UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WILLARD L. SLOAN, EUGENE J. 

WINNINGHAM, and JAMES L. KELLEY,

 Plaintiffs, 

 v. 

BORGWARNER INC., BORGWARNER 

DIVERSIFIED TRANSMISSION 

PRODUCTS INC., and BORGWARNER 

FLEXIBLE BENEFITS PLANS, 

 Defendants. 

Case 2:09-cv-10918-PDB-MKM 

U.S. District Judge Paul D. Borman 

U.S. Magistrate Judge Mona K. Majzoub 

BORGWARNER’S MOTION FOR SUMMARY JUDGMENT 

BorgWarner Inc., BorgWarner Diversified Transmission Products Inc., and BorgWarner 

Flexible Benefits Plans—referred to collectively as “BorgWarner” for convenience—request 

summary judgment on Plaintiffs’ claims that BorgWarner is obligated to provide them with 

vested, lifetime, inalterable retiree health care benefits and that changes made to their benefits on 

May 1, 2009, breach that obligation. See Fed. R. Civ. P. 56(a). As explained more fully in the 

following brief in support, there are no material facts in dispute and BorgWarner is entitled to 

judgment as a matter of law on Plaintiffs’ claims. Most importantly, Plaintiffs cannot prevail on 

their claims because they cannot demonstrate that BorgWarner DTP and their union agreed to 

provide them with vested benefits. See, e.g., Int’l Union, UAW v. Yard-Man, Inc., 716 F.2d 1476, 

1479 (6th Cir. 1983) (requiring an agreement to vest for retiree health care benefits to be vested). 

Alternatively, the undisputed evidence demonstrates that the changes BorgWarner DTP made to 

Plaintiffs’ health care benefits on May 1, 2009, were reasonable and permissible, even if the 

benefits were vested. See Reese v. CNH Am. LLC, 574 F.3d 315, 324–27 (6th Cir. 2009) (holding 

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 1 of 28 Pg ID 1673
 ii 

that vested benefits could be reasonably altered but not discontinued). If nothing else, 

BorgWarner is entitled to partial summary judgment on Plaintiffs’ claims for class-wide money 

damages. Under the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, classwide damages are unavailable to this plaintiff class, which was certified under Federal Rule of 

Civil Procedure 23(b)(1) and (b)(2) and not Rule 23(b)(3). 131 S. Ct. 2541, 2557 (2011). 

In accordance with Eastern District of Michigan Rule of Civil Procedure 7.1(a), counsel 

for BorgWarner conferred by telephone with counsel for Plaintiffs on May 14 regarding this 

motion, explaining its legal and factual basis. Plaintiffs do not concur in BorgWarner’s motion. 

Dated: May 14, 2012 

Elisa Angeli Palizzi (P52088) 

(angeli@millercanfield.com) 

Miller, Canfield, Paddock and Stone, P.L.C. 

150 West Jefferson, Suite 2500 

Detroit, Michigan 48226 

313.496.7635 

313.963.6420 fax 

Respectfully submitted, 

s/Bobby R. Burchfield

Bobby R. Burchfield 

(bburchfield@mwe.com) 

Joshua David Rogaczewski 

(jrogaczewski@mwe.com) 

McDermott Will & Emery LLP 

600 13th Street, Northwest 

Washington, D.C. 20005 

202.756.8000 

202.756.8087 fax 

Attorneys for BorgWarner Inc., BorgWarner Diversified Transmission Products Inc., and 

BorgWarner Flexible Benefits Plans

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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WILLARD L. SLOAN, EUGENE J. 

WINNINGHAM, and JAMES L. KELLEY,

 Plaintiffs, 

 v. 

BORGWARNER INC., BORGWARNER 

DIVERSIFIED TRANSMISSION 

PRODUCTS INC., and BORGWARNER 

FLEXIBLE BENEFITS PLANS, 

 Defendants. 

Case 2:09-cv-10918-PDB-MKM 

U.S. District Judge Paul D. Borman 

U.S. Magistrate Judge Mona K. Majzoub 

BORGWARNER’S BRIEF IN SUPPORT 

OF ITS MOTION FOR SUMMARY JUDGMENT 

Elisa Angeli Palizzi (P52088) 

(angeli@millercanfield.com) 

Miller, Canfield, Paddock and Stone, P.L.C. 

150 West Jefferson, Suite 2500 

Detroit, Michigan 48226 

313.496.7635 

313.963.6420 fax 

Bobby R. Burchfield 

(bburchfield@mwe.com) 

Joshua David Rogaczewski 

(jrogaczewski@mwe.com) 

McDermott Will & Emery LLP 

600 13th Street, Northwest 

Washington, D.C. 20005 

202.756.8000 

202.756.8087 fax 

Attorneys for BorgWarner Inc., BorgWarner Diversified Transmission Products Inc., and 

BorgWarner Flexible Benefits Plans

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 3 of 28 Pg ID 1675
 iv 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................... v 

CONCISE STATEMENT OF THE ISSUES PRESENTED ................................ vi 

CONTROLLING AUTHORITY FOR THE RELIEF SOUGHT ..........................vii 

INTRODUCTION ........................................................................................ 1 

BACKGROUND .......................................................................................... 2 

STATEMENT OF UNDISPUTED MATERIAL FACTS ..................................... 4 

ARGUMENT .............................................................................................. 11 

I. BORGWARNER DTP DID NOT AGREE WITH THE UAW AND 

LOCAL 287 TO VEST RETIREE HEALTH CARE BENEFITS................ 12 

A. The Agreements Between BorgWarner DTP, the UAW, and Local 287 

Expressly Acknowledge the Lack of an Agreement on Vesting. .......................... 13 

B. Plaintiffs’ Retiree Health Care Benefits Expired with the Health Insurance 

Agreement Unless Renewed in a Subsequent Agreement. ................................... 14 

C. By Agreeing to Changes in Current Retirees’ Health Care Benefits, the 

Parties Confirmed that the Benefits Were Not Vested. ......................................... 15 

II. EVEN IF PLAINTIFFS’ HEALTH CARE BENEFITS ARE VESTED, 

BORGWARNER DTP’S CHANGES TO THEM ARE PERMISSIBLE. ...... 16 

A. After the 2009 Changes, Plaintiffs’ Health Care Benefits Were 

“Reasonably Commensurate” with Their Previous Benefits. ............................... 16 

B. The 2009 Changes to Plaintiffs’ Health Care Benefits Were “Reasonable in 

Light of Changes in Health Care.”........................................................................ 17 

