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DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-09198-JVS(RNBx)
Jonathan A. Shapiro (257199) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 93304 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, Massachusetts 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 SOUTHERN DIVISION JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, and DOES 1-50 Defendant.
Case No.: CV 10-9198-JVS(RNBx) DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION OF NEW AND REMAINING CLAIMS RELATING TO CURRENT BASIS POLICY VALUES Judge: Hon. James V. Selna Date: March 4, 2013 Time: 1:30 P.M. Courtroom: 10C
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 1 of 17 Page ID #:17407
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- i - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................... 1
II. ARGUMENT ................................................................................................... 2
A. Plaintiffs Cannot Establish Predominance ............................................ 2
1. Class Members Who Receive Truthful Information Cannot Sustain UCL or Fraud Claims ..................................................... 2
B. Class Certification is Improper Where, As Here, Determining What Class Members Were Told Requires Individualized Inquiry ...... 3
C. To Defeat Certification, LSW Is Not Required to Prove That Certain “Magic Words” Have Been Used During Sales ....................... 8
D. Yokoyama Is Not to the Contrary ......................................................... 9
III. CONCLUSION .............................................................................................. 12
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 2 of 17 Page ID #:17408
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- ii - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
TABLE OF AUTHORITIES
Page(s) CASES
Bradberry v. John Hancock Mut. Life Ins. Co., 222 F.R.D. 568 (W.D. Tenn. 2004) ................................................................................. 6
Cohn v. Mass. Mut. Life Ins. Co., 189 F.R.D. 209 (D. Conn. 1999) ...................................................................................... 7
Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal. App. 4th 830 (2009) .................................................................................... 7, 11
Markarian v. Conn. Mut. Life Ins. Co., 202 F.R.D. 60 (D. Mass. 2001) ........................................................................................ 7
Matter of Ross, 94 B.R. 210 (M.D. Ga. Bankr. 1988) .............................................................................. 8
Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ................................................................................... passim
Spray, Gould & Bowers v. Associated Internat. Ins. Co., 71 Cal. App. 4th 1260 (1999) ......................................................................................... 12
Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) ......................................................................................2, 6
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ........................................................................................................ 6
Yokoyama v. Midland National Life Insurance Company, 594 F.3d 1087 (9th Cir. 2008) ............................................................................ 9, 10, 11
STATUTES
Cal. Ins. Code §10509.956(d) ............................................................................................... 10
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 3 of 17 Page ID #:17409
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RULES
Fed. R. Civ. P. 23 ...................................................................................................................2, 6
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 4 of 17 Page ID #:17410
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- 1 - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
I. INTRODUCTION Plaintiffs’ Motion for Class Certification shares many of the defects of their
Motion to Amend. First, it is untimely. The deadline to file motions for class
certification expired on May 14, 2012, and Plaintiffs offer no excuse that can
justify the lateness of their filing. Second, Plaintiffs seek to certify claims that
cannot survive on the merits as to any class member. Finally, Plaintiffs re-argue
claims that this Court has already correctly held cannot be certified. As to all of
these points, LSW relies on, and incorporates by reference, its Opposition to the
Motion to Amend.
This Opposition focuses on another fatal flaw of Plaintiff’s Motion for
Certification of a Class relating to the repackaged claims they now seek to assert :
lack of predominance. To certify a class, Plaintiffs must prove that certain
information about the three enhancements was entirely omitted from each and
every sale that took place between thousands of agents and tens of thousands of
class members. They cannot do so.
Plaintiffs’ core argument is that class members probably did not receive the
allegedly omitted information. But that does not establish predominance. Under
Ninth Circuit precedent, LSW is not required to present any evidence concerning
what disclosures were made to particular class members. Rather, certification must
be denied given that determining what disclosures were made is an individualized
issue at the very heart of the case.
Of course, even though LSW has no burden, even the existing evidence from
the last round of briefing regarding class certification shows that the predominance
problem is unavoidable. Class members were given individualized disclosures
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 5 of 17 Page ID #:17411
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- 2 - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
about the enhancements. Thus, to determine whether there was an omission in
each individual case will require individual fact-finding about each sale. These
issues cannot be resolved for all putative class members in one stroke. 1
II. ARGUMENT
A. Plaintiffs Cannot Establish Predominance
1. Class Members Who Receive Truthful Information Cannot Sustain UCL or Fraud Claims
Rule 23(b)(3) permits certification only if the court “finds that the questions of
law or fact common to class members predominate over any questions affecting
only individual members.” Fed. R. Civ. P. 23(b)(3). This determination “begins,
of course, with the elements of the underlying cause of action.” Stearns v.
Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011) (quoting Erica P. John
Fund, Inc. v. Halliburton Co., 131 S.Ct. 2179, 2184 (2011)). Here, Plaintiffs seek
to certify a current-basis claim that LSW should have “disclos[ed] to policyholders
that [the non-guaranteed, eleventh-year] benefits had never been provided[.]” Pl.’s
Mot. to Amend, Dkt. 368, at 5. The existence of this omission is the first,
necessary element of their claim. See Pl.’s Mot. for Class Cert., Dkt. 371 at 17-18
(listing “Common Omissions” as first element of claim sought to be certified).
1 To avoid repetition, LSW hereby incorporates by reference its filings on Plaintiffs’ first Motion for Class Certification. In that regard, although this brief focuses on predominance, particularly to the extent Rule 23 requirements overlap (e.g., whether individual issues predominate informs superiority), the analysis of the other elements is guided by the predominance analysis.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 6 of 17 Page ID #:17412
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In Mazza, the Ninth Circuit held that a class could not be certified where it
included members who “learned of the . . . allegedly omitted limitations before
they purchased.” Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595-96 (9th Cir.
2012).2 Davis v. HSBC, another Ninth Circuit decision, is the same. There, the
Ninth Circuit held that, under California law, a plaintiff received the allegedly
omitted information cannot recover either for fraud or under the UCL. 691 F.3d
1152, 1163, 1169-70 (9th Cir. 2012). For this case, Mazza and Davis (as well as
the California decisions on which they rely) mean that policyholders who learned
the allegedly concealed information during the sales process have no claim.3
B. Class Certification is Improper Where, As Here, Determining What Class Members Were Told Requires Individualized Inquiry
Application of the above rule is dispositive of class certification because the
only way to determine what information each class member learned is by
examining each sale individually, including the highly individualized interactions
between each agent and each class member.
The record shows that “[e]ach sale is, at bottom, a human interaction.” Dkt. 263
(“DeSantos Dec.”) ¶¶ 3-4, 8. There are no sales scripts and, aside from general
2 The Court’s prior opinion addressed only the portion of Mazza concerning how the class must be defined. Dkt. 353 at 29 (citing Mazza, 666 F.3d at 594 (“the relevant class must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading.”)). The instant argument is based on an entirely separate Mazza holding—the portion which is fatal here. 3 The Court has already observed that Plaintiffs can only establish liability for the fraud and UCL claims if they can show that information was actually concealed from class members. See Dkt. 353 at 7, 20 n.13, 21, 38.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 7 of 17 Page ID #:17413
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guidelines (e.g., honesty), LSW does not constrain agents’ discretion regarding
what information to provide to policyholders. To the contrary, agents use their
professional judgment to serve their clients’ varied best interests. Id. ¶ 7; Dkt. 257
(“Birnbaum Dec.”) ¶ 13; Dkt. 255 (“Foulk Dec.”) ¶ 12. LSW has already
submitted five agent declarations, which show a complete lack of uniformity in
sales practices. Agents sell Paragon and Provider policies through numerous face-
to-face meetings, during which agents explain the policies in unscripted oral
communications. Dkt. 259 (“Obregon Dec.”) ¶¶ 14, 16; Foulk Dec. ¶ 22;
Birnbaum Dec. ¶¶ 12-13; Dkt. 256 (“Norona Dec.”) ¶ 8. Sometimes agents
provide written disclosures, which could include any of hundreds of LSW-
generated documents, agent-generated materials, and/or written communications
and notes. Obregon Dec. ¶ 15; DeSantos Dec. ¶¶ 6-7. Other times, agents provide
no written sales materials whatsoever. Norona Dec. ¶ 9; Dkt. 258 (“Covi Dec.”) ¶¶
23-24. Meetings sometimes involved only the agent and prospective applicant.
Other times, meetings involved other persons too, including lawyers, accountants,
other insurance agents, and family members. Foulk Dec. ¶ 22.
Although it has no evidentiary burden, LSW has previously submitted
evidence showing that in some of these meetings, agents conveyed the specific
information that Plaintiffs now allege was omitted.
