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 LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS, 10-9198-JVS (RNBx) JONATHAN A. SHAPIRO (257199) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, CA 94304 Tel: (650) 858-6101 Fax: (650) 858-6100 jonathan.shapiro@wilmerhale.com ANDREA J. ROBINSON (PRO HAC VICE) TIMOTHY J. PERLA (PRO HAC VICE) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Tel: (617) 526-6000 Fax: (617) 526-5000 andrea.robinson@wilmerhale.com timothy.perla@wilmerhale.com Attorneys for Defendant Life Insurance Company of the Southwest 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. CASE NO.: CV 10-9198 JVS (RNBx) LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS Judge: Hon. James V. Selna Courtroom: 10C Case 2:10-cv-09198-JVS -RNB Document 174 Filed 03/23/12 Page 1 of 4 Page ID #:7407 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 - 2 - LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS, 10-9198-JVS (RNBx) LSW submits this supplemental filing to apprise the Court of additional new information further highlighting the need for an order like the one this Court issued in the Toyota multi-district litigation. 1. On February 16, 2012, LSW served on Plaintiffs interrogatories seeking, inter alia, the names and addresses of recipients of Plaintiffs’ letter. See Perla Declaration 2. 2. On March 22, 2012, Plaintiffs served their response, providing the names and addresses of 364 recipients. See Perla Declaration 2. 3. Of the 364 recipients, 86 of them were insureds who are not policy owners, and have never (and will never) be members of the putative class. See Perla Declaration 3. 4. Additionally, more than 10 percent of the recipients are minors (who were insureds, not policy owners). See Perla Declaration 4. 5. Thus, a material portion (approximately 24 percent) of Plaintiffs’ mailing — stating untruthfully that a case had been filed “on your behalf” — went to those who will never be members of any class in this case, including many young children. 6. Plaintiffs had documentation that would have enabled them to avoid this problem. Many months ago, LSW produced policy files pertaining to the 364 policies at issue. Among other documents, each policy file contains an application and a policy data section. These documents indicate the identities of the owner (i.e., the putative class member) and the insured. They also indicate the age of the insured. An example of an Application (pertaining to a Recipient) that repeatedly identifies the insured as a minor is attached to the Declaration of Timothy Perla as Exhibit B. Thus, there is, in LSW’s view, no reasonable excuse for mailing 86 people who are not in the putative class, including minors. Case 2:10-cv-09198-JVS -RNB Document 174 Filed 03/23/12 Page 2 of 4 Page ID #:7408 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 - 3 - LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS, 10-9198-JVS (RNBx) 7. To prevent recurrences, the Court should enter LSW’s Proposed Order providing even-handed and reciprocal ground rules for contacting absent members of the putative class. DATED: March 23, 2012 WILMER CUTLER PICKERING HALE AND DORR LLP By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro Andrea J. Robinson Timothy J. Perla Attorneys For Defendant Life Insurance Company of the Southwest Case 2:10-cv-09198-JVS -RNB Document 174 Filed 03/23/12 Page 3 of 4 Page ID #:7409 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 - 4 - LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS, 10-9198-JVS (RNBx) PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Wilmer Cutler Pickering Hale and Dorr LLP, 950 Page Mill Road, Palo Alto, CA 94304. On March 23rd, 2012 I served the within document(s): LIFE INSURANCE COMPANY OF THE SOUTHWEST’S SUPPLEMENTAL FILING IN SUPPORT OF ITS EX PARTE APPLICATION FOR ENTRY OF ORDER RE: CONTACTS WITH PUTATIVE CLASS MEMBERS I placed the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Palo Alto, CA addressed as set forth below. I personally caused to be emailed the document(s) listed above to the person(s) at the address(es) set forth below. ⌧ I electronically filed the document(s) listed above via the CM/ECF system. Brian P. Brosnahan Charles N. Freiberg Jacob Foster KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 cfreiberg@kasowitz.com Harvey R. Levine LEVINE & MILLER 550 West C. Street, Suite 1810 San Diego, CA 92101-8596 lsmh@levinelaw.com /s/ Jonathan A. Shapiro Jonathan A. Shapiro Case 2:10-cv-09198-JVS -RNB Document 174 Filed 03/23/12 Page 4 of 4 Page ID #:7410