1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case No. CV 10-9198 JVS (RNBx) KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890) BRIAN P. BROSNAHAN (SBN 112894) JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030 LEVINE & MILLER HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER 550 West C Street, Suite 1810 San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638 Attorneys for Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, v. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, Defendant. CLASS ACTION CASE NO.: CV 10-9198 JVS (RNBx) Formerly Case No.: 3:10-cv -04852 JSW from Northern District of California DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Judge James V. Selna Date: September 10, 2012 Time: 1:30 p.m. Courtroom: 10C BPB 1 Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 1 of 5 Page ID #:9830 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case No. CV 10-9198 JVS (RNBx) 1 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 1. I am an attorney authorized to practice in the courts of California and in the United States District Court for the Central District of California. I am a partner of Kasowitz, Benson, Torres & Friedman, LLP, counsel for Plaintiffs in these proceedings. I have personal knowledge of the facts stated herein and if required could and would testify under oath thereto. 2. Attached hereto as Exhibit A is a description of the Proposed Class and Subclasses. 3. Attached hereto as Exhibit B is a true and correct copy of a letter from Jonathan A. Shapiro, Esq., counsel for Life Insurance Company of the Southwest (“LSW”), to Brian P. Brosnahan, Esq., dated March 5, 2012. 4. Attached hereto as Exhibit C is a true and correct copy of a letter from James Lux, Esq., counsel for LSW, to Brian P. Brosnahan, Esq., of Kasowitz, Benson Torres & Friedman LLP, dated September 13, 2011. 5. Attached hereto as Exhibit D is a true and correct copy of a SecurePlus Paragon Annual Statement for Plaintiff Kim Bruce Howlett, Bates numbered LSW00001084-LSW00001088, dated September 26, 2008. 6. Attached hereto as Exhibit E is a true and correct copy of a S.A.L.E. Field Compliance Guide for the National Life Group, Bates numbered LSW00018575-LSW00018610. 7. Attached hereto as Exhibit F is a true and correct copy of a Life Insurance Illustration, Bates numbered LSW00045475-LSW00045505, dated June 23, 2009. 8. Attached hereto as Exhibit G is a true and correct copy of an Excel spreadsheet entitled “SecurePlus Paragon Other Charges,” Bates numbered LSW00102303. 9. Attached hereto as Exhibit H is a true and correct copy of an Excel spreadsheet entitled “SecurePlus Provider Other Charges,” Bates numbered LSW00102311. BPB 2 Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 2 of 5 Page ID #:9831 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case No. CV 10-9198 JVS (RNBx) 2 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 10. Attached hereto as Exhibit I is a true and correct copy of an email Bates numbered LSW-E00034422-LSW-E00034424, dated September 20, 2006. 11. Attached hereto as Exhibit J is a true and correct copy of an email Bates numbered LSW-E00037050-LSW-E00037052, dated September 20, 2006. 12. Attached hereto as Exhibit K is a true and correct copy of an email chain, Bates numbered LSW-E00065754-LSW-E00065755, dated September 12, 2007. 13. Attached hereto as Exhibit L is a true and correct copy of an email chain, Bates numbered LSW-E00070208-LSW-E00070209, dated June 24, 2009. 14. Attached hereto as Exhibit M is a true and correct copy of the SecurePlus Provider Insurance Policy issued to Plaintiff Joyce Walker, Bates numbered JW002838-JW002902, dated December 27, 2007. 15. Attached hereto as Exhibit N is a true and correct copy of a Life Insurance Illustration prepared for Plaintiff Joyce Walker, Bates numbered LSW00002329-LSW00002352, dated October 3, 2007. 16. Attached hereto as Exhibit O is a true and correct copy of the SecurePlus Paragon Insurance Policy issued to Plaintiff Muriel Spooner, Bates numbered HS00027-HS000086, dated October 5, 2007. 17. Attached hereto as Exhibit P is a true and correct copy of a Life Insurance Illustration prepared for Plaintiff Muriel Spooner, Bates numbered LSW00001984-LSW00002007, dated July 27, 2007. 