Free Motion to Certify Class - District Court of Arizona - Arizona

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SUSAN MARTIN (AZ#014226) DANIEL L. BONNETT (AZ#014127) JENNIFER KROLL (AZ#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs,

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vs.
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Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS

Motion for Class Action Certification (Oral Argument Requested)

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs hereby move for an order
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certifying the following classes and subclasses:
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All former participants of the Retirement Plan for Employees of the Garrett Corporation and
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Its Participating Subsidiaries ("Garrett Retirement Plan") and the Severance Plan for
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Employees of the Garrett Corporation and Its Participating Subsidiaries("Garrett Severance
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Plan") ("Garrett Plans") who became vested participants in the Signal Companies Inc.
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Retirement Plan ("Signal Retirement Plan") or the Garrett Secured Benefit Account ("SBA
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Plan"), their surviving spouses and/or beneficiaries who are or may become eligible for benefits under the Plans.1 Subclass A: Members of the class for whom the calculation of minimum benefits under the Signal Retirement Plan without an offset based on their benefits under the Secured Benefit Plan ("SBA Offset") would have resulted or will result in a higher benefit than the benefit paid or to be paid. Subclass B: Members of the class who had more than 35 years of credited service under the Plans and whose retirement benefits were calculated without a fractional reduction in the SBA Offset. Subclass C: Members of the class who were active employees on or after July 1, 2000. Subclass D: Members of the class who had administrative expenses deducted from their SBA benefits. As set forth herein and as supported by the declarations of Susan Martin dated August 26, 2005, the declaration of Barbara Allen dated August 26, 2005, the declaration of Richard Dippold dated August 26, 2005, the declaration of Melvin Jones dated August 26, 2005, the declaration of Donald McCarty dated August 26, 2005, the declaration of Richard Scates dated August 26, 2005 and the declaration of Walter G. West dated August 25, 2005, these classes are appropriately certified under Fed. R. Civ. P. 23.2

