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 FREIBERG DEC. IN OPP. TO EX PARTE APPLICATION TO RESCHEDULE HEARING RE CLASS NOTICE 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 LAW OFFICES OF CRAIG A. MILLER CRAIG A. MILLER (SBN 116030) 225 Broadway, Suite 1310 San Diego, CA 92101 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 CHARLES N. FREIBERG IN OPPOSITION TO DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE Judge James V. Selna Courtroom: 10C Case 2:10-cv-09198-JVS-RNB Document 406-1 Filed 03/18/13 Page 1 of 4 Page ID #:18044 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 FREIBERG DEC. IN OPP. TO EX PARTE APPLICATION TO RESCHEDULE HEARING RE CLASS NOTICE 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. On Monday, March 11, 2013, Plaintiffs filed a motion for approval of their proposed class notice, which was noticed for hearing on April 8, 2013. Prior to filing that motion, on Tuesday, March 5, 2013, I sent counsel for LSW an email in which I informed them that Plaintiffs would notice their motion concerning class notice issues for hearing on April 8, 2013. At no point between the time I sent the March 5 email and the time Plaintiffs’ filed their motion on Monday, March 11 did LSW’s counsel inform me of any scheduling conflict that would prevent LSW from appearing at the hearing on April 8. A true and correct copy of the March 5 email I sent to LSW’s counsel is attached hereto as Exhibit A. 3. On Wednesday, March 13, two days after Plaintiffs filed their motion and set the hearing date for April 8, I received an email from LSW’s counsel, Jonathan Shapiro. Mr. Shapiro informed me that April 8 would be “rough for [him] to get to Santa Ana” for the hearing due to a “family/kid conflict.” Mr. Shapiro requested that the hearing be moved to April 22, or, alternatively, to April 15. In his request, Mr. Shapiro made no mention of the fact that LSW intended to file a separate motion concerning the appointment of a special master in connection with the class notice. Sensing that a desire to file an untimely motion – and not Mr. Shapiro’s purported scheduling conflicts – might be the main reason behind Mr. Shapiro’s request, my colleague, Jeanette Barzelay, responded that Plaintiffs were generally amenable to moving the hearing date, but she also raised our concern that LSW might “use this continuance and our agreement to stipulate thereto to secure additional time to make its own motion concerning the class notice” to be heard at the same time as Plaintiffs’ motion, which would be too late Case 2:10-cv-09198-JVS-RNB Document 406-1 Filed 03/18/13 Page 2 of 4 Page ID #:18045 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 FREIBERG DEC. IN OPP. TO EX PARTE APPLICATION TO RESCHEDULE HEARING RE CLASS NOTICE Case No. CV 10-9198 JVS (RNBx) 2 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 if noticed for the current April 8 hearing date. Ms. Barzelay also noted that any such motion concerning the appointment of a special master would be untimely pursuant to the Fourth Amended Pretrial Scheduling Order because it necessarily would “concern[] the class notice” and was not filed within ten days of the Ninth Circuit’s denial of LSW’s Rule 23(f) petition. A true and correct copy of the email chain containing these and subsequent meet and confer discussions is attached hereto as Exhibit B. 4. In his response to Ms. Barzelay’s email, Mr. Shapiro attempted to gloss over the concerns she raised, falsely suggesting that Plaintiffs had “agreed” that LSW’s motion would be filed “on Monday [March 18]” (and wrongly referring to “Monday’s deadline” and a “March 25 deadline”), while simultaneously confessing that LSW planned to file a motion “for appointment of a special master” to be noticed “for the same hearing date” as Plaintiffs’ motion. Mr. Shapiro’s email thus suggested that Plaintiffs’ suspicions were correct that LSW sought the continuance in order to notice its motion for the same date as Plaintiffs’ motion in the hopes of obscuring the fact that LSW’s motion concerning class notice issues would be untimely filed. Accordingly, Ms. Barzelay informed Mr. Shapiro on March 14 that Plaintiffs would not stipulate to moving the hearing date from April 8 to April 22. See Exhibit B attached hereto. 5. On Friday, March 15, Mr. Shapiro sent an email to Ms. Barzelay stating that LSW would file an ex parte motion to move the hearing date from April 8 to April 22. In his email, Mr. Shapiro stated that this scheduling conflict could have been “avoided” if Plaintiffs had “simply ask[ed] us if a date works before unilaterally assuming as much” and suggested that Plaintiffs had not attempted to “consult on dates.” Ms. Barzelay responded to Mr. Shapiro’s email, reminding him that “we gave you advance notice, on Tuesday, March 5 – six days before we filed our motion on Monday, March 11 – that we would be setting the hearing date for April 8. Nevertheless, we did not hear about your purported Case 2:10-cv-09198-JVS-RNB Document 406-1 Filed 03/18/13 Page 3 of 4 Page ID #:18046 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 FREIBERG DEC. IN OPP. TO EX PARTE APPLICATION TO RESCHEDULE HEARING RE CLASS NOTICE Case No. CV 10-9198 JVS (RNBx) 3 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 conflict until two days after we filed our motion, on March 13.” Ms. Barzelay also informed Mr. Shapiro that “[w]e will be opposing your ex parte motion on the basis explained in our previous emails, including the fact that it is an attempt to delay our motion in order to cure the untimeliness of your motion.” See Exhibit B attached hereto. 6. Attached hereto as Exhibit C is a true and correct copy of a meet and confer letter from LSW’s counsel, Mr. Shapiro, to me, dated March 8, 2013. In that letter, Mr. Shapiro stated that “LSW believes that the special master process must begin immediately – in concert with the ‘response-required class notice.’” 7. Attached hereto as Exhibit D is a true and correct copy of a February 22, 2013 email from LSW’s counsel, James Lux, to me and LSW’s proposed class notice “distributing [a] questionnaire” (Document Number 106486067) attached thereto. In the section entitled “Who is in the Class,” LSW’s draft class notice states: “The Court is currently deciding membership in the sub-Class. In order to do this, the Court has appointed a so-called ‘Special Master’ (NAME) to assist the Court in its review of materials from LSW’s policy files in order to determine what materials, if any, potential Class Members received. In addition, the Court has directed that the attached questionnaire be distributed to potential Class Members to assist the Special Master in determining whether you and other policyholders are members of the sub-Class.” I declare under penalty of perjury that the foregoing is true and correct. Executed this 18th day of March, 2013 at San Francisco, California. By: /s/ Charles N. Freiberg Charles N. Freiberg Case 2:10-cv-09198-JVS-RNB Document 406-1 Filed 03/18/13 Page 4 of 4 Page ID #:18047