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Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion for Class Certification

STATE OF MICHIGAN

IN THE COURT OF CLAIMS

______________________________________________________________________________

THOMAS R. OKRIE, et al.,

Plaintiffs,

Court of Claims No. 13-93-MK

v HON. Rosemarie E. Aquilina

STATE OF MICHIGAN,

GOVERNOR RICK SNYDER,

MICHIGAN DEPARTMENT

OF TECHNOLOGY, MANAGEMENT

AND BUDGET, OFFICE OF

RETIREMENT SERVICES,

STATE EMPLOYEES RETIREMENT

SYSTEM, MICHIGAN PUBLIC

SCHOOL EMPLOYEES RETIREMENT

SYSTEM and MICHIGAN DEPARTMENT

OF TREASURY,

Defendants.

______________________________________________________________________

Gary P. Supanich (P45547)

LAW OFFICE OF GARY P. SUPANICH

Attorney for Plaintiffs

117 North First Street, Suite 111

Ann Arbor, MI 48104

(734) 276-656

www.michigan-appeal-attorney.com

Patrick M. Fitzgerald (P69964)

Joshua Booth (P53947)

Margaret Nelson (P30342)

MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

State Operations Division

Attorneys for Defendants

P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

_____________________________________________________________________

PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION TABLE OF CONTENTS

I. INTRODUCTION....................................................... 1

II. ARGUMENT............................................................... 1

This Court Should Grant the Motion for Class Certification Because Mr. Okrie Has Satisfied All the Requirements for Class Certification under MCR 3.501.. ......................................................................... 1

III. CONCLUSION AND RELIEF.................................... 3

I. INTRODUCTION

As a threshold matter, Plaintiff Thomas R. Okrie disputes the State's assertion that the present motion is premature on the ground that an Amended Verified Class Action Complaint has been filed, thus superseding the Original Verified Class Action Complaint. (Df. Br., p 2). Here, the added counts of unjust enrichment and breach of employment contract, as well as the counts arising under the state and federal constitutions for an impairment of contract, takings, and violations of substantive due process and procedural due process do not change the composition of the class in the slightest since all the claims arise from the same common nucleus of operative facts and affect all prospective class members the same way; the only principal difference is the quantity of their respective damages. Thus, there is no basis for claiming that the present motion is premature since the class composition remains the same: state employees and public school employees (born after 1945) whose pensions were subject to state and local income tax after January 1, 2012 and who have suffered damages as a result of the State's breach of contract.

II. ARGUMENT

A. This Court Should Grant the Motion for Class Certification Because Mr. Okrie Has Satisfied All the Requirements for Class Certification under MCR 3.501.

Contrary to the State's claim (Df. Br., p 4), there are no "disparate factual circumstances underlying the claim of each putative member." Here, the basic facts underpinning the motion for class certification are essentially uncontested; the only outstanding question is their legal effect, which is a pure question of law.

Specifically, it is uncontested that the ORS, acting as "your partner in retirement," made certain representations to Mr. Okrie and the other putative class members that their pensions were exempt from state and local taxation. At an evidentiary level, these representations constitute party admissions that the State cannot now contradict, as they were addressed to all the prospective class members, and not just Mr. Okrie individually. Thus, against the State's claim (Df. Br., p 5), it is perfectly proper for generalized proofs to predominate over individual proofs for the purpose of demonstrating commonality under MCR 3.501(A)(1)(b). Moreover, contrary to the State's contention, reliance on the State's representations was not a mere "subjective expectation" of Mr. Okrie and the other affected public employees, but an objective fact that the State is equitably estopped from disputing.

Further, Mr. Okrie's claims are typical of the class under MCR 3.501(A)(1)(c). Contrary to the State's claim, no individualized inquiry need be made into each putative class member's claim, for it is uncontested that everyone received essentially the same information and were directed to rely upon it in making their irrevocable retirement and employment termination decisions.

Consequently, class certification promotes the convenient administration under MCR 3.501(A)(1)(e). Contrary to the State's claim (Df. Br., p 8), because individualized inquiry is unnecessary, class action is a superior method of adjudication. In this regard, the State mischaracterizes the practical problems of administering this action as a class action. Because no individualized inquiries need be made, this obviates the necessity for any discovery requests involving a class exceeding 100,000 members or the fear that "the case will devolve into hundreds of thousands of mini-trials." (Df. Br, p 8). Indeed, class certification is warranted precisely to avoid such a spectacle.

III. CONCLUSION AND RELIEF

Accordingly, Plaintiff Thomas R. Okrie respectfully requests that this Court grant his motion for class certification under MCR 3.501.

Respectfully Submitted,

LAW OFFICE OF GARY P. SUPANICH

__________________________

Gary P. Supanich (P45547)

Attorney for Plaintiffs

117 North First St., Suite 111

Ann Arbor, MI 48104

Dated: October 9, 2013 (734) 276-6561

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