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. Mag. Judge Mona K. Majzoub

DEFENDANTS’ SUPPLEMENTAL BRIEF 

REGARDING TACKETT AND ITS IMPACT ON THIS CASE

Elisa Angeli Palizzi (P52088)

MILLER, CANFIELD, PADDOCK 

 AND STONE, P.L.C.

150 West Jefferson, Suite 2500

Detroit, Michigan 48226

Telephone : (313) 496-7635

Facsimile: (313) 963-6420

epalizzi@millercanfield.com

Bobby R. Burchfield

 Counsel of Record

Nikesh Jindal

David M. Barnes

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

Telephone: (202) 737-0500

Facsimile: (202) 626-3737

bburchfield@kslaw.com

njindal@kslaw.com

dbarnes@kslaw.com

Counsel for BorgWarner Inc., BorgWarner Diversified 

Transmission Products Inc., and BorgWarner Flexible Benefits Plans

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 1 of 19 Pg ID 7558
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

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

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

ARGUMENT.............................................................................................................5

I. THE SUPREME COURT REJECTED THE RULES OF 

CONTRACT CONSTRUCTION SET FORTH IN YARD-MAN AND 

ITS PROGENY. ..............................................................................................6

II. THE SUPREME COURT SET FORTH “CORRECT LEGAL 

PRINCIPLES” THAT GOVERN THIS CASE. .............................................7

III. THE SUPREME COURT’S DECISION REQUIRES ENTRY OF 

SUMMARY JUDGMENT FOR DEFENDANTS..........................................9

A. Tackett Makes Clear That the CBAs and HIAs Did Not Create 

Vested Benefits......................................................................................9

B. Tackett Repudiated the Legal Basis for a Vesting 

Determination......................................................................................11

CONCLUSION........................................................................................................15

CERTIFICATE OF SERVICE

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 2 of 19 Pg ID 7559
ii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 

521 U.S. 203 (1997)............................................................................................4

B.H. ex rel. Hawk v. Easton Area Sch. Dist., 

725 F.3d 293 (3d Cir. 2013) (en banc)................................................................5

EEOC v. K-Mart Corp., 

796 F.2d 139 (6th Cir. 1986) (per curiam)..........................................................4

Golden v Kelsey-Hayes Co. (In re Golden), 

73 F.3d 648 (6th Cir. 1996)...............................................................................14

Int’l Union v. Winters, 

385 F.3d 1003 (6th Cir. 2004).............................................................................5

International Union, United Automobile, Aerospace, & Agricultural 

Implement Workers of America (UAW) v. Yard-Man, Inc., 

716 F.2d 1476 (6th Cir. 1983).............................................................................1

Litton Fin. Printing Div., A Div. of Litton Bus. Sys., Inc. v NLRB, 

501 U.S. 190 (1991)............................................................................................8

M & G Polymers USA, LLC v. Tackett, 

135 S. Ct. 926 (2015)................................................................................ passim

Noe v. PolyOne Corp., 

520 F.3d 548 (6th Cir. 2008)...............................................................................6

Reese v. CNH America LLC, 

574 F.3d 315 (6th Cir. 2009)...............................................................................3

Reese v. CNH America LLC, 

694 F.3d 681 (6th Cir. 2012)...............................................................................3

Sloan v. BorgWarner, Inc., 

1 F. Supp. 3d 743 (E.D. Mich. 2014)........................................................ passim

Sprague v. General Motors Corp., 

133 F.3d 338 (6th Cir. 1998) (en banc)...............................................................7

United States v. Anglin, 

601 F.3d 523 (6th Cir. 2010)...............................................................................4

Windstream Corp. v. Da Gragnano, 

757 F.3d 798 (8th Cir. 2014).............................................................................14

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 3 of 19 Pg ID 7560
1

INTRODUCTION

On February 27, 2014, this Court denied both parties’ cross-motions for 

summary judgment concerning whether the applicable CBAs and Health Insurance 

Agreements (“HIA”) intended to vest (or not) retiree health benefits. See Sloan v. 

BorgWarner, Inc., 1 F. Supp. 3d 743 (E.D. Mich. 2014) (R. 127). This Court 

determined that the agreements contained several “indicia of an intent to not vest,” 

but that these considerations did not entitle BorgWarner1to summary judgment 

because there were other “indicia recognized by the Sixth Circuit as indicative of 

an intent to vest.” Id. at 775. The Court based its vesting analysis on International 

Union, United Automobile, Aerospace, & Agricultural Implement Workers of 

America (UAW) v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), and decisions 

following it.