Agent Mark Birnbaum testified that he “told some of [his] clients that their
Provider policies may provide them with an Account Value Enhancement
after ten policy years. When [he] started selling Provider, [he] told …
clients that the product was brand new. Therefore, these clients knew that
the policies had not been available for ten years yet.” Birnbaum Dec. ¶ 22.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 8 of 17 Page ID #:17414
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Agent Sean Covi’s declaration stated: “When presenting a Provider
illustration to my clients, I sometimes point out that the illustrated values
include a non-guaranteed Account Value Enhancement after ten policy
years, but that (again) this is not guaranteed and may never happen.” Covi
Dec. ¶ 26.
Agent Scott Foulk testified that he has “never told [his] clients that they are
guaranteed to get either an Account Value Enhancement or a reduction of
the monthly administrative charge.” Foulk Dec. ¶ 46 “To the contrary,” he
“typically tell[s] his clients that they should not assume that they will get any
of the non-guaranteed values featured in their illustrations.” Id. ¶ 47. Mr.
Foulk “explain[s] that LSW' s use of the term ‘current’ means non-
guaranteed” and does “not tell [his] clients that ‘current’ values are actually
being paid to anybody (to the contrary, [he] make[s] clear that the ‘current’
values are just an average of how the S&P 500 has performed over the past
thirty years).” Id. ¶ 49.
Plaintiffs do not contest that agent interactions are individualized (they just ask
the Court to ignore them, addressed infra). But those interactions matter because
they determine the foundational question in this case — did a given class member
learn the allegedly concealed information? And that question calls for
individualized analysis. In Mazza, the Ninth Circuit held that it was reversible
error to certify a class that may include “members who learned of the … allegedly
omitted [information] before they purchased,” because these individuals had no
claim, could not be class members, and as a result “common questions of fact [did]
not predominate.” 666 F.3d at 596.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 9 of 17 Page ID #:17415
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The Ninth Circuit’s holding in Mazza is just one of a line of recent decisions
that come out similarly. The Supreme Court has held that certification must be
denied where the “validity of each one of the [class members’] claims” cannot be
resolved “in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
(2011). And, applying Dukes, the Ninth Circuit elaborated that Rule 23(b)(3)
predominance is absent where “there [is] no cohesion among the [putative class]
members because they were exposed to quite disparate information from various
representatives of the defendant.” Stearns, 655 F.3d at 1020.
Earlier decisions by other federal courts have reached the same conclusion,
finding that life insurance sales cases are inappropriate for Rule 23(b)(3)
certification if the claims depend upon the facts of individual transactions between
agents and purchasers. See, e.g., Bradberry v. John Hancock Mut. Life Ins. Co.,
222 F.R.D. 568, 572-73 (W.D. Tenn. 2004) (“Defendant's sales of insurance
policies use a non-uniform, non-standardized process…. it is impossible for the
Court to consider issues of what representations were made or not made to each
class member … without examining the individual circumstances of each person's
transaction.”).
In Avritt v. Reliastar Life Ins. Co., for example, the Eighth Circuit held that
class certification was improper where — as here — insurance policies “were sold
by thousands of independent agents who did not follow a particular sales script”
and were “free to answer any questions that customers had about the product.” 615
F.3d 1023, 1035 (8th Cir. 2010). The district court in Keyes v. Guardian Life Ins.
Co. of America reached the same result, rejecting plaintiffs’ “repeated incantations
regarding … alleged use of ‘uniform’ illustrations” because—again, just like
here—“sales presentations differed from agent to agent, from client to client, and
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 10 of 17 Page ID #:17416
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from transaction to transaction,” thus requiring an “individualized inquiry as to the
mix of information received by each class member.” 194 F.R.D. 253, 256-57 (S.D.
Miss. 2000). Other courts have reached similar conclusions. See, e.g., Markarian
v. Conn. Mut. Life Ins. Co., 202 F.R.D. 60, 69 (D. Mass. 2001) (no certification
because “total mix of information made available to each purchaser was
distinctive, if not unique” because of varying written documents, “oral
representations,” and “independent sources of advice”); Cohn v. Mass. Mut. Life
Ins. Co., 189 F.R.D. 209, 214-15 (D. Conn. 1999) (no certification because varied
training, sales presentations, uses of illustrations, and discussions required
“individualized fact-finding” into whether misrepresentation or omission
occurred).
California courts have reached the same conclusion in insurance sales cases
involving UCL claims. In Fairbanks v. Farmers New World Life Insurance
Company, the court rejected plaintiffs’ attempt to “proceed with a class action
based solely on the allegedly misleading language of the policies” without
considering information conveyed by agents because “class members may have
received information explaining the allegedly concealed fact.” 197 Cal. App. 4th
544, 564 (2011); see also Kaldenbach v. Mut. of Omaha Life Ins. Co., 178 Cal.
