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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM L. SLOAN, EUGENE J.

WINNINGHAM, BOB L. BERTRAM, JAMES

L. KELLEY, on behalf of themselves and a

similarly situated class,

Plaintiffs,

v.

BORGWARNER, INC., BORGWARNER

DIVERSIFIED TRANSMISSION PRODUCTS,

INC. and BORGWARNER FLEXIBLE

BENEFITS PLANS,

Defendants.

___________________________________ /

Civil Case Number: 09-CV-10918

PAUL D. BORMAN

UNITED STATES DISTRICT COURT 

OPINION AND ORDER 

(1) GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, 

(2) CERTIFYING THE CLASS, 

(3) NAMING WILLARD L. SLOAN, EUGENE J. WINNINGHAM, AND JAMES L.

KELLEY AS CLASS REPRESENTATIVES, AND

(4) APPOINTING KLIMIST, MCKNIGHT, SALE, MCCLOW & CANZANO, P.C.

CLASS COUNSEL

Now before the Court is plaintiffs Willard L. Sloan’s, Eugene J. Winningham’s, Bob L.

Bertram’s, and James L. Kelley’s (collectively, “Plaintiffs”) Motion for Class Certification. 

Defendants BorgWarner, Inc., BorgWarner Diversified Transmission Products Inc. (“DTP”), and

BorgWarner Flexible Benefit Plans (collectively, “Defendants”) responded to the Motion on August

19, 2009. The Court held a hearing on the matter on August 24, 2009. 

For the following reasons, the Court GRANTS Plaintiffs’ Motion for Class Certification,

CERTIFIES the class as defined by Plaintiffs in their Motion, and APPOINTS Klimist, McKnight,

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 Plaintiff had sought monetary relief for mental distress and anguish incurred as a result

of Defendants’ modification of their retiree health care benefits, but Plaintiff amended their

Complaint on September 1, 2009 to remove this claim for relief. (Dkt. No. 55). 

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Sale, McClow & Canzano, P.C. as class counsel. 

I. BACKGROUND

Plaintiffs filed this lawsuit on March 11, 2009 pursuant to section 301 of the LaborManagement Relations Act (“LMRA”), 29 U.S.C. § 185, and section 502(a)(1)(B) of the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). 

Plaintiffs, on behalf of themselves and a class of similarly situated persons (“Class”), seek

a declaratory judgment that they and their spouses are entitled to lifetime health benefits from

Defendants. Plaintiffs also seek injunctive relief, requiring Defendants to preliminarily and

permanently maintain the level of retiree health care benefits they enjoyed before Defendants

reduced their benefits as well as damages as a result of that reduction in benefits.1

 

Plaintiffs seek to certify a class consisting of approximately 1,750 retirees and surviving

spouses of retirees who retired from Defendants’ recently shuttered manufacturing facility in

Muncie, Indiana on or after October 27, 1989 and before February 23, 2009, and who were

represented by International Union, United Automobile, Aerospace & Agricultural Implement

Workers of America (“UAW”) in collective bargaining. 

II. ANALYSIS

A. Legal Standard 

Plaintiffs brings the instant motion to certify the (now Amended) Complaint as a class action

pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”). Before it may certify a class, the Court

must conduct a “rigorous analysis” of the requirements of Rule 23. General Telephone Co. v.

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Falcon, 457 U.S. 147, 161 (1982). As the proponent of class certification, Plaintiffs bear the burden

of proving that all of Rule 23’s requirements have been satisfied. See Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 614 (1997); In re Am. Medical Sys., 75 F.3d 1069, 1079 (6th Cir. 1996)

(“[T]he party seeking the class certification bears the burden of proof.”) (citations omitted). 

B. Class Action Prerequisites - Rule 23(a)

Federal Rule of Civil Procedure 23(a) sets out the following prerequisites for certifying a

class action:

One or more members of a class may sue or be sued as representative parties on

behalf of all only if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typical of the claims or defenses

of the class, and (4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a). 

Before addressing whether Plaintiffs have established each of the four prerequisites listed

above, it is important to note that Defendant DTP stated in its Amended Complaint for Declaratory

Judgment Against Defendant Class filed on March 13, 2009 in the Southern District of Indiana, that

Plaintiffs and the putative class satisfied all four of the prerequisites listed in Rule 23(a). (See Dkt.

No. 35 Ex. B, Am. Compl. for Decl. Judg. Against Def. Class ¶¶ 46-53). 