C. Plaintiffs’ Current Benefits Are “Roughly Consistent” with Those 

Provided to BorgWarner’s Salaried Employees and the Marketplace 

Generally............................................................................................................... 18 

III. AT A MINIMUM, PLAINTIFFS CANNOT RECOVER CLASS-WIDE 

DAMAGES IN THIS CLASS ACTION. ................................................ 19 

CONCLUSION ........................................................................................... 20 

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 v 

TABLE OF AUTHORITIES 

Cases 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................12 

Bauer v. Kraft Foods Global, Inc., 277 F.R.D. 558 (W.D. Wis. 2012)..........................................20 

BorgWarner Diversified Transmission Prods. Inc. v. UAW, Local No. 287, No. 1:06-cv058-LJM-TAB, 2008 WL. 4274476, at *1 (S.D. Ind. Sept. 12, 2008) ................................5 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...............................................................................12 

Cole v. ArvinMeritor, Inc., 549 F.3d 1064 (6th Cir. 2008).............................................................15 

Cox v. Ky. Dep’t of Transp., 53 F.3d 146 (6th Cir. 1995)...............................................................11 

Diehl v. Twin Disc, Inc., 102 F.3d 301 (7th Cir. 1996) ..................................................................17 

Golden v. Kelsey-Hayes Co., 954 F. Supp. 1173 (E.D. Mich. 1997) .......................................11, 12 

Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510 

(1997).................................................................................................................................12 

Int’l Union, UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) ............................. i, vii, 12, 13 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).....................................11 

Maurer v. Joy Techs., Inc., 212 F.3d 907 (6th Cir. 2000)...............................................................12 

Noe v. PolyOne Corp., 520 F.3d 548 (6th Cir. 2008).....................................................................12 

Prater v. Ohio Educ. Ass’n, 505 F.3d 437 (6th Cir. 2007).............................................................15 

Reese v. CNH Am. LLC, 574 F.3d 315 (6th Cir. 2009)........................................................... passim

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ................................................. ii, vii, 2, 20 

Statutes and Rules 

ERISA § 201, 29 U.S.C. § 1051 (2006).........................................................................................12

Fed. R. Civ. P. 56.................................................................................................................. i, vii, 11 

Other Authorities 

1 Joseph M. Perillo, Corbin on Contracts § 4.13 (rev. ed. 1993) ..................................................12 

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 vi 

CONCISE STATEMENT OF THE ISSUES PRESENTED 

1. Are Plaintiffs’ retiree health care benefits lifetime, vested, and inalterable if the 

agreements providing them acknowledged the lack of an agreement to vest the benefits, had 

specific durational clauses, and made adverse changes to existing retirees’ benefits? 

2. Did BorgWarner DTP breach any obligation to Plaintiffs when on May 1, 2009, it 

changed Plaintiffs’ retiree health care benefits to provide them with benefits that were 

(a) reasonably commensurate with what they had before, (b) modified to reflect changes in 

health care, and (c) mirrored the benefits provided to other BorgWarner employees and in the 

market generally? 

3. Can the plaintiff class—which was certified pursuant Federal Rule of Civil 

Procedure 23(b)(1) and (b)(2) but not Rule 23(b)(3)—recover class-wide damages to compensate 

them for their individualized injuries? 

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 vii 

CONTROLLING AUTHORITY FOR THE RELIEF SOUGHT 

Federal Rule of Civil Procedure 56 

Int’ l Union, UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) (first issue) 

Reese v. CNH Am. LLC, 574 F.3d 315 (6th Cir. 2009) (second issue) 

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (third issue) 

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 7 of 28 Pg ID 1679
INTRODUCTION 

Unlike pension benefits, retiree health care benefits are not statutorily vested for life. 

Rather, retiree health care benefits become vested if and only if the employer and union agree

that those benefits will be lifetime vested. Although the Sixth Circuit has construed certain 

ambiguous collective bargaining agreements to infer an agreement to vest retiree health care 

benefits, the bedrock rule is that the absence of an agreement undermines a claim for vested 

benefits. In this case, the parties not only failed to reach an agreement to vest benefits; they 

wrote into their collectively bargained agreements a provision confirming their disagreement

about the issue. Such an unambiguous “agreement to disagree” is the antithesis of an agreement 

to vest, and requires summary judgment for BorgWarner1

 on Plaintiffs’ claim for lifetime, 

inalterable vested benefits. 

For three reasons, the unambiguous language of the collective bargaining agreements 

here demonstrates the absence of an agreement to vest and defeats Plaintiffs’ claims. First, the 

parties twice—in 1990 at the beginning of the class period and in 2009 at the end of the class 

period—executed agreements confirming the lack of an agreement to vest retiree health care 

benefits. These “agreements to disagree” on vesting defeat any claim for vesting in this case. 

Second, the Health Insurance Agreements, which provided Plaintiffs with retiree health care 

benefits, contained specific termination dates on which all health care benefits—including those 

 1

 “BorgWarner” refers for convenience to three distinct defendants: (a) BorgWarner 

Diversified Transmission Products Inc., from which Plaintiffs Willard Sloan, Eugene 

Winningham, and James Kelley retired; (b) BorgWarner Inc., the indirect parent of BorgWarner 

DTP; and (c) BorgWarner Flexible Benefits Plans, the welfare benefit plan responsible for 

Plaintiffs’ retiree health care benefits. Plaintiffs represent a class of union-represented employees 

who retired from BorgWarner DTP between October 27, 1989, and February 22, 2009, and their 

surviving spouses. (R. 56, Op. & Order 2, 13.) Plaintiffs were represented in collective 

bargaining by the International Union, United Automotive, Aerospace and Agricultural 

Implement Workers of America and its Local 287. 

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 2 

provided to retirees—would terminate if not extended. The most recent HIA terminated without a 

replacement in April 2009. As a result Plaintiffs’ contractual right to benefits ended, and they 

now receive benefits solely at the discretion of BorgWarner DTP. Finally, the parties agreed on 

several occasions to reduce health care benefits available to existing retirees, showing that the 

parties understood retiree health care benefits were not vested. 

Even if Plaintiffs’ health care benefits were vested, BorgWarner would be entitled to 

summary judgment. On May 1, 2009, BorgWarner DTP made changes to Plaintiffs’ health care 

benefits that complied with the Sixth Circuit’s three criteria for changes to vested benefits: 

That is why the CBA—unless it says otherwise—should be construed to permit 

modifications to benefit plans that are [1] “reasonably commensurate” with the 

benefits provided in [the CBA], [2] “reasonable in light of changes in health 

care” and [3] roughly consistent with the kinds of benefits provided to current 

employees. 

