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Case 2:13-cv-01995-MMM-PJW Document 17 Filed 06/14/13 Page 1 of 15 Page ID #:62

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

LINDA BALDWIN JONES, Bar No. 178922
KRISTINA M. ZINNEN, Bar No. 245346
DANIEL S. BROME, Bar No. 278915
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
Telephone(510) 337-1001
Fax (510) 337-1023
E-Mail:[email protected]
Attorneys for Plaintiffs
BRYAN CAVE LLP
Julie E. Patterson, California Bar No. 167326
Candice F. Boyd, California Bar No. 246289
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414
Telephone: (949) 223-7000
(949) 223-7100
Facsimile:
E-Mail:
[email protected]
[email protected]

BRYAN CAVE LLP
Jay P. Warren, New York Bar No. 1159169
– Admitted Pro Hac Vice
New York, NY 10104
Telephone: (212) 541-2000
Facsimile:
(212) 541-4630
[email protected]

Attorneys for Defendant
JAFACO HOLDING, INC.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

THE BOARD OF TRUSTEES, in their
capacities as Trustees of the BUTCHER
AND PROVISION WORKERS
PENSION FUND OF SOUTHERN
CALIFORNIA,

Plaintiffs,

v.

SPECIALTY MEATS, INC.; JAFACO
HOLDING, INC.; DOES 1 through 20,

JOINT RULE 26(F) REPORT
Case No. 2:13-cv-01995-MMM-PJW

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No. 2:13-cv-01995-MMM-PJW

JOINT RULE 26(F) REPORT

Date:
June 24, 2013
9:00 a.m.
Time:
Location: Courtroom 780
Complaint filed: March 20, 2013
Trial date: Not set

Case 2:13-cv-01995-MMM-PJW Document 17 Filed 06/14/13 Page 2 of 15 Page ID #:63

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

Defendants.

The parties to the above-entitled action jointly submit this Joint Rule 26(f)

Report in anticipation of the Scheduling Conference scheduled for June 24, 2013 at
9:00 a.m. in Courtroom 780, Roybal Federal Building, 255 East Temple Street, Los
Angeles before the Honorable Margaret M. Morrow.

I.

PARTIES

Plaintiffs, the Board of Trustees, are Trustees of the Butcher and Provision

Workers Pension Fund of Southern California (“Pension Fund” or “Plaintiff”). The
Pension Fund is an employee benefit plan created by a written Trust Agreement
subject to and pursuant to section 302 of the LMRA, 29 U.S.C. § 186, and a
multiemployer employee benefit plan within the meaning of sections 3, 4, and 502
of ERISA, 29 U.S.C. §§ 1002, 1003 and 1132. The Pension Fund is maintained for
the purpose of providing retirement and related benefits to plan participants. The
Pension Fund is administered by a Board of Trustees, which may bring this action
in the name of the Pension Fund pursuant to the express provisions of the Trust
Agreement.

Defendant Specialty Meats, Inc. (“Specialty”), has been an employer within

the meaning of ERISA Sections 3(5) and 4001(b)(1) (29 U.S.C. §§ 1002,
1301(b)(1)), and an employer in an industry affecting commerce within the
meaning of Section 301 of the LMRA (29 U.S.C. § 185). Specialty has not yet been
served. Plaintiffs are attempting service at a new address.

JOINT RULE 26(F) REPORT
Case No. 2:13-cv-01995-MMM-PJW

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Case 2:13-cv-01995-MMM-PJW Document 17 Filed 06/14/13 Page 3 of 15 Page ID #:64

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

Defendant Jafaco Holding, Inc., a Delaware Corporation (“Jafaco” or

“Defendant”), owned stock in Specialty. Jafaco has been served and answered.

II.

CLAIMS AND DEFENSES

A.