On January 26, 2015, however, the Supreme Court swept away Yard-Man as 

well as all rules of construction that have grown out of it. M & G Polymers USA, 

LLC v. Tackett, 135 S. Ct. 926 (2015). The Supreme Court set forth new rules of 

construction that now govern the determination of whether retiree health benefits 

are vested. Because the Supreme Court has overruled the very inferences that this 

 

1

“BorgWarner” refers to the three related defendants sued in this case by 

Plaintiffs: BorgWarner Diversified Transmission Products Inc., the entity for 

which Plaintiffs worked and from which they retired; BorgWarner Inc., the indirect 

parent of BorgWarner DTP; and BorgWarner Flexible Benefits Plans, the ERISA 

plan responsible for Plaintiffs’ health benefits. 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 4 of 19 Pg ID 7561
2

Court relied on as “indicative of an intent to vest,” and because application of the 

new rules of construction to the terms of the collectively-bargained agreements 

show that the benefits are not vested as a matter of law, summary judgment for 

BorgWarner is now appropriate. 

BACKGROUND

This litigation is based on collective bargaining agreements that were 

entered into between BorgWarner DTP and the UAW in 1989 and extended over 

the next two decades. Sloan, 1 F. Supp. 3d at 747. Following the shutdown of 

BorgWarner’s DTP plant in Muncie, Indiana on May, 1 2009 and the termination 

of the collective bargaining relationship between the company and the Union, 

BorgWarner modified the health benefits of persons who retired after October 27, 

1989—the effective date of the 1989 HIA—to mirror benefits provided to salaried 

employees. Id. at 752. Plaintiffs brought suit claiming that these changes were 

unlawful because retirees were entitled to lifetime vested health benefits under the 

CBAs and HIAs. 

Following discovery and the parties’ submission of cross-motions for 

summary judgment, this Court issued an opinion addressing the issue of whether 

the retiree health benefits were vested as a matter of law.2 The Court 

 

2 BorgWarner also sought summary judgment even if the benefits were vested 

because the changes were made in full compliance with the standards in Reese v. 

footnote continued on next page

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 5 of 19 Pg ID 7562
3

acknowledged several “indicia” in the agreements that weighed against vested 

rights. Id. at 775. First, the Court cited the termination provision in the HIA—

unchanged from 1989 through 2009—“specifically refer[ring] to retiree benefits,” 

indicating that the obligation to provide these benefits ceased when the HIA 

expired. Id. Second, the Court noted the reservation of rights (“ROR”) language 

in the 1989 HIA allowing BorgWarner to “modify, amend, suspend or terminate 

the Plan or the Group [Plan] Policies.” Id. at 749, 764, 775. Notably, this 

language was “part of the formally executed agreement” and “was reviewed and 

not objected to by the Union prior to the formal execution of the HIA in which it 

appears.” Id. at 775. The Court also acknowledged the “agreement to disagree” 

language contained in the 1990 ACME which set forth “the union’s position that 

current retirees have lifetime vested benefits” and BorgWarner’s contrary position 

that “current retirees do not have lifetime vested benefits.” Id. at 750, 763, 776.

On the other side of the ledger, the Court’s opinion cited “indicia recognized 

by the Sixth Circuit as indicative of an intent to vest”—“(1) tying of pension and 

healthcare eligibility; (2) specific durational language as to certain non-retirees, 

(3) negotiation of less favorable benefits for future retirees while leaving existing 

 

CNH America LLC, 574 F.3d 315, 324-27 (6th Cir. 2009) (“Reese I”), as further 

explained in Reese v. CNH America LLC, 694 F.3d 681 (6th Cir. 2012) (“Reese 

II”). The Court’s opinion did “not address this secondary issue at this stage of the 

proceedings.” Sloan, 1 F. Supp. 3d at 746 n.1.

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 6 of 19 Pg ID 7563
4

retirees’s benefits unchanged.” Id. at 775. Taking into account all of these indicia, 

the Court determined that summary judgment was inappropriate for either side, and 

ordered that the case proceed to trial.3

The Court subsequently stayed the case pending the Supreme Court’s 

decision in Tackett, accurately predicting that the Supreme Court’s decision “will 

likely require this Court to revisit its summary judgment ruling and may require a 

different analysis that could affect the ultimate resolution of this case.” (R. 134, 

Order 2). Now, in the aftermath of the Tackett decision, the Court has ordered this 

supplemental briefing to address its impact on the Court’s prior ruling. (R. 139).4

 

3

The Court determined that extrinsic evidence “point[ed] in both directions.” Id.

at 776 (internal quotation marks omitted).