Reese v. CNH Am. LLC, 574 F.3d 315, 326 (6th Cir. 2009). 

Finally, BorgWarner is entitled to partial summary judgment on Plaintiffs’ claim for classwide money damages. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court held (unanimously 

on this point) that classes certified under Federal Rule of Civil Procedure 23(b)(1) and (b)(2), 

like this one, may not collect individualized damages. 131 S. Ct. 2541, 2557 (2011). 

Accordingly, Plaintiffs may not use this class action to collect the difference between their 

individual out-of-pocket costs since May 1, 2009, and the costs they would have incurred had the 

benefits not been changed. 

BACKGROUND 

For many years, BorgWarner provided health care benefits to the UAW-represented 

hourly employees at and retirees from its “Diversified Transmission Products” plant in Muncie, 

Indiana. A dispute about these benefits for those groups led to a seven week strike in 1989. 

During the strike, BorgWarner negotiated with the UAW and its Local 287, and the strike was 

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 9 of 28 Pg ID 1681
 3 

resolved with a new CBA and a new Health Insurance Agreement. Both agreements had an 

explicit termination date of September 12, 1992. Both sides fulfilled their obligations throughout 

the term of these agreements, but the HIA was not actually executed until December 10, 1992. 

Meanwhile, on September 27, 1990, the parties negotiated and executed an Agreement on 

Modification and Extension of Existing Labor Contract (the “ACME Contract”), which extended 

the 1989 CBA and HIA until March 11, 1995. The ACME Contract addressed vesting of retiree 

health care benefits as follows: 

This agreement does not prejudice the union’s position that current retirees have

life-time vested benefits nor the DTP Muncie Plant’s position that current retirees 

do not have lifetime vested benefits. 

(Ex. 2, 1990 ACME Contract Ex. 3 at 1 (emphasis added).)2

 This “agreement to disagree” set 

aside a contentious issue and allowed the parties to enjoy two more decades of labor peace. 

The parties again extended the HIA on December 10, 1992, and then negotiated and 

effectuated changes to the HIA (but did not execute contractual documents) in March 1995, 

March 1998, December 2000, and April 2005. Importantly, none of these subsequent agreements: 

 included any agreement deeming retiree health care benefits vested; 

 altered the termination language (except to extend the termination date); or 

 abandoned the “agree to disagree” language. 

On February 26, 2009, the parties executed a Plant Shutdown Agreement, permanently closing 

the Muncie plant for economic reasons. Like the 1990 ACME Contract, the Plant Shutdown 

Agreement states: 

The Company and the Union have a dispute with respect to the nature of the 

Company’s obligation to provide post-retirement health care benefits to 

 2

 All exhibits can be found in the accompanying BorgWarner’s Appendix of Summary 

Judgment Exhibits. 

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 4 

employees who retired prior to February 23, 2009 and their dependents. Nothing 

in this Plant Shutdown Agreement affects the parties’ rights or positions with 

regard to that dispute.

(Ex. 11, Plant Shutdown Agmt. art. 9, § B(2) (emphasis added).) 

On May 1, 2009, BorgWarner unilaterally implemented modifications to the health care 

benefits of all persons who had retired from the Muncie plant after October 27, 1989, the 

effective date of the 1989 HIA. These modifications bring Plaintiffs’ benefits into line with those 

provided to BorgWarner’s salaried employees. Plaintiffs brought this action on behalf of all such 

post-October 1989 retirees, seeking a declaration that the modifications were improper because 

their health care benefits are lifetime vested and inalterable. Plaintiffs also seek damages in the 

amount of the out-of-pocket payments made as a result of the modifications. 

STATEMENT OF UNDISPUTED MATERIAL FACTS 

1. On October 27, 1989, BorgWarner DTP, the UAW, and Local 287 entered into a 

Health Insurance Agreement that provided health care benefits to eligible retirees and would 

“continue in full force and effect until September 12, 1992,” at which point the HIA could “be 

terminated, modified, changed or continued in the same manner as provided in Article Sixteen of 

the . . . Collective Bargaining Agreement between the parties hereto.” (Ex. 1, 1989 HIA art. 12; 

Ex. 24, Nuerge Dep. 32:25–33:17.) Article Sixteen of the CBA stated: 

This agreement shall remain in full force and effent [sic] until September 12, 1992 

and thereafter from year to year, unless either party shall give notice in writing at 

least sixty (60) days in advance of September 12, 1992, or any anniversary 

thereafter of its desire to terminate the Agreement. 

(Ex. 15 Ex. 1, 1989 CBA art. 16, § 1; Ex. 15, Behrman Decl. ¶ 3.) Although the HIA was not 

executed until December 10, 1992, both sides complied with the 1989 HIA throughout its term. 

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 5 

2. Termination of the 1989 HIA would have resulted in the termination of health care 

benefits. (E.g., Ex. 1, 1989 HIA app. A Ex. A § 2(M)(2).) The termination provisions applied 

equally to active employees and retirees. (See id.) 

3. The 1989 HIA contained an agreed “Summary Description Information,” which 

explains the “Future of the Plan”: 

Although [BorgWarner DTP] expects and intends to continue the Plan 

indefinitely, it reserves the right to modify, amend, suspend or terminate the Plan 

or the Group Policies therein in accordance with the provisions of the Health 

Insurance Agreement. 

An individual’s insurance coverage terminates when that person is no longer 

eligible or when the Group Insurance Policies terminate, whichever happens first. 

Additional information regarding termination of insurance policies and individual 

insurance coverage is provided in the Health Insurance Agreement. 

(Id. at 121.) 

4. Each CBA subsequent to the 1989 CBA contained the same provision allowing 

termination on its expiration date with sixty days’ notice. (Ex. 15 Ex. 2, 1995 CBA art. 16, § 1; 

Ex. 15 Ex. 3, 1998 CBA art. 16, § 1; Ex. 15 Ex. 4, 2000 CBA art. 16, § 1; Ex. 15 Ex. 5, 2005 

CBA art. 15, § 1; Ex. 15, Behrman Decl. ¶¶ 4–7.) 

