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 EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE, 10-09198 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 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.: 10-09198 JVS(RNBx) EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE Judge James Selna Courtroom: 10C Case 2:10-cv-09198-JVS-RNB Document 405 Filed 03/15/13 Page 1 of 5 Page ID #:18010 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 - EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE, 10-09198 JVS(RNBx) EX PARTE APPLICATION Pursuant to Fed. R. Civ. Proc. 6(c)(1)(A) and Local Rule 7-19, Life Insurance Company of the Southwest (“LSW”) respectfully files this ex parte application to reschedule the hearing on Plaintiffs’ Motion for Approval of Class Notice. See Docket No. 403. Plaintiffs oppose this motion. On March 13, 2013, Jonathan Shapiro, counsel for LSW, contacted counsel for Plaintiffs by email asking to reschedule the hearing, currently scheduled for April 8, and advised them of the reason for the request. Declaration of Jonathan Shapiro (“Shapiro Dec.”) ¶ 2, Ex. A at 5. On March 15, 2013 (following back-and-forth emails where Plaintiffs first indicated they were “amenable” to rescheduling and then refused the request), Mr. Shapiro contacted Jeanette Barzelay, counsel for plaintiffs, by telephone and advised her that LSW would be filing an ex parte application that day to extend the hearing and advised her, again, of the basis of the application. See Shapiro Dec. ¶ 3. This motion is based on the attached memorandum of points and authorities, the declaration of Jonathan Shapiro and exhibits thereto, the pleadings, records and files in this case, and such other matters as may be considered by the Court. DATED: March 15, 2013 Respectfully submitted, WILMER CUTLER PICKERING HALE AND DORR LLP By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro (257199) Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Attorneys for Defendant Life Insurance Company of the Southwest Case 2:10-cv-09198-JVS-RNB Document 405 Filed 03/15/13 Page 2 of 5 Page ID #:18011 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 - EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE, 10-09198 JVS(RNBx) MEMORANDUM OF POINTS AND AUTHORITIES LSW asks this Court to extend the hearing on Plaintiffs’ Motion for Approval of Class Notice, currently scheduled for April 8, to April 22 (or, in the alternative, April 15), because April 8 presents scheduling problems for LSW’s lead counsel (who would argue the motion) due to family/child responsibilities.1 LSW raised this issue with Plaintiffs’ counsel on March 13, 2013. Shapiro Dec. Ex. A at 5. LSW indicated that its counsel could be available on April 22 or, if necessary, April 15 (which is during a school vacation, but which LSW nevertheless proposed in order to provide as much flexibility on hearing dates as possible). Id. Plaintiffs initially indicated that they were “amenable to moving the hearing date to April 22.” Id. However, they conditioned their assent on LSW agreeing to refrain from filing a motion to appoint a special master (which LSW will file on Monday). Id. LSW, unwilling to compromise substantive rights in order to receive the courtesy of assent to a hearing rescheduling, declined the condition. Thereafter, Plaintiffs stated that they would “not agree to move the April 8 hearing date.” Id. at 3. Plaintiffs apparently believe that LSW’s motion for a special master will be untimely (they think it was due by March 11, the deadline for filing class notice motions), and that rescheduling the hearing would somehow also extend the March 11 deadline. Id. However, as LSW has already informed Plaintiffs, LSW is seeking solely to reschedule a hearing by 1-2 weeks to accommodate a familial conflict — not to alter the March 11 deadline. Id. at 2. Whatever timeliness argument Plaintiffs plan to press would remain unchanged. For the foregoing reasons, the hearing on Plaintiffs’ Motion for Approval of Class Notice (Dkt. No. 403) should be rescheduled to April 22 (or April 15, if necessary). 1 Per L.R. 7-19: lead opposing counsel is Brian Brosnahan of Kasowitz Benson Torres & Friedman LLP. 101 California St., Suite 2300, San Francisco, CA 94111. His phone number is (415) 655-4337. His email address is bbrosnahan@kasowitz.com. Case 2:10-cv-09198-JVS-RNB Document 405 Filed 03/15/13 Page 3 of 5 Page ID #:18012 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 - EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE, 10-09198 JVS(RNBx) Respectfully submitted, WILMER CUTLER PICKERING HALE AND DORR LLP By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro (257199) Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Attorneys for Defendant Life Insurance Company of the Southwest Case 2:10-cv-09198-JVS-RNB Document 405 Filed 03/15/13 Page 4 of 5 Page ID #:18013 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 - 5 - EX PARTE APPLICATION TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE, 10-09198 JVS(RNBx) PROOF 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, MA 02109. On March 15, 2013 I served the within document(s):  LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING  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. I personally caused to be delivered by Facsimile the document(s) listed above to the person(s) at the facsimile number(s) set forth below. Brian P. Brosnahan Charles N. Freiberg Jacob Foster KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 (415) 358-4278 Harvey R. Levine LEVINE & MILLER 550 West C. Street, Suite 1810 San Diego, CA 92101-8596 (619) 231-8638 /s/ Joel Fleming Joel Fleming Case 2:10-cv-09198-JVS-RNB Document 405 Filed 03/15/13 Page 5 of 5 Page ID #:18014