4

The Court’s reconsideration of its earlier decision in light of Tackett is entirely 

appropriate. The law of the case doctrine does not apply when an intervening 

decision of a superior court undercuts the basis of the court’s prior ruling. See 

EEOC v. K-Mart Corp., 796 F.2d 139, 146 (6th Cir. 1986) (per curiam) (rejecting 

argument that prior decision was law of the case and explaining that “[w]hatever 

weight” prior decision was entitled “it clearly cannot control as opposed to an 

opposite view expressed in final language by the United States Supreme Court in a 

similar case”). As the Supreme Court has explained, the law of the case doctrine is 

“not absolute” and when intervening decisions suggest the case would be decided 

differently under current law, adhering to the prior ruling “would undoubtedly 

work a ‘manifest injustice’ such that the law of the case doctrine does not apply.” 

Agostini v. Felton, 521 U.S. 203, 236 (1997); see also United States v. Anglin, 601 

F.3d 523, 527 (6th Cir. 2010) (similar). 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 7 of 19 Pg ID 7564
5

ARGUMENT

In Tackett, the Supreme Court unanimously5vacated and remanded the Sixth 

Circuit’s decision that the retirees’ benefits in that case were vested. In its 

Opinion, the Court repudiated the rules of contract construction that had grown out 

of the Yard-Man decision. Next, the Court set forth appropriate rules of 

construction to govern vesting determinations and remanded for application of “the 

correct legal principles” set forth in its decision. 135 S. Ct. at 937.

Applying those principles here compels entry of summary judgment for 

BorgWarner. The various “indicia of an intent to not vest” discussed by this Court 

in its prior decision apply with even greater force following Tackett and preclude 

vesting as a matter of law. In contrast, the “indicia recognized by the Sixth Circuit

as indicative of an intent to vest” were squarely rejected by Tackett as “inconsistent 

with ordinary principles of contract law,” 135 S. Ct. at 937. In short, the weight on 

the “vesting” side of the scale has been removed, and the weight on the “no 

 

5 All nine justices joined the Opinion of the Court. Justice Ginsburg expressly 

joined the Opinion and concurred; she did not merely “concur in the result.” A 

concurrence that joins an opinion of the Court carries no formal precedential 

weight and to the extent that it departs from the majority, the majority’s opinion 

governs. See, e.g., Int’l Union v. Winters, 385 F.3d 1003, 1011-12 (6th Cir. 2004)

(refusing to apply principles in concurring opinion, the author of which concurred 

in the majority opinion). When “an individual justice’s vote is not needed to form 

a majority, the meaning of a majority opinion is to be found within the opinion 

itself because gloss that an individual [j]ustice chooses to place upon it is not 

authoritative.” B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 310 (3d 

Cir. 2013) (en banc) (internal quotation marks omitted).

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 8 of 19 Pg ID 7565
6

vesting” side of the scale has been increased. Following Tackett, summary 

judgment for Defendants on the vesting issue is appropriate.

I. THE SUPREME COURT REJECTED THE RULES OF CONTRACT 

CONSTRUCTION SET FORTH IN YARD-MAN AND ITS PROGENY.

In Tackett, the Supreme Court comprehensively reviewed, and rejected, the 

rules of construction adopted by the Sixth Circuit in Yard-Man and its progeny. 

The Court first reviewed the reasoning of the Yard-Man decision itself. It noted 

the Yard-Man court’s determinations that the “will provide” language “was 

ambiguous,” that inclusion of provisions for terminating active employees’ 

coverage contrasted with the absence of provisions for terminating coverage for the 

retirees, that a promise deemed applicable to some but not all retirees was 

“illusory,” and that the “context” of retiree health benefits made them “‘status’ 

benefits” which were unlikely to be left to future negotiations. 135 S. Ct. at 934.