As used herein, the terms "Plans" means the Garrett Retirement Plan and successor plans and the Garrett Severance Plan and successor plans. (See Amended Complaint ¶ 3.) Plaintiffs had also asserted in the complaint that two additional subclasses be certified: 1) Members of the class who were eligible to commence benefits under the Garrett Retirement Plan on December 31, 1983, and 2). Members of the class who did not separate from service at the time they were employed by Signal, Signal Properties, Inc., Signal Landmark, Inc., Garrett or Industrial Turbines International, Inc. Plaintiffs do not seek class certification for these subclasses in this motion in light of the Court's ruling dismissing these claims. However, Plaintiffs wish to preserve their right to seek class
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FACTUAL BACKGROUND The Court is familiar with the facts of this case which are summarized in the Court's Order dated July 19, 2005. (Doc. no. 77.) In sum, the Plaintiffs are all former employees of the Garrett Corporation, which through a series of corporate mergers is now part of Honeywell International, Inc. By order dated July 19, 2005, the Court granted Plaintiffs' motion for summary judgment with respect to the claims that Defendants violated ERISA § 204(g), 29 U.S.C. § 1054(g) by amending the Plan to retroactively increase the interest rate used to calculate participants' SBA Offsets by applying a Social Security offset attributable to years of service earned prior to introduction of that offset and by eliminating a fractional reduction to the SBA Offset for participants with more than 35 years of service. The Court also granted summary judgment on Plaintiffs' claim that Defendants violated the terms of the Plan and ERISA §§ 204(g) and (h), 29 U.S.C. §§1054(g) and (h) by applying the SBA Offset to the minimum benefits formulas and by amending the Plan to provide an SBA Offset to the Plan's minimum benefits formulas retroactively and without notice. In finding that Defendants engaged in the aforementioned violations of ERISA and the terms of the Plan, the Court noted, with respect to Plaintiffs' anti-cutback argument, that the "claims turn on a common issue, namely the proper interpretation of the term `accrued benefit' for the purposes of the anti-cutback rule." (Order, p. 13, ll. 12-14.) Likewise, the claims granted with respect to violation of the Plan's minimum benefit formula involve a common issue, that is, the proper interpretation of the Plan and the failure to provide notice to participants when the Plan was amended. The claims granted in this case on summary judgment are clearly class claims, and class certification under Rule 23(b)(2) or, alternatively, (3) is appropriate. Class claims are also asserted and equally appropriate for claims on which Plaintiffs have not sought summary judgment and which have not been dismissed, including inter alia, Plaintiffs' claims under Counts I and II regarding certification for these subclasses in the event either of these claims should be reinstated by the Court of Appeals.
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administrative fees imposed on Secured Benefit Plan benefits, the claim granted but not paid by the Plan Administrator, the claim regarding forfeiture of benefits and reductions in accrued benefits by amendments made in 2000 which resulted in employees' service prior to 1984 being disregarded and claims regarding violations of ERISA's disclosure and claims procedures requirements. Numerous cases in this circuit brought by participants in ERISA plans challenging similar reductions or refusals to grant benefits have been allowed to proceed as class actions. See, e.g., Vizcaino v. United States Dist. Court, 173 F.3d 713 (9th Cir. 1999); Cline v. Indust. Maintenance Eng'g & Contracting Co., 200 F.3d 1223 (9th Cir. 2000) (challenging pension plan's exclusion of class members as plan participants); Marx v. Loral Corp., 87 F.3d 1049 (9th Cir. 1996) (challenging reduction in medical benefits for retirees); Canseco v. Construction Laborers Pension Trust for Southern Cal., 93 F.3d 600 (9th Cir. 1996) (class of retired employees seeking payment of retroactive pension benefits); Kayes v. Pacific Lumber Co., 51 F.3d 1449 (9th Cir. 1995); Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669 (N.D. Cal. 1979). Class action treatment is equally appropriate here. I. PLAINTIFFS MEET THE REQUIREMENTS OF RULE 23(A) Rule 23(a) sets forth the following prerequisites to a class action: 1. 2. 3. The class is so numerous that joinder of all members is impracticable; There are questions of law or fact common to the class; The claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4. The representative parties will fairly and adequately protect the interests of the class These prerequisites are met in this case. A. Numerosity

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There should be no argument about numerosity. Given the size and history of Garrett, the large numbers of affected individuals should not be disputed. Upon information and belief, there are approximately 10,000 class members and each subclass likewise surpasses any reasonable numerosity requirements. (See Declaration of Susan Martin dated August 26, 2005 ("Martin Decl.") ¶ 12.) The Form 5500 for the year ending December 31, 2003 for the Honeywell Secured Benefit Plan the successor to the Secured Benefits Plan, states that there were 6,604 participants at the beginning of the year and 6,259 participants at the end of the year. See http: //www. freeerisa.com /5500/ InstantView.asp?mainID =8076429 (visited August 26, 2005). The Garrett Retiree Action Committee, a group of protective class members that are helping to support this case has a membership of over 900 individuals. (Declaration of Richard Scates ¶ 5.) The numerosity requirement is met if it would be extremely difficult or inconvenient to join all class members. Brink v. First Credit Resources, 185 F.R.D. 567, 569 (D. Ariz. 1999) The Court considers many factors to determine if joinder is impracticable: Apart from class size, factors relevant to the joinder impracticability issue include judicial economy arising from avoidance of a multiplicity of actions, geographical disbursement of class members, size of individual claims, financial resources of class members, the ability of claimants to institute individual suits and requests for prospective injunctive relief which would involve future class members. Hernandez v. Alexander, 152 F.R.D. 192, 194 (D. Nev. 1993). Judicial economy clearly favors a class action to avoid a multiplicity of actions by each of the Plan participants who have been impacted by Defendants' violations of the terms of the Plan and ERISA. Geographical disbursement of class members also favor class treatment. Garrett had manufacturing facilities in several states and class members are geographically dispersed. (Declaration of Richard Scates ¶ 5.) The Difficulty individual

