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 OPPOSITION TO 

PLAINTIFFS’ 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

 

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES.......................................................................................................... iv 

CONCISE STATEMENT OF THE ISSUE PRESENTED............................................................ vi 

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

INDEX OF EXHIBITS................................................................................................................viii 

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

STATEMENT OF ADDITIONAL FACTS..................................................................................... 2 

ARGUMENT.................................................................................................................................. 4 

I. THE UNAMBIGUOUS LANGUAGE OF THE COLLECTIVE BARGAINING 

AND HEALTH INSURANCE AGREEMENTS REQUIRES SUMMARY 

JUDGMENT AGAINST PLAINTIFFS AND FOR BORGWARNER. ............................. 4 

A. The Agreements’ Express Statements Conclusively Defeat Vesting of 

Retiree Health Benefits........................................................................................... 5 

B. Tools Used To Ascertain Vesting in Ambiguous Contracts Do Not Apply 

Here......................................................................................................................... 8 

1. “Tying” Eligibility for Health Benefits to Eligibility for Pension 

Benefits Does Not Alone Establish Vesting, Especially When the 

Contracts Say Elsewhere that Retiree Health Benefits Are Not 

Vested.......................................................................................................... 8 

2. The Agreements’ Limits on Other Benefits Are Irrelevant......................... 9 

3. The 1992 Agreement’s Treatment of Future Hires and the 2005 

Agreement’s Treatment of Its Retirees Do Not Demonstrate the 

Vesting of Retiree Health Benefits............................................................ 10 

4. The Agreement in 1992 to Ten Years of Deductible and Stop-Loss 

Increases Does Not Demonstrate that Plaintiffs’ Health Benefits 

Are Interminable or Unchangeable........................................................... 12 

II. EXTRINSIC EVIDENCE RELIED UPON BY PLAINTIFFS IS IRRELEVANT 

AND CANNOT LEAD TO SUMMARY JUDGMENT IN THEIR FAVOR................... 13 

A. Extrinsic Evidence of BorgWarner’s Intent in Pre-1989 Agreements Is 

Irrelevant and, in Any Event, Does Not Demonstrate Vesting.............................. 13

 ii 

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B. Extrinsic Evidence of BorgWarner’s Intent After 1989 Defeats Plaintiffs’ 

View that Their Health Benefits Were Vested and Unchangeable........................ 16 

CONCLUSION............................................................................................................................. 18 

 iii 

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TABLE OF AUTHORITIES 

Cases 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)....................................................................4 

Bender v. Newell Window Furnishings, Inc., 725 F. Supp. 2d 642 (W.D. Mich. 2010).................10 

Bender v. Newell Window Furnishings, Inc., No. 11-1335, 2012 WL 1537916, at *4 (6th 

Cir. May 3, 2012).......................................................................................................5, 8, 11

Bittinger v. Tecumseh Prods. Co., 83 F. Supp. 2d 851(E.D. Mich. 1998), 

aff’d, 201 F.3d 440 (6th Cir. 1999)......................................................................................2 

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) .................................1 

Cole v. ArvinMeritor, Inc., 515 F. Supp. 2d 791 (E.D. Mich. 2006).............................................13

Gilbert v. Doehler–Jarvis, Inc., 87 F. Supp. 2d 788 (N.D. Ohio 2000) ........................................14 

Golden v. Kelsey–Hayes Co., 954 F. Supp. 1173 (E.D. Mich. 1997)...............................................4 

Golden v. Kelsey–Hayes Co. (In re Golden), 73 F.3d 648 (6th Cir. 1996) ..................................4, 8 

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

(1997)...................................................................................................................................5 

International Union, UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) ..................... passim 

Jensen v. SIPCO, Inc., 38 F.3d 945 (8th Cir. 1994) .......................................................................11

Linville v. Teamsters Misc. Workers Union, Local 284, 206 F.3d 648 (6th Cir. 2000) .......1, 8, 9,12 

Maurer v. Joy Techs., Inc., 212 F.3d 907 (6th Cir. 2000).................................................................5 

McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417 (6th Cir. 2004) ..................................................9 

Noe v. Polyone Corp., 520 F.3d 548 (6th Cir. 2008)........................................................................9 

Prater v. Ohio Educ. Ass’n, 505 F.3d 437 (6th Cir. 2007)...............................................................7

Reese v. CNH Am. LLC, 574 F.3d 315 (6th Cir. 2009)..........................................................1, 5, 17 

Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279 (6th Cir. 1986).........................................13

Smith v. ABS Indus., Inc., 890 F.2d 841 (6th Cir. 1989)...................................................................5

 iv 

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Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503 (6th Cir. 2003)...................................................4 

Wood v. Detroit Diesel Corp., 607 F.3d 427 (6th Cir. 2010)............................................................8 

Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571 (6th Cir. 2006) ................................................4 

Statutes and Rules 

ERISA § 201, 29 U.S.C. § 1051 (2006)...........................................................................................5 

Fed. R. Civ. P. 56....................................................................................................................... vii, 4 

Fed. R. Evid. 401 ...........................................................................................................................13 

Fed. R. Evid. 402 ...........................................................................................................................13 

 v 

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CONCISE STATEMENT OF THE ISSUE PRESENTED 

Can an agreement to vest retiree health benefits be inferred when express contract 

language acknowledges the lack of an agreement to vest, contains specific durational clauses, 

and made changes to existing retirees’ benefits? 

 vi 

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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) 

 vii 

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INDEX OF EXHIBITS 

BorgWarner has attached to this opposition excerpts of exhibits or authorities already part 

of the summary judgment record. The excerpts reflect updated highlighting by BorgWarner to 

comply with the Court’s practice guidelines. 