1. Numerosity

As the putative class is believed to be more than 1,700 members, Defendants do no contest

that the numerosity requirement has been met. In Bittinger v. Tecumseh Prods. Co., 123 F.3d 877,

884 n.1 (6th Cir. 1997), the Sixth Circuit held the that the joinder of 1,100 retirees would be

impracticable. Accordingly, the Court finds that Plaintiffs have satisfied the first prerequisite under

Rule 23(a): the class is so numerous that joinder of all members is impracticable. 

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2. Commonality 

The second precondition under Rule 23(a)(2) requires the presence of common questions of

law or fact that are common to the class. Fed. R. Civ. P. 23(a). 

Defendants do not dispute that the Class is claiming common rights to continuing fully paid

lifetime health care benefits arising from promises contained in collectively bargaining Health

Insurance Agreements. Instead, Defendants contend that commonality is lacking because only fifty

of the total 1,752 putative class members reside in the Sixth Circuit, which is in the minority among

circuit courts in an inter-circuit split regarding the controlling issue of law. Defendants argue that

commonality “would more readily exist in [the] Southern District of Indiana, where 1647 of the

1752 putative class members would have the appropriate legal standard applied to their claims.”

(Defs.’ Resp. Br. 4 n.4). Thus, according to Defendants, applying a minority rule to a plaintiff class

in one circuit where a majority of the class resides in another circuit, which applies the majority rule,

destroys commonality. 

In support of their argument that an intra-circuit split destroys commonality, Defendants cite

Henry v. Assocs. Home Equity Servs., Inc., 69 Fed. App’x 394 (9th Cir. July 3, 2003) (unpublished),

affirming 272 B.R. 266, 275 (C.D. Cal. 2002), where the Ninth Circuit affirmed a district court’s

refusal to certify a class for lack of commonality because of an inter-circuit split on the so called

“ride through” option available to debtors in Chapter 7 bankruptcies. That case, however, involved

an added layer of litigation that is not present here—an underlying bankruptcy action. That is, in

denying the plaintiffs’ motion to certify the class, the district court took special notice that the

bankruptcy courts in “ride through” jurisdictions would have handled the underlying bankruptcy

actions differently than bankruptcy courts in the non-“ride-through” jurisdictions. Thus, unlike here

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where there is no underlying layer where differing laws could have been applied to each member

of the Class, in Henry, it was the differing applications in the underlying bankruptcy actions that

destroyed commonality. 

As noted by Plaintiffs, the district court in Reece v. CNH America LLC, 227 F.R.D. 483, 489

(E.D. Mich. 2005) rejected this very line of reasoning: 

[C]ommon issues of law predominate regardless of the fact that the proposed class

members reside in three different judicial districts. While there may be a split in

certain aspects of the law among those districts, the issues in this case only will be

decided according to the federal common law as interpreted under Supreme Court

and Sixth Circuit precedent. See Rossetto [v. Pabst Brewing Co.], 217 F.3d [539,

541-42 (7th Cir. 2000)] (stating that the issue of whether retiree health care benefits

vest must be decided as a matter of federal common law developed under the

authority of ERISA and the LMRA as interpreted by the law governing the Circuit

in which the court sits). As Plaintiffs point out, district courts routinely apply the

law of the Circuit in which they sit in retiree health care cases despite the fact that

the plaintiff-retirees worked and/or live in other Circuits. See UAW v. Aluminum Co.

of Am., 932 F. Supp. 997, 1000 n.1 (N.D. Ohio 1996); Fox v. Massey-Ferguson, Inc.,

172 F.R.D. [653, 659 n.8 (E.D. Mich. 1995)]; Golden v. Kelsey-Hayes, 845 F. Supp.

410, 411 (E.D. Mich. 1994). . . .

The Court adopts the Reese court’s analysis and finds that Plaintiffs have satisfied the

commonality prerequisite. 

3. Typicality

Typicality means that Plaintiffs’ claims arise from the same event or course of conduct that

give rise to the claims of other class members and are based on the same legal theory. In re Am.

Medical Sys., 75 F.3d 1069, 1082 (6th Cir. 1996) (citations omitted). Defendants do not contend

that Plaintiffs’ claims do not arise out the same event or course of conduct or even the same legal

theory. Rather, they assert that Plaintiffs’ damages require individualized determinations, which

thereby defeats typicality. Defendants cite to Plaintiffs’ Complaint, where Plaintiffs’ request not

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only injunctive relief but also money damages for “any losses incurred” as a result of Defendants’

modification of Plaintiffs’ retiree health benefit plans. Thus, according to Defendants, Plaintiffs’

claims for relief would not be typical to that of the Class because they seek differing levels of

damages. 