PLAINTIFFS’ DESCRIPTION OF THE CASE
Pursuant to Section 4001(b) of ERISA, 29 U.S.C. § 1301(b), all trades or

businesses under common control are a single employer for purposes of Title IV of
ERISA, 29 U.S.C. § 4001 et seq., which governs the termination of employee
benefit plans. When Specialty incorporated on or about December 10, 2007, Jafaco
owned 100% of Specialty’s stock. Accordingly, Specialty and Jafaco constituted a
commonly controlled group of trades or businesses, and a single employer pursuant
to ERISA Section 4001(b), 29 U.S.C. § 1301(b).

By signing a Collective Bargaining Agreement, Specialty agreed to accept

and be bound by all the terms, provisions, and conditions of the Collective
Bargaining Agreement. The Collective Bargaining Agreement obligated Specialty
to make regular and timely contributions to the Pension Fund on behalf of all those
employees performing covered work. By signing the Collective Bargaining
Agreement and making payments to the Pension Fund, Specialty agreed to accept
and be bound by all the terms, provisions, and conditions of the Trust Agreement
establishing the Pension Fund and any amendments thereto.

In April 2009, all contributing employers to the Pension Fund withdrew
participation from the Pension Fund, thereby effectuating a termination of the
Pension Fund by mass withdrawal, in accordance with ERISA Section 4041A, 29
U.S.C. § 1341a. Accordingly, pursuant to Section 4201 of ERISA, 29 U.S.C. §
1381, Specialty was obligated to pay withdrawal liability as determined by the
Pension Fund pursuant to the applicable statutory, administrative, and contractual
provisions. As a single employer, Specialty, Jafaco, and any other trades or

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

businesses under common control, are jointly and severally liable for Specialty’s
withdrawal liability.

Pursuant to Sections 4202 and 4219 of ERISA, 29 U.S.C. §§ 1382, 1399, and
the applicable regulations, in January 2010, the Pension Fund calculated the amount
of Specialty’s initial withdrawal liability to be $30,859.58. Under the payment
schedule, Specialty was required to make two (2) payments: $22,179.75, due on
March 23, 2010, and $8,679.83 due on June 23, 2010. On or about January 22,
2010, the Pension Fund notified Specialty that its initial withdrawal liability to the
Pension Fund was $30,859.50, and demanded payment (“Initial Withdrawal
Liability Notice”). Notice to Specialty constituted notice to all trades or businesses
under common control with Specialty, including Jafaco.

In January 2010, pursuant to ERISA and the applicable regulations, the

Pension Fund calculated Specialty’s redetermination liability. The redetermination
liability is the sum of Specialty’s liability for deminimis amounts and 20-year
limitation amounts that were excluded from the initial withdrawal liability
calculation. The Pension Fund determined Specialty’s redetermination liability to
be $80,859.58, payable in three quarterly payments of $22,179.75, and a fourth
quarterly payment of $14,320.33. On or about January 22, 2010, the Pension Fund
notified Specialty of its redetermination liability, and demanded payment
(“Redetermination Liability Notice”). Notice to Specialty constituted notice to all
trades or businesses under common control with Specialty, including Jafaco.

In July 2010, pursuant to ERISA and the applicable regulations, the Pension
Fund calculated Specialty’s reallocation liability. The reallocation liability is equal
to the sum of Specialty’s initial allocable share of the Pension Fund’s unfunded
vested benefits plus any unassessable amounts determined by the Pension Fund and
allocated to Specialty, less any applicable amounts under Section 4225 of ERISA,
29 U.S.C. § 1404. The Pension Fund calculated Specialty’s reallocation liability to

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

be $949,201.00, and Specialty’s total withdrawal liability (consisting of initial
withdrawal liability, redetermination liability, and reallocation liability) to be
$1,030,060.58, payable in 68 quarterly payments of $22,179.75, plus a 69th
quarterly payment of $10,492.99. On or about July 26, 2010, the Pension Fund
notified Specialty that its reallocation liability was $949,201.00 and its total
withdrawal liability was $1,030,060.58, and demanded payment (“Reallocation
Liability Notice”). Notice to Specialty constituted notice to all trades or businesses
under common control with Specialty, including Defendant Jafaco.