5. At no time did the parties negotiate changes to the HIA’s durational clause (except 

for updating the termination date), termination provisions, or “Future of the Plan” language and, 

accordingly, each provision survived through the 2005 HIA. See BorgWarner Diversified 

Transmission Prods. Inc. v. UAW, Local No. 287, No. 1:06-cv-058-LJM-TAB, 2008 WL 

4274476, at *2, *3 (S.D. Ind. Sept. 12, 2008).3

 3

 BorgWarner DTP assembled an updated HIA in 1992 and 1995, neither of which was 

signed by the UAW or Local 287, but there is no dispute that BorgWarner DTP performed its 

obligations as described in the unsigned documents. (Ex. 24, Nuerge Dep. 72:1–5, 76:15–21.) 

After the 1998 negotiations, BorgWarner DTP compiled a summary of the 1998 HIA and 

distributed it to employees and retirees. (Id. at 90:12–25.) 

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6. On September 27, 1990, BorgWarner DTP, the UAW, and Local 287 executed the 

ACME Contract extending the 1989 CBA and HIA until March 11, 1995, and acknowledged that 

the parties disagreed on whether retiree health care benefits were vested: “This agreement does 

not prejudice the union’s position that current retirees have life-time vested benefits nor the DTP 

Muncie Plant’s position that current retirees do not have lifetime vested benefits.” (Ex. 2, 1990 

ACME Contract Ex. 3 at 1 (emphasis added); Ex. 24, Nuerge Dep. 47:4–7, 47:22–48:19.) 

7. In 1992, the contracting parties entered into a new HIA with a term until March 11, 

1998. (Ex. 3, 1992 Tent. Health Agmt. §§ 2, 4; Ex. 24, Nuerge Dep. 62:7–63:9; Ex. 4, 1992 HIA 

art. 12 §§ 1, 2; Ex. 21, 1 UAW Dep. 69:25–70:10 (Ailes).) Among other things, the 1992 HIA 

established a network plan under which the deductibles and stop-loss amounts would increase 

annually through 2002 by five percent for participants. (Ex. 3, 1992 Tent. Health Agmt. Ex. A 

at 9.) Class representatives Winningham and Kelley were subject as retirees to these annual 

increases. (Ex. 23, Kelley Dep. 11:17–20 (retired in 2001); Ex. 25, Winningham Dep. 9:18–20 

(retired in 1996).) During the 2000 negotiations, BorgWarner DTP and the union agreed to 

continue this annual escalation. (Ex. 8, 2000 Tent. Agmt. 2; Ex. 19, Champagne Dep. 109:9–23.) 

8. In 1995, the contracting parties entered into a new CBA with a term until 

March 12, 1998. (Ex. 15 Ex. 2, 1995 CBA art. 16, § 1.) In 1998, they entered into a new CBA 

and HIA with terms until March 12, 2001. (Ex. 15 Ex. 3, 1998 CBA art. 16, § 1; Ex. 6, 1998 

Tent. HPW Agmt. 1–3; Ex. 19, Champagne Dep. 99:15–100:7.) The 1998 HIA increased certain 

existing retirees’ co-payments for prescription drugs by forty percent for generic drugs and 

twenty percent for branded ones. (Ex. 6, 1998 Tent. HPW Agmt. 1; Ex. 7, 1998 Health Bens. 

Summ. 3; Ex. 24, Nuerge Dep. 89:24–90:25.) Mr. Winningham, an existing retiree, was subject 

to this increase. (Ex. 25, Winningham Dep. 9:18–20 (retired in 1996).) In 2000, they entered into 

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a new CBA and HIA with terms until March 12, 2006. (Ex. 15 Ex. 4, 2000 CBA art. 16, § 1; 

Ex. 8, 2000 Tent. Agmt. 1–2.) In 2005, they entered into the most recent CBA and HIA, which 

expired on April 24, 2009. (Ex. 15 Ex. 5, 2005 CBA art. 15, § 1; Ex. 9, 2005 Tent. Agmt. 1; 

Ex. 10, 2005 Tent. Agmt. Clarifications 1–2; Ex. 18, Campbell Dep. 48:23–50:14, 63:7–64:1.) 

9. On February 26, 2009, BorgWarner DTP, the UAW, and Local 287 agreed to terms 

under which BorgWarner DTP would permanently close its Muncie plant and terminate the 

parties’ CBA and HIA on April 24, 2009. (Ex. 11, Plant Shutdown Agmt. art. 1, § A; Ex. 21, 1 

UAW Dep. 130:15–131:22 (Ailes).) Echoing the 1990 ACME Contract, the parties agreed: 

The Company and the Union have a dispute with respect to the nature of the 

Company’s obligation to provide post-retirement health care benefits to 

employees who retired prior to February 23, 2009 and their dependents. Nothing 

in this Plant Shutdown Agreement affects the parties’ rights or positions with 

regard to that dispute. 

(Ex. 11, Plant Shutdown Agmt. art. 9, § B(2).) 

10. In February 2009, BorgWarner DTP notified members of the plaintiff class that 

their health care benefits would change as of May 1, 2009. (Ex. 12, Health Care Travel Guide 1; 

Ex. 20, DuFour Dep. 35:13–36:5.) 

11. By February 2009, most pre-Medicare class members participated in network 

plans, with deductibles, co-insurance requirements, and stop-loss limits. (Ex. 16, DuFour Decl. 

¶ 4.) A small number participated in a non-network plan, but they also had deductibles, coinsurance requirements, and stop-loss limits. (Id. ¶ 5.) Pre-Medicare class members’ prescription 

drugs required copayments, which were higher for branded drugs. (Id. ¶ 6.) 

12. Most Medicare-eligible class members used Medicare as their primary carrier and, 

as supplemental insurance, a company-provided non-network plan with deductibles, coinsurance requirements, and stop-loss limits. (Id. ¶ 7.) Other Medicare-eligible class members 

had a company-provided supplemental plan that provided first-dollar coverage for base services 

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and deductibles, co-insurance requirements, and stop-loss limits for major medical services. (Id. 

¶ 8.) Medicare-eligible class members’ drug co-payments were higher for branded drugs, unless 

they were ordered by mail, in which case they were equal to those for generic drugs. (Id. ¶ 9.) 

13. On May 1, 2009, BorgWarner DTP “consolidate[ed] the variations of the [preMedicare-eligible class members’] health care plans to two health care plans at Anthem and 

Lumenos which mirror[ed] those offered to Muncie salaried employees.” (Ex. 13, 2009 Pre-Med. 