Exhibit Description 

A Health Insurance Agreement Between Borg-Warner Automotive Diversified 

Transmission Products Corporation, Muncie Plant and the International Union, 

United Automotive, Aerospace and Agricultural Implement Workers of America, 

UAW, and Its Local No. 287 (Oct. 27, 1989) (DTP021130–DTP021260) (Pls.’ Dep. 

Ex. 7) (revised pages 7–8 of R. 96 Ex. 1) 

B Retirement (General Summary of Often Asked or Emphasized Items Covered with 

Employees upon Application for Retirement) (Jan. 1990) (CM000241–CM000244) 

(Pls.’ Dep. Ex. 9) (revised page 4 of R. 104 Ex. 24) 

C 1992 Agreement on Modification and Extension of Existing Health Insurance 

Agreement and Ancillary Matters (Nov. 30, 1992) (DTP000432–DTP000450) (Pls.’ 

Dep. Ex. 18) (revised page 1 of Exhibit C of R. 96 Ex. 3) 

D Position Statement (1987) (DTP001679–DTP001683) (Pls.’ Dep. Ex. 52) (revised 

page 2 of R. 104 Ex. 29) 

E Memorandum from Bill Studlow to Dick Nuerge (Mar. 24, 1987) (DTP013873–

DTP013925) (Pls.’ Dep. Ex. 56) (revised page 1 of and page 41 of the attachment of 

R. 104 Ex. 30) 

F Facsimile from R.A. Nuerge to George Turczynowsky (Feb. 14, 1989) (DTP004372–

DTP004375) (Pls.’ Dep. Ex. 55) (revised pages 1–3 of R. 104 Ex. 26) 

G Deposition of William David Campbell (Oct. 27, 2011) (revised pages 51–54 of 

R. 98 Ex. 18) 

H Deposition of Laura J. Champagne (Jan. 13, 2012) (revised pages 112–14, 116–17, 

and 119–20 of R. 98 Ex. 19) 

I Deposition of Richard Nuerge (Oct. 25, 2011) (revised pages 45–46 of R. 100 

Ex. 24)

J Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (revised page 255 of R. 101 

Ex. 1) 

 viii 

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 ix 

Exhibit Description 

K BorgWarner Diversified Transmission Prods. Inc. v. UAW, Local No. 287, No. 1:06-

cv-058-LJM-TAB, 2008 WL 4274476, at *1 (S.D. Ind. Sept. 12, 2008) (revised 

page 4 of R. 101 Ex. 3) 

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

pages 1480 and 1482 of R. 101 Ex. 10) 

M Noe v. Polyone Corp., 520 F.3d 548 (6th Cir. 2008) (revised page 566 of R. 101 

Ex. 13)

2:09-cv-10918-PDB-MKM Doc # 108 Filed 06/14/12 Pg 9 of 28 Pg ID 5960
INTRODUCTION 

Plaintiffs cannot obtain summary judgment by ignoring material facts. Yet, in their effort 

to show contractual entitlement to fully paid health benefits for life, they simply ignore an 

explicit “agreement to disagree” between their unions and their employer, BorgWarner,1 about 

whether retiree health benefits were vested. They also ignore express contractual language in the 

Health Insurance Agreements (“HIAs”) limiting the duration of retiree health benefits to the term 

of the respective HIAs, as well as language in the HIAs expressly empowering BorgWarner to 

modify or terminate the benefits at the end of each HIA.2

 Further, Plaintiffs ignore recent Sixth 

Circuit precedent holding that, “unless it says otherwise,” a collective bargaining agreement 

“should be construed to permit modifications to benefits plans” if three criteria are met. Reese v. 

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

Rather than address any of these material impediments to their demands, Plaintiffs invoke 

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

in a strained effort to construct a legal inference that their benefits are vested. But as the Sixth 

Circuit has made clear, “[t]he Yard-Man inference . . . cannot be used to contradict the express 

text of the agreement or plan documents,” especially when the plan at issue “addresses the 

duration of benefits.” Linville v. Teamsters Misc. Workers Union, Local 284, 206 F.3d 648, 651 

 

(footnote continued on next page)

1

 “BorgWarner” refers for convenience to BorgWarner Inc., BorgWarner Diversified 

Transmission Products Inc., and BorgWarner Flexible Benefits Plans. (See R. 95, BorgWarner’s 

Mot. Summ. J. 1 n.1.) 

2

 Alluding to a declaratory judgment action filed in the Southern District of Indiana in 

2006, Plaintiffs state that “[t]he court held that [BorgWarner’s] unilateral changes to retiree 

benefits violated the 2005 HIA.” (R. 102, Pls.’ Mot. Summ. J. 7 n.9.) This statement is almost

accurate; more precisely, that court held that BorgWarner could not make changes to the benefits 

provided by the 2005 HIA while that HIA was still in effect. BorgWarner Diversified 

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

 

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(6th Cir. 2000); see also Bittinger v. Tecumseh Prods. Co., 83 F. Supp. 2d 851, 860–61 

(E.D. Mich. 1998) (holding that express language limiting duration of retiree benefits defeats 

summary judgment for retirees on their claims for vested benefits), aff’d, 201 F.3d 440 (6th Cir. 

1999). 

Accordingly, and as explained in BorgWarner’s motion for summary judgment, the 

unambiguous language of the collective bargaining agreements and HIAs in force between 1989 

and 2009 require entry of summary judgment in BorgWarner’s favor and denial of Plaintiffs’ 

motion for summary judgment. 