Prior to bringing this action, the Trust Fund had not received any quarterly

payments of withdrawal liability from Specialty or Jafaco, and as a result, the Trust
Fund was forced to bring the current action to collect the total withdrawal liability
due and owing to the Trust Fund. Delinquent withdrawal liability payments are
considered delinquent contributions pursuant to ERISA Sections 515, 4219(c) (5)
and 4301(b) and the Trust Agreement, thereby triggering the assessment of interest
and liquidated damages. Plaintiffs are entitled to interest, liquidated damages,
attorney’s fees and costs.

Specialty and Jafaco failed to timely request a review of the initial and

redetermination liability assessments. Specialty requested review the reallocation
liability determination on or around October 25, 2010, and initiated arbitration on
or around April 18, 2011. On February 24, 2012, the arbitrator entered an order
dismissing Specialty’s claim for failure to prosecute. Because Specialty and Jafaco
are treated as a single employer pursuant to ERISA § 4001, Jafaco has waived any
right to submit a request for review or initiate arbitration, and has therefore waived
any defenses that fall within the purview of ERISA §§ 4201-4219, including
ERISA § 4212(c), because the time limit to request a review pursuant to ERISA
§4219(b) or to demand or initiate arbitration following such review pursuant to
ERISA § 4221(a)(1) has now expired.

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

On May 17, 2013, Jafaco submitted a request for information to the Pension

Fund, alleging that the Complaint constituted notice pursuant to ERISA §
4219(b)(1), 29 U.S.C. § 1399(b)(1), and requesting information in order to prepare
a request for review pursuant to ERISA § 4219(b)(2)(A), 29 U.S.C. §
1399(b)(2)(A). Although the Pension Fund rejects Jafaco’s position that the
Complaint constituted notice and that it is entitled to a request for review under
ERISA § 4219, the Pension Fund will respond to Jafaco’s request for information in
accordance with the requirements of ERISA § 101(k), 29 U.S.C. § 1021(k).

Pursuant to Section 4212(c) of ERISA, 29 U.S.C. § 1392(c), any transaction
to evade or avoid withdrawal liability shall be disregarded for purposes of assessing
and collecting withdrawal liability. During the time period that participating
employers of the Pension Fund were contemplating a mass withdrawal from the
Pension Fund, Jafaco sold 50% of its stock in Specialty to a Canadian corporation,
6796702 Canada, Inc. (“Canada”) on or about May 31, 2008. Shortly following
Specialty’s withdrawal from the Pension Fund on April 30, 2009, Jafaco
repurchased its stock in Specialty from Canada on or about May 29, 2010. This
temporary sale of Specialty’s stock to Canada should be disregarded pursuant to 29
U.S.C. § 1392(c) as a transaction to evade or avoid withdrawal liability.
Accordingly, Specialty and Jafaco should be considered as a commonly controlled
group of trades or businesses, and a single employer pursuant to ERISA Section
4001(b), 29 U.S.C. § 1301(b). As such, Defendants are jointly and severally liable
for any obligations to the Pension Fund that Specialty has incurred pursuant to Title
IV of ERISA, 29 U.S.C. § 1301 et seq.

By reason of the foregoing, Defendants are indebted to the Pension Fund for

the total withdrawal liability of $1,030,060.58, together with interest thereon,
liquidated damages, attorneys’ fees, and other costs in accordance with the Trust

JOINT RULE 26(F) REPORT
Case No. 2:13-cv-01995-MMM-PJW

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

Agreement and Sections 4301(b) and 502(g) of ERISA, 29 U.S.C. §§ 1451(b),
1132(g).

B.

