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_________________ 

OPINION

_________________ 

GRIFFIN, Circuit Judge. This is an action under the Labor-Management Relations Act 

(LMRA), 29 U.S.C. § 185 et seq., and the Employee Retirement Income Security Act (ERISA), 

29 U.S.C. § 1001 et seq. Defendants are Kelsey-Hayes Company and its parent company, TRW 

Automotive. Plaintiffs are a class of 400 retired union workers from the now-closed KelseyHayes automobile-manufacturing plant in Jackson, Michigan. Defendants appeal the district 

court’s grant of summary judgment, injunctive relief, and attorney fees in favor of plaintiffs. We 

affirm. 

I. 

 Plaintiffs worked at the Jackson plant until July 2006, when it shut down. All plaintiffs 

retired under one of three CBAs that were negotiated in 1995, 1999, and 2003; each of those 

CBAs contained identical language with regard to the issues pertinent to this appeal. 

Specifically, the CBAs provided, in a supplement, that Kelsey-Hayes would establish a health 

insurance plan, “either through a self-insured plan or under a group insurance policy or policies 

issued by an insurance company . . . .” Article III, Section 1 outlined specific types of health 

care services to which employees were entitled. Article I, Sections 3(b)(7) and 3(b)(8) provided: 

[Section 3(b)](7) For Retired Employees and Certain Former Employees 

The Company shall contribute the full premium or subscription charge for health 

care coverages continued in accordance with Article III, Section 5, for: 

(i) A retired employee and his eligible dependents, if any, provided such 

retired employee is eligible for benefits under Article II of the KelseyHayes Hourly-Rate Employees Pension Plan and; 

(ii) An employee and his eligible dependents, if any, terminating at age 65 or 

older for any reason other than a discharge for cause with insufficient 

credited service to entitle him to a benefit under Article II of the KelseyHayes Hourly-Rate Employees Pension Plan. 

[Section 3(b)](8) For Surviving Spouses 

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(i) The Company shall contribute the full premium or subscription charge for 

health care coverages continued in accordance with Article III, Section 

6(b) on behalf of a surviving spouse . . . and the eligible dependents of any 

such spouse . . . . 

In turn, Article III, Section 5 provided, in relevant part: 

The health care coverages an employee has under this Article at the time of 

retirement or termination of employment at age 65 or older for any reason other 

than a discharge for cause . . . shall be continued thereafter provided that suitable 

arrangements for such continuation[] can be made with the carrier(s). 

Contributions for such coverages so continued shall be in accordance with Article 

I, Section 3(b)(7). 

Finally, Article I, Section I contained what the parties have termed a “mutual agreement clause.” 

That clause provided: 

In the event the initiation of any benefit or benefits described in Article III of the 

Program does not prove practicable or is not permitted by the plans under which 

coverages are now provided on the dates stipulated in such Article III, the 

Company in agreement with the Union will provide new benefits and/or 

coverages as closely related as possible and of equivalent value to those not 

provided. 

 Consistent with the commitments set forth in the CBAs, Kelsey-Hayes provided health 

care for plaintiffs and their families both before and after the Jackson plant closed. This health 

care took the form of group insurance plans provided by private insurance companies, 

occasionally supplemented by available government benefits, such as Medicare Parts A and B. 

For example, after 2003, plaintiffs were initially enrolled in group coverage from Blue Cross 

Blue Shield of Michigan. The group coverages were changed twice after 2003—Blue Cross 

Blue Shield of Michigan was replaced with Meritan, and later Meritan was replaced with 

Humana. 

 In late 2011, however, things changed. In September 2011, TRW (which had purchased 

Kelsey-Hayes) sent a letter to plaintiffs indicating that it would be discontinuing group health 

care coverages beginning in 2012. Instead of group coverages, defendants would be providing 

plaintiffs with “Health Reimbursement Accounts” (HRAs). The HRAs were designed to 

function, essentially, as a health care voucher system; according to the letter, TRW would make 

a “one-time contribution [into the HRAs] of $15,000 for each eligible retiree and his or her 

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eligible spouse” in 2012, and “beginning in 2013, TRW [would] provide a $4,800 credit [into the 

HRAs] . . . for each eligible retiree and eligible spouse.” The notion was that plaintiffs would 

then use these funds to purchase their own insurance from among a variety of providers. 

 The HRAs differed from the prior group coverages in that they shifted risk—and 

potentially costs—off of defendants and on to plaintiffs. At the deposition of TRW Benefit 

Director Shelly Iacobelli, it was established that, under the HRAs, plaintiffs “bear[] the risk of 

expenses that exceed the company contribution[.]” For example, as Iacobelli confirmed, if a 

retiree spent $20,000 in 2012, the retiree would be responsible for the $5,000 spent in excess of 

the $15,000 in his or her HRA. Iacobelli admitted that in this way, the HRAs “shifted [the risk 

of excess costs] to the retiree[s,]” as “that risk used to be borne by the insurance company” under 

the prior group coverages. Similarly, TRW’s Vice-President of Compensation and Benefits, 

Steve Kiwicz, at his deposition agreed that, under the HRAs, it was “the retirees who bear the 

risk of excessive costs” beyond the level that the HRAs were funded; therefore, Kiwicz testified, 

the company had “limited its expenses” to the amount it had agreed to place into each HRA. 