STATEMENT OF ADDITIONAL FACTS 

Plaintiffs agree with BorgWarner that the contracts under which Plaintiffs retired or 

received retiree health benefits are unambiguous. (R. 102, Pls.’ Mot. Summ. J. 11 (“The 

[Contracts] Unambiguously Provide for Lifetime Retiree Health Care Benefits.”).) Under YardMan, then, the only facts material to Plaintiffs’ motion are the language used in the CBAs and 

HIAs between 1989 and 2009 to describe retiree health benefits.3

Nevertheless, Plaintiffs support their motion with extrinsic evidence, but neglect extrinsic 

evidence undermining their claim to vested benefits. 

1. As the term of the 1986 HIA drew to a close, and a strike loomed, Jack Reising of 

BorgWarner DTP informed the chairman of the Local 287’s negotiating committee that the 

company did not consider retirees’ health benefits vested: 

 

(continuation of footnote from previous page) 

4274476, at *4 (S.D. Ind. Sept. 12, 2008). The changes at issue in this case were made after the 

2005 HIA expired by its own terms. 

3

 BorgWarner provided these facts in connection with its motion for summary judgment 

and incorporates them by reference. (R. 95, BorgWarner’s Mot. Summ. J. SUMF ¶¶ 1–9.) 

 2 

 

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The Company is not obligated to continue health insurance coverage for retirees 

and their dependents. However, the Company will continue through September, 

1989 all coverages applicable to retirees, except prescription drug coverage . . . . 

(Ex. 26, Aug. 4, 1989, Reising–Dulaney Ltr. 2; Ex. 34, Reising Dep. 51:7–18.) About a month 

later, Mr. Reising explained the company’s position to retirees and surviving spouses: 

The Union has said that your insurance coverages are a lifetime benefit which 

may not be unilaterally eliminated or discontinued. Our attorneys have advised 

the UAW and us that the Union’s position is not supported by either the insurance 

agreement or the most recent court decisions. 

(Ex. 27, Sept. 14, 1989, Reising–Retiree Ltr. 2; Ex. 34, Reising Dep. 65:16–66:3.) 

2. On October 9, 1992, the UAW’s Laura Hess reported to International 

Representative Chuck Smith that she had thirty-one substantive comments on the draft of the 

1989 HIA. (Ex. 29, Oct. 9, 1992, Hess–Smith Mem. 1–4; R. 98 Ex. 19, Champagne Dep. 

112:24–114:21.)4 Two of the comments addressed the summary description in the HIA, but 

neither of them addressed the “future of the plan” section. (Ex. 29, Oct. 9, 1992, Hess–Smith 

Mem. 4.) Four days later, Ms. Hess received responses to her comments. (Ex. 30, Oct. 13, 1992, 

Resp. Hess Comments 1–7; R. 98 Ex. 19, Champagne Dep. 116:24–117:13.) Finally, on 

November 23, 1992, the UAW confirmed that it had “reviewed the 1989 draft summary plan 

descriptions for insurance and pension benefits” and “[b]ased on [that] review, and the changes 

the Company has made in relationship to that review, the document is now acceptable.” (Ex. 31, 

Nov. 23, 1992, Hess–Daffara Ltr. 1; R. 98 Ex. 19, Champagne Dep. 119:24–120:16 (confirming 

the document referred to in the November 23, 1992, letter is the 1989 HIA).) 

 4

 Exhibits referred to without a record number can be found in the accompanying 

BorgWarner’s Supplemental Appendix of Summary Judgment Exhibits. 

 3 

 

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ARGUMENT 

To obtain summary judgment on their claims, Plaintiffs must submit undisputed evidence 

that BorgWarner contractually agreed to provide them with vested retiree health benefits. See

Fed. R. Civ. P. 56(a); Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006) 

(explaining plaintiffs’ burden to show that their labor union and employer “agreed to vest a 

welfare benefit plan”). To defeat Plaintiffs’ motion, BorgWarner need only “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). And for the purposes of Plaintiffs’ motion, BorgWarner is entitled to all 

justifiable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); 

Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003) (“When reviewing crossmotions for summary judgment, we must evaluate each motion on its own merits and view all 

facts and inferences in the light most favorable to the nonmoving party.”). 

In contrast, to prevail on its motion for summary judgment, BorgWarner need not prove 

the absence of an agreement to provide vested retiree health care benefits. See Golden v. Kelsey–

Hayes Co. (In re Golden), 73 F.3d 648, 656 (6th Cir. 1996) (“Yard-Man does not shift the burden 

of proof to the employer . . . .”). 

I. THE UNAMBIGUOUS LANGUAGE OF THE COLLECTIVE 

BARGAINING AND HEALTH INSURANCE AGREEMENTS 

REQUIRES SUMMARY JUDGMENT AGAINST PLAINTIFFS AND 

FOR BORGWARNER. 

For almost three decades, Yard-Man has provided the interpretive framework to be used 

in cases such as this. Most of the framework is not controversial. The first step is to “look to the 

explicit language of the collective bargaining agreement for clear manifestations of intent.” YardMan, 716 F.2d at 1479. If the explicit language regarding retiree health benefits is ambiguous, 

then “the court may look to other words and phrases in the collective bargaining agreement for 

 4 

 

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guidance.” Id. at 1480. Ambiguity also permits the use of extrinsic evidence to construe the 

CBA. E.g., Smith v. ABS Indus., Inc., 890 F.2d 841, 846 n.1 (6th Cir. 1989). In this case, 

however, the Court need not proceed beyond step one because the explicit, unambiguous 

language of the CBAs and HIAs defeats Plaintiffs’ vesting claims. The Court must ignore 

Plaintiffs’ arguments about “other words and phrases” and extrinsic evidence. 

A. The Agreements’ Express Statements Conclusively Defeat Vesting of Retiree 

Health Benefits. 

Unlike pension benefits, retiree health benefits are welfare benefits that do not vest unless 

the employer and union reach an agreement that the benefits will vest. See ERISA § 201(1), 29 

U.S.C. § 1051(1) (2006); Inter-Modal Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry. 