Plaintiff would encounter is forced to bring individual actions militates in favor of class certification as well (See e.g. Declaration of Richard Scates ¶ 10.) The numerosity requirement is met. See, e.g., In re Beer Distrib. Antitrust Litig., 188 F.R.D. 557, 562 (N.D.
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Cal. 1999) ("While there is some question as to exactly how many class members exist, the record reflects that there are more than twenty-five. In addition, the nationwide class members are spread out among the fifty states. Joinder of numerous plaintiffs from such a large area seems impracticable."). B. Commonality and Typicality This case, involving statutory and pension plan requirements applicable to large groups of individuals, is tailor-made for class action treatment because of its common legal issues. As the Supreme Court has said, commonality and typicality requirements tend to merge when the plaintiffs allege a common issue or policy that has caused classwide harm, including harm to the plaintiffs. General Telephone Co. V. Falcon, 457 U.S. 147, 158 n.13 (1982). Both requirements serve as guideposts for determining whether the named plaintiffs' claims and class claims are so inter-related that the interest of the class members will be fairly and adequately represented in their absence. Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir. 1999). "The commonality requirement has been

characterized as a `low hurdle' easily surmounted." Scholes v. Stone, 143 F.R.D. 181, 185 (N.D. Ill. 1992). Not all factual or legal questions raised in the lawsuit need be common for the commonality requirement to be met. All that is required is that there be at least a single issue common to all class members. See Hanlon v. Chrysler Corp. 150 F.3d 1011, 1019 (9th Cir. 1998); Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F.Supp 985 (N.D. Ill. 1991). A common nucleus of operative facts is sufficient to establish the "commonality" requirement of class certification. Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992). "The existence of shared legal issues with divergent factual predicates is sufficient [for commonality], as is a common core of salient facts coupled with disparate legal remedies within the class." Hanlon 150 F.3d at 1019. The "typicality" requirement is satisfied if the plaintiffs' claims arise from the same event, practice or course of conduct which give rise to the claims of other class members and are based on the same legal theory. A claim is typical if it is based on the same event or
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course of conduct giving rise to the claims of other class members and based on the same legal theory. Winkler v. Dte, Inc., 205 F.R.D. 235, 241 (D. Ariz. 2001) (citing Brink, 185 F.R.D. at 570). See also Stewart v. Rubin, 948 F.Supp. 1077 (D.C. Cir. 1996); Ilhardt v. A. O. Smith Corp., 168 F.R.D. 613 (S.D. Ohio 1996); Cobb v. Monarch Finance Corp., 913 F.Supp. 1164 (N.D. Ill. 1995); In Re Seagate Technology II Securities Litigation, 843 F.Supp. 1341 (N.D. Cal. 1994). The typicality requirement is met if the claims alleged by the named plaintiff are "reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020. See also Kayes, 51 F.3d at1455. Given that summary judgment has already been granted on several common class claims, commonality and typicality should not be disputed.3 Although individual damage calculations are required, relief will be determined on the basis of formulas uniformly applied. "[T]he the necessity of even somewhat complex individual calculations" does not supply a basis for concluding that the commonality requirement is not met." Forbush v. J.C. Penny Co., 994 F.2d 1101, 1106 (5th Cir. 1993). "Because the central liability issues are common to the proposed class, variability of damages is not a basis for denying class certification." Brink, 185 F.R.D. at 570. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually satisfied, irrespective of varying fact patterns which underlie individual claims. "Typicality turns on the defendant's actions toward the plaintiff class, not particularized defenses against individual class members." Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1342 (D. Wash. 1998) (citing Newberg on Class Actions §§ 3.13 at 3-77; Robidoux v. Celani, 987 F.2d 931, 936 (2nd Cir. 1993); Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996)). See also Ali v.