Health Care Travel Guide 2; Ex. 20, DuFour Dep. 42:8–20.) The Anthem option was similar to 

the network plan many class members had, but it did have higher deductibles, co-insurance 

requirements, and stop-loss amounts. (See Ex. 13, 2009 Pre-Med. Health Care Travel Guide 

4−5.) The Lumenos option was a network plan with higher deductibles and stop-loss amounts 

but also provided a company-funded health account, or “HRA,” that could be used to cover 

claims and satisfy the deductible, and rolled over from year to year if not used. (See id. at 4.) 

14. The new prescription drug copayments for pre-Medicare class members depended 

on the prescription, where it was filled, and the size of the supply obtained. (Id. at 8.) The copayments were higher than those required previously, with class members being asked to share 

more in the cost of branded and non-formulary drugs. (Ex. 16, DuFour Decl. ¶¶ 9, 13.) 

15. Both plans require monthly premiums: Pre-Medicare retirees with at least twentyfive years of service pay ten percent of the annual premium cost per member; others pay fifteen 

percent of the annual premium cost. (Ex. 13, 2009 Pre-Med. Health Care Travel Guide 1.) The 

initial monthly premiums in 2009 for the Anthem plan were $58 for retirees with at least twentyfive years of service and $87 for other retirees, and for the Lumenos plan, $30 and $45, 

respectively. (Ex. 16, DuFour Decl. ¶ 12.) The current monthly premiums are $69.50 and 

$104.25 for the Anthem plan and $35.50 and $53.25 for the Lumenos plan. (Id.) 

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16. For Medicare-eligible retirees, BorgWarner DTP replaced the company-provided 

plan with Retiree Reimbursement Accounts—or “RRAs”—for them and their dependents. 

(Ex. 12, Health Care Travel Guide 4.) During 2009, BorgWarner DTP contributed $158.34 per 

month ($1,900 annually) into each RRA. (Id.) BorgWarner DTP’s current annual contribution is 

$2,035. (Ex. 20, DuFour Dep. 48:25–49:1, 50:10–15.)

17. These funds assisted Medicare-eligible retirees and participating spouses in 

purchasing Medicare health plans (e.g., Medicare Advantage or Medigap Plan and Part D) and in 

paying for eligible out-of-pocket medical and prescription expenses. (Ex. 12, Health Care Travel 

Guide 4; Ex. 20, DuFour Dep. 50:18–24, 51:3–6; Ex. 16, DuFour Decl. ¶ 15.) In addition, 

Medicare-eligible retirees receive a monthly pension supplement of approximately $90 to help 

pay for Medicare Part B premiums. (Ex. 16, DuFour Decl. ¶ 16.)4

 Almost half of the Medicareeligible class members do not exhaust their RRA accounts annually. (Ex. 16, DuFour Decl. ¶ 17.)

18. Health care benefits are dynamic and change over time. (Ex. 17, Macey Decl. 

¶ 3.) New drugs, technologies, and protocols emerge, and usage patterns change, increasing 

significantly the costs of providing the health care benefits. (Id.) Plans respond by modifying the 

nature of the benefits they provide and requiring increased cost sharing by participants in the 

form of premiums and usage costs. (Id. ¶ 4.) Plan changes to existing retiree health programs for 

both union and nonunion retirees are the rule, not the exception. (Id. ¶ 7.) 

19. Employers commonly ask employees (including union-represented ones) to cover 

up to eighteen percent of the premiums associated with their health care benefits, and some 

employers ask employees to pay more). (See id. ¶ 27; see also id. ¶ 31 (noting long history of 

 4

 The average monthly premiums for Medicare plans for 2012 are: $99.50 for Part B, 

$31.54 for Medicare Advantage (Part C), and $38 for Part D (and supplemental coverage). 

(footnote continued on next page) 

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union-represented employees paying monthly premiums).) Employees’ contribution rates have 

been increasing over time. (Ex. 17, Macey Decl. ¶ 31.) 

20. The median in-network annual deductible for family coverage is $1,200 ($600 for 

plans with unionized participants); the median coverage of post-deductible services is 80% for 

plans in general (90% for plans with union participants); the median annual stop-loss amount is 

$1,900 for single coverage and $4,000 for family coverage under all plans ($1,500 for single 

coverage and $3,000 for family coverage for plans with union members). (Id. ¶ 29.) 

21. The UAW has agreed to premiums, co-insurance, and higher deductibles for 

participants in health plans provided by General Motors and Chrysler. (Id. ¶¶ 15–16.) These 

changes resulted in retirees paying 25% of the costs of their health plans. (Id. ¶ 16.) 

22. Outside of the automotive industry, the UAW has agreed that companies such as 

Caterpillar, Deere, and Dana may transfer some of a plan’s funding and other requirements from 

the company to a VEBA. (Id. ¶ 18.) In the VEBA created by Dana and the UAW, it was agreed 

that the VEBA could make future changes—including cutbacks—to existing retiree benefits. 

(Id.) Moreover, Caterpillar and the UAW agreed to cap the amount of costs that the company 

would be liable for under the retiree health plan and share the allocation of costs above that cap 

in a ratio of 60% by the company and 40% by participants, including existing retirees. (Id. ¶ 19.) 

23. Other companies have also made changes to account for the changing economic 

environment. In 2011, 3M announced it will terminate its health plan for Medicare-eligible 

retirees in 2013 and instead provide a fixed annual contribution to a HRA that retirees can use to 

pay the premiums for a Medicare supplement policy. (Id. ¶ 21.) Unilever also announced that it 

 

(continuation of footnote from previous page) 

(Ex. 17, Macey Decl. ¶ 10.) 

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would terminate its company plans for Medicare-eligible retirees and instead contribute toward 

covering the cost of Medicare supplement policies. (Id. ¶ 23.) Honeywell and EMBARQ have 

eliminated health coverage for Medicare-eligible retirees altogether. (Id. ¶¶ 22, 24.) 

24. Plaintiffs seek damages in the amount of the difference between their individual 

out-of-pocket costs for health care benefits since May 1, 2009, and the amount they would have 

paid under the BorgWarner DTP plan in existence prior to that date. (Ex. 14, Ans. Defs.’ First Set 

Interrs. Class Pls. 12–13.) Specifically, Plaintiffs seek damages for monthly contributions and coinsurance costs, prescription drugs, and hospital-medical-surgical benefits. (Id.)

ARGUMENT 

Summary judgment is appropriate when “there is no genuine dispute as to any material 

fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

BorgWarner must first show that there is no genuine issues of material fact; to do so, it “may rely 

on any of the evidentiary sources listed in Rule 56(c) or may merely rely upon the failure of the 

nonmoving party to produce any evidence which would create a genuine dispute for the jury.” 

Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995). Once BorgWarner has 

demonstrated that no genuine issues of material fact are in dispute, “the burden shifts to the nonmoving party to present specific facts to prove that there is a genuine issue for trial.” Golden v. 

Kelsey-Hayes Co., 954 F. Supp. 1173, 1182 (E.D. Mich. 1997); accord Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (same). 

Summary judgment against Plaintiffs is required if they cannot “make a showing 

sufficient to establish the existence of an element essential to [their] case, and on which [they] 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

Plaintiffs do not discharge their burden if they raise “some doubt as to the existence of a fact.” 

Golden, 954 F. Supp. at 1182–83. The Court decides “whether the evidence presents a sufficient 

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disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). 

I. BORGWARNER DTP DID NOT AGREE WITH THE UAW AND 

LOCAL 287 TO VEST RETIREE HEALTH CARE BENEFITS. 

Retiree health care benefits are welfare benefits under ERISA, and unlike pension 

benefits are not statutorily vested for life. See ERISA § 201(1), 29 U.S.C. § 1051(1) (2006); see

also Inter-Modal Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 

514 (1997) (“ERISA . . . specifically exempts ‘employee welfare benefit plans’ from its stringent 

vesting requirements.”). These benefits can become vested only by contractual agreement 

between the employer and the union. Indeed, the Sixth Circuit has recognized that vested health 

care benefits are “purely a matter of contract.” Reese, 574 F.3d at 321.5

Nothing is more basic in contract law than the need for a meeting of the minds between 

the parties to form a contract. See 1 Joseph M. Perillo, Corbin on Contracts § 4.13, at 635 (rev. 

ed. 1993) (“[T]here must be mutual expressions of assent to the exchange.”). As Yard-Man

instructs, “the court should first look to the explicit language of the collective bargaining 

agreement for clear manifestation of intent.” 716 F.2d at 1479. A written “agreement to disagree” 

is the antithesis of such a meeting of the minds, and undermines any notion that the parties 

contracted for vested lifetime retiree health coverage. 

 5 See also Int’l Union, UAW v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir. 1983) 

(“[W]hether retiree insurance benefits continue beyond the expiration of a collective bargaining 

agreement depends upon the intent of the parties.”); Maurer v. Joy Techs., Inc., 212 F.3d 907, 914 

(6th Cir. 2000) (“[T]he parties must agree to vest a welfare benefit plan.”); Noe v. PolyOne 

Corp., 520 F.3d 548, 552 (6th Cir. 2008) (“[V]esting only occurs if the parties so intended . . . .”). 

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A. The Agreements Between BorgWarner DTP, the UAW, and Local 287 

Expressly Acknowledge the Lack of an Agreement on Vesting. 

Exhibit 3 to the 1990 ACME Contract is a “Joint Letter of Agreement on Post-Retirement 

Benefit Liabilities.” That letter addressed “post retirement benefit liabilities,” and stated: “This 

agreement does not prejudice the union’s position that current retirees have life-time vested 

benefits nor [BorgWarner DTP’s] position that current retirees do not have lifetime vested 

benefits.” (SUMF ¶ 6.) This disagreement on vesting was never resolved. In the Plant Shutdown 

Agreement—nearly two decades later—the parties reiterated their disagreement: “The Company 

and the Union have a dispute with respect to the nature of the Company’s obligation to provide 

post-retirement health care benefits to employees who retired prior to February 23, 2009.” (Id.

¶ 9.) BorgWarner DTP cannot be said to have agreed to vest retiree health care benefits when its 

contracts with the UAW and Local 287 disclaim any such agreement. 

Plaintiffs may contend that the CBAs are somehow “ambiguous,” and that the Court must 

consider other indicia of the parties’ intent to find vesting. To begin with, the language quoted 

above is anything but ambiguous. It plainly means that the parties were not in agreement about 

vesting. Moreover, as shown below, the durational language of the HIAs further undermines any 

claim of ambiguity. And finally, Michael Ailes, the witness designated by the UAW pursuant to 

Federal Rule of Civil Procedure 30(b)(6) to testify about the contracts, confirmed that the “agree 

to disagree” language in the 1990 ACME Contract is “inconsistent” with his view that the retiree 

health care benefits were vested. (Ex. 21, 1 UAW Dep. 67:21–24 (Ailes).)6 The unambiguous 

written agreement must prevail. 

 6

 Mr. Ailes based his claim of vesting on an oral statement by BorgWarner DTP’s

Director of Labor Relations Glen Eckelman that “retirees know what they got when they go out.” 

(1 UAW Dep. 39:21–23 (Ailes).) Mr. Ailes did not recall Mr. Eckelman ever using the terms 

“vested,” “lifetime guarantee,” or “inalterable benefits,” and conceded that even the ambiguous 

(footnote continued on next page) 

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B. Plaintiffs’ Retiree Health Care Benefits Expired with the Health Insurance 

Agreement Unless Renewed in a Subsequent Agreement. 

BorgWarner DTP agreed to provide health care benefits to retirees only during the term 

of each respective HIA, not for the rest of each retiree’s life. Thus, each HIA was written so that 

retiree health care benefits terminated with the HIA. Each HIA contained an essentially identical 

provision allowing either party to terminate, modify, or continue it in the manner provided in the 

CBA in force. (SUMF ¶¶ 1, 5–8.) Each CBA, in turn, allowed either party to terminate the CBA 

upon expiration by giving sixty days’ written notice; otherwise the CBA continued year to year. 

(Id. ¶¶ 1, 4.) When the 1989, 1992, 1995, 1998, and 2000 HIAs expired they were replaced with 

subsequent contracts that continued, with alterations, the benefits of existing retirees. (See, e.g., 

Ex. 4, 1992 HIA art. 8, § 1(A); Ex. 5, 1995 HIA art. 8, § 1(A).) The 2005 HIA, however, was 

terminated in the Plant Shutdown Agreement without a replacement HIA. (SUMF ¶ 9.) 

Accordingly, after expiration of the 2005 HIA, no HIA prevents BorgWarner DTP from changing 

or eliminating Plaintiffs’ health care benefits. 