DEFENDANT’S DESCRIPTION OF THE CASE
The date for determining whether a person is a trade or businesses under
common control with a contributing employer to a multiemployer pension plan
subject to Title IV of ERISA, 29 U.S.C. § 4001 et seq., is the date of the
contributing employer’s partial or complete withdrawal from the plan. Specialty
withdrew from the plan on November 7, 2008, the date that it entered into an
agreement with the union that represented its employees to permanently cease
making contributions to the Pension Fund. On that date, Jafaco owned 50% of the
shares of Specialty, and 6796702 Canada, Inc. (“Canada”) owned 50% of the shares
of Specialty. Jafaco did not directly or indirectly own any interest in Canada.
Neither entity owned 80% of the stock of Specialty, which is the threshold for
controlled group status, as of the date Specialty withdrew from the Pension Fund.

The transaction in which Jafaco sold 50% of the shares of Specialty to
Canada effective May 31, 2008 (the “Transaction”), was based on business
considerations, rather than concerns regarding withdrawal liability. While the
Pension Fund alleges that Jafaco was aware of an imminent mass withdrawal of the
Pension Fund’s contributing employers in May 2008, that mass withdrawal is
alleged to have occurred at the end of April 2009. Jafaco emphatically denies it had
any knowledge of an imminent mass withdrawal in May 2008. Jafaco repurchased
50% of the shares of Specialty from Canada effective May 2010 based on business
considerations that arose after the May 2008 purchase.

It is Jafaco’s position that the issues whether or not Jafaco was a member of a
controlled group including Specialty as of the date that Specialty withdrew from the
Pension Fund; whether or not the Transaction was a transaction to evade or avoid
liability by Jafaco for payment of potential withdrawal liability that might be

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

assessed against Specialty; whether or not Jafaco is liable for payment of
withdrawal liability assessed against Specialty; and whether or not the Initial
Withdrawal Liability Notice allegedly delivered to Specialty in January 2010, the
Redetermination Liability Notice allegedly delivered to Specialty in January 2010,
and/or the Reallocation Liability Notice allegedly delivered to Specialty in July
2010 constitute sufficient notice to Jafaco pursuant to ERISA §4219(b)(1), 29
U.S.C. §1399(b)(1), to have commenced the 90 day period for Jafaco to seek
review, respectively, of the Fund’s determination of Jafaco’s initial withdrawal
liability, redetermination liability and reallocation liability pursuant to ERISA
§4219(b)(2)(A), 29 U.S.C. §1399(b)(2)(A) are all matters that must be determined
by arbitration pursuant to ERISA §4221, 29 U.S.C. §1401.

By a letter delivered to the Pension Fund on August 27, 2009, Specialty

responded to a request for information from the Pension Fund regarding the
ownership of Specialty by informing the Pension Fund that Jafaco owned 100% of
the common stock of Specialty from the incorporation of Specialty on December
11, 2007, through May 31, 2008, when Jafaco sold 50% of the common stock of
Specialty to Canada, and that from May 31, 2008 through August 27, 2009, Jafaco
and Canada each owned 50% of the common stock of Specialty. That letter also
provided the addresses of Jafaco and Canada to the Pension Fund.

As of August 27, 2009, the Pension Fund knew that Jafaco was not in a

controlled group of corporations with Specialty as of the date of Specialty’s
withdrawal from the Pension Fund in November 2008, and therefore, that Jafaco
had no liability for Specialty’s withdrawal liability to the Pension Fund. While the
Pension Fund may have determined, after receiving this information, that the May
2008 Transaction was a transaction to evade or avoid withdraw liability, the
Pension Fund never provided notice to Jafaco that it sought to assess Jafaco for the
withdrawal liability incurred by Specialty.