Co., 520 U.S. 510, 514 (1997) (“ERISA . . . specifically exempts ‘employee welfare plans’ from 

its stringent vesting requirements.”). In short, “vesting of retiree welfare benefits is a matter of 

contractual agreement.” Bender v. Newell Window Furnishings, Inc., No. 11-1335, 2012 WL 

1537916, at *4 (6th Cir. May 3, 2012); see also Reese, 574 F.3d at 321 (“purely a matter of 

contract”); Maurer v. Joy Techs., Inc., 212 F.3d 907, 914 (6th Cir. 2000) (“[T]he parties must 

agree to vest a welfare benefit plan.”). Plaintiffs themselves acknowledge: “the issue of whether 

[retiree health benefits] are vested is dependent on the bargain struck by the parties.” (R. 102, 

Pls.’ Mot. Summ. J. 11.) Here, the CBAs’ express language defeats any claim for vesting in this 

case and entitles BorgWarner to summary judgment. (R. 95, BorgWarner’s Mot. Summ. J. 12–

16.) This is true for four reasons. 

First, the parties twice—in 1990 and 2009—entered agreements that acknowledged the 

lack of an agreement to vest. The 1990 ACME Contract contains a “Joint Letter of Agreement on 

Post-Retirement Benefit Liabilities” that directly addresses “post-retirement benefit liabilities” 

and states: 

 5 

 

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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. 

(Id. SUMF ¶ 6 (emphasis added).) Over the next two decades, the parties never came to an 

agreement on vesting, and in 2009 reiterated their disagreement in the Plant Shutdown 

Agreement: 

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.) It is legally impossible for Plaintiffs to prove an agreement that the contracts expressly 

disclaim. 

Second, retiree health benefits terminated when each HIA expired unless continued in the 

subsequent HIA. The HIAs stated, in language unchanged from 1989 through 2009, that upon 

expiration they could be terminated by either party on sixty days’ notice. (Id. ¶¶ 1, 4–5.) The 

HIAs further provided that “[t]he coverages provided under this Exhibit A terminate on the date 

. . . the Agreement is terminated.” (Id. ¶¶ 2, 6.) Because Exhibit A specifically encompassed 

retiree health benefits, the termination provision applied to retirees as well as active employees. 

(Id.) In 2009, when the Plant Shutdown Agreement terminated the 2005 HIA, BorgWarner DTP’s 

contractual obligations to Plaintiffs ceased. (See id. ¶ 9.) Critically, as shown below (p. 7), unlike 

summary plan descriptions addressed in cases cited by Plaintiffs, here the HIAs were negotiated 

and agreed to by BorgWarner and the unions, and are mutually binding contracts. 

Third, the agreed-upon “future of the plan” language in the HIAs reserved BorgWarner 

DTP’s right to “modify, amend, suspend or terminate the Plan or the Group Policies,” and further 

made clear that “[a]n individual’s insurance coverage terminates . . . when the Group Insurance 

Policies terminate.” (R. 95, BorgWarner’s Mot. Summ. J. SUMF ¶ 3.) The 2009 Plant Shutdown 

Agreement terminated the last HIA. 

 6 

 

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Anticipating BorgWarner’s reliance on the “future of the plan” language in the HIAs, 

Plaintiffs invoke the rule that company-drafted language in a summary plan description “cannot 

retroactively cancel or modify the negotiated agreements” in this case. (R. 102, Pls.’ Mot. Summ. 

J. 16–18.) This rule is irrelevant to this case, however, because, as Plaintiffs concede, the 

reservation-of-rights language is “in the HIAs” themselves, and not in separate SPDs. (Id. at 17 

(emphasis added).) 

The UAW explicitly agreed to BorgWarner’s reservation of rights as part of an extensive 

review of the 1989 HIA. (Stmt. Add’l Facts ¶ 2, p. 3 above.) The union’s review consisted of 

substantive comments on nearly all parts of the HIA, including the summary description 

information. (Id.) Tellingly, the union had no comments on the “future of the plan” language and 

signed the 1989 HIA—with the reservation-of-rights language—in 1992. (Id.)

5

Finally, the 1998 and 2000 HIAs reduced existing retirees’ benefits without the retirees’ 

consent. By agreeing to these reductions, the UAW implicitly acknowledged that the benefits 

were not vested. (R. 95, BorgWarner’s Mot. Summ. J. SUMF ¶¶ 7–8.) 

Thus, as a matter of law, Plaintiffs’ retiree health benefits were provided from contract to 

contract, BorgWarner never agreed to vest them, and BorgWarner reserved the right to 

unilaterally modify or terminate Plaintiffs’ benefits if an HIA expired and was not replaced with 

a subsequent HIA. 

 5

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

this case from those cited by Plaintiffs holding that more conditional reservations of rights in 

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

in an SPD. (R. 102, Pls.’ Mot. Summ. J. 16–18 (citing, e.g., Prater v. Ohio Educ. Ass’n, 505 F.3d 

437, 444 (6th Cir. 2007)).). In any event, Prater and decisions following it hold only that when a 

SPD conflicts with a CBA, the signed agreement generally controls. Here BorgWarner is relying 

on the signed HIA, which is fully consistent with the SPD. 

 7 

 

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B. Tools Used To Ascertain Vesting in Ambiguous Contracts Do Not Apply Here. 

The provisions described above obviate resort to the inferences Plaintiffs seek to draw 

from other parts of the HIA. See Linville, 206 F.3d at 650–51 (holding inference of vesting does 

not undermine express durational language); Yard-Man, 716 F.2d at 1480 (explaining that other 

parts of CBA are useful only if the health benefit provisions are ambiguous). 