Importantly, the parties agreed that when an HIA terminated, the specific health care 

benefits provided in it are also terminated, including retiree health care benefits. The HIA stated, 

in language unchanged from 1989 through 2009: “The coverages provided under this Exhibit A 

terminate on the date . . . the Agreement is terminated.” (Id. ¶¶ 2, 6.) The termination provision 

applied to retirees as well active employees. (Id.) Because the HIAs tied the termination of 

retiree health care benefits to the termination of the HIA providing them, BorgWarner DTP was 

contractually obligated to provide retiree health care benefits under each HIA only until it 

 

(continuation of footnote from previous page) 

snippet attributed to Mr. Eckelman was a paraphrase. (1 id. at 39:25–41:24.) He further admitted 

that a written agreement would “trump” whatever was stated orally. (1 id. at 64:7–65:7.) 

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terminated. Cf. Cole v. ArvinMeritor, Inc., 549 F.3d 1064, 1071 (6th Cir. 2008) (general 

durational clause must be tied to retiree health care benefits for it to limit them). Thus, Plaintiffs’ 

contractual right to retiree health care benefits expired with the 2005 agreement in 2009. 

The HIAs also stated that BorgWarner DTP “expects and intends to continue the plan 

indefinitely” but “reserves the right to modify, amend, suspend, or terminate the Plan or the 

Group Plan Policies therein in accordance with the provisions of the Health Insurance 

Agreement.” (SUMF ¶ 3.) The UAW and Local 287 signed the 1989 document containing this 

language, demonstrating the parties’ mutual understanding that retiree health care benefits were 

not vested and could be modified or terminated by BorgWarner DTP. Mr. Ailes, a signatory to the 

1989 contract and the UAW’s designated witness, agreed that this language would “trump” any 

oral statement suggesting benefits were vested. (Ex. 21, 1 UAW Dep. 64:7–65:7 (Ailes).) In the 

absence of any record evidence that the parties agreed to change this language in subsequent 

negotiations, it continued to be binding throughout the class period.7

C. By Agreeing to Changes in Current Retirees’ Health Care Benefits, the 

Parties Confirmed that the Benefits Were Not Vested. 

Neither BorgWarner DTP nor the union treated retiree health care benefits as vested. In 

several of the HIAs, the UAW and Local 287 agreed to reduce the health care benefits of existing 

retirees. These reductions—increased deductibles and co-pays—are inconsistent with Plaintiffs’ 

litigation position that those benefits were vested and therefore not subject to change.8

 For 

 7

 The union’s agreement to the reservation-of-rights language in the HIA distinguishes 

this case from ones holding that more conditional reservations of rights in summary plan 

descriptions do not defeat vesting claims, because unions would not be expected to object to 

statements in an SPD. See, e.g., Prater v. Ohio Educ. Ass’n, 505 F.3d 437, 444 (6th Cir. 2007). 

Here, the UAW explicitly agreed to the reservation of BorgWarner’s rights in a signed contract. 

8

 Though Reese allows changes to vested benefits, the UAW’s understanding of “vested” 

means both lifetime and unchangeable. (Ex. 22, 2 UAW Dep. 41:8–42:1, 45:9–16 (Isaacson).) 

(footnote continued on next page) 

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example, in the 1998 HIA, the parties agreed to increase prescription drug costs for existing 

retirees that participated in the network plan. (SUMF ¶ 8.) Similarly, in the 2000 HIA, the parties 

agreed to extend, for both existing and future retirees, the annual five-percent increase of 

network deductibles and stop-losses beyond the date agreed to in 1992. (SUMF ¶ 7.) These 

changes demonstrate that the parties did not view retiree health care benefits as vested. 

II. EVEN IF PLAINTIFFS’ HEALTH CARE BENEFITS ARE VESTED, 

BORGWARNER DTP’S CHANGES TO THEM ARE PERMISSIBLE. 

Even if Plaintiffs’ health care benefits were vested, the changes made by BorgWarner 

DTP are appropriate. As the Sixth Circuit explained in Reese, unless the CBA says otherwise, 

vested health care benefits can be altered if: (a) the modified benefits are “reasonably 

commensurate” with the pre-change benefits; (b) the changes are “reasonable in light of changes 

in health care”; and (c) the changed benefits are “roughly consistent with the kinds of benefits 

provided to current employees.” 574 F.3d at 324–27. The undisputed evidence demonstrates that 

the changes made by BorgWarner DTP in 2009 satisfy these criteria. (Ex. 17, Macey Decl. ¶ 9.) 

A. After the 2009 Changes, Plaintiffs’ Health Care Benefits Were “Reasonably 

Commensurate” with Their Previous Benefits. 

A comparison of Plaintiffs’ benefits before and after the 2009 changes shows that their 

current benefits are “reasonably commensurate” with their previous ones. Medicare-eligible class 

members continue to receive Medicare as their primary coverage. (Id. ¶¶ 12, 17.) The 2009 

changes merely altered the mechanism by which they receive supplemental medical and 

prescription drug coverage: from company-administered plans to a retirement reimbursement 

account with funds sufficient to purchase substantially the same benefits. (Id. ¶¶ 12, 16−17.) 

 

(continuation of footnote from previous page) 

By agreeing to increases in co-pays and deductibles for existing retirees, the union confirmed its 

understanding that those benefits were neither vested nor unchangeable. 

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Although different in appearance, the value of Medicare-eligible retirees’ current benefits is 

reasonably commensurate to that of their prior benefits. Notably, most Medicare-eligible class 

members do not exhaust their RRA funds annually. (Id.) 

The plans made available to pre-Medicare retirees on May 1, 2009, are also quite similar 

to the many plans that existed prior to BorgWarner DTP’s changes. (Id. ¶¶ 11, 13–15.) To be 

sure, the modified plans ask retirees to share more of the costs of their benefits. But most class 

members were already experiencing annual five-percent increases in their out-of-pocket costs. 

(Id. ¶ 7.) The continued increase in their out-of-pocket costs—as the overall cost of their benefits 

increases—does not deviate from the prior plan. Accordingly, the shift to Plaintiffs of some of 

the cost of their benefits does not “significantly reduce[] their general level of benefits.” See 

Diehl v. Twin Disc, Inc., 102 F.3d 301, 311 (7th Cir. 1996).. 

B. The 2009 Changes to Plaintiffs’ Health Care Benefits Were “Reasonable in 

Light of Changes in Health Care.” 