App. 4th 830, 842, 850 (2009) (affirming denial of certification where plaintiff
“argued commonality could be found based solely on the use of illustrations” but
“the viability of a UCL claim would turn on inquiry into … what … disclosures,
representations, and explanations were given to any given purchaser.”). The same
result follows here.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 11 of 17 Page ID #:17417
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- 8 - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
C. To Defeat Certification, LSW Is Not Required to Prove That Certain “Magic Words” Have Been Used During Sales
Plaintiffs have not quarreled with the notion that the sales process is
individualized. Instead, the thrust of their argument has been a demand for proof
that disclosures during particular sales have included a precise form of words that
discloses, to their satisfaction, what they say is the problem. See, e.g., Pl.’s Reply
In Support of Mot. for Class Cert., Dkt. 291 at 9-10; Pl.’s Obj. and Resp. to LSW’s
Appendices A and B, Dkt. 298 at 1-18. They have then relied on this parsing to
claim that “LSW has presented no evidence that even a single policyholder—let
alone a significant number—received any oral or written disclosure that corrected
the deception in LSW' s illustration.” Pl.’s Prop. Reply to LSW’s Supp. Mem. In
Support of Mot. for Class Cert., Dkt. 348-1, at 3. Basically, they are demanding
that LSW prove certain magic words were used in each of tens of thousands of
sales.4
Accepting Plaintiffs’ position would constitute reversible error. LSW has no
burden whatsoever on this motion, and permitting Plaintiffs to shift the evidentiary
burden onto LSW at this stage would be reversible error. See Mazza, 666 F.3d at
595 (reversing class certification order, even though “there was no evidence that
[Honda’s] customers received” the allegedly omitted information). LSW is not
required to come forward with forty-thousand pieces of evidence to show what
4 Even if Plaintiffs can come up with a precise form of words that have never been said by LSW’s agents, that is not the test. “Unlike sorcery, the law does not require the invocation of magic words.” Matter of Ross, 94 B.R. 210, 215 (M.D. Ga. Bankr. 1988). At minimum, LSW is entitled to put the disclosures in each individual sale in front of a jury and allow them to determine whether the disclosures are sufficient.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 12 of 17 Page ID #:17418
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each policyholder was and was not told. It is not required to provide any evidence
of what any individual policyholder was told. Rather, as the above case law
demonstrates, it is the very fact of an individualized sales process that defeats class
certification. Because that sales process creates an individualized question (which
does not need answering here) that will drive liability: what were people told
about the allegedly omitted information?
Thus, in Mazza, the Ninth Circuit reversed the lower court’s certification
order, even though the lower court had found “that while the omitted information
may have been available, there was no evidence that customers received it,”
because it was the Plaintiffs’ burden to show that their case could be established by
common proof. 666 F.3d at 588, 595-96 (emphasis added). Where the allegedly
omitted information “may have been available,” proving its omission on a common
basis is impossible. See id. at 595-96.
In any event— and even though LSW has no burden—the existing record
from the last round of briefing demonstrates that agents made individualized
disclosures about the enhancements. See supra (citing Birnbaum Dec. ¶ 22; Covi
Dec. ¶ 26; Foulk Dec. ¶¶ 46-49). These pieces of evidence are not necessary for
LSW to prevail, but they spotlight the problem that defeats predominance:
answering the question of what policyholders were told is individualized.
D. Yokoyama Is Not to the Contrary
Recognizing the hurdle that an individualized sales process poses to
certification, Plaintiffs have argued that this Court cannot consider agent
disclosures at all. Citing Yokoyama v. Midland National Life Insurance Company,
594 F.3d 1087, 1093 (9th Cir. 2008), Plaintiffs focus on a written certification
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appearing on illustrations that agents sign that they “have made no statements that
are inconsistent with the illustration.” Pl.’s Mot. for Class Cert., Dkt. 371 at 20.
Plaintiffs then argue that the same certification was present in Yokoyama, and that
it somehow precludes LSW from offering any individualized evidence concerning
agent interactions. Id. None of this is correct.
First, Plaintiffs distort the holding ofYokoyama. The Yokoyama court did not
hold or suggest that any agent certification precludes consideration of agent-
specific disclosures. Rather, the court merely noted the existence of the
certification, once, in the “Background” section of its opinion, and then never
discussed it again. 594 F.3d at 1090. The actual analysis addressed the narrow
(and irrelevant here) issue of whether the district court had properly interpreted
Hawaii’s consumer protection laws. Id. at 1093-94. The opinion simply contains
no holding concerning the certification.