Plaintiffs’ request for individualized damages does not defeat typicality; otherwise, no class

action could be maintained where the putative class sought damages for mental distress or some

other highly-fact specific claim for damages. As will be addressed at length below, though, a

plaintiff class’ request for individualized damages may affect their ability to maintain a class action

under Rule 23(b). 

4. Adequacy of Representation

The Sixth Circuit has articulated two criteria for determining the adequacy of representation:

“‘[1] the representative must have common interests with unnamed members of the class, and [2]

it must appear that the representatives will vigorously prosecute the interests of the class through

qualified counsel.’” In re Am. Medical Sys., 75 F.3d at 1083 (quoting Senter v. General Motors, 532

F.2d 511, 525 (6th Cir. 1976)). 

Defendants do not contest the Class as defined by Plaintiffs in their Motion, and they

concede that they have no basis on which to question Plaintiffs’ counsel’s qualifications to represent

the class. Defendants challenge only the adequacy of Plaintiffs to carry out their role as class

representatives. Defendants sought and were denied preliminary discovery into the adequacy of the

class representatives. In denying Defendants preliminary discovery, Magistrate Judge Majzoub

reasoned 

that Defendants have already deposed each Plaintiff on their qualifications to be class

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representatives in a prior related action and that Defendant DTP acknowledged in its Amended

Complaint for Declaratory Judgment against Defendant [here, Plaintiff] Class filed in the Southern

District of Indiana that Plaintiffs “will fairly and adequately protect the interests of the [putative

class].” (Dkt. 50 citing Dkt. No. 35 Ex. 11 at ¶ 49). 

Plaintiffs have provided the Court with recent affidavits from each Plaintiff attesting that

they have agreed to serve as a class representative in this suit. (Pls.’ Br. Exs. B-E). In response,

Defendants provide the 2006 deposition testimony of Plaintiff Bob Bertram, who testified that he

was in “bad health,” “can’t hardly handle” traveling long distances, and was “not able to” serve as

a class representative in a prior related case in 2006 due to a heart condition. (Dkt. No. 41 Ex. 3,

Bertram Dep. 8, 52). 

Even though at least one Defendant concedes that Mr. Bertram is an adequate representative

of the Class, the Court concludes that Mr. Bertram is not an adequate representative of the class.

Mr. Bertram’s 2006 deposition testimony clearly provides that he is in bad health and that although

he would like to represent the class, his heart condition prevents him from doing so. Further, while

Plaintiffs provide a recent affidavit from Mr. Bertram, the affidavit only provides that he agreed to

serve as a class representative, not that he is able to serve as a class representative. 

The other class representatives appear to be currently able to represent the class adequately.

Therefore, Willard L. Sloan, Eugene J. Winningham, and James L. Kelley have satisfied the fourth

prerequisite under Rule 23(a).

C. Maintaining a Class Action - Rule 23(b)

With the exception of Mr. Bertram, Plaintiffs have succeeded in establishing the existence

of the Rule 23(a) prerequisites. They now must meet one of the three criteria set out in Rule 23(b).

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 In this case, Plaintiffs seek class certification under either Rule 23(b)(1) or (b)(2). 

At the onset, Defendants caution that Rule 23(b)(1) and (b)(2) authorize only “mandatory”

class actions under which “potential members do not have an automatic right to notice or a right to

opt out of the class,” but are still bound by the judgment, Reeb v. Ohio Dep’t of Rehab. & Corr., 435

F.3d 639, 645 (6th Cir. 2006), and that the Sixth Circuit has “repeatedly expressed concern over the

constitutionality of certifying a mandatory class action that includes claims for money damages”

because of a fear that the individual class members’ Seventh Amendment and due process rights

might be violated. Coleman v. GMAC, 296 F.3d 443, 447 (6th Cir. 2002). Therefore, they argue

that this Court must exercise “close scrutiny.” See id. at 448; Reeb, 435 F.3d at 649-50. 

Rule 23(b)(1) provides that an action may be maintained as a class action if the prosecution

of separate actions by or against individual members of the class creates a risk of either one of the

following:

(A) inconsistent or varying adjudications with respect to individual members of the

class which would establish incompatible standards of conduct for the party opposing

the class, or

(B) adjudications with respect to individual members of the class which would as a

practical matter be dispositive of the interests of the other members not parties to the

adjudications or substantially impair or impede their ability to protect their

interests[.]