18. Attached hereto as Exhibit Q is a true and correct copy of excerpts from the deposition of Stephanie Burmester taken on May 1, 2012. 19. Attached hereto as Exhibit R is a true and correct copy of excerpts from the deposition of Matthew DeSantos taken on November 14, 2011. 20. Attached hereto as Exhibit S is a true and correct copy of excerpts from the deposition of Elizabeth MacGowan taken on October 31, 2011. BPB 3 Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 3 of 5 Page ID #:9832 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case No. CV 10-9198 JVS (RNBx) 3 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 21. Attached hereto as Exhibit T is a true and correct copy of excerpts from the deposition of Victoria McDonald taken on May 2, 2012. 22. Attached hereto as Exhibit U is a true and correct copy of excerpts from the deposition of Michael B. Richardson taken on May 3, 2012. 23. Attached hereto as Exhibit V is a true and correct copy of excerpts from the deposition of Susan Rusnock taken on May 2, 2012. 24. Attached hereto as Exhibit W is a true and correct copy of LSW’s Responses to Plaintiffs’ Second Set of Requests for Admission, dated February 23, 2012. 25. Attached hereto as Exhibit X is a true and correct copy of an exemplar of a life insurance illustration produced by LSW as Bates numbers LSW00000159- LSW00000170. This document was produced by LSW as part of (and is excerpted from) a package submitted by LSW to the California Department of Insurance (“DOI”) in 2005 in connection with the introduction of the Provider policy. As shown by a comparison with the Provider illustration given to Plaintiff Joyce Walker, the exemplar illustration submitted to the DOI omits any reference either to (1) the Account Value Enhancement that purportedly begins in Year 10 of the policy, or (2) the reduction in the Monthly Administrative Charge that purportedly begins in Year 11. Compare Ex. X at LSW00000162 & LSW00000169, with Ex. N at LSW00002336 & LSW00002349. 26. Attached hereto as Exhibit Y is a true and correct copy of an exemplar of a life insurance illustration produced by LSW as Bates numbers LSW00000467- LSW00000481. This document was produced by LSW as part of (and is excerpted from) a package submitted by LSW to the California DOI in 2006 in connection with the introduction of the Paragon policy. As shown by a comparison with the Paragon illustration given to Plaintiff Muriel Spooner, the exemplar illustration submitted to the DOI omits any reference either to the reduction in the Monthly BPB 4 Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 4 of 5 Page ID #:9833 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case No. CV 10-9198 JVS (RNBx) 4 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 Administrative Charge that purportedly begins in Year 11. Compare Ex. Y at LSW00000480, with Ex. P at LSW00002004. 27. Attached hereto as Exhibit Z is Plaintiffs’ Trial Plan in Support of Plaintiffs’ Motion for Class Certification. 28. Attached hereto as Exhibit AA is a table, “Table 1A,” depicting the impact of S&P 500 volatility on the policy value of Plaintiff Muriel Spooner. 29. Attached hereto as Exhibit BB is a table, “Table 1B,” depicting the impact of S&P 500 volatility on the policy value of Plaintiff Muriel Spooner. 30. Counsel for Plaintiffs recently became aware of Maraldo, et al. v. Life Insurance Company of the Southwest, United States District Court for the Northern District of California, Case No. 11-CV-4972-YGR, filed October 7, 2011. Plaintiffs presume that LSW would have filed a Motion to Transfer if it believed this putative class action presented the same claims alleged here. Plaintiffs understand that Maraldo involves a different type of insurance policy (universal life) and is a vanishing premium case based on oral representations. Maraldo v. Life Insurance Co. of the Southwest, U.S. Dist. LEXIS 45572, at *17-18 (N.D. Cal. Mar. 30, 2012). Dated: May 14, 2012 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP By: /s/ Brian P. Brosnahan Brian P. Brosnahan BPB 5 Case 2:10-cv-09198-JVS -RNB Document 241 Filed 05/31/12 Page 5 of 5 Page ID #:9834