Second, LSW’s certification and the certification present in Yokoyama are
critically different. Yokoyama concerned a unique certification implemented by
the defendant insurer, specifically related to brochures (not illustrations), which
stated, “I have made no statements which differ in any significant manner from this
material.” Id. at 1090. In contrast, LSW’s certification (excerpted above) is
imposed by California statute on all illustrations by all insurers and speaks to
“statements that are inconsistent with the illustration.” Pl.’s Prop. Reply to LSW’s
Supp. Mem. In Supp. Of Mot. for Class Cert., Dkt. 348-1 at 1; Cal. Ins. Code
§10509.956(d). This wording difference is crucial because there is nothing
“inconsistent” (i.e., LSW’s certification) about agents providing additional
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information beyond that which appears in an illustration, even if that information
“differ[s] in a significant manner” (Yokoyama certification) from the illustration.5
Indeed, other courts confronted with the same certification that LSW uses have
had no trouble finding that agent disclosures remain relevant, and a barrier to class
certification. Fairbanks and Kaldenbach both involved California illustrations,
which were required to include the same statutory certification present here, and
both courts found that class certification was improper based on the need for the
factfinder to examine the other disclosures provided by each agent to each putative
class member. See 197 Cal. App. 4th 544 (2011); 178 Cal. App. 4th 830 (2009).
Finally, Plaintiffs have argued that the certification “estop[s]” LSW from
offering any evidence of agent disclosures in its defense. See, e.g., Pl.’s Reply in
Supp. Of. Mot. for Class Cert., Dkt. 291, at 17 (“To the extent that an agent
declarant clearly claims to make statements inconsistent with the illustration, LSW
should be estopped from relying on such evidence.”). That radical position finds
no support in Yokoyama, which does not speak to preclusion or estoppel. Indeed,
Plaintiffs have been unable to identify any case holding that the California
5 The flaw of Plaintiffs’ position is further exposed by the fact that all insurers use the same statutorily imposed certification as LSW. It is nonsensical to suggest that the California legislature meant to prevent all insurance agents in all insurance sales from providing any information to policyholders beyond what appears within the four corners of illustrations.
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 15 of 17 Page ID #:17421
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- 12 - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
certification has any estoppel effect that would somehow prevent LSW from
putting its individualized evidence before a trier of fact.6
III. CONCLUSION
For all the foregoing reasons, Plaintiffs’ motion for certification of the Current-Basis
Claim should be denied.
Dated: January 30, 2013 /s/ Jonathan A. Shapiro Jonathan A. Shapiro
6 Of course, adopting Plaintiffs’ estoppel argument would only exacerbate the class certification problem because establishing estoppel for each policyholder would itself require individualized fact finding. “[T]o establish an equitable estoppel: … the party asserting the estoppel must be ignorant of the true state of facts; and … he must rely upon the conduct to his injury.” Spray, Gould & Bowers v. Associated Internat. Ins. Co., 71 Cal. App. 4th 1260, 1268 (1999) (internal quotations omitted) (cited by Plaintiffs in Dkt. 291 at 17). Both of these elements require an individualized analysis.
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- 13 - DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 10-CV-09198-JVS (RNBx)
CERTIFICATE OF SERVICE I am a resident of the Commonwealth of Massachusetts, 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, 60 State Street, Boston, Massachusetts 02109. On January 30, 2013, I electronically filed the document(s) listed below via the CM/ECF system: LIFE INSURANCE COMPANY OF THE SOUTHWEST’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION OF NEW AND REMAINING CLAIMS RELATING TO CURRENT BASIS POLICY VALUES Charles N. Freiberg Brian P. Brosnahan Jacob N. Foster Jeanette T. Barzelay KASOWITZ, BENSON, TORRES & FREIDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 cfreiberg@kasowitz.com bbrosnahan@kasowitz.com jfoster@kasowitz.com Harvey R. Levine Levine & Miller 550 West C Street, Suite 1810 San Diego, CA 92101 lmsh@levinelaw.com Craig A. Miller Law Offices of Craig A. Miller 225 Broadway, Suite 1310 San Diego, CA 92101 cmiller@craigmillerlaw.com /s/ Joel Fleming
Joel Fleming
Case 2:10-cv-09198-JVS-RNB Document 390 Filed 01/30/13 Page 17 of 17 Page ID #:17423