Defendants failed to raise any affirmative defenses in opposition to the motion for summary judgment that could preclude named Plaintiffs from completely satisfying the typicality requirements. The only individual issues in this case appear to be damages, which can be easily calculated using computerized data.
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Ashcroft, 213 F.R.D. 390, 409-410 (D. Wash. 2003). This Court has already recognized that the claims turn on violations of terms of the Plan and ERISA common to the members of the classes. (See, e.g., Order, p. 13, ll. 12-14 (the "claims turn on a common issue, namely the proper interpretation of the term `accrued benefit' for the purposes of the anti-cutback rule.")) As Plaintiffs challenge violations of ERISA and the Plans that impact all class members the requirements for commonality and typicality met . See Gaspar v. Linvatec, 167 F.R.D. 51, (N.D. Ill. 1996) (misrepresentations made by an ERISA plan to class members regarding the terms of the Plan); Vaszlavik v. Storage Technology Corp. 183 F.R.D. 264 (D. Col. 1998). C. Fair and Adequate Representation of the Class Rule 23(a)(4) requires that the named Plaintiffs fairly and adequately represent the interests of the class. The Ninth Circuit employs two criteria for determining adequacy of representation: 1. 2. The named plaintiffs and their counsel do not have any conflicts of interest with other class members, and The named plaintiffs and their counsel will prosecute the action vigorously on behalf of the class.

See Hanlon, 150 F.3d at 1020. Given that Plaintiffs have succeeded in obtaining partial summary judgment on the major monetary issues, Plaintiffs submit that they have proven the adequately of representation. All named Plaintiffs are former Garrett Plan participants. (Declaration of Barbara Allen ¶ 3-4; Declaration of Richard Dippold ¶ 3-4; Declaration of Melvin Jones ¶ 3-4; Declaration of Donald McCarty ¶ 3-4; Declaration of Richard Scates ¶ 3,6; Declaration of Walter West ¶ 3-4.) They have suffered the same harm as class members as a result of violations of the terms of the Plan and ERISA. In opposition to Plaintiffs' motion for summary judgment, Defendants never raised any individual issues for any of the named Plaintiffs that could defeat class action certification. Each of these Plaintiffs are members of the Garrett Action Committee that has recruited other individuals to help finance and prosecute this action. (Declaration of Richard Scates ¶ 4-5.) Thus far, they have enlisted
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over 900 former employees to help in their efforts in this litigation. (Id.) They are committed to seeing this litigation through to completion and to helping to raising resources. (Declaration of Barbara Allen ¶ 5; Declaration of Richard Dippold ¶ 5; Declaration of Melvin Jones ¶ 5; Declaration of Donald McCarty ¶ 5; Declaration of Richard Scates ¶ 7; Declaration of Walter West ¶ 5.) None of them have interests antagonistic to the interests of the rest of the class. (Declaration of Barbara Allen ¶ 8; Declaration of Richard Dippold ¶ 8; Declaration of Melvin Jones ¶ 8; Declaration of Donald McCarty ¶ 8; Declaration of Richard Scates ¶ 9; Declaration of Walter West ¶ 8.) Plaintiffs will adequately, and fairly represent the classes and have demonstrated by their conduct to date that they will vigorously prosecute these claims. Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001). II. RULE 23(b) REQUIREMENTS ARE MET IN THIS CASE In addition to meeting the requirements of Rule 23(a), in order to be certified as a class action, the action must meet one of the requirements of Rule 23(b). In this case, the class is appropriate for certification under Federal Rule of Civil Procedure 23(b)(2), or, alternatively, under 23(b)(3). A. Class Certification is Appropriate Under Rule 23(b)(2). Plaintiffs have sought declaratory and injunctive relief. This Court has entered an order declaring that Defendants violated the terms of the Plan and ERISA. The fact that monetary relief is also payable is no bar to class certification. "Class actions certified under Rule 23(b)(2) are not limited to actions requesting only injunctive or declaratory relief, but may include cases that also seek monetary damages." Probe v. State Teachers Retirement System, 780 F.2d 776, 780 (9th Cir. 1986). The proper inquiry as to whether a class may be maintained under Rule 23(b)(2) is whether the primary goal is to obtain declaratory or injunctive relief, even though money damages may also be awarded. Molski v. Gleich, 318 F.3d 937, 950 (9th Cir. 2003). In determining whether the primary goal of the litigation is
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injunctive relief, the Molski court stated that: Rather than adopting a particular bright-line rule, we have examined the specific facts and circumstances of each case. In order to determine predominance, we have focused on the language of Rule 23(b)(2) and the intent of the plaintiffs in bringing the suit. 318 F.3d at 950 (citations omitted). See Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1240 & 1240 n.3 (9th Cir. 1998). In Molski, the court held that the district court properly certified a class of individuals who were denied access to gas stations in violation of the ADA and various state laws under 23(b)(2), finding that under an ad hoc inquiry, "injunctive relief appeared to be the primary goal in the litigation and the settlement agreement." 318 F.3d at 950. See also Gete v. INS, 121 F.3d 1285, 1299-1300 (9th Cir. 1997); Paxton v. Union National Bank, 688 F.2d 552 (8th Cir. 1982) (fact that back pay in addition to injunctive relief was sought does not affect decision to certify class under Rule 23(b)(2)); Rodriguez v. Carlson, 166 F.R.D. 465, 476-77 (E.D. Wash. 1996) (Rule 23(b)(2) class action certification was proper for class of migrant workers who sought monetary damages in addition to injunctive relief for violations of the Agricultural Worker Protection Act). "As long as Plaintiffs' damages claims do not `predominate' over their claims for injunctive relief, certification under Rule 23(b)(2) is permissible....[C]ourts should look at the facts and circumstances of each case in an effort to determine the plaintiffs' intent in bringing the suit." Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004). Similarly, where the monetary relief directly flows from the injunctive or declaratory relief sought, 23(b)(2) status is appropriate. In Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 681 (N.D. Cal. 1979), plaintiffs challenged application of a pension plan's vesting rules which deprived them of vesting credit. The court held that if injunctive relief was granted, "monetary damages in the form of pension benefits due under the reconstituted rules `would directly flow from the injunctive or declaratory relief sought.'" Id. at 681. See also Berger v. Xerox, Corp., 338 F.3d 755 (7th Cir. 2003) (Posner, J.) ("As long as the concrete follow-on relief that is envisaged will. . . be the direct, anticipated consequence of