1. “Tying” Eligibility for Health Benefits to Eligibility for Pension 

Benefits Does Not Alone Establish Vesting, Especially When the 

Contracts Say Elsewhere that Retiree Health Benefits Are Not Vested. 

Plaintiffs’ central argument for vesting is that the HIAs “tied” eligibility for retiree health 

benefits to eligibility for pension benefits. The relevant provision of the HIAs states: 

[A]n employee who retires under the Retirement Income Program Agreement on 

or after December 1, 1989, . . . shall be entitled to the life insurance, Managed 

Care, basic hospitalization/surgical/medical, prescription drug, major medical, 

substance abuse, vision, human organ/tissue transplant, and Medical Case 

Management coverages and procedures, as set forth in Exhibits A, C, D, E, F 

and H, . . . . 

(R. 96 Ex. 1, 1989 HIA art. 8, § 1(A).) This language merely specifies who is eligible, upon 

retirement, for health care benefits; it does not promise perpetual entitlement to or unchangeable 

retiree health benefits. Based on Golden and other decisions, however, Plaintiffs assert that their 

health benefits, like their pension benefits, must be vested for life. (R. 102, Pls.’ Mot. Summ. J. 

12–14 (discussing Golden, 73 F.3d at 656). Plaintiffs suggest that this inference alone provides a 

“sufficient basis” to support an intent to vest in this case. (Id. at 13 n.18.)6

 

(footnote continued on next page)

6

 Plaintiffs characterize Wood v. Detroit Diesel Corp., 607 F.3d 427, 435–36 (6th Cir. 

2010), as holding that tying of health to pension benefits is “sufficient” to find vesting. While 

Wood held that such tying (among other things) was sufficient to find vesting in that particular 

case, it did not hold that it was sufficient in every case. And it certainly did not overrule Linville, 

which held that an inference could not overcome clear contract language inconsistent with an 

intent to vest benefits. 206 F.3d at 650–51. 

 8 

 

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Golden and decisions following it establish no such per se rule. Rather, those decisions 

set forth an inference—an indirect method for analyzing whether or not the parties intended the 

retiree health benefits to vest—to be used only in the absence of explicit contractual language 

addressing vesting. See McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417, 422 (6th Cir. 2004)

(explaining that Golden held that tying health benefit and pension eligibilities “suggested that the 

parties meant to vest” benefits (emphasis added)). The Sixth Circuit has never held nor ever 

suggested that the “tying” inference set forth in Golden can overcome explicit contractual 

language negating an agreement to vest. Cf. Linville, 206 F.3d at 651 (Yard-Man inferences 

cannot overcome express language limiting duration of benefits); Noe v. Polyone Corp., 520 F.3d 

548, 566 (6th Cir. 2008) (Sutton, J., concurring in part and dissenting in part) (“No case, to my 

knowledge, holds that tying language alone suffices to permit retirees to fend off summary 

judgment—much less to mandate that the benefits vested as a matter of law.”). 

For that reason, the Golden inference is not useful here. The parties directly and explicitly

said in their contracts that BorgWarner objected to vesting, and Golden and its progeny do not 

allow an indirect inference in the face of an explicit “agreement to disagree” about vesting. 

2. The Agreements’ Limits on Other Benefits Are Irrelevant. 

Plaintiffs also argue that, because the contracts place limits on the duration of certain 

benefits for surviving spouses and active employees on layoff or on leave, the Court should infer 

 

(continuation of footnote from previous page) 

Plaintiffs also rely on Bender, 2012 WL 1537916, at *1, which found vesting even 

though the retiree health benefits were not tied to pension benefits. (R. 102, Pls.’ Mot. Summ. 

J. 14.) Here, unlike in Bender, the parties explicitly agreed that BorgWarner did not intend to 

vest benefits. Further, as Plaintiffs note, the agreements in Bender contained only a general 

durational clause, but no durational provision specific to retiree health benefits. Here, the parties 

specifically agreed that when an HIA terminated, the retiree health care benefits provided in it 

also terminated. 

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that retiree health benefits were not subject to durational limits and, therefore, are vested. 

(R. 102, Pls.’ Mot. Summ. J. 14–16.) The HIAs here, however, do impose specific durational 

limitations on retiree health benefits. “The coverages provided under this Exhibit A terminate on 

the date . . . the Agreement is terminated.” (R. 95, BorgWarner’s Mot. Summ. J. SUMF ¶¶ 2, 6). 

The cases on which Plaintiffs rely involved contracts without specific durational limits on retiree 

health care. See, e.g., Yard-Man, 716 F.2d at 1482 (noting the absence of language limiting the 

payment of retiree insurance benefits to the life of the collective bargaining agreement); Bender 

v. Newell Window Furnishings, Inc., 725 F. Supp. 2d 642, 658 (W.D. Mich. 2010) (explaining 

that the durational clauses “[did] not specifically refer to the retiree benefits” and did not 

“unambiguously and expressly limit the duration of retirees benefits”), aff’d, No. 11-1335, 2012 

WL 1537916, at *1 (6th Cir. May 3, 2012). Further, the unique durational limits of some 

particular benefits, which may expire during the term of the pertinent HIA, cannot trump the 

HIA’s general durational limit on retiree health benefits. 

3. The 1992 Agreement’s Treatment of Future Hires and the 2005 

Agreement’s Treatment of Its Retirees Do Not Demonstrate the 

Vesting of Retiree Health Benefits. 

Contrary to Plaintiffs’ arguments, the agreements by the UAW and BorgWarner DTP that 

“Category B retirees”—individuals who were hired after 1992—were entitled to a retiree health 

account instead of a benefit plan, and that certain “grandfathered employees” could retire at the 

start of the 2005 HIA but receive the benefits described in the 2000 HIA (R. 102, Pls.’ Mot. 