Next, the Court discussed decisions following Yard-Man and the additional 

rules of construction that have evolved, including holdings that “will continue to 

provide” unambiguously vests benefits, that a general durational clause “ ‘says 

nothing’ ” about the duration of retiree benefits, and that provisions tying 

eligibility for retiree health benefits to pension benefits indicate that retiree health 

benefits are vested. Id. at 934-35 (quoting with emphasis Noe v. PolyOne Corp., 

520 F.3d 548, 555 (6th Cir. 2008)).

Following this review, the Court repeatedly made clear that it rejected “the 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 9 of 19 Pg ID 7566
7

inferences applied in Yard-Man and its progeny.” Id. at 935; see also id. at 933 

(the Yard-Man “inferences conflict with ordinary principles of contract law”); id.

at 936 (“[T]he Court of Appeals [in Tackett] misapplied other traditional principles 

of contract law . . . .”). Because the Sixth Circuit in Tackett had relied upon the 

“context” of the negotiations and on “the tying of eligibility for health care benefits 

to receipt of pension benefits” as indicating vesting, the Supreme Court “rejected 

[those] Yard-Man inferences as inconsistent with ordinary principles of contract 

law,” and vacated the decision. Id. at 932, 937. In short, none of the rules of 

construction in Yard-Man or its progeny survive.

II. THE SUPREME COURT SET FORTH “CORRECT LEGAL 

PRINCIPLES” THAT GOVERN THIS CASE. 

In contrast to the Supreme Court’s strong disapproval of the Yard-Man

inferences favoring vesting for collective bargaining agreements is its approval of 

the Sixth Circuit’s decision disfavoring vesting for non-collectively bargained 

contracts. It quoted Sprague v. General Motors Corp.: “ ‘Because vesting of 

welfare plan benefits is not required by law, an employer’s commitment to vest 

such benefits is not to be inferred lightly; the intent to vest must be found in the 

plan documents and must be stated in clear and express language.’ ” 135 S. Ct. at 

937 (quoting 133 F.3d 338, 400 (6th Cir. 1998) (en banc)) (emphasis added). As 

the Court explained, the point of the contrast between Yard-Man and Sprague was 

to “underscore[] Yard-Man’s deviation from ordinary principles of contract law.” 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 10 of 19 Pg ID 7567
8

135 S. Ct. at 937. In the next three sentences, the Court directly addressed the 

vesting of benefits in collective bargaining agreements, invoking the “traditional 

principle that ‘contractual obligations will cease, in the ordinary course, upon 

termination of the bargaining agreement.’ ” Id. (quoting Litton Fin. Printing Div., 

A Div. of Litton Bus. Sys., Inc. v NLRB, 501 U.S. 190, 207 (1991)). As the High 

Court put it, “ ‘a collective-bargaining agreement [may] provid[e] in explicit terms

that certain benefits continue after the agreement’s expiration.’ ” Id. at 937

(quoting Litton, 501 U.S. at 207).

The Supreme Court also set forth additional rules governing the construction 

of CBAs, including:

 The rule that general durational clauses do not govern retiree health 

benefits “distort[s] the text of the agreement and conflict[s] with the 

principle of contract law that the written agreement is presumed to 

encompass the whole agreement of the parties,” id. at 936;

 The illusory contract doctrine does not apply if some but not all 

retirees obtain a promised benefit, id.;

 It is a “traditional principle that courts should not construe ambiguous 

writings to create lifetime promises,” id.;

 “[W]hen a contract is silent as to the duration of retiree benefits, a 

court may not infer that the parties intended those benefits to vest for 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 11 of 19 Pg ID 7568
9

life,” id. at 937.

Thus, the rules of construction that govern this case are no longer to be 

found in Yard-Man and the decisions that followed it. Rather, the “correct legal 

principles” are set forth in the Supreme Court’s decision in Tackett, and these 

principles make clear that Plaintiffs’ retiree health benefits are not vested. 

III. THE SUPREME COURT’S DECISION REQUIRES ENTRY OF 

SUMMARY JUDGMENT FOR DEFENDANTS. 

A. Tackett Makes Clear That the CBAs and HIAs Did Not 

Create Vested Benefits

This Court’s prior decision cited multiple provisions of the CBAs and HIAs 

that indicated “an intent to not vest” benefits.” Sloan, 1 F. Supp. 3d at 775. For 

these and other reasons, Tackett confirms that Plaintiffs’ benefits are not vested as 

a matter of law under the terms of the agreements. As a threshold matter, Tackett

instructs courts to look for “clear and express language” indicating an intent to vest 

retiree benefits. (See pp. 7 above). Plaintiffs have cited no such language because 

the agreements contain no such language. This omission is sufficient to defeat 

vesting.