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the declaration, rather than something unrelated to it, the suit can be maintained under Rule 23(b)(2)."); Laflamme v. Carpenters Local #370 Pension Plan, 212 F.R.D. 448, 457 (N.D.N.Y. 2003) (Rule 23(b)(2) certification granted: "The primary relief sought is the declaration that ERISA has been violated. All other relief flows from the declaratory relief and is incidental."); Trull v. Dayco Prods.L.L.C., 214 F.R.D. 394 (D.N.C. 2003); Caranci v. Blue Cross & Blue Shield of Rhode Island, 194 F.R.D. 27, 39-40 (D.R.I. 2000) ("Defendant is correct that this case may eventually require some individualized determinations. However, there is no support for the argument that engaging in these determinations will be so `unmanageable' as to warrant denial of class certification where the requirements of Rule 23 are otherwise met."); Groover v. Michelin North America, Inc., 187 F.R.D. 662, 667 (M.D. Ala. 1999); Bower v. Bunker Hill Co., 114 F.R.D. 587, 596 (E.D. Wash. 1986).

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Alternatively, Class Certification Under Rule 23(b)(3) Is Proper The classes also meet the requirements of Rule 23(b)(3) in that questions of law and

fact common to the members predominate over any individual questions. "Common issues predominate when they constitute such a significant aspect of the case that there is a clear justification for handling the dispute on a class . . . basis. The inquiry is designed to

determine whether a class action is far more efficient, thereby promoting judicial economy." Brink, 185 F.R.D. at 572(citations omitted). For example, in Brink, "the proposed class members claims arise from Defendant's act of mailing the credit card certificate at issue, or an amended version thereof, to the proposed class members. Their legal theories are identical -- the only individualized inquiry pertains to the calculation of damages." Id. Here, as this Court has recognized, Plaintiffs' claims arise from identical legal theories ­ that Defendants violated the terms of the Plan and ERISA. There are no unique, legally distinct issues. Additionally, a class action is a superior method of adjudicating the controversy. Although individual damages may differ, they will be determined under the same formula to remedy the same Plan and ERISA violations. Here, "[i]nvidualized issues are few, and
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most of them are likely to be relatively easy. For example, the damages for individual class members will entail a straightforward calculation...". Local Joint Exec. Bd. of

Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001). See also Gaspar, 167 F.R.D. 51 (certification of ERISA action under Rule 23(b)(3)). The Ninth Circuit has upheld class certification under Rule 23(b)(3) despite the fact that class members will have individual damages: "The amount of damages is invariably an individual question and does not defeat class action treatment. Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975). There is nothing special about these claims for pension benefits or interest that are subordinate to the common claims and common relief sought. Numerous adjudications on the same issue would be time consuming , expensive and a waste of judicial resources. In an action to recover overtime due under a collective bargaining agreement, the Ninth Circuit stated that class certification under Rule 23(b)(3) was well within the trial court's discretion as "[n]umerous individual actions would be expensive and time-consuming and would create the danger of conflicting decisions as to persons similarly situated." Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). See also Local Joint Exec. Bd. of Culinary/Bartender Trust Fund, 244 F.3d at 1163 ("This case involves multiple claims for relatively small individual sums... If plaintiffs cannot proceed as a class, some--perhaps most--will be unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover."). III. APPOINTMENT OF MARTIN & BONNETT AS CLASS COUNSEL IS APPROPRIATE UNDER RULE 23(g) Federal Rule of Civil Procedure 23(g) provides that the Court must find that class counsel will fairly and adequately represent the interests of the class and subclasses. The Advisory Committee notes to the 2003 change requiring specific class counsel certification notes that the scrutiny of counsel called for in subsection (g) is the same type of scrutiny that has been previously been performed under Rule 23(a)(4):

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Until now, courts have scrutinized proposed class counsel as well as the class representative under Rule 23(a)(4). This experience has recognized the importance of judicial evaluation of the proposed lawyer for the class, and this new subdivision builds on that experience rather than introducing an entirely new element into the class certification process. Plaintiffs respectfully submit that Plaintiffs' counsel meets the requirements of Rule 23(g) in all aspects and that they will fairly and adequately represent the interests of the class. Plaintiffs' counsel has worked on this matter since June 2001 and has diligently investigated and identified potential claims. (Martin Decl. ¶ 11-12; Doc. no. 77.) As set forth in the declaration of Susan Martin, class counsel is experienced in ERISA matters and in class action litigation and has undertaken to prosecute this action vigorously. (Id. ¶ 3-4, 6-10.) Counsel has obtained a qualified expert and is committed to expending the resources necessary to prosecute this matter. (Id. ¶ 11-12.) Most recently class counsel was appointed class counsel in another ERISA case in this Court with over 1,000 participants, won a motion for summary judgment and achieved a settlement scheduled to be heard shortly. (Id. ¶ 12.) See Loewy v. Retirement Committee, CV 032284-PHX-FJM (D. Ariz.). Class counsel will fairly and adequately represent the interests of the class. See, e.g., Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001) ("Would-be class counsel in this case are labor lawyers experienced in class actions..."). CONCLUSION For the foregoing reasons, Plaintiffs respectfully request an order certifying the class and subclasses and appointing Martin & Bonnett, P.L.L.C. as class counsel. Respectfully submitted this 26th of August 2005. MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll

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G:\WORK\Allied\Court\Pleadings\class cert motion.wpd

3300 North Central Avenue, Suite 1720 Phoenix, AZ 85012-2517 (602) 240-6900 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on August 26, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the Following CM/ECF registrants: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 and : Michael Banks William Delaney John G. Ferreira. Azeez Hayne. Amy Promliso Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for the Defendants

_s/Trudy Mahabir Trudy Mahabir

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