STIPULATION AND [PROPOSED] ORDER CONCERNING FILING OF SUBMISSIONS SETTING FORTH AGENT DEPOSITION TESTIMONY RELATED TO CLASS CERTIFICATION
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).
3. Conseco sought to take the depositions of the Plaintiffs' selling agents to develop the factual record on issues relating to Plaintiffs' motion for class certification. A dispute ensued with Plaintiffs about whether the depositions could appropriately proceed at this time, and the Court ruled that the depositions could proceed. Immediately thereafter, Conseco conferred with Plaintiffs and the witnesses about an agreeable schedule, and Conseco took the depositions of the three agents during the week of June 7-11, 2010.
4. Conseco submits that the deposition testimony elicited from the agents is highly relevant to the question of whether a class should be certified in this matter. A submission explaining that position and setting forth relevant testimony from the agent depositions is attached hereto as Exhibit A. Conseco submits that good cause exists to file this submission now, so that the Court may consider it in advance of the upcoming June 18, 2010 hearing on Plaintiffs' motion for class certification. With the Court's permission, Conseco will formally file this document on the docket.
5. Plaintiffs disagree that the agent testimony 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 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 a submission setting forth testimony from the recent agent depositions, and permit Plaintiffs to file a response no later than 12:00 p.m. on June 17, 2010.
Millstein & Associates By: David J. Millstein Attorneys for the Brady Plaintiffs
Gilbert LLP By: August J. Matteis, Jr. Attorneys for the Brady Plaintiffs
Berman DeValerio By: Michael Pucillo Joseph J. Tabacco Chris Heffelfinger Attorneys ...