Moreover, as this Court correctly recognized, the HIAs here contained a 

separate provision that imposed specific durational limitations on retiree health 

benefits. Sloan, 1 F. Supp. 3d at 749; (R. 96-1, Ex. 1, 1989 HIA App. A, Ex. A, 

§ 2(M)(2)) (“The coverages provided under this Exhibit A terminate on the date 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 12 of 19 Pg ID 7569
10

. . . the Agreement is terminated.”). Prior law required enforcement of such a 

specific durational clause. Id. at 758-59. 

But Tackett provides further grounds to deny vesting as a matter of law. The 

CBAs and HIAs also had general durational clauses. Id. at 749-52 (describing the 

contractually specified lengths of the 1989, 1990, 1992, 1995, 1998, 2000, and 

2005 agreements).6 The Supreme Court addressed—and rejected—decisions 

“requiring a contract to include a specific durational clause . . . to prevent vesting.” 

135 S. Ct. at 936. A refusal to recognize general durational clauses “distort[s] the 

text of the agreement and conflict[s] with the principle of contract law that the 

written agreement is presumed to encompass the whole agreement of the parties.” 

Id.

Second, the Reservation of Rights language allowing BorgWarner to 

“modify, amend, suspend or terminate the Plan or the Group [Plan] Policies,” 

Sloan, 1 F. Supp. 3d at 750, also precludes Plaintiffs’ claim for vested benefits. As 

noted by this Court, this language was in the 1989 HIA as “part of the formally 

executed agreement,” “was reviewed and not objected to by the Union prior to the 

formal execution of the HIA in which it appears,” and “could be deemed sufficient 

 

6

See, e.g., 1995 CBA (R. 97-6, Defs.’ Mot. Ex. 15, Ex. 2, art. 16, § 1 (“This 

agreement shall remain in full force and effect until March 12, 1998 and thereafter 

from year to year, unless either party shall give notice in writing at least sixty (60) 

days in advance of March 12, 1998, or any anniversary thereafter of its desire to 

terminate the Agreement.”)). 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 13 of 19 Pg ID 7570
11

to have put the Union on notice that if it believed its benefits to be vested, it ought 

to have registered a significant protest.” Id. at 775. Accordingly, this provision 

reflects an agreement by the parties reserving to BorgWarner the right to modify or 

eliminate retiree benefits at the company’s discretion. 

Third, the “agreement to disagree” language defeats vesting. The 1990 

ACME restated the Union’s belief that retiree health benefits were vested and 

BorgWarner’s contrary “position that current retirees do not have lifetime vested 

benefits” (R. 95, Defs. Mot. SUMF ¶ 6). The parties reiterated their disagreement 

two decades later in the 2009 Plant Shutdown Agreement. Id. ¶ 9 (“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.”). By disavowing any agreement between the parties 

about the intent to vest benefits, this provision underscores that the UAW and 

BorgWarner never agreed to vest retiree health benefits. 

B. Tackett Repudiated the Legal Basis for a Vesting 

Determination. 

Tackett sets forth several “correct legal principles” that further confirm the 

benefits at issue here are not vested. When this Court denied Defendants’ motion 

for summary judgment, however, it found the issue in equipoise based upon certain 

“indicia recognized by the Sixth Circuit as indicative of an intent to vest.” Sloan, 1 

F. Supp. 3d at 775. The Supreme Court unequivocally rejected the inferences 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 14 of 19 Pg ID 7571
12

derived from Yard-Man and its progeny, including those applied by the Court here, 

and made clear that all inferences favoring vesting are eliminated. Tackett, 135 S. 

Ct. at 932, 937. 

First, this Court’s prior decision cited to the “tying of pension and healthcare 

eligibility,” Sloan, 1 F. Supp. 3d at 775, as “indicative of an intent to vent” because 

the relevant language in the HIA was “largely indistinguishable from that found by 

the Sixth Circuit in Golden, Yolton, Noe and other cases to indicate an intent to 

vest health benefits.” Id. at 766. In Tackett, the Supreme Court twice addressed, 

and twice rejected, the notion that contractual language “tying” of eligibility for 

health benefits to eligibility for pension benefits provided a basis for vesting. 135 

S. Ct. at 935, 937. It did so first in its review of general rules of contract 

construction that have grown out of Yard-Man. Id. at 935. It did so again in the 

final section of the Opinion when it specifically rejected the Sixth Circuit’s 

reliance on the tying analysis in Tackett as a reason to disregard the generational 

limit in the CBA in that case. Id. at 937. 

