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STIPULATION CASE NO.:M:10-CV-02124-SI

RAOUL D. KENNEDY (STATE BAR NO. 40892)

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

Four Embarcadero Center, Suite 3800

San Francisco, California 94111

Telephone: (415) 984-6400

Facsimile: (415) 984-2698

Email: Raoul.Kennedy@skadden.com

JAMES R. CARROLL (PRO HAC VICE)

DAVID S. CLANCY (PRO HAC VICE)

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

One Beacon Street, 31st Floor

Boston, Massachusetts 02108

Telephone: (617) 573-4800

Facsimile: (617) 573-4822

Email: James.Carroll@skadden.com

Email: David.Clancy@skadden.com

Attorneys for Defendant

Conseco Life Insurance Company

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

IN RE CONSECO LIFE INSURANCE

COMPANY LIFETREND INSURANCE

SALES AND MARKETING LITIGATION

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CASE NO.: M:10-CV-02124-SI

STIPULATION AND PROPOSED

ORDER CONCERNING CLASS

CERTIFICATION BRIEFING

SCHEDULE AND HEARING

Case 3:08-cv-05746-SI Document 114 Filed 02/17/10 Page 1 of 5
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STIPULATION 1 CASE NO.:M:10-CV-02124-SI

INTRODUCTION

By Order on February 11, 2010, the Court set a scheduling conference in this multidistrict

litigation ("MDL") for March 12, 2010. (MDL Docket No. 2.) The Court previously, however,

had set a hearing for March 5, 2010 on plaintiffs' motion for class certification in Brady, et al. v

Conseco, Inc. et al., No. 3:08-CV-05746-SI (N.D. Cal.), one of the three actions subsumed into the

MDL. (Brady Docket No. 74.) Counsel for defendant Conseco Life Insurance Company

("Conseco Life") submitted a letter to the Court requesting that the hearing in the Brady matter be

deferred until MDL scheduling could be coordinated. (MDL Docket No. 3.) After Conseco Life

filed its letter, Plaintiffs' counsel in the MDL and counsel for Conseco Life conferred and agreed to

the course of action outlined below, which would have the effect of removing the March 5, 2010

hearing from the Court's calendar.

RECITALS

WHEREAS, on December 24, 2008, plaintiffs Cedric Brady, Dr. Charles Hovden, Dr.

Marion Hovden, Dr. Eugene Kreps, Dr. John McNamara, Dr. Hisaji Sakai, and Jean Sakai (the

"Brady Plaintiffs") filed a complaint against Conseco Life in the San Francisco Division of the

United States District for the Northern District of California in a case captioned Brady, et al. v

Conseco, Inc. et al., No. 3:08-CV-05746-SI;

WHEREAS, on July 2, 2009, plaintiff Bill McFarland ("McFarland") filed a complaint

against Conseco Life in the Jacksonville Division of the United States District for the Middle

District of Florida in a case captioned McFarland v. Conseco Life Ins. Co., No. 3:09-CV-TJCMCR;

WHEREAS, on October 6, 2009, McFarland filed a motion for class certification in the

Middle District of Florida ("McFarland Motion");

WHEREAS, Conseco Life has not filed an opposition to the McFarland Motion, and no

opposition is due, and no hearing date is set;

WHEREAS, on December 1, 2009, the Brady Plaintiffs filed a motion for class certification

in the Northern District of California ("Brady Motion");

WHEREAS, on January 29, 2010, Conseco Life filed an opposition to the Brady Motion;

Case 3:08-cv-05746-SI Document 114 Filed 02/17/10 Page 2 of 5
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STIPULATION 2 CASE NO.:M:10-CV-02124-SI

WHEREAS, the Brady Plaintiffs are scheduled to file a reply in further support of the

Brady Motion on February 19, 2010, and a hearing on the Brady Motion is scheduled for March 5,

2010;

WHEREAS, on February 5, 2010, pursuant to a transfer order from the United States Panel

on Multidistrict Litigation, the Court established this MDL consolidating the Brady case, the

McFarland case, and another individual (non-class action) case (Muldrow v. Conseco Life Ins. Co.,

No. 4:08-CV-552-RH-WCS (N.D. Fla. filed Dec. 12, 2008));

WHEREAS, the Brady Plaintiffs, McFarland and Conseco Life wish to avoid inefficiency

and the inconsistent adjudication of the Brady Motion and the McFarland Motion;

WHEREAS, in light of the establishment of the MDL, the Brady Plaintiffs and McFarland

wish to file a consolidated motion for class certification;

WHEREAS, the Brady Plaintiffs, McFarland and Conseco Life have conferred and agree

that the Brady Plaintiffs and McFarland may withdraw their respective motions for class

certification, and file a joint, consolidated motion for class certification for consideration by the

Court; and

WHEREAS, Local Rule 7-4 imposes a page limit of twenty-five pages on a brief or

memorandum of points and authorities filed in support of a motion or opposition, and a page limit

of fifteen pages on a reply memorandum.

STIPULATION

THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the undersigned as

follows:

1. The Brady Motion and the McFarland Motion shall be withdrawn without prejudice,

and the hearing on the Brady Motion currently scheduled for March 5, 2010 in Brady, No. 3:08-

CV-05746, shall be removed from the Court's motion calendar;

2. The Brady Plaintiffs and McFarland may file a joint, consolidated motion for class

certification, which motion may not exceed fifty pages in length and may be filed no later than

March 11, 2010 ("Joint Motion For Class Certification");

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STIPULATION 3 CASE NO.:M:10-CV-02124-SI

3. Conseco Life may file an opposition to the Joint Motion For Class Certification not

to exceed sixty pages in length no later than April 22, 2010;

4. The Brady Plaintiffs and McFarland may file a joint, consolidated reply

memorandum in further support of the Joint Motion For Class Certification not to exceed twentyfive pages in length no later than May 13, 2010;

5. A hearing on the Joint Motion For Class Certification may be heard on May 28,

2010, or at any other subsequent time as the Court's schedule may permit.

DATED: February 16, 2010 Millstein & Associates

By: /s/ David J. Millstein

David J. Millstein

Attorneys for the Brady Plaintiffs

DATED: February 16, 2010 Gilbert LLP

By: /s/ August J. Matteis, Jr.

August J. Matteis, Jr.

Attorneys for the Brady Plaintiffs

DATED: February 16, 2010 Berman DeValerio

By: /s/ Michael Pucillo

Michael Pucillo

Joseph J. Tabacco

Chris Heffelfinger

Attorneys for Plaintiff McFarland

DATED: February 16, 2010 Skadden, Arps, Slate, Meagher & Flom LLP

By: /s/ David S. Clancy

Raoul D. Kennedy

James R. Carroll (Admitted Pro Hac Vice)

David S. Clancy (Admitted Pro Hac Vice)

Attorneys for Defendant

Conseco Life Insurance Company

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STIPULATION 4 CASE NO.:M:10-CV-02124-SI

ATTESTATION PURSUANT TO GENERAL ORDER 45

I, David S. Clancy, am the ECF User whose ID and password are being used to file

this Stipulation And Proposed Order. In compliance with General Order 45.X.B, I hereby attest

that concurrence in the filing of this document has been obtained from each of the other signatories.

I declare under penalty of perjury under the laws of the United States of America that the foregoing

is true and correct.

Executed this 16th day of February, 2010, at Boston, Massachusetts.

By: /s/ David S. Clancy

David S.Clancy

PURSUANT TO STIPULATION, IT IS SO ORDERED,

Dated: By:

Hon. Susan Illston

Case 3:08-cv-05746-SI Document 114 Filed 02/17/10 Page 5 of 5