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

Rather, Jafaco first received notice from the Pension Fund that the Pension
Fund sought to hold Jafaco liable for the Pension Fund’s assessment of withdrawal
liability against Specialty on March 22, 2013, when the complaint in this action was
served on Jafaco. By letter dated May 17, 2013, Jafaco notified the Pension Fund
that Jafaco intends to file a Request for Review with the Pension Fund’s Board of
Trustees, within the time frame permitted under ERISA Section 4219(b)(2)(A),
regarding the Pension Fund’s determination that Jafaco has an obligation to pay the
assessment of withdrawal liability against Specialty, and requested that the Pension
Fund provide specified information to Jafaco to enable Jafaco to prepare its Request
for Review.

By letter dated June 10, 2013, the Pension Fund informed Jafaco that the
Initial Withdrawal Liability Notice allegedly delivered to Specialty in January
2010, the Redetermination Liability Notice allegedly delivered to Specialty in
January 2010, and the Reallocation Liability Notice allegedly delivered to Specialty
in July 2010 constituted notice to Jafaco pursuant to ERISA §4219(b)(1), 29 U.S.C.
§1399(b)(1), because “[n]otice to one member in a controlled group constitutes
notice to all;” that Jafaco has waived any right to seek review pursuant to ERISA
§4219, 29 U.S.C. §1399; and that the Pension Fund would not provide information
to Jafaco pursuant to ERISA §4219(b)(2), 29 U.S.C. §1399(b)(2). The fundamental
flaws in the Pension Fund’s position are (1) that the Pension Fund knew, at the time
it issued these notices to Specialty, that whether or not Jafaco was not a member of
a controlled group with Specialty on November 7, 2008 was disputed, and (2) that
the constructive notice rule that “[n]otice to one member in a controlled group
constitutes notice to all” does not apply to a former member of a controlled group.

ERISA §4221, 29 U.S.C. §1401 requires that: “Any dispute between an

employer and the plan sponsor of a multiemployer plan concerning a determination
made under sections 1381 through 1399 of this title shall be resolved through

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

arbitration.” The Pension Fund’s determinations that the notices it sent to Specialty
triggered Jafaco’s rights to seek review pursuant to ERISA §4219, 29 U.S.C.
§1399, and that the Transaction should be disregarded pursuant to ERISA §4212(c),
29 U.S.C. §1392(c), are therefore subject to arbitration. In any event, even if the
Court has the authority to determine the first issue, the notices that the Pension
Fund sent to Specialty did not provide sufficient notice to Jafaco of Jafaco’s
liability to satisfy statutory and due process notice requirements.

III.

PRINCIPAL FACTUAL AND LEGAL ISSUES WHICH THE

PARTIES AGREE ARE IN DISPUTE

1) Whether the time has passed for Defendant Jafaco to request review of the

withdrawal liability assessments in accordance with ERISA §
4219(b)(2)(A), 29 U.S.C. § 1399(b)(2)(A) and initiate arbitration in
accordance with ERISA § 4221(a)(1), 29 U.S.C. § 1401(a)(1);

2) Whether Defendant Jafaco has waived any defenses to the withdrawal

liability assessment under ERISA §§ 4201-4219, 29 U.S.C. §§ 1381-1399
in accordance with 29 U.S.C. § 1401(a)(1) by failing timely to initiate
arbitration;
If not, whether Defendant Jafaco’s sale of shares of Specialty to Canada
was a transaction to evade or avoid withdrawal liability within the
meaning of ERISA § 4212;

3)

4) Whether the foregoing three issues should be decided by the Court or by

arbitration in accordance with ERISA § 4221(a)(1), 29 U.S.C. §
1401(a)(1);

5) Whether Defendant Jafaco operated a trade or business under common

control with Specialty, which constituted a single employer so that Jafaco
is liable for Specialty’s withdrawal liability;

6) Whether Defendant Jafaco must pay the Pension Fund Specialty’s
outstanding withdrawal liability, plus interest, liquidated damages,

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

attorney’s fees and costs; and

7) Whether any of Plaintiffs’ claims are barred by any of the affirmative

defenses alleged by Defendant in its Answer.
SCHEDULING

IV.

