STIPULATION AND [PROPOSED] ORDER CONCERNING FILING OF REGULATORY SETTLEMENT AGREEMENT AND RELATED MEMORANDA OF LAW
Plaintiffs Cedric Brady, Dr. Charles Hovden, Dr. Marion Hovden, Dr. Eugene Kreps, Dr. John McNamara, Dr. Hisaji Sakai, Jean Sakai and Bill W. McFarland ("Plaintiffs") and defendant Conseco Life Insurance Company ("Conseco") (together, the "Parties") HEREBY STIPULATE AND AGREE as follows:
1. Plaintiffs filed a motion for class certification on March 11, 2010 (Docket No. 15);
2. Conseco filed its opposition to Plaintiffs' motion for class certification on April 22, 2010 (Docket No. 25) ("Opposition").
3. In its Opposition, Conseco advised Plaintiffs and the Court of a settlement in principle with its regulators concerning the same conduct that is at issue in this matter. (Opposition at 6, 8-9.) Conseco also advised Plaintiffs and the Court that when the settlement was finalized, Conseco would so inform the Court. (Id.)
4. That settlement has now been executed by Conseco and the five state regulators leading the investigation. A copy of the settlement agreement has been provided to Plaintiffs.
5. Conseco submits that the settlement agreement is directly relevant to the issue of whether a class should be certified in this matter: it provides (in the regulators' words) "substantial benefits" to the proposed class members, including relief from any obligation to pay the "underfunded" premium, and as such it is an additional significant factor weighing against certification of a nationwide class. A full discussion of the import of the settlement agreement is contained in the accompanying memorandum of law attached as Exhibit A. A true and correct copy of the settlement agreement itself is attached as Exhibit B.
6. Conseco submits that good cause exists to file these two documents now, so that the Court may consider them in advance of the upcoming June 18, 2010 hearing on Plaintiffs' motion for class certification. (Conseco could not have filed the settlement agreement with its Opposition because it was neither finalized nor executed at that time.) With the Court's permission, Conseco will formally file these documents on the docket.
7. Plaintiffs disagree that the settlement agreement weighs against the certification of a nationwide class, but recognize that the Court may wish to have the benefit of briefing on this issue prior to the hearing on class certification. With the Court's permission, therefore, Plaintiffs would file a response setting forth their position on the settlement agreement in advance of the hearing, no later than 12:00 p.m. on June 17, 2010.
WHEREFORE, the Parties respectfully request that the Court permit Conseco to file (i) the settlement agreement between it and its state regulators and (ii) an accompanying memorandum of law explaining how and why the settlement agreement is informative on the issue of class certification, and permit Plaintiffs to file a response no later than 12:00 p.m. on June 17, 2010.
Millstein & Associates David J. Millstein Attorneys for the Brady Plaintiffs
Gilbert LLP August J. Matteis, Jr. Attorneys for the Brady Plaintiffs
Berman DeValerio Michael Pucillo Joseph J. Tabacco Chris Heffelfinger Attorneys ...