Under Rule 23(b)(2), a class action is appropriate if “the party opposing the class has acted

or refused to act on grounds generally applicable to the class, thereby making appropriate final

injunctive relief or corresponding declaratory relief with respect to the class as a whole.” 

Defendants’ opposition of Plaintiffs’ attempt to certify under Rules 23(b)(1) and (b)(2)

focuses on Plaintiffs’ request for monetary damages. Defendants contend that the need for

individualized damage calculations in the instant case make certification under either Rule 23(b)(1)

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or (b)(2) improper. To the extent that Plaintiffs seek damages for the amounts they must now pay

for health care to the reduction of their health benefits, the Court finds that such a request does not

defeat certification under Rule 23(b)(1) and (b)(2). 

In Reeb, the Sixth Circuit vacated the district court’s certification of the class under Rule

23(b)(2) and remanded the case to the district court for further proceedings. The court held that

“because of the individualized nature of damages calculations for Title VII plaintiffs and the ability

of those plaintiffs to bring individual actions, the claims for individual compensatory damages of

members of a Title VII class necessarily predominate over requested declaratory or injunctive relief,

and individual compensatory damages are not recoverable by a Rule 23(b)(2) class.” 435 F.3d at

651. In so holding, the Court cited extensively and approvingly from the Fifth Circuit’s decision

in Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) and the court’s earlier

decision in Coleman, which had also relied extensively on Allison. Id. at 646-50. As the Fifth

Circuit explained in Allison:

monetary relief predominates in (b)(2) class actions unless it is incidental to

requested injunctive or declaratory relief. By incidental, we mean damages that flow

directly from liability to the class as a whole on the claims forming the basis of the

injunctive or declaratory relief . . . such damages should at least be capable of

computation by means of objective standards and not dependent in any significant

way on the intangible, subjective differences of each class member’s circumstances.

Liability for incidental damages should not require additional hearings to resolve the

disparate merits of each individual’s case; it should neither introduce new and

substantial legal or factual issues, nor entail complex determinations.

Allison, 151 F.3d at 415 (internal citations omitted) (emphasis added). 

In this case, to the extent that Plaintiffs’ request for monetary relief does not go beyond the

reduction in benefits amount, such relief is incidental to, and does not predominate over, their

requested injunctive and declaratory relief. Unlike in Coleman and Reeb where the requested

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compensatory damages “‘undermined the assumption of homogeneity” of the class because each

individual member has a stake in the outcome of the litigation but would not have the opportunity

to opt out in order to protect that interest,” Reeb, 435 F.3d at 650 (citing Coleman, 296 F.3d at 449),

the individual members of the Class have a much more homogenous stake in the outcome. 

Essentially, they want their benefits restored permanently as well as any monetary relief for the

amounts that they have had to pay for health care because of the reduction of health benefits.

Furthermore, the monetary relief requested appears to be “at least . . . capable of computation by

means of objective standards and not dependent in any significant way on the intangible, subjective

differences of each [C]lass members’ circumstances.” Allison, 151 F.3d at 415. At the hearing,

Defendants conceded as much by stating that Plaintiffs’ request for monetary relief for the reduction

in benefits may be subject to a mathematic or formulaic calculation. 

It is also important to note that the Sixth Circuit allowed a monetary recovery for “back pay”

under Rule 23(b)(2) in Reeb and Coleman. The Sixth Circuit reasoned that while a claim for “back

pay implicates some of the same efficiency concerns we have cited today as part of our reasoning

for excluding compensatory damages from a Rule 23(b)(2) class, back pay is qualitatively different

from compensatory damages . . . because calculation of back pay involves less complicated factual

determination and fewer individualized issues.” Coleman, 296 F.3d at 449. Similar to back pay

under the ECOA and Title VII, the Court finds it reasonable to allow a recovery for “back benefits”

under the LMRA or ERISA class action under Rule 23(b)(2). 

