KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

Nn nN BP W WN

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page1of7 Page ID #:17703

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890) BRIAN P. BROSNAHAN (SBN 112894)

JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030

LEVINE & MILLER

HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER

550 West C Street, Suite 1810

San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638

Attorneys for Plaintiffs

JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves

and all others similarly situated

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated,

Plaintiffs, V. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation,

Defendant.

CLASS ACTION CASE NO.: CV 10-9198 JVS (RNBx)

Formerly Case No.: 3:10-cv -04852 JSW from Northern District of California

PLAINTIFFS’ OBJECTIONS TO THE DECLARATION OF JOEL FLEMING IN OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

Judge James V. Selna Date: March 4, 2013

Time: 1:30 p.m. Courtroom: 10C

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page 2of7 Page ID #:17704

Plaintiffs Joyce Walker, Kim Bruce Howlett, and Muriel Spooner (“Plaintiffs”) hereby object to the Declaration of Joel Fleming, submitted by Defendant Life Insurance Company of the Southwest (“LSW’’) in opposition to

Plaintiffs’ motion for leave to file a Third Amended Complaint:

Evidence Grounds for Objection(s)

1. | Exhibit B, which Mr. 1. Lacks foundation. LSW offers Exhibit B Fleming declares, in (3, “is | as evidence that LSW had an actual intent to

a true and accurate copy of | pay the enhancements illustrated for Provider. an internal LSW pricing See Opp. Brief at 7:17-8:4 (asserting that Ex. memorandum for the B “shows — in black and white — that LSW has SecurePlus Provider intended since product development to pay the product.” enhancement’). Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit B is evidence of LSW’s actual intent. The foundational testimony submitted by LSW for the document (Smith Dep. at 147:23-148:3, see Opp. at 8:2) is actually about Fleming Ex. D. See Plaintiffs’ Reply Brief atn.11. FRE 602.

2. Hearsay. Impermissible hearsay because Exhibit B is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit B is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

2. | Exhibit C, excerpts from the | 1. Lacks foundation. LSW offers the deposition of Craig Smith at | deposition testimony of Craig Smith as 231:9-15: evidence that LSW had an actual intent to pay [BY MR. PERLA] the Account Value Enhancement for Provider. Q: Do you know See Opp. at 12 n.6 (citing Smith Dep. at whether the company has 23 1:9- 15); There is no pouneaen for Mr. a particular intention Smith’s testimony that “the company intends

regarding whether or not to pay the bonus as illustrated,” as

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING Case No. CV 10-9198 JVS (RNBx) 1

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page3of7 Page ID #:17705

Evidence

Grounds for Objection(s)

that bonus will be paid?

MR. BROSNAHAN: Objection. Foundation and leading.

A: As far as I know the company intends to pay the bonus as illustrated.

demonstrated by Mr. Smith’s subsequent testimony during reexamination by Plaintiffs’ counsel. When asked for the basis of his statement regarding LSW’s intentions, Mr. Smith testified that he was “not aware of any discussions that have taken place that would indicate anything to the contrary.” Smith Dep. at 231:20-232:4. He then testified that he did not recall any discussions on that subject one way or the other. Jd. FRE 602.

Exhibit D, which Mr. Fleming declares, in (5, “is a true and accurate copy of a 2005 memorandum from Lynne Fish to Craig Smith titled “LSW EIUL Illustration Actuary Test for Initial Product Filing.’”

1. Lacks foundation. LSW offers Exhibit D as evidence that LSW had an actual intent to pay the enhancements illustrated for Provider. See Opp. Brief at 7:12-16, 8:5-12. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit D is evidence of LSW’s actual intent. FRE 602.

2. Hearsay. Impermissible hearsay because Exhibit D is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit D is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

Exhibit E, which Mr. Fleming declares, in (6, “is a true and accurate copy of an LSW document titled ‘2006 Illustration Actuary Tests — Provider.’”

1. Lacks foundation. LSW offers Exhibit E as evidence that LSW had an actual intent to pay the enhancements illustrated for Provider. See Opp. Brief at 7:12-16, 8:5-12. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit E is evidence of LSW’s actual intent. FRE 602.

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page4of7 Page ID #:17706

Evidence

Grounds for Objection(s)

2. Hearsay. Impermissible hearsay because Exhibit E is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit E is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

Exhibit F, which Mr. Fleming declares, in (7, “‘is a true and accurate copy of a 2006 memorandum from Ms. Fish to Mr. Smith titled ‘LSW Paragon Illustration Actuary Test for Initial Product Filing.’”

1. Lacks foundation. LSW offers Exhibit F as evidence that LSW had an actual intent to pay the enhancements illustrated for Paragon. See Opp. Brief at 11:1-4, 11:9-12. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit F is evidence of LSW’s actual intent. FRE 602.