Summ. J. 15–16), have no legal or logical connection to whether Plaintiffs’ retiree health benefits 

are vested. 

Bender, on which Plaintiffs rely for this point (id.), sheds no light on this case. In that 

case, the union and employer agreed in 1993 that employees retiring after January 1, 1994, 

would not be eligible for retiree health benefits; but the union and employer gave employees who 

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retired before January 1, 1994, the same benefits “as those being granted active employees as of 

January 1, 1986.” Bender, 2012 WL 1537916, at *6 (emphasis in original). The court separately 

found that pre-1986 benefits to be vested, id., meaning that persons retiring before January 1, 

1994 were entitled to the same vested benefits. The termination of benefits after January 1, 1994, 

had no bearing on whether the prior benefits were vested. 

In this case, individuals hired after 1992, known as Category B retirees, had not yet been 

hired when BorgWarner DTP and the UAW agreed in 1992 that these future hires would not be 

eligible for company-paid retiree health benefits. (R. 96 Ex. 3, 1992 Tent. Health Agmt. Ex. C 

at 1.) It is true that the unions and BorgWarner agreed that certain employees who retired after 

the 2005 HIA became effective could avail themselves of the more generous benefits provided in 

the 2000 HIA, but both the 2000 and 2005 HIAs are subject to the 1990 “agreement to disagree” 

and the durational limitations set forth in each HIA. Indeed, BorgWarner DTP’s lead negotiator 

in 2005 told the unions that the 2005 HIA described only the health benefits a retiree under it 

(including grandfathered employees) would receive “through the life of th[e] agreement,” and 

that the company made no promises about what would happen after the agreement expired. 

(R. 98 Ex. 18, Campbell Dep. 51:8–54:6.) Again, the express “agreement to disagree” and 

specific durational language forecloses the inferences advocated by Plaintiffs.7

 7 Jensen v. SIPCO, Inc., 38 F.3d 945 (8th Cir. 1994), cited by Plaintiffs (R. 102, Pls.’ Mot. 

Summ. J. 16), does not require a contrary result. As Plaintiffs concede, Jensen relied on the 

employee’s ability to decide between retiring immediately under a rich benefit scheme or 

continuing to work and retiring later under a less rich benefit scheme as extrinsic evidence of 

vesting. 38 F.3d at 951. Here, the unambiguous nature of the health benefit provisions in the 

CBAs and HIAs obviate the resort to such evidence. (See Part II below.) 

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4. The Agreement in 1992 to Ten Years of Deductible and Stop-Loss 

Increases Does Not Demonstrate that Plaintiffs’ Health Benefits Are 

Interminable or Unchangeable. 

Plaintiffs final contract-based argument is that the parties’ agreement in 1992 to a tenyear schedule of deductibles and stop-losses (which would outlive the 1992 and 1995 HIAs) 

demonstrates an intent to vest the benefits. (R. 102, Pls.’ Mot. Summ. J. 14.) If benefits really 

terminated when the HIAs terminated, Plaintiffs argue, then a provision continuing in effect after 

the HIA terminated would make no sense. (Id.) But BorgWarner does not contend that it was 

required to stop providing Plaintiffs retiree health care benefits after the termination of each 

HIA; rather, BorgWarner contends that Plaintiffs’ contractual right to health benefits ended 

when each HIA ended, unless a subsequent HIA continued the benefits. In fact, between 1989 

and the closing of the Muncie plant in 2009, BorgWarner DTP and the UAW agreed in 

successive HIAs to provide health benefits to individuals that retired under prior HIAs, 

sometimes with agreed upon modifications.8

More important, it is illogical to infer from the agreement in 1992 to a ten-year schedule 

of deductibles and stop-losses that Plaintiffs’ benefits last forever. See Linville, 206 F.3d at 650–

51 (holding that benefits were not vested even though union provided them beyond expiration of 

agreement). The better inference is that the parties pre-committed to deductibles and stop-losses 

that would apply from 1992 through 2002 if the post-1992 HIAs continued to provide health 

 8

 Plaintiffs state that the benefits of individuals who retired under the 1989 HIA were 

unchanged between 1989 and 2006, and argue that this demonstrates vesting. (R. 102, Pls.’ Mot. 

Summ. J. 20.) To the contrary, the parties contractually renewed and restated the benefits of these 

class members in subsequent HIAs, so that, after the 1989 HIA expired, benefits provided to each 

class member who retired from November 1989 through 1992 were restated in and dependent on 

each subsequent HIA in effect from1992 until 2009. 

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benefits.9

 And in any event, the benefit modifications at issue here occurred in 2009, seventeen 

years after the 1992 agreement and fourteen years after the 1995 agreement. 

II. EXTRINSIC EVIDENCE RELIED UPON BY PLAINTIFFS IS 

IRRELEVANT AND CANNOT LEAD TO SUMMARY JUDGMENT IN 

THEIR FAVOR. 

Plaintiffs’ attempt to bolster their vesting claim with extrinsic evidence is precluded 

unless the CBAs are ambiguous. See Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 

1288–89 (6th Cir. 1986) (“[W]here the meaning of the clause in question is clear, no construction 

is necessary.”). Extrinsic evidence also may not be used to create ambiguity in otherwise clear 

contract language. Id. (explaining that plaintiffs could not create an issue of fact using extrinsic 

evidence where there is clear contract language). In this case, the parties agree that the relevant 

contracts are unambiguous. Accordingly, Plaintiffs’ arguments regarding extrinsic evidence are 

irrelevant. Even if consideration of extrinsic evidence were appropriate, the extrinsic evidence in 

this case—whether from before the 1989 HIA or after it—does not support Plaintiffs’ entitlement 

to lifetime, inalterable health care benefits. 