Second, citing Yard-Man and its progeny for support, this Court noted that 

the “specific durational language as to certain non-retirees,” and the absence of 

these same specific limitations for retirees, supported an inference of vesting as to 

retiree health benefits. Sloan, 1 F. Supp. 3d at 759, 775. The Supreme Court

addressed and rejected the inference of vesting from benefit termination provisions 

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 15 of 19 Pg ID 7572
13

applicable to laid-off employees and surviving spouses and dependents, but not 

applicable to retirees. Tackett, 135 S. Ct. at 935, 937 (stating that the Court 

rejected all “inferences applied in Yard-Man and its progeny” as well as all rules of 

“contract interpretation” in that line of Sixth Circuit decisions).7 Creation of one 

tier of benefits for laid off workers and another for retirees is not, in any way, 

inconsistent with limiting both sets of benefits to the term of the contract. Prior 

retirees may obtain more generous benefits than later retirees—while the contract 

is in effect. Tackett makes clear there is nothing “illusory” about that. Id. at 936.

Third, this Court cited to the “negotiation of less favorable benefits for 

future retirees while leaving existing retirees’s benefits unchanged” as the final 

indicia of an intent to vest. Sloan, 1 F. Supp. 3d at 775. Tackett teaches that an 

intent to vest benefits must be “clear” and “explicit” in order to rebut the 

traditional principle that “contractual obligations will cease, in the ordinary course, 

upon termination of the bargaining agreement.” 135 S. Ct. at 937 (internal 

quotation marks omitted). The treatment of future retirees says nothing about 

whether health benefits for existing retirees extend beyond the scope of the CBAs 

 

7

Justice Ginsburg’s suggestion that the tying provision, as well as the “survivor 

benefits” clause, may have some relevance to the vesting analysis, see 135 S. Ct. at 

938 (Ginsburg, J., concurring), lacks any precedential weight. See supra at note 5.

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 16 of 19 Pg ID 7573
14

and HIAs.8

Because the retirees bear the burden of proving vesting,9and because the 

Supreme Court has held their purported evidence of vesting to be legally 

insufficient, a trial would serve no purpose. Thus, the evidence precluding vesting 

is undisputed and summary judgment for Defendants is appropriate. 

 

8 Although the Court in its prior ruling considered extrinsic evidence and found it 

inconclusive, Sloan, 1 F. Supp. 3d at 776, there is no need to consider this evidence 

in the aftermath of Tackett. As noted above, the agreements contain express 

durational limits, as well as the ROR language and the “agreement to disagree” 

provision, and contain no other countervailing indication that the health benefits 

are intended to vest. 

9

See, e.g., Golden v Kelsey-Hayes Co. (In re Golden), 73 F.3d 648, 656 (6th Cir. 

1996) (retirees, not the employer, has the burden on the vesting question); 

Windstream Corp. v. Da Gragnano, 757 F.3d 798, 803 (8th Cir. 2014) (“The 

burden is on the retiree or union to prove vesting language[] exists in the plan 

documents.” (internal quotation marks omitted)).

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 17 of 19 Pg ID 7574
15

CONCLUSION

For the reasons set forth above, BorgWarner urges the Court to find 

Plaintiffs’ retiree health benefits are not vested and to enter summary judgment for 

BorgWarner.

Respectfully Submitted,

Elisa Angeli Palizzi (P52088)

MILLER, CANFIELD, PADDOCK 

 AND STONE, P.L.C.

150 West Jefferson, Suite 2500

Detroit, Michigan 48226

Telephone : (313) 496-7635

Facsimile: (313) 963-6420

epalizzi@millercanfield.com

/s Bobby R. Burchfield

Bobby R. Burchfield

 Counsel of Record

Nikesh Jindal

David M. Barnes

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

Telephone: (202) 737-0500

Facsimile: (202) 626-3737

bburchfield@kslaw.com

njindal@kslaw.com

dbarnes@kslaw.com

Counsel for BorgWarner Inc., BorgWarner Diversified 

Transmission Products Inc., and BorgWarner Flexible Benefits Plans

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 18 of 19 Pg ID 7575
CERTIFICATE OF SERVICE

I hereby certify that on April 24, 2015, I electronically filed the foregoing 

Supplemental Brief 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

2:09-cv-10918-PDB-MKM Doc # 141 Filed 04/24/15 Pg 19 of 19 Pg ID 7576