There are threshold issues of waiver and arbitrability that should be resolved

before addressing the substantive issues of the case. The parties recommend that
issues be addressed through motions, hereinafter referred to “waiver and
arbitrability motions” for ease of reference. Plaintiffs anticipate filing a motion for
summary adjudication as to the issue of waiver of defenses to any matters under
ERISA sections 4201 through 4219, 29 U.S. C. 1381 through 1399, including
waiver of the right to request review and initiate arbitration. Defendant Jafaco
anticipates filing a motion to stay the case and compel arbitration.

The parties propose the following schedule:

(a) Last day to file waiver and arbitrability

motions

(b) Hearing on waiver and arbitrability

motions

(c) Last day to complete discovery
(d) Last day to file dispositive and non-

dispositive motions

(e) Hearing on dispositive motions
(f) Pretrial conference to be conducted
(g) Trial requested for

August 30, 2013

October 4, 2013

February 4, 2014
January 31, 2014

April 7, 2014
May 7, 2014
June 9, 2014

A.

DISCLOSURES
Plaintiffs submitted initial disclosures on June 7, 2013, and will also respond
to Defendant’s request for information in accordance with ERISA § 101(k), 29
U.S.C. § 1021(k). Defendant will submit initial disclosures no later than June 21,
2013.

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

B.

EVIDENCE PRESERVATION
The parties have taken the necessary steps to preserve all relevant evidence

presently in their respective possession and control.
PARTIES’ DISCOVERY STATEMENT
The parties have not conducted any discovery to date. The parties propose a

C.

traditional plan of discovery which would include depositions, document
productions, and other written discovery contemplated by the Federal Rules of Civil
Procedure.

D.

PROPOSED DISCOVERY PLAN PURSUANT TO FED. R. CIV.P.
26(F)
1.

Rule 26(f)(1): What changes should be made in the timing, form,
or requirement for disclosures under Rule 26(a), including a
statement as to when disclosures under subdivision (a)(1) were
made or will be made?

As stated above, Plaintiffs submitted their initial disclosures on June 7, 2013.

Defendant will submit its initial disclosures by June 21, 2013. The parties do not
propose any changes in the timing, form, or requirements for disclosures under
Rule 26(a).

2.

Rule 26(f)(2): The subjects on which discovery may be needed,
when discovery should be completed, and whether discovery
should be conducted in phases or be limited to or focused upon
particular issues.

The parties disagree with respect to whether discovery should be conducted
in phases. Jafaco believes that discovery should take place in two phases: (1) an
initial phase limited to facts material to notice issues (e.g., the information request
the Pension Fund made to Specialty, Specialty’s delivery of its response to the
Pension Fund, and whether the Pension Fund delivered any notices directly to
Jafaco), which should end by August 23, 2013; and (2) any discovery relating to the
Transaction and other issues, which should only take place after the Court has
decided the arbitrability motions. Jafaco will also seek to enter into a stipulation
with the Pension Fund regarding facts within the scope of the first phase of

JOINT RULE 26(F) REPORT
Case No. 2:13-cv-01995-MMM-PJW

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

discovery, and if those efforts are successful, no such discovery will be needed.
The Pension Fund believes that all discovery may proceed while the parties are
briefing, and the Court is deciding, the arbitrability motions to avoid delay in the
proceedings, to allow discovery on any unforeseen issues related to the initial
motions, and to avoid disputes over whether particular discovery requests fall
within the proposed initial phase limited to facts material to notice issues.

3.

Rule 26(f)(3): Any issues in relation to disclosure of discovery of
electronically stored information, including the form or forms in
which it should be produced.

The parties do not anticipate any issues relating to disclosure or discovery of

electronically stored information. The parties agree to address any such issues in
the event they arise.

4.

Rule 26(f)(4): Any issues relating to claims of privilege or of
protection as to trial-preparation material, including-if the parties
agree on a procedure to assert such claims after production -
whether to ask the court to include their agreement in the order.

