. 2013) (“The
federal courts are under an independent obligation to examine their own jurisdiction, and
standing is perhaps the most important of [the jurisdictional] doctrines.” (quotation marks
omitted) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990))). Moreover, plaintiffs
were no notice of this challenge and had an opportunity to respond as part of their reply
submission.

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(1) it has suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(internal quotation omitted); see also Lujan, 504 U.S. at 560.
It is undisputed that Mr. Johnson died on August 8, 2008, without ever seeking
Medicaid. (Def.’s Resp. to Pls.’ PFOFs (dkt. #110) ¶ 5 (citing Johnson Depo. (dkt.
#117) 126:10-14).) Because Mr. Johnson never sought Medicaid benefits, the Bankers
Annuity Rider was never put to use. Moreover, it is undisputed that after Gary Johnson’s
death, Heather Johnson received the full proceeds from their Bankers annuity as the
named beneficiary. (Declaration of Adam J. Kaiser, Ex. C (dkt. #13-3).) As such, there
is no actual injury -- the Rider did not fail to work as promised, nor is there any threat of
future injury (imminent or otherwise). Now that the annuity proceeds have been paid to
Heather Johnson, there is also no risk that the annuity would not work as promised
sometime in the future.
Plaintiffs nevertheless persist in their argument that the annuity was not effective,
because it was not annuitized at the time of Gary Johnson’s death, and the experts agree
that the annuity would have had to have been annuitized to protect his assets from
Medicaid spend-down rules. (Pls.’ Reply to Pls.’ PFOFs (dkt. #129) ¶ 4.) However, any
injury from the possibility that the annuity would not have worked as promised, if it had
been tested, is too hypothetical or speculative to satisfy the injury requirement for
constitutional standing. See DH2, Inc. v. U.S. S.E.C., 422 F.3d 591, 596 (7th Cir. 2005)
13

(“Mere speculation is not enough to establish an injury in fact.” (internal citation and
quotation marks omitted)).
Citing only the amended complaint as support, Johnson also claims that she and
her late husband “lost thousands of dollars when they cashed out other investments in
order to fund the annuity purchased from defendant.” (Pls.’ PFOFs (dkt. #98) ¶ 29.)
Any loss of income associated with the Johnsons’ decision to cash out other investments
to purchase the annuity, however, was not caused by the Rider not working as promised.
Perhaps the Johnsons made a regrettable financial decision by buying a product with a
feature that ultimately proved unnecessary, however, this was not caused by the alleged
misrepresentations, but rather by the decision to purchase a product with the promise of
excluding its value from Medicaid spend-down requirements.
While plaintiff Weinreis is not a focus of plaintiffs’ motion for summary
judgment, she too admitted in her deposition to being unaware of anyone who suffered
an adverse eligibility ruling in reliance on the Rider to protect assets from Medicaid
spend-down requirements. (Deposition of Nancy Weinreis (dkt. #115) 76.) From this,
the court infers that Weinreis’s own eligibility for Medicare was not adversely impacted
by her reliance on the Rider. As with Johnson, Weinreis, therefore, has not suffered an
actual injury, and there is no risk of future injury because Weinreis now knows to
“annuitize” for the annuity to be excluded from Medicaid spend-down requirements.

14

Even if there were some possible injury, it is neither imminent nor particular to satisfy
the standing requirement.7
At its heart, plaintiffs’ complaint is simply that Bankers failed to tell its customers
the full story regarding the extent to which its Medicaid annuities might not be excluded
from eligibility requirements, but plaintiffs have not established, nor on the undisputed
facts here could they establish, that any harm was caused by this failure (assuming there
was a failure). Indeed, plaintiffs’ complaint is comparable to other claims dismissed for
lack of standing. For example, in the consumer product context, courts routinely find
lack of standing where -- while a product may have been defective in the hands of others
-- the individual plaintiffs did not suffer the defect and, therefore, suffered no injury. See,
e.g., Rule v. Fort Dodge Animal Health, Inc. 607 F.3d 250, 252 (1st Cir. 2010) (“Recovery
generally is not available under the warranty of merchantability where the defect that
made the product unfit caused no injury to the claimant, the threat is now gone and
nothing now possessed by the claimant has been lessened in value.”). Similarly, courts
have dismissed procedural due process claims where the plaintiff was not injured by a
deficiency in a notice or some other procedural requirement. See, e.g., Rector v. City &
Cnty. of Denver, 348 F.3d 935, 945 (10th Cir. 2003) (finding that plaintiffs lacked
standing to pursue a class action challenging the notice on a parking ticket because
neither plaintiff has a legal basis for challenging the ticket).