Although TRW pledged to fund each HRA with $15,000 in 2012 and $4,800 in 2013, 

TRW and Kelsey-Hayes failed to commit to any funding of the HRAs beyond 2013. In this 

regard, Kiwicz testified that no commitments had been made past 2013, and Iacobelli testified 

that she did not know “what the plans are for 2014 and beyond” as to retiree health care. In fact, 

TRW claimed the right to unilaterally terminate the HRAs entirely—in the September 2011 

letter, TRW indicated that it “retain[ed] the right to amend or terminate the HRA[s]” altogether. 

In a pamphlet sent to plaintiffs explaining the HRAs, TRW asserted that it had the right to “at 

any time, increase, decrease, or eliminate the amount that is allocated to [the HRAs] each year,” 

and that, in TRW’s view, plaintiffs were “neither vested in [their] retiree healthcare benefits, nor 

[does] TRW intend to vest [plaintiffs] in retiree healthcare benefits. . . . TRW Automotive 

reserve[s] the right to amend, modify, suspend, replace or terminate any of its plans, policies or 

programs (including the HRA[s]) . . . .” 

Following the implementation of the HRAs, plaintiffs filed this action, claiming that the 

health plan change to HRAs breached the CBAs, in violation of Section 301 of the LMRA and 

ERISA. The district court allowed plaintiffs to proceed as a class and granted their motion for 

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summary judgment on all claims, ruling that the CBAs established a commitment to lifetime 

health care benefits for plaintiffs and their families, and that defendants’ unilateral 

implementation of the HRAs constituted a breach of the CBAs. In granting summary judgment 

and a permanent injunction, the district court ordered defendants to reinstate the “status quo,” 

that is, the health coverages that had been in effect up until 2012. The district court also awarded 

attorney fees to plaintiffs. Defendants timely appealed. 

II. 

A. 

This court reviews de novo a district court’s grant of summary judgment. Parsons v. City 

of Pontiac, 533 F.3d 492, 499 (6th Cir. 2008). Summary judgment is proper where “the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). When determining whether the movant has 

met this burden, this court views the evidence in the light most favorable to the nonmoving party. 

Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). 

B. 

 Before turning to the facts of this case, we first address a threshold legal issue. 

Specifically, it is necessary for us to correct defendants’ misapprehension regarding a pair of our 

prior cases: Reese v. CNH Am. LLC, 574 F.3d 315 (6th Cir. 2009) (Reese I) and Reese v. CNH 

Am. LLC, 694 F.3d 681 (6th Cir. 2012) (Reese II). In this regard, a brief overview of this court’s 

admittedly complex case law on retiree benefits is instructive. 

Our leading case on retiree benefits is UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 

1983). The issue in Yard-Man was whether the right to collectively-bargained-for insurance 

benefits survived the expiration of the agreement in which they were bargained. In other words, 

did the retirement insurance benefits vest? The court explained that “whether retiree insurance 

benefits continue beyond the expiration of the collective bargaining agreement depends on the 

intent of the parties,” and that “traditional rules of contractual interpretation are applied” to 

determine whether the parties so intended. Id. at 1479. The first place to look in discerning the 

parties’ intent is the explicit language of the collective bargaining agreement. Id. “[E]ach 

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provision should be construed consistently with the entire document,” and the terms “must be 

construed so as to render none nugatory and avoid illusory promises.” Id. at 1479–80. If the 

language of the CBA is ambiguous, courts may refer to extrinsic evidence in addition to the CBA 

to discern the parties’ intent. Id. at 1480; see also Moore v. Menasha Corp., 690 F.3d 444, 451 

(6th Cir. 2012); Cole v. ArvinMeritor, Inc., 549 F.3d 1064, 1069–70 (6th Cir. 2008). 

In Yard-Man, the “key provision” of the CBA stated: 

“When the former employee has attained the age of 65 years then: 

(1) The Company will provide insurance benefits equal to the active group 

benefits . . . for the former employee and his spouse.” 

Id. at 1480. The court ultimately concluded that, based on the language of the CBA and in the 

context of surrounding CBA provisions, the parties intended for the insurance benefits to vest. 

Id. at 1481–82. 

In reaching its conclusion, the Yard-Man court reasoned that “the context in which these 

benefits arose demonstrates the likelihood that continuing insurance benefits for the retirees 

[beyond the expiry of the CBA] were intended.” Id. at 1482. The court reasoned that “it is 

unlikely that such benefits, which are typically understood as a form of delayed compensation or 

reward for past services, would be left to the contingencies of future negotiations.” Id. 