Reese correctly recognized that health care benefits are constantly changing—through 

advances in medical technology, government programs, and otherwise—rendering claims for 

inalterable lifetime benefits unrealistic even if benefits are found to be “vested.” Reese, 574 F.3d 

at 326 (“In contrast [to pensions], medical insurance must take account of inflation, changes in 

medical practice and technology, and increases in the costs of treatment independent of 

inflation.” (internal quotation marks omitted)); (SUMF ¶ 18). Moreover, the agreements here 

expressly account for the prospect of changes in government health programs, stating: “To the 

extent that coverage under this Plan may be duplicated by coverage available under any Federal 

Medicare Program or Plan of National Health now or later adopted, such duplicate coverage will 

be deleted from this Plan.” (Ex. 1, 1989 HIA art. 11, § 4.) The subsequent plans did not alter this 

provision. Since 1989, changes in government programs have been extensive, including for 

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example addition of a prescription drug benefit in 2003 and the Patient Protection and Affordable 

Care Act in 2010. Claims that a retiree from the 1990s and later is entitled to precisely the same 

coverage today as what they received upon retirement are unsupportable. 

Nor can Plaintiffs contend that the 2009 changes to their benefits are inappropriate. Those 

changes, primarily involving increased cost sharing, are appropriate in light of the improvements 

to and the increased cost of Plaintiffs’ benefits. It is typical for employers like BorgWarner DTP 

to respond to the increasing costs of health care by sharing some of the added costs with the 

recipients of the better benefits. (SUMF ¶ 19.) Union-represented retirees have not escaped this 

trend: Changes to their benefits are the rule, not the exception. (Id. ¶¶ 18–19.) Indeed, the class 

members here are accustomed to annual increases in cost sharing. (See id. ¶ 7.) 

C. Plaintiffs’ Current Benefits Are “Roughly Consistent” with Those Provided 

to BorgWarner’s Salaried Employees and the Marketplace Generally. 

Plaintiffs are receiving health care benefits that are on par with those received by other 

private sector employees, including those represented by the UAW. Most importantly, Plaintiffs’ 

current benefits mirror those provided to BorgWarner’s salaried employees. (SUMF ¶ 13.)9 The 

fact that Plaintiffs are being treated equally to BorgWarner’s other employees is more than 

sufficient to establish the reasonableness of the 2009 changes under the third Reese criterion. 

A comparison between Plaintiffs’ benefits and those in the marketplace generally further 

supports the reasonableness of BorgWarner DTP’s changes. Pre-Medicare class members pay 

premiums representing a smaller percentage of the plan’s costs than the national average for all 

private-sector employees and unionized employees. (Id. ¶¶ 15, 19.) Plaintiffs’ deductibles and 

co-insurance requirements are comparable to those for all plans and those with unionized 

 9

 Because the Muncie plant closed in 2009, there are no active hourly employees whose 

benefits can be compared to Plaintiffs’ benefits. 

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 19 

participants. (Id. ¶¶ 13–14, 20.) Plaintiffs’ stop-loss amounts are identical to the median figures 

for a plan with union participants. (Id. ¶¶ 13, 20.) Further, some companies have eliminated 

benefits for Medicare-eligible retirees, but others have done what BorgWarner DTP did, 

replacing company-administered plans with company-funded accounts for their participants to 

purchase supplemental medical and drug coverage through Medicare. (Id. ¶¶ 16–17, 23.) 

Finally, the UAW has agreed to similar cost sharing measures on behalf of its existing 

retirees at other companies. (Id. ¶¶ 21–22.) This fact provides even further support that 

BorgWarner DTP’s 2009 changes are reasonable. 

III. AT A MINIMUM, PLAINTIFFS CANNOT RECOVER CLASS-WIDE 

DAMAGES IN THIS CLASS ACTION. 

Plaintiffs requested—and obtained—certification of a plaintiff class pursuant to Federal 

Rule of Civil Procedure 23(b)(1) and (b)(2). (R. 56, Op. & Order 12.) They did not plead or seek 

certification as a Rule 23(b)(3) class. 

As relief, however, they seek class-wide monetary damages that will require calculation 

for each class member of the difference in out-of-pocket costs for health care benefits paid by the 

class member since May 1, 2009, minus the amount each of them would have paid if 

BorgWarner DTP did not change their benefits. (SUMF ¶ 24.) Such complex, individualized 

determinations are not appropriate except in a Rule 23(b)(3) action. See Wal-Mart, 131 S. Ct. at 

2557–58 (holding that “individualized monetary claims belong in 23(b)(3),” not in Rule 

23(b)(2)); Bauer v. Kraft Foods Global, Inc., 277 F.R.D. 558, 562–64 (W.D. Wis. 2012) 

(explaining that monetary relief sought by retirees for their health care costs would “necessarily 

be individualized” and requires Rule 23(b)(3) class certification). Because this is not—and could 

not be—a Rule 23(b)(3) class action, BorgWarner is entitled to partial summary judgment on 

Plaintiffs’ claims for class-wide monetary damages. 

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CONCLUSION 

For the reasons set forth above, BorgWarner urges the Court to grant it summary 

judgment on Plaintiffs’ claims or, at a minimum, partial summary judgment on Plaintiffs’ claims 

for class-wide monetary damages. 

Dated: May 14, 2012 

Elisa Angeli Palizzi (P52088) 

(angeli@millercanfield.com) 

Miller, Canfield, Paddock and Stone, P.L.C. 

150 West Jefferson, Suite 2500 

Detroit, Michigan 48226 

313.496.7635 

313.963.6420 fax 

Respectfully submitted, 

s/Bobby R. Burchfield

Bobby R. Burchfield 

(bburchfield@mwe.com) 

Joshua David Rogaczewski 

(jrogaczewski@mwe.com) 

McDermott Will & Emery LLP 

600 13th Street, Northwest 

Washington, D.C. 20005 

202.756.8000 

202.756.8087 fax 

Attorneys for BorgWarner Inc., BorgWarner Diversified Transmission Products Inc., and 

BorgWarner Flexible Benefits Plans

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 27 of 28 Pg ID 1699
CERTIFICATE OF SERVICE 

I hereby certify that on May 14, 2012, I electronically filed the foregoing BorgWarner’s 

Motion for Summary Judgment with the Clerk of the Court using the ECF system which will 

send notification of such filing to all ECF participants. 

s/Bobby R. Burchfield

Bobby R. Burchfield 

(bburchfield@mwe.com) 

McDermott Will & Emery LLP 

600 13th Street, Northwest 

Washington, D.C. 20005 

202.756.8000 

202.756.8087 fax 

2:09-cv-10918-PDB-MKM Doc # 95 Filed 05/14/12 Pg 28 of 28 Pg ID 1700