7

Even if Weinreis had standing, the court previously found her inadequate to serve as a class
representative. (9/30/13 Op. & Order (dkt. #80) 5-6 (granting plaintiffs leave to add Weinreis as
a plaintiff but finding her “wholly inadequate class representative” because of her “conflict of
interest with the class as a former employee/agent of Bankers”).)

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Indeed, the only evidence in the record is that even if the annuity suffered from a
defect -- namely, that it only protected assets if annuitized -- this so-called defect was
easily fixable.

As defendants’ expert explained, faced with an annuity where the

applicant had not yet taken income from it, an intake social worker at a nursing home
would likely simply instruct the applicant to annuitize it (e.g., start taking income from
it) so as to protect it from Medicaid’s spend-down rules. (Thompson Depo. (dkt. #148)
41-43.)

III. Effect of Dismissal on Class Action
While the court finds that the plaintiffs in this action lack standing, a member of
the putative class may have suffered an injury because of defendant’s alleged
misrepresentations.

Indeed, plaintiffs submitted an affidavit from a putative class

member in which she avers that “the rider did not protect our assets as represented by
Banker[s’] agent” when her husband entered an assisted living facility.

(Affidavit of

Patricia Kiley (dkt. #95) ¶¶ 7-8.) Even so, the fact that someone may have standing does
not cure plaintiffs’ lack thereof. See Payton v. Cnty. of Kane, 308 F.3d 673, 682 (7th Cir.
2002) (noting that “standing cannot be acquired through the back door of a class
action”) (quotation omitted); see also Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir.
2008) (deciding individual standing to pursue injunctive relief prior to evaluating class
certification issues).
Having found both plaintiffs lack standing to bring suit, the court must dismiss
this case. See Wiesmueller v. Kosobucki, 513 F.3d 784, 786 (7th Cir. 2008) (holding that if
16

named plaintiff’s claim becomes moot before certification, suit must be dismissed because
no one has a legally protected interest in litigation); Bertrand ex rel. Bertrand v. Maram,
495 F.3d 452, 455 (7th Cir. 2007) (“[I]f the would-be representative’s claim becomes
moot before certification, then the case must be dismissed.”). Accordingly, the court will
also deny plaintiffs’ motion for class certification as moot.8

ORDER
IT IS ORDERED that:
1) plaintiffs Heather Johnson and Nancy Weinreis’s motion to strike testimony
and expert report of Robert L. Klein (dkt. #87) is DENIED;
2) plaintiffs’ motion for summary judgment (dkt. #90) is DENIED;
3) plaintiffs’ motion for class certification under Rule 23 (dkt. #130) is DENIED
as moot;
4) the parties’ joint motion for extensions of time (dkt. #137) is DENIED as
moot;
5) plaintiffs’ claims are DISMISSED with prejudice for lack of standing; and
6) the clerk of court is directed to close this case.
Entered this 12th day of September, 2014.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge
8

While obviously not reaching the merits of plaintiffs’ motion for class certification, the court
would be remiss not to point out that that certification seems unlikely given that plaintiffs’ claims
appear to be so closely tied to issues concerning the claimed misrepresentations and omissions
about the Rider in the sales pitch of individual agents and each class member’s claimed reliance
on those. See, e.g., Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 WL 5308206, at
*9-11 (W.D. Wis. Sept. 10, 2013) (denying motion for class certification of similar claims
concerning alleged misrepresentations in individual sales calls).

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