Additionally, “retiree benefits are in a sense ‘status’ benefits which, as such, carry with them an 

inference that they continue so long as the prerequisite status is maintained.” Id. Accordingly, 

“when the parties contract for benefits which accrue upon achievement of retiree status, there is 

an inference that the parties likely intended those benefits to continue as long as the beneficiary 

remains a retiree.” Id. (emphasis added). This rule has come to be known as the “Yard-Man

inference.” 

In subsequent years, we continued to refine and clarify the scope both of the Yard-Man

inference and vested retiree benefit rights more generally. Among other things, these cases 

clarified that the Yard-Man inference was not a legal presumption that shifted the burden to the 

employer to disprove that benefits vested. See, e.g., Yolton v. El Paso Tenn. Pipeline Co., 

435 F.3d 571, 580–81 (6th Cir. 2006); Maurer v. Joy Tech., Inc., 212 F.3d 907, 915 (6th Cir. 

2000) (“Although there is an inference that the parties to a CBA intended for retiree benefits to 

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vest, the burden of proof does not shift to the employer, and it is not required that specific antivesting language be used before a court can find that the parties did not intend benefits to vest.”). 

Rather, the Yard-Man inference simply “requires ‘a nudge in favor of vesting’ in close CBA 

cases.” Moore, 690 F.3d at 450 (quoting Reese I, 574 F.3d at 321). In other words, under YardMan, in close cases, “[a] court may find vested rights ‘under a CBA even if the intent to vest has 

not been explicitly set out in the agreement.’” Noe v. PolyOne Corp., 520 F.3d 548, 552 (6th 

Cir. 2008) (quoting Maurer, 212 F.3d at 915). However, this court has repeatedly held that, 

above all, the CBA’s language governs. Indeed, “[w]hen other contextual factors so indicate, 

Yard–Man simply provides another inference of intent. All that Yard–Man and subsequent cases 

instruct is that the Court should apply ordinary principles of contract interpretation.” Yolton, 

435 F.3d at 580. 

Additionally, this court has clarified that “[a]n employer that contractually obligates itself 

to provide vested healthcare benefits renders that promise ‘forever unalterable.’” Moore, 

690 F.3d at 450 (quoting Sprague v. GMC, 133 F.3d 388, 400 (6th Cir. 1998) (en banc)). A 

breach of a CBA creates a federal right of action under Section 301 of the LMRA, which 

prohibits “violation[s] of contracts between an employer and a labor organization representing 

employees.” 29 U.S.C. § 185(a). In such an instance, there is also a derivative ERISA violation. 

See Maurer, 212 F.3d at 914. 

 This brings us to the Reese cases. In Reese I, we drew a distinction between the vesting 

of retirement benefits and “the scope of those benefits” under the facts at issue in that case. 

574 F.3d at 318. There, a CBA was entered into in 1971 and renewed periodically in 

substantially the same form until 1995 in which CNH (formerly Case Corporation) agreed to 

provide health insurance for retirees and their spouses. Id. In 1998, the parties entered into a 

new CBA which stated that: 

Employees who retire under the Case Corporation Pension Plan for Hourly Paid 

Employees after 7/1/94, or their surviving spouses eligible to receive a spouse’s 

pension under the provisions of that Plan, shall be eligible for the Group benefits 

as described in the following paragraph.

Id. A letter of understanding about the cost of health care coverage supplemented the 1998 CBA 

which specified that Case/CNH could “terminate a provider giving inadequate coverage and 

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adopt a replacement plan that will provide comparable benefits and access to the type of plan it 

replaces.” Id. at 319 (quotation marks and brackets omitted). In 2004, retirees sued, seeking, 

among other things, a declaration that they were entitled to lifetime health care benefits. Id. The 

district court entered judgment in favor of the retirees, and CNH appealed. Id. 

 On appeal, this court explained that the issues presented were: (1) “[d]id the employees’ 

right to lifetime health-care benefits vest upon retirement[?]” and (2) [w]hat does vesting mean 

in this context?” Id. at 322, 324. As for the first question, the court concluded that the rights did 

vest, and that therefore retiree health care could not be “unilateral[ly] . . . terminate[d].” Id. at 

323. 

 Turning to the second question—the scope of the benefits—our court concluded that the 

benefits could be “reasonably alter[ed]” unilaterally by CNH. Id. at 327. Consistent with this 

court’s precedent, the Reese I court relied on the CBA’s language and extrinsic evidence—the 

parties’ conduct—in reaching its conclusion. The court explained: 

no party to this case—the union, the employer, the retirees—viewed the benefits 

[as unalterable]. The 1998 CBA not only set the rules for employees who retired 

during the next six years of that CBA; it also reset the rules for employees who 

retired after July 1, 1994, which is inconsistent with the notion that the 1990 and 

1995 CBAs . . . created unalterable, irreducible health benefits. The 1994–1998 

retirees were not asked to consent to this change, and they did not consent to it. 

Id. at 324. We also noted that, despite the fact that the 1998 CBA “reset the rules” for the 1995–

1998 retirees in a way that actually hurt those retirees, they never complained about the changes. 

