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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Domina Law Group pc llo Lawyers Appointed Class Representatives- Court Rules on Injunction Issues

1. The United States District Court for the District of Nebraska appointed David A. Domina and Terry A. White of Domina Law Group pc llo to serve as class counsel for retirees of Aliant/Alltel/Lincoln Telephone and Telegraph Company in a complex federal employment retirement benefits case.

2. Lincoln Telephone and Telegraph Company (“LT&T”) provided service to southeast Nebraska from the time telephones came to the state until 1996. The company changed its name to Alltel. It was acquired by Aliant in 2000, and Aliant, in turn, sold it to Windstream, an NYSE company, in 2006.

3. Nearly 900 retirees count on their telephone company pensions for their financial support.

4. In August 2008, Windstream announced its plan to reduce retirement benefits, but not the pension benefit, by (a) eliminating a guaranteed death benefit, the amount of which was equal to a year’s pay at the retirement pay rate, (b) dramatically changing the available life insurance, (c) substituting a wholly different health insurance program eliminating Blue Cross/Blue Shield, and substituting United Healthcare, a company many retirees feel is far inferior.

5. Domina and White are appointed to defend members of the class.

6. Initially, Domina and White answered Windstream’s allegations and sought a preliminary injunction to prevent the proposed benefit changes from becoming effective until after the litigation is resolved.

7. “Elimination of the death benefit and the life insurance makes many retirees feel vulnerable for their spouses. Changing the health insurance benefit engendered real fear for the retirees. They are aware of United Healthcare’s spotty record, and its frequent, significant disciplinary difficulties with regulatory officials, including the Nebraska Department of Insurance and insurance departments in many states.”

8. White, commenting on the case, said “it is quite clear the law strongly favors the employer on issues concerning changes in retirement benefits.”

9. Domina and White were confronted with the need to overcome provisions in Plans providing for health insurance and life insurance death benefits, all containing strongly pro-employer provisions authorizing changes in programs.

10. “In view of the language in the Plans, we chose to argue that the employee handbooks distributed to our client group during employment committed the company to vested pension and retirement benefits. The Plan language does not mirror this, but the employee handbook strongly supports this claim.” Domina and White continued, “We developed strong affidavit evidence from several class members and exhaustibly researched Windstream in an effort to build a case.” Domina commented that “Terry White’s investigative research, strongly supported by the work of Julie Brown, one of our capable paraprofessionals, disclosed SEC filings by Windstream clarifying that the company has the cash to cover the pension benefit savings it proposes to introduce for itself with changes in the Plan.” Domina continued “a profit windfall will pass to Windstream if they are permitted to make the desired change.”

11. The preliminary hearing was tried in the United States District Court December 15. A day of evidence was presented. Live testimony from a pension benefits specialist was adduced by Windstream. Many observers, including more than 40 class members, were “unimpressed with the expert” whom they thought knew less about the subject than initially appeared, and seemed “focused on making a case for Windstream, not on objectively expressing the facts.”

12. Domina, who summarized the impressions of his clients about the experts, explained further, “We knew the judge had to decide the case based on strongly pro-employer rules. We saw our primary hope at prevailing as being based upon the employee handbook and general awareness that the ‘Plan Documents’, which are usually single spaced, difficult-to-read legal instruments, were not available to them during their employment.”

13. The United States District Court concluded a preliminary injunction could not issue. It found a grave threat of irreparable harm to the class members, but said it could not conclude a reasonable doubt exists about the case’s outcome on the merits.

14. On December 30, the Court ruled that no preliminary injunction would issue because it found the Plan documents controlling, and the Court was unable to conclude that the employee handbook, with its vagaries, was intended to control.

15. “The case presents special challenges,” Terry White said. “Our empathetic clients are confronted with a bulldoggish set of legal rules supporting the employer. We tried to find a way around them and had little hope for success.” White concluded that, “The Court felt like recent precedent, favoring the employer, simply prevented it from making a ruling for our clients.”

16. Domina and White expect to see a summary judgment motion from the defendant to determine the issues, now.

17. They expect this to be presented as a motion for summary judgment. “If the motion is sustained,” Domina and White each noted that “at this point, we will have to decide whether to appeal to the Circuit Court.”

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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