2. Hearsay. Impermissible hearsay because Exhibit F is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit F is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

Exhibit G, which Mr. Fleming declares, in (8, “is a true and accurate copy of the Product Specification for SecurePlus Provider.”

1. Lacks foundation. LSW offers Exhibit G as evidence that LSW had an actual intent to pay the enhancements illustrated for Provider. See Opp. Brief at 7:12-16, 8:13-17. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit G is evidence of LSW’s actual intent. Mr. Fleming also provides no foundation that Exhibit G, which bears a “Draft Date” of “August 15, 2005” (LSW00037100), is the final version of the document. FRE 602.

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page5of7 PageID#:17707

Evidence

Grounds for Objection(s)

2. Hearsay. Impermissible hearsay because Exhibit G is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit G is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

Exhibit H, which Mr. Fleming declares, in (9, “is a true and accurate copy of an internal LSW document titled ‘Long Statement of Work.’”

1. Lacks foundation. LSW offers Exhibit H as evidence that LSW had an actual intent to pay the enhancements illustrated for Provider. See Opp. Brief at 7:12-16, 8:18-24. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit H is evidence of LSW’s actual intent. Mr. Fleming also provides no foundation that Exhibit H, which is labeled “Draft” (LSW- E00062556), is the final version of the document. FRE 602.

2. Hearsay. Impermissible hearsay because Exhibit H is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit H is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

Exhibit I, excerpts from the deposition of Elizabeth MacGowan at 121:23-122:3 and 122:21-123:1:

[BY MR. BROSNAHAN]

Q: Why does the current monthly administrative

1. Lacks foundation. LSW offers the deposition testimony of Elizabeth MacGowan as evidence that LSW had an actual intent to reduce the Monthly Administrative Charges for Provider and Paragon. See Opp. at 9:6-12 (citing MacGowan Dep. at 122:1-3) and 11:16-19 (citing MacGowan Dep. at 122:24- 123:1). There is no foundation for Ms. MacGowan’s testimony concerning

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page6of7 Page ID #:17708

Evidence

Grounds for Objection(s)

charge per thousand go down after year 10?

MS. ROBINSON: Objection.

A: Because in pricing the product it was determined that we didn’t need to main the full amount for the entire life of the policy.

ok 2K 3K

Q: And why does it [the monthly administrative charge per thousand for the Paragon policy] drop to zero after year 10?

MS. ROBINSON: Objection.

A: For the same reason that I described on the Provider contract; that it’s not necessary to maintain it at the original level and meet the profit objectives.

determinations that were made in pricing the products because Ms. MacGowan was not the product actuary for either Provider or Paragon and does not have firsthand knowledge of the supposed determination. As Ms. MacGowan testified, the product actuary was Michael Tivilini (together with Doug Brown in the case of Paragon). See Brosnahan Reply Dec., Ex. P, MacGowan Dep. at 18:25-19:20. FRE 602.

Exhibit L, which Mr. Fleming declares, in (13, “4s a true and accurate copy of an internal LSW pricing memorandum for the SecurePlus Paragon product.”

1. Lacks foundation. LSW offers Exhibit L as evidence that LSW had an actual intent to pay the enhancements illustrated for Paragon. See Opp. Brief at 11:1-8. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit L is evidence of LSW’s actual intent. FRE 602.

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2:

-cv-09198-JVS-RNB Document 396 Filed 02/15/13 Page 7of7 Page ID #:17709

Evidence

Grounds for Objection(s)

2. Hearsay. Impermissible hearsay because Exhibit L is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit L is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

10. | Exhibit M, which Mr. Fleming declares, in (14, “4s a true and accurate copy of the Product Specification for SecurePlus Paragon.”

1. Lacks foundation. LSW offers Exhibit M as evidence that LSW had an actual intent to pay the enhancements illustrated for Paragon. See Opp. Brief at 11:1-4, 11:13-15. Mr. Fleming provides no foundation as to the purpose for which this document was prepared, nor any foundation to establish that Exhibit M is evidence of LSW’s actual intent. Mr. Fleming also provides no foundation that Exhibit M, which bears a “Draft Date” of “October 26, 2006” (LSW-E00073178), is the final version of the document. FRE 602.

2. Hearsay. Impermissible hearsay because Exhibit M is offered for the truth of the matters asserted, and Mr. Fleming provides no foundation to establish that Exhibit M is a business record prepared in the course of LSW’s regularly conducted activity or that it is otherwise exempt from the rule against hearsay. FRE 801, 802, 803.

DATED: February 15,2013 KASOWITZ BENSON TORRES & FRIEDMAN LLP

By:

s/Brian P. Brosnahan Brian P. Brosnahan

PLAINTIFFS’ OBJECTIONS TO DECLARATION OF JOEL FLEMING

Case No. CV 10-9198 JVS (RNBx)