The court further reasoned that the letter of understanding, which circulated contemporaneously 

with the 1998 CBA, “show[ed] that the parties . . . contemplated replacing some managed care 

providers with others at some point in the future.” Id. at 325. We reasoned that the letter of 

understanding was an indication that the parties had contemplated 

the realities of managed care, in which a new plan may fail to cover providers or 

services that an old plan had covered, such that the retirees had no basis for 

assuming that each replacement plan would at best improve, or at worst precisely 

maintain, the level of care provided to each individual retiree. 

Id. at 325–26. Ultimately, this court remanded to the district court. This court wrote: 

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CNH, in short, cannot terminate all health-care benefits for retirees, but it may 

reasonably alter them. With this guidance, we leave it to the district court to 

decide how and in what circumstances CNH may alter such benefits—and to 

decide whether it is a matter amenable to judgment as a matter of law or not. 

Id. at 327. 

 Three years later, Reese returned to this court after remand. In Reese II, 694 F.3d at 683–

85, this court noted—as it did in Reese I—that the evidence, both from the CBA and from the 

parties’ conduct, indicated that the parties contemplated an evolving health care delivery system 

and that the scope of the vested health care benefit could change in light of that agreement. Id. at 

683–85. Concluding that the district court on remand had failed to answer the second question 

from Reese I (what does vesting mean in this context?), the court again remanded the case to the 

district court, this time with a set of specific factors to guide the district court in its determination 

as to what would constitute a “reasonable” alteration in health care benefits in that case. Id. at 

685–86. 

 Underpinning many of defendants’ arguments on appeal is a characterization of the Reese

cases as a major sea-change in Sixth Circuit retiree benefits case law. See Defendants’ Reply Br. 

at 2 (claiming that “Reese II represented a significant change” in the Yard-Man line of cases; see 

also Defendants’ Brief at 38-44; 44-47). Specifically, defendants characterize Reese’s 

conclusion that CNH could unilaterally alter the retirees’ health care benefits to mean that all 

CBAs in the Sixth Circuit are always unilaterally alterable, regardless of a CBA’s specific 

language. For example, defendants claim that Reese II “stated that, as a matter of law, an 

employer can make reasonable changes to retiree health insurance” once the right has vested. 

Defendants’ Br. at 38. 

 We disagree with defendants and reject their interpretation of the Reese cases. Contrary 

to defendants’ characterization, the Reese decisions are not a “significant change” in Sixth 

Circuit case law, but are entirely consistent with other Sixth Circuit retiree benefits cases insofar 

as the Reese courts simply examined the language of the CBA and the parties’ conduct in 

reaching their conclusions. See Yard-Man, 716 F.2d at 1479 (the plain language of the contract 

is the first place to look when discerning the parties’ intent); id. at 1479–80 (courts can look to 

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extrinsic evidence to discern the parties’ intent); see also Moore, 690 F.3d at 451 (same); Cole, 

549 F.3d at 1069–70 (same). 

In other words, the Reese cases simply did what “Yard-Man and subsequent cases 

instruct[,]” which is to “apply ordinary principles of contract interpretation” to CBAs. Yolton, 

435 F.3d at 580; see also Yard-Man, 716 F.2d at 1479. Specifically, the Reese courts based their 

analysis on, among other things: (1) the fact that the language of the 1998 CBA purported to 

retroactively change the benefits structure for workers who had retired prior to 1998; (2) the 

letter of understanding sent out contemporaneously with the 1998 CBA; and (3) the absence of 

any other contemporaneous evidence that might lead to a contrary conclusion. Indeed, a 

thorough reading of Reese reveals that each Reese opinion takes pains to repeatedly ground its 

rationale in the language and conduct of the parties. In sum, the Reese courts concluded that 

there, the scope of the vested right to health care could be unilaterally altered because that is 

what the evidence indicated the parties intended in that case, not because all vested health care 

rights in all CBAs are subject to unilateral alteration as a matter of law. 

C. 

 Having clarified the role of the Reese cases among the rest of our retiree benefits case 

law, we now turn to the primary issue in this case: What did the parties in this case intend with 

regard to retiree health care benefits? 

To discern the parties’ intent, we start—as our case law instructs—with the “explicit 

language of [the CBA.]” Yard-Man, 716 F.3d at 1479. Under the CBAs at issue here, KelseyHayes agreed to include certain medical services in their employees’ health care coverages. 

Article III, Section 5(a) of the CBAs provided that, once an employee retired, Kelsey-Hayes 

promised the now-retiree the “continuance” of “[t]he healthcare coverages [that he or she] ha[d] 

. . . at the time of retirement.” And, Kelsey-Hayes agreed to pay the “full premium or 

subscription charge for health care coverages continued in accordance with Article III, Section 

5” for retirees. We find this language unambiguous and hold that this CBA language alone, 

when construed in light of the Yard-Man inference, created a vested lifetime right to health care 

benefits. 