A. Extrinsic Evidence of BorgWarner’s Intent in Pre-1989 Agreements Is 

Irrelevant and, in Any Event, Does Not Demonstrate Vesting. 

The class before the Court comprises individuals who retired in 1989 or later. 

Accordingly, HIAs in effect before 1989, or documents relating to those HIAs, are irrelevant to 

Plaintiffs’ claims. See Fed. R. Evid. 401 (relevant evidence bears on facts of consequence); id.

 9

 Plaintiffs cite the district court decision in Cole as authority for their position. (R. 102, 

Pls.’ Mot. Summ. J. 14 (discussing Cole v. ArvinMeritor, Inc., 515 F. Supp. 2d 791, 801 (E.D. 

Mich. 2006).) In Cole, the court found indications of an intent to vest in (among other things) a 

cost-sharing provision that adjusted by its terms when a retiree “reaches Medicare eligibility” 

(meaning he or she reaches age 65) and again when the retiree “reaches age 80.” See Cole, 515 

F. Supp. 2d at 801. These specific references to the (quite advanced) age of retirees indicated an 

intent to provide lifetime benefits in a way that the ten-year schedule of deductibles and stoplosses does not. 

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R. 402 (irrelevant evidence is inadmissible). The changes to the retiree health benefits at issue 

here relate only to the post-1989 retirees. It is noteworthy that the union held a seven-week strike 

in 1989 about health benefits, and that the “agreement to disagree” was included in the 1990 

ACME Contract. BorgWarner DTP made clear that it disputed the UAW’s claim that retiree 

health benefits were vested. (Ex. 35, Smith Dep. 60:8–18.) Chuck Smith, who was the 

International Representative assigned to the Local 287 testified: “I don’t think after the ’89 

[negotiations] that the company ever changed their position.” (Id. at 60:14–18.) 

It is surprising, therefore, that Plaintiffs rely on documents relating to those pre-1989 

HIAs to support their claim for vested benefits. Plaintiffs cite Gilbert v. Doehler–Jarvis, Inc., 87 

F. Supp. 2d 788, 793 (N.D. Ohio 2000), for the proposition that documents related to the 1986 

HIA may be considered as evidence of the parties’ intent in the later HIAs under which Plaintiffs 

actually retired. (R. 102, Pls.’ Mot. Summ. J. 19.) In Gilbert, however, the defendant agreed—

when it purchased the plaintiffs’ employer—to maintain the same insurance benefits that had 

been provided by the employer under older contracts. 87 F. Supp. 2d at 792–93. There is no such 

agreement in this case by BorgWarner. 

Even if the pre-1989 HIA evidence were relevant, it does not support Plaintiffs’ claim.10

Plaintiffs rely on a superseded “retirement summary” that states that surviving spouses can 

receive a pension benefit for their “lifetime, along with company paid insurance” and that if they 

got married, “the insurance would be cancelled.” (R. 104 Ex. 26, Feb. 14, 1989, Nuerge–

Turczynowsky Fax attach. 1.) But this document does not say expressly that the insurance is 

 10 For example, one of the documents on which Plaintiffs rely, a 1987 “position 

statement” states only that “[r]etirees will of course have both income and insurance.” (R. 104 

Ex. 29, 1987 Pos. Stmt. 2.) It says nothing about what the “insurance” consists of, much less the 

duration for which retirees would “have” it. 

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provided for the surviving spouse’s lifetime or that marriage is the only way in which surviving 

spouses can lose their benefits. Further, there is no evidence that this retirement summary was 

used during the class period of this case.11

Next, Plaintiffs rely on a 1987 draft of an “hourly insurance booklet,” which states on the 

first page that the company pays the “full cost of all health insurance” and, forty pages later, that 

retiree health insurance “is continued until . . . death.” (See R. 104 Ex. 30, Mar. 24, 1987, 

Studlow–Nuerge Mem. attach. 1, 41.) The letter accompanying the draft states that it is for 

“hourly retirees prior to October 1, 1986,” confirming that the document predates the class 

period and is irrelevant to Plaintiffs’ claims. (R. 104 Ex. 30, Mar. 24, 1987, Studlow–Nuerge 

Mem. 1.) Further, the draft does not expressly tie the statement about cost with the one about 

duration. And the draft also states that “[a]ll coverages terminate as indicated above or when you 

cease to be eligible, upon termination of employment status, or when the group policy 

terminates, whichever is earlier.” (Id. attach. at 41 (emphasis added).) In any event, there is no 

evidence that the draft booklet was ever finalized or distributed to retirees. 

Finally, and contrary to the inferences that Plaintiffs seek to draw from these materials, 

BorgWarner DTP made clear to the UAW and retirees that it did not consider benefits provided 

by the 1986 HIA to be vested. As the 1986 HIA came to an end, BorgWarner DTP determined 

that, because retiree health benefits were not vested, it would stop providing them if the 

Local 287 struck. (Stmt. Add’l Facts ¶ 1, p. 2 above.) BorgWarner DTP communicated this 

 

(footnote continued on next page)

11 Indeed, the evidence suggests to the contrary. First, the facsimile transmission 

enclosing the summary predates the 1989 HIA by several months. Second, BorgWarner DTP’s 

lead negotiator in 1989 and 1990, Jack Reising, testified that the reference to “Warner Gear” on 

the summary’s cover suggested that the document predated 1986. (Ex. 34, Reising Dep. 82:1–

21.) Third, former BorgWarner Inc. benefit expert George Turczynowsky testified that it had 

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position to the Local 287 as well as existing retirees, stating that “[t]he Company is not obligated 

to continue health insurance coverage for retirees.” (Id.) This direct evidence of BorgWarner 

DTP’s view of the 1986 HIA is more probative than the inferences Plaintiffs try to draw from 

other documents. 