The Reeb and Coleman courts also considered whether the individual class members would

bring suit in the absence of a class action as a factor in determining whether or not the compensatory

damages claims defeated the plaintiff’s request for certification under Rule 23(b)(2). In Coleman,

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the Sixth Circuit held that “the primary justification for class treatment of these claims [i.e.,

economic feasability] is largely absent in this case because the [Equal Credit Opportunity Act’s

(“ECOA”)] provision for the award of attorney’s fees and costs to successful plaintiffs eliminates

any potential financial bar to pursuing individual claims.” 296 F.3d at 449 (citing 15 U.S.C. §

1691e(d)). Likewise, in Reeb, the Sixth Circuit noted Title VII’s fee shifting provision, 42 U.S.C.

§ 2000e-5(k), inter alia, as similar inducement to that in Coleman for plaintiffs to bring individual

actions. 435 F.3d at 651. 

The LMRA and ERISA, however, are not as welcoming as the ECOA and Title VII to suits

from individual plaintiffs. For instance, Section 301 of the LMRA does not include a statutory

provision for granting attorneys’ fees, and the Sixth Circuit has held that “attorneys’ fees are

recoverable as damages against union defendants in Section 301 actions,” only when the union

defendants have either willfully disobeyed a court order or acted in bad faith. Wilson v. Int’l Bhd.

of Teamsters, 83 F.3d 747, 753-54 (6th Cir. 1996). As to Plaintiff’s ERISA claims, similar to Title

VII in Reeb or the ECOA in Coleman, ERISA does allow a court to grant reasonable attorney’s fees

and costs of an action to prevailing plaintiffs. See 29 U.S.C. § 1132(g). But unlike under the

ECOA, where the grant of attorney’s fees is automatic to the prevailing party and unlike under Title

VII, where the statute specifically limits the award of fees to the prevailing party and includes expert

fees, 29 U.S.C. § 1132(g) allows for fees to be awarded to either party and makes no reference to

expert fees. In fact, the Sixth Circuit has rejected a presumption that attorney’s fees should

ordinarily be awarded to the prevailing plaintiff under 29 U.S.C. § 1132(g). First Trust Corp. v.

Bryant, 410 F.3d 842, 851 (6th Cir. 2005). Thus, while it is possible for a losing ERISA plaintiff

to recover attorney’s fees, a successful ERISA plaintiff may not end up receiving attorney’s fees and

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may even have to pay the attorney’s fees of the other party. Furthermore, any monetary recovery

in a suit by an individual member of the Class would likely be very small. In light of the foregoing,

there is a good possibility that absent class certification, the individual class members would not

pursue their claims. 

Accordingly, the Court grants Plaintiffs’ request to certify the Class under Rule 23(b)(2). 

As to class certification under Rule 23(b)(1), the Court finds that it too is not defeated by

Plaintiff’s request for “back benefit” damages. Separate adjudication of Plaintiffs’ claims for

injunctive or declaratory relief clearly presents a risk of incompatible standards being applied to

different members of the Class. For the reasons above with respect to Rule 23(b)(2), that risk

predominates over any monetary relief that Plaintiffs seek for their reduction in benefits. 

The Court’s conclusion comports with the various district court cases from this Circuit cited

by Plaintiffs, where the court certified retiree class actions, which included claims for damages,

under Rule 23(b)(1) and (b)(2). See Fox v. Massey-Ferguson, 172 F.R.D. 653, 665 (E.D. Mich.

1995) (finding that separate adjudication of claims for health care benefits, by retirees of different

states, would inevitably lead to different results and that the defendant’s decision to terminate

benefits affects the entire proposed class, making injunctive and declaratory relief facially

appropriate); Reese, 227 F.R.D. at 489 (finding certification under either subsection appropriate

because of the risk of inconsistent results and because of the clear appropriateness of injunctive and

declaratory relief for the class as a whole); Kerns v. Caterpillar, Inc., No. 3:06-cv-01113, 2007 WL

2044092, at *8-9 (M.D. Tenn. 2007) (July 12, 2007) (citing Massey-Ferguson in finding that

certification under either Rule 23(b)(1) or (b)(2) is appropriate because the Plaintiffs’ primary

request for relief is injunctive and declaratory in nature and predominates over any monetary relief

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that would be available). 

III. CONCLUSION

For the reasons stated, the Court: 

(1) GRANTS Plaintiff’s Motion for Class Certification (Dkt. No.14); 

(2) CERTIFIES the Class;

(3) NAMES Willard L. Sloan, Eugene J. Winningham, and James L. Kelley as class

representatives; and 

(4) APPOINTS Klimist, McKnight, Sale, McClow & Canzano, P.C. as class counsel.

 SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: September 3, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

September 3, 2009.

S/Denise Goodine 

Case Manager

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