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We also hold that the unilateral implementation of the HRAs breached the CBAs, not 

because HRAs are “unreasonable” under the Reese cases, but because the HRAs are simply not 

what the parties bargained for in the first instance. Again, upon the commencement of their 

retirement, plaintiffs were entitled to the continuation of the same coverages they had as 

employees. Upon retirement, they all had company-provided group health insurance coverage, 

with Kelsey-Hayes paying the full premium for that insurance. The HRAs are not companyprovided group insurance; they are health care vouchers—essentially cash. According to 

Kelsey-Hayes’ own representatives, far from the company paying the full premium, the HRAs 

shift significant risks, including the potential costs of medical care, from the company to 

plaintiffs. Moreover, not only did defendants refuse to fund the HRAs past 2013, they failed to 

even acknowledge that the right to health care was vested in the first place;1

 the pamphlet sent to 

plaintiffs about the HRAs indicated that, so far as TRW was concerned, the HRAs were not 

vested and could be terminated at any time. For these reasons, we conclude that the 

implementation of the HRAs violated the CBAs. See Moore, 690 F.3d at 450 (“An employer 

that contractually obligates itself to provide vested healthcare benefits renders that promise 

‘forever unalterable.’” (quoting Sprague v. GMC, 133 F.3d at 400)). 

 Plaintiffs make much of the “mutual agreement clause” in Article I, Section 1 of the 

CBAs’ health care supplement. That clause provides that in the event that “the initiation of any 

[health care] benefit or benefits . . . does not prove practicable or is not permitted by the plans 

under which coverages are provided[,]” those coverages may be replaced with “new benefits or 

coverages as closely related as possible and of equivalent value” to those they replace; however, 

such a change can only be made with the agreement of the union. Plaintiffs argue that this clause 

is dispositive as to whether defendants could unilaterally implement the HRAs. We 

acknowledge that case law from this circuit has relied, to varying degrees, on the presence or 

absence of similar “mutual agreement” language. See, e.g., Moore, 690 F.3d at 459 (“By 

offering vested healthcare coverage to the retired employees . . . and by agreeing that the CBAs 

 1

Defendants have apparently changed their position on this point. In their briefs on appeal, defendants 

appeared to concede that the right to health care vested, but argued that the district court should be reversed because 

HRAs were reasonable modifications of the existing health care structure under the Reese cases. At oral argument, 

however, defendants’ counsel refused to concede that the right to health care vested in the first place, despite 

repeated questioning on the subject. 

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could only be modified on the signed, mutual consent of the parties, Defendant waived its ability 

to unilaterally alter . . . Plaintiffs’ healthcare coverage.”); Reese I, 574 F.3d at 326 (the CBA 

there “unless it says otherwise” should be construed to permit unilateral modification); Prater v. 

Ohio Educ. Ass’n, 505 F.3d 437, 444 (6th Cir. 2007) (“When a contract contains formal 

procedures requiring mutual, written assent to amend, that language preempts future unilateral 

termination of rights.”). However, this court has squarely held that 

[a]s a general rule, an existing contract cannot be unilaterally modified. Were it 

otherwise, the option of either party to modify a contract unilaterally would defeat 

the essential purpose of reaching an agreement in the first place—to bind the 

parties prospectively. . . . This principle applies with equal force to collectivebargaining agreements, where employers are statutorily barred from effectuating 

unilateral modifications of existing collective bargaining agreements. 

Prater, 505 F.3d at 443 (citations, quotation marks, and alterations omitted). Here, the mutual 

agreement clause simply reiterates this basic principle of contract interpretation. Accordingly, 

although the mutual agreement clause provides an additional piece of evidence that defendants 

could not unilaterally modify the CBAs by implementing the HRAs, we need not rely on the 

mutual agreement clause to reach that conclusion. We would reach the same result regardless of 

the presence of the mutual agreement clause. 

 However, although we need not rely on it to conclude that defendants could not 

unilaterally implement the HRAs, the mutual agreement clause is useful to our analysis in a 

different way. The mutual agreement clause stipulates that, in the event that replacement 

benefits are agreed upon, those replacement benefits must be “as closely related as possible and 

of equivalent value” to those originally provided. By including this language in the CBAs, the 

parties have removed any doubt not only that they intended that the right to retirement health 

care vest, but that they intended a particular kind of coverage to vest (namely, the type of 

coverage the employee had upon the commencement of his or her retirement, per Article III, 

Section 5(a)). Our approach in examining the mutual agreement clause for evidence of the 

parties’ intent with regard to other CBA provisions is consistent with Yard-Man, which 

instructed that “[t]he intended meaning of even the most explicit language can . . . only be 

understood in light of the context which gave rise to its inclusion.” Yard-Man, 716 F.2d at 1479. 