B. Extrinsic Evidence of BorgWarner’s Intent After 1989 Defeats Plaintiffs’ 

View that Their Health Benefits Were Vested and Unchangeable. 

Plaintiffs also rely on extrinsic evidence that purports to show that BorgWarner 

understood the HIAs from 1989 through 2005 to provide vested retiree health benefits. (R. 102, 

Pls.’ Mot. Summ. J. 18–19, 20.) A close examination of this evidence illustrates, however, that 

none of it describes Plaintiffs’ benefits as lifetime in nature or inalterable. 

Plaintiffs point to several documents in an effort to show that their benefits last forever: 

 Some of the documents state that an employee’s insurance coverage continues 

after retirement or that a surviving spouse’s coverage continues after the retiree’s 

death. (R. 104 Ex. 22, 1989 Retiree Income Prog. Guide Booklet 17; R. 104 

Ex. 23, 1995 Retiree Income Prog. Guide Booklet 17; R. 104 Ex. 28, Surviving 

Spouse Docs. 1–3, 6.) 

 Some state that BorgWarner DTP pays for retiree health benefits or that such 

benefits are “free.” (R. 104 Ex. 22, 1989 Retiree Income Prog. Guide Booklet 17; 

R. 104 Ex. 23, 1989 Retiree Income Prog. Guide Booklet 17; R. 104 Ex. 24, 1990 

Retirement Summ. 1; R. 104 Ex. 25, 1995 Retirement Summ. 1; R. 104 Ex. 28, 

Surviving Spouse Docs. 1–4, 8–11.) 

Nothing in the documents promises that retiree insurance would continue “forever” or that 

benefits would be “free” forever. To the contrary, some of the documents stress that retiree 

insurance is paid “at the present time” by BorgWarner DTP. (R. 104 Ex. 24, 1990 Retirement 

Summ. 1; R. 104 Ex. 25, 1995 Retirement Summ. 1.) This evidence is insufficient to support 

 

(continuation of footnote from previous page) 

been superseded by later documents. (See Ex. 36, Turczynowsky Dep. 61:19–62:7; see R. 104 

Ex. 24, 1990 Retirement Summ. 4 (bearing Jan. 1990 date).) 

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summary judgment for Plaintiffs. See Reese, 574 F.3d at 326 (explaining that it does not follow 

from extrinsic evidence about the present nature of benefits that the benefits cannot change in the 

future).12 

Plaintiffs make much of the fact that other documents state that retirees become eligible 

for Medicare at age sixty-five. (R. 104 Ex. 24, 1990 Retirement Summ. 3; R. 104 Ex. 25, 1995 

Retirement Summ. 3.) Plaintiffs argue that for class members retiring at age fifty-five, “the 

promise of retiree healthcare benefits at the time of Medicare eligibility, would be illusory if it 

did not survive the expiration of the HIA.” (R. 102, Pls.’ Mot. Summ. J. 18.) But the retirement 

summaries do not promise that every retiree will receive retiree health benefits when he or she 

becomes eligible for Medicare. They merely state that retirees who become eligible for Medicare 

during the term of the current HIA must avail themselves of Medicare.13

Finally, Plaintiffs rely on a BorgWarner memorandum from 1998 stating that, for 

employees retiring before March 12, 1998, “benefits will be determined under the Plan as it 

existed at the time of retirement.” (R. 103 Ex. 3, French Decl. Ex. A at 4.) This language comes 

from a section on pension benefits. Even if (contrary to fact) the language described health 

benefits, it would mean only that initial retirement benefits are determined “under the Plan as it 

 12 The documents also state that benefits for surviving spouses terminate if they remarry. 

(R. 104 Ex. 24, 1990 Retirement Summ. 1; R. 104 Ex. 25, 1995 Retirement Summ. 1.) These 

statements need not be read to mean that remarriage was the only occurrence that could terminate 

a surviving spouse’s insurance. (See pp. 14–15 above.) 

13 Although Plaintiffs rely on the 1990 and 1995 retirement summaries, they make no 

mention of the checklists that accompanied those summaries. (See R. 100 Ex. 24, Nuerge Dep. 

45:17–46:25 (explaining that the checklists acknowledged receipt of the summaries).) At no 

point did any of the checklists from earlier in the class period describe retiree health insurance as 

“lifetime” or “vested” benefits. (See Ex. 28, 1990 Retirement Checklist 1.) Indeed, checklists 

from later in the class period stated that “[c]urrently, [the health insurance] premiums for these 

benefits are paid by the Company” and that benefits could change in the future. (Ex. 32, Cross 

Retirement Checklist 1; Ex. 33, Cross Dep. 23:16–19.) 

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 18 

 

existed at the time of retirement,” not that benefits could never change in the future. Moreover, 

this same document advises of changes to the prescription drug plan. (Id. at 3.) It does not 

support a claim for vesting.14

CONCLUSION 

For the reasons set forth above, BorgWarner urges the Court to deny Plaintiffs motion for 

summary judgment, and instead to enter summary judgment for BorgWarner. 

Dated: June 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

 14 Plaintiff rely on the distinction made in a 1999 memorandum between retirees hired 

before 1993 and the Category B retirees, who were hired after 1992. (R. 102, Pls.’ Mot. Summ. J. 

19 (citing R. 104 Ex. 27, Sept. 27, 1999, Nuerge–Roark Mem. 1).) As discussed above, the fact 

that recently hired employees would not have retiree health benefits says nothing about whether 

Plaintiffs’ benefits are vested. (See Part I.B.3 above.) 

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CERTIFICATE OF SERVICE 

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

Brief in Opposition to Plaintiffs’ 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 

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