The parties do not anticipate any issues relating to claims of privilege or

protection as to trial-preparation material. The parties agree to address any such
issues in the event they arise.

5.

Rule 26(f)(5): What changes should be made in the limitations on
discovery imposed under the Federal Rules of Civil Procedure or
the Local Rules, and what other limitations should be imposed?
The parties do not require any other changes to the limitations on discovery

proposed by the Federal Rules or Local Rules at this time.

6.

Rule 26(f)(6): Any other orders that should be entered by the court
under Rule 26(c) or under Rule 16 (b) and (c).

The parties do not request at this time any other orders to be entered by the

court under Rule 26 (c) or Rule 16 (b) and (c). The parties reserve the right to
request a protective order should any issues arise in the future that cannot be
resolved through agreement.

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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

E.

EXPEDITED SCHEDULE
The parties do not believe that this is the type of case that can be handled on

an expedited basis with streamlined procedures.
TRIAL

V.

A bench trial is appropriate in this case as it is brought upon and pursuant to

ERISA. The parties estimate a court trial length of 2-3 days.
SETTLEMENT AND ADR

VI.

The parties have not yet made efforts to settle or resolve the case, but agree
to carefully monitor the case for opportunities to have settlement discussions. The
parties agree to participate in ADR Procedure No. 2 (settlement conference before a
neutral selected from the Court’s Mediation Panel). The parties agree that it would
be helpful if the mediator assigned to this matter had experience with ERISA
withdrawal liability cases and an understanding of control group/single employer
theories.

VII. COMPLEX LITIGATION

This case is not complex and does not require reference to the procedures set

forth in the Manual on Complex Litigation.

VIII. ADDITIONAL PARTIES

Plaintiffs are attempting to serve Defendant Specialty, which has not yet
appeared. The parties do not anticipate the appearance of any additional parties
other than Specialty, but reserve the right to add additional parties.

IX. MOTIONS

No motions have been filed to date. As discussed above, Plaintiffs anticipate

filing a motion for summary adjudication on the issue of waiver of defenses,
including the waiver of the right to request review and initiate arbitration.
Defendant anticipates filing a motion to stay the case and compel arbitration. The
parties anticipate the remaining issues in the case, if any, would be decided on
cross-motions for summary judgment. The parties agree that the last day for

JOINT RULE 26(F) REPORT
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ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

WEINBERG, ROGER &

Alameda, California 94501

(510) 337-1001

hearing all dispositive and non-dispositive motions should be approximately two
months before the trial date.

X.

UNUSUAL LEGAL ISSUES

As discussed above, the legal issues presented in this case include 1) the

application of ERISA’s withdrawal liability notice, review and arbitration
provisions to an entity whose status as a controlled group member as of the
withdrawal date is disputed, including that entity’s receipt of notices, the timeliness
of that entity’s request to review pension plan determinations, and that entity’s
waiver of defenses; 2) whether the Transaction was a transaction to evade or avoid
liability; and 3) which of the foregoing issues should be decided by the Court and
which should be decided in arbitration.

XI.

SEVERANCE AND BIFURCATION

As discussed above, the parties recommend filing the waiver and arbitrability

motions early in the case to narrow the issues to be decided. Otherwise the parties
do not propose any severance or bifurcation of this case.

Dated: June 14, 2013

WEINBERG, ROGER & ROSENFELD
A Professional Corporation

By:

/s/ Kristina M. Zinnen

LINDA BALDWIN JONES
KRISTINA M. ZINNEN
DANIEL S. BROME
Attorneys for Plaintiffs

Dated: June 14 , 2013

BRYAN CAVE

By:

/s/ Candice F. Boyd

JAY P. WARREN
JULIE E. PATTERSON
CANDICE F. BOYD
Attorneys for Defendant

JOINT RULE 26(F) REPORT
Case No. 2:13-cv-01995-MMM-PJW

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