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 For these reasons, we disagree with defendants that the result warranted here is the same 

as the one in the Reese cases. To that end, we note that this case is factually different from the 

Reese cases as well. First, it was critical to the Reese I court that the 1998 CBA there “reset the 

rules” for employees who had retired under the previous CBA. Reese I, 574 F.3d at 324. By 

contrast, here, there was no resetting of the rules—each CBA here contained identical language 

to its predecessor with regard to retiree health care benefits. Unlike in the Reese cases, the 

parties here were playing by the same set of rules all along. Second, unlike in Reese—where the 

plaintiffs waited six years to sue—plaintiffs here did not wait idly by to take action; as soon as 

they received notice of defendants’ intent to implement the HRAs, plaintiffs sued. Third, unlike 

in Reese, where CNH simply “replac[ed] some managed care providers with others,” id. at 325, 

the HRAs not only were not what was bargained for (in that they are vouchers, not group 

coverage), but the HRAs also shifted the risk of excess cost from defendants to plaintiffs. 

Indeed, this case contains none of the indicia of intent present in Reese that led those courts to 

conclude that the parties intended for the health care benefits to be unilaterally modifiable. 

 In sum, we conclude that the CBAs established a vested right to lifetime health care 

benefits, and that the unilateral implementation of the HRAs breached the CBAs. 

 Defendants raise a number of arguments as to why the implementation of the HRAs was 

permissible. None has merit. 

 First, defendants argue that the coverage the HRAs provided to employees is better for 

the retirees than the group coverages they replaced. Defendants made some version of this 

argument in both their brief on appeal and at oral argument. More specifically, defendants point 

to the fact that under the HRAs, retirees can pick from a variety of plans to meet the retirees’ 

individualized needs. Defendants also argue that, based on their own internal accounting, the 

average amount a retiree spent per year on health care costs was $3,000, and the HRAs are 

funded well in excess of that amount. 

We find defendants’ claim that the HRAs will provide better coverage than the prior 

group coverages dubious. First, as noted above, defendants have refused to commit to continue 

funding the HRAs beyond two years. Second, it does not follow that no retirees will in the future 

exceed the level of HRA funding simply because no retiree has done so in the past. The cost of 

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health insurance premiums increases every year, and this growth shows no signs of slowing. 

See, e.g., Susan Adler Channick, Health Care Cost Containment: No Longer an Option But a 

Mandate, 13 Nev. L.J. 792, 794–95 (2013) (“A new study by the Kaiser Family Foundation that 

tracks employer-sponsored health insurance shows the average annual premium for family 

coverage in 2011 reached $15,073, an increase of nine percent over the previous year. The 

study indicates that the cost of family coverage has almost doubled in just one decade. As 

private insurers raise premium rates to meet the projected costs of health care, the burden of 

rising premiums falls on employers who often shift the rise in costs to employees. It is projected 

that rising private health insurance premiums will have an adverse effect on wage growth as well 

as the standard of living that individuals will be able to afford.”). Under the HRAs, if—or, more 

likely, when—the cost of a retiree’s annual health insurance exceeds the amount of money in his 

or her HRA, the retiree would be forced to incur the excess. By defendants’ own admission, this 

was not the case under the prior group coverages. Accordingly, we are skeptical of defendants’ 

claims that the HRAs provide better coverage for the retirees than did their previous health care 

coverages. 

In any event, whether the HRAs are “better” or “worse” than the prior group coverages is 

immaterial as a legal matter. As described above, the HRAs were simply not what was 

collectively bargained.2 The parties agreed in the CBAs that the retirees would get the same type 

of coverage they had upon retirement, which in the case of these retirees was group coverages 

with the full premium paid by the company. 

 Next, defendants argue that because plaintiffs did not sue when the group coverages were 

replaced with new group coverages—for example, when Blue Cross Blue Shield of Michigan 

was replaced with Meritan, and later when Meritan was replaced with Humana—plaintiffs have 

assented to unilateral changes and have waived their ability to challenge the HRAs. We 

disagree. Unlike the HRAs, the prior changes in group coverage did not violate the CBAs—in 

each case one group plan was replaced with another, with the company paying the full premium. 

 2

For this reason, to the extent that this opinion relies on the potential cost-shifting features of the HRAs, the 

fact that the retirees had group coverages upon retirement, etc., we do so to illustrate that the HRA structure is 

different from what the parties intended, not to opine about the relative quality of the HRAs compared to the prior 

group coverages. 

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 Defendants also argue that Article III, Section 1, Subsection (h) of the health care 

supplement unambiguously gives defendants the right to unilaterally modify plaintiffs’ 

retirement benefits. That subsection states that “[i]f in its judgment the Company considers it 

advisable in the interest of the employees, another arrangement may be substituted for all or part 

of the coverages” described in the supplement. We disagree with defendants’ interpretation of 

Subsection(h). Subsection (h), by its plain language, applies only to “employees.” Under the 

plain text of the CBAs, an employee is a “person regularly employed on a full time basis . . . by 

the Company on an hourly-rate basis . . . .” A provision that clearly applies only to current 

employees is immaterial to a determination regarding retirees’ health care. 

One more issue remains regarding the district court’s grant of summary judgment. 

Defendants argue that because the TRW defendants were not parties to the CBAs, they are 

improper defendants and that, therefore, summary judgment in favor of plaintiffs was improper 

“on this basis alone.” We disagree. 

