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 397 Filed 02/15/13 Page1of4 Page ID #:17710 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’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF ELIZABETH MCGOWAN 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 OBJECTIONS TO MACGOWAN DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 1 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 Case 2: Nn NN BB W WN -cv-09198-JVS-RNB Document 397 Filed 02/15/13 Page2of4 Page ID #:17711 Plaintiffs Joyce Walker, Kim Bruce Howlett, and Muriel Spooner (“Plaintiffs”) hereby object to the Declaration of Elizabeth McGowan, submitted by Defendant Life Insurance Company of the Southwest (“LSW’’) in opposition to Plaintiffs’ motion for leave to file Third Amended Complaint: Evidence Grounds for Objection(s) Pg. 1, 94: “LSW intends to provide the Account Value Enhancement starting in year ten and the reduced Monthly Administrative Charge starting after year ten, as provided on Provider illustrations. LSW also intends to provide the reduced Monthly Administrative Charge and reduced Percent of Accumulated Value Charge reflected on Paragon illustrations when Paragon policies reach their tenth anniversary.” 1. Lacks foundation. Ms. McGowan provides insufficient foundation for her purported knowledge regarding LSW’s intent. FRE 602. Pg. 1,95: “National Life has issued several life insurance policies that, although quite different from Paragon and Provider, do include non- guaranteed elements that will accrue after a policy has been in force for a period of years. In every instance, when the period of years has run, National Life has provided every non- guaranteed element. These products include: e Navitrak, a universal life insurance product. Navitrak was illustrated to provide a non-guaranteed Account Value bonus of 0.50% beginning after policy year ten, and to reduce (on a non- guaranteed basis) the spread on preferred loans from 1.3% to 0% at the same time. These non-guaranteed elements have been implemented for policies that have been in force for at least ten years. 1. Lack of best evidence. The illustrations and benefit schedules for the Navitrak, Varitrak, NL Estate Provider, and Sentinel Estate Provider policies, not Ms. MacGowan’s testimony, are the best evidence. Declarant may not testify as to the content of written records not provided. FRE 1002. 2. Violation of Rules 26(e) and 37(c). Ms. MacGowan’s testimony about non- guaranteed elements for these policies, and LSW’s reliance thereon, violates Rules 26(e) and 37(c) because LSW has refused to produce this kind of information in response to discovery timely and properly OBJECTIONS TO MACGOWAN DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 2 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 Case 2:110-cv-09198-JVS-RNB Document 397 Filed 02/15/13 Page 3of4 Page ID #:17712 : Evidence Grounds for Objection(s) i e e e e Varitrak, a variable universal life poe en 3 response to informal requests insurance product. Varitrak was by Plaintiffs during the Rule 7 4 illustrated to provide a non-guaranteed a oe : i ae err Account Value bonus of 0.50% uae ine nian re 5 beginning after policy year ten, and to Oe acces ere eer oe 6 reduce (on a non-guaranteed basis) the = Tvelevank NontUL 5 He leeks ae ise 1.3% to policies issued by National O70 al We same TIME, 2Nese NON- Life, not LSW, which are g guaranteed elements have been “quite different” from Paragon : implemented for policies that have been | ang Provider, are not relevant in force for at least ten years. to LSW’s intent to provide the 10 < . ; . - Sentinel Estate Provider, a survivorship ane ae Ne Fi 11 variable life insurance product. Sentinel Provider "That cocna Life D Estate Provider was illustrated to reduce | . . . . : the policy fee Hom $15 per monthita illustrated certain universal and 2 13 $7.50 per month on a non-guaranteed variable universal life : Z ae insurance policies to provide a 5 14 basis beginning after the tenth policy payee sed Msannt Waltic 2 year. In addition, Sentinel Estate ae of 0.50% and in fact g iS Provider was illustrated to show a charge ; ane 3 provided that bonus is not 5 of $1,000 per death benefit reduced to $0 2 16 ; relevant to whether LSW had cc on a non-guaranteed basis after policy a ened ae e 17 year ten. Finally, Sentinel Estate anon te 1.25% 18 Provider was illustrated to reduce (on a eee ' = a a ‘ non-guaranteed basis) the spread on ie Acnepurihar COG 4eaacHon 19 preferred loans from 2.00% to 0.25% 08 ities age in Monthly Administrative 0 beginning in policy year ten. These non- Chis set egw ee nomen: guaranteed elements have been —. becca eines LSW fad 21 implemented for policies that have been ae ie conce torableacWen ea an actual intent to eliminate all 22 administrative charges and 23 NL Estate Provider, a survivorship accumulated value charges for sy universal life insurance product. NL Paragon. That National Life Estate Provider was illustrated to reduce | Provided certain future non- 25 (on a non-guaranteed basis) the spread guaranteed benelits on other v on preferred loans by 0.50% after policy | “duite different” policy forms year ten. In addition, NL Estate Provider also is irrelevant to LSW’s 7a was illustrated to provide a non- false perucauons to the DOI ; guaranteed interest bonus of 0.50% concerning the “same or 8 similar forms,” and to the OBJECTIONS TO MACGOWAN DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 3 101 CALIFORNIA STREET, SUITE 2300 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP Case 2:110-cv-09198-JVS-RNB Document 397 Filed 02/15/13 Page 4of4 Page ID #:17713 : Evidence Grounds for Objection(s) ; beginning after policy year ten. These materiality and unfairness of 3 non-guaranteed elements have been LSW’s nondisclosure of the implemented for policies that have been | fact that no holder of a Paragon 7 in force for at least ten years.” or Provider policy, or any 5 similar policy, had ever received the non-guaranteed : benefits illustrated. FRE 401 7 and 402. 8 9 10|| DATED: February 15,2013 KASOWITZ BENSON TORRES & FRIEDMAN LLP 11 . Z - By: _s/Brian P. Brosnahan 9 14 Brian P. Brosnahan 5 15 2 16 a 18 19 20 Zl 22. 23 24 Zo 26 Zt 28 OBJECTIONS TO MACGOWAN DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 4