Initially, we note that defendants have not cited any legal authority in support of their 

position on this issue, despite simultaneously asserting that this issue is dispositive. Nor do 

defendants point to any record evidence in support of their position. Instead, defendants merely 

refer to plaintiffs’ evidence and assert that it is deficient. For these reasons, defendants have 

arguably forfeited appellate review of this issue. Langley v. DaimlerChrysler Corp., 502 F.3d 

475, 483 (6th Cir. 2007) (where a party only addresses issues “in a perfunctory manner,” it 

waives its arguments on those issues). Even assuming, however, that defendants have not 

waived this issue, their argument is unpersuasive. 

Generally, a successor corporation is not liable for its predecessors’ liabilities unless 

expressly assumed. Yolton, 435 F.3d at 586 (citing NLRB v. Burns Int’l Sec. Servs., 406 U.S. 

272, 279, 286–88 (1972)). However, this rule is “not absolute . . . as the [Supreme] Court has 

held that a CBA might remain in force ‘in a variety of circumstances involving a merger, stock 

acquisition, reorganization or assets purchase.’” Id. (quoting NLRB, 406 U.S. at 291). To 

determine whether a successor corporation is responsible for its predecessors’ liabilities, courts 

examine “whether the two enterprises have substantially identical management, business, 

purpose, operation, equipment, customers, supervision and ownership.” Nelson Electric v. 

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NLRB, 638 F.2d 965, 968 (6th Cir. 1981). This analysis is “flexible,” and “no one element” is 

itself dispositive; rather, “all the relevant factors must be considered together.” NLRB v. Allcoast 

Transfer, Inc., 780 F.2d 576, 579 (6th Cir. 1986). 

Plaintiffs have introduced sufficient evidence that TRW is liable for Kelsey-Hayes’ 

obligations. Specifically, plaintiffs have introduced the following evidence: (1) Iacobelli 

testified that Kelsey-Hayes was acquired by TRW in 2003, at which point Kelsey-Hayes 

“became TRW,” and that the term “the company” was properly understood to “encompass both 

Kelsey-Hayes and TRW[;]” (2) open-enrollment documents for the 2011 enrollment season sent 

to Jackson retirees explained that Jackson retirees were covered under a “TRW Automotive 

provided medical plan[;]” (3) TRW, and not its Kelsey-Hayes subsidiary, implemented the 

HRAs, and in the pamphlet sent to retirees, it was TRW, and not Kelsey-Hayes, that reserved the 

right to modify benefits under the new HRAs; and (4) the collectively-bargained-for 2005 plant 

shutdown agreement named “Kelsey-Hayes (TRW)” as a party, drawing no distinction between 

the two entities. 

Accordingly, defendants’ position that Kelsey-Hayes had merely a “bookkeeping” 

relationship with TRW is belied by the evidence. The TRW defendants are proper parties to this 

litigation. 

III. 

 Having resolved the issues relevant to the district court’s grant of summary judgment, we 

turn to its grant of a permanent injunction. 

When evaluating a district court’s grant of a permanent injunction, this court reviews the 

district court’s factual findings for clear error and its legal conclusions de novo. Women’s Med. 

Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citations omitted). However, “[t]he 

scope of injunctive relief is reviewed under an abuse of discretion standard.” Id. 

 The Supreme Court has held that a plaintiff seeking a permanent injunction must “satisfy 

a four-factor test[.]” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 

Specifically, 

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[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; 

(2) that remedies available at law, such as monetary damages, are inadequate to 

compensate for that injury; (3) that, considering the balance of hardships between 

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the 

public interest would not be disserved by a permanent injunction. 

Id. We conclude that plaintiffs have satisfied these factors. Ultimately, compensating plaintiffs 

monetarily will not remedy the breaches of the CBAs—rather, the appropriate remedy is to 

require defendants to do what they agreed to do in the CBAs. This is all the injunction requires. 

Defendants raise two arguments in opposition to the permanent injunction. Neither has 

merit. First, defendants argue that “to the extent the District Court’s injunction order requires 

coverage for any of the expenses not expressly described in . . . Article III § 1 [of the health care 

supplement to the CBAs], it was in error.” We disagree. As described above, the parties 

intended to create a vested right to lifetime health care for the retirees within the strictures 

established by the CBAs in terms of coverage (i.e. group coverage, with defendants paying the 

full premium). All the injunction requires is performance consistent with the plain text of the 

CBA; indeed, by its very terms, the injunction simply requires a return to the “status quo ante.” 

Contrary to defendants’ argument, we do not interpret the injunction as requiring any more than 

was already required by the plain text of the CBAs. Accordingly, remand is unnecessary. 

 Second, defendants argue that the permanent injunction should be rewritten to 

specifically instruct that future changes to retiree health care benefits are permissible with the 

consent of both parties. Again, this is a condition already clearly spelled out in the CBAs. 

Accordingly, a remand to include what is already unambiguously contained in the CBAs is 

unnecessary. 

IV. 

Finally, defendants challenge the district court’s award of attorney fees to plaintiffs. 

This court reviews a district court’s award of attorney fees and expenses for abuse of 

discretion. Geier v. Sundquist, 372 F.3d 784, 789 (6th Cir. 2004) (citing Perotti v. Seiter,

935 F.2d 761, 763 (6th Cir.1991)). “An abuse of discretion is defined as a definite and firm 

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conviction that the trial court committed a clear error of judgment.” Harlamert v. World Finer 

Foods, Inc., 489 F.3d 767, 773 (6th Cir. 2007) (quotation marks omitted). 

Ultimately, an attorney fee award must be “reasonable.” Adcock-Ladd v. Sec’y of 

Treasury, 227 F.3d 343, 349 (6th Cir. 2000). To determine a reasonable fee award, the district 

court looks at “the proven number of hours reasonably expended on the case by an attorney, 

multiplied by his court-ascertained reasonable hourly rate.” Id. This court uses the “lodestar” 

approach to determine the reasonableness of attorney fees. Barnes v. Cincinnati, 401 F.3d 729, 

745 (6th Cir. 2005). Under that approach, the reasonableness of hours and the lawyer’s rate are 

determined by considering the following factors: 

(1) time and labor required; (2) the novelty and difficulty of the questions 

presented; (3) the skill needed to perform the legal service properly; (4) the 

preclusion of employment by the attorney due to acceptance of the case; (5) the 

customary fee; (6) whether the fee is fixed or contingent; (7) time and limitations 

imposed by the client or the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation, and ability of the attorneys; 

(10) the “undesirability” of the case; (11) the nature and length of the professional 

relationship with the client; and (12) awards in “similar cases.” 

Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005) (citations omitted). 

Here, in the district court, defendants did not argue that plaintiffs’ counsel’s hourly rate 

was excessive, opting instead to focus on the number of hours worked. The district court agreed 

with defendants that the number of hours claimed by plaintiffs’ counsel was unreasonably 

excessive and imposed an across-the-board reduction in the number of hours by 10%. See Auto 

Alliance Intern., Inc. v. U.S. Customs Serv., 155 F. App’x 226, 228 (6th Cir. 2005) (“This Court 

has recognized the propriety of an across the board reduction based on excessive or duplicative 

hours.” (citing Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986)). Defendants’ argument 

on appeal is that the district court did not reduce the number of hours enough. In light of our 

deferential standard of review, we cannot agree. 

Ultimately, defendants’ assertion as to what constitutes a reasonable number of hours is 

itself arbitrary. For example, defendants argue that plaintiffs’ cited 353.25 hours spent briefing 

for summary judgment should be reduced to 75. However, defendants offer no evidence that 

plaintiffs’ counsel spent only 75 hours briefing for summary judgment, nor do they offer any 

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reason why 75 hours is a reasonable amount of time for such a complex case. Accordingly, 

defendants have left us no reason to question the district court’s award, particularly in light of the 

highly deferential standard of review. Indeed, ultimately, 

[t]he trial court’s exercise of discretion [in an attorney fee case] is entitled to 

substantial deference because the rationale for the award is predominantly fact 

driven. This deference is appropriate in view of the district court’s superior 

understanding of the litigation and the desirability of avoiding frequent appellate 

review of what essentially are factual matters. 

Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 551 (6th Cir. 2008) (citations and quotation 

marks omitted). Finding no abuse of discretion, we affirm the district court’s attorney fee award. 

V. 

 For these reasons, we affirm the judgment of the district court. 

 

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_________________ 

CONCURRENCE

_________________ 

MERRITT, Circuit Judge, concurring. The dissenting opinion in this case reads much 

more into the court’s opinion than I recognize. It mischaracterizes the opinion and then rebuts a 

new and different opinion. It says that the opinion binds the parties forever to provide health 

benefits “in the same way.” My reading is the opinion only holds that the present proposal by 

the company violates the agreement of the parties in the present circumstances. There are many, 

many ways the circumstances could change in the future. The parties might reach a new 

agreement. The law might change as to requirements of employer health plans. The employer 

might propose a new insurer, etc. We are not “tying the hands” or “handcuffing” the company to 

one mode of providing retiree benefits, or presenting a “straight jacket view” of health care in the 

future. Paragraph after paragraph in different language repeats the refrain that the opinion is “an 

advisory opinion.” I do not see the opinion as an “advisory opinion” about anything but an 

opinion that affirms the district court’s opinion that the company proposal blatantly violates the 

contract between the parties. 

 At the end the dissenting opinion would remand the case — presumably to allow the 

parties to renegotiate and the company to present to the court (presumably unilaterally) a new 

plan of health reimbursement accounts so that the district court can redetermine on that new 

record whether the company’s new plans are a “reasonable equivalent” of what the company has 

provided before. Our obligation is to decide the case on the present record based on the 

judgment of the district court, not to make up a new case, the outcome of which would be more 

favorable to the employer. On the present record the employer clearly violated its legal 

obligations and should be required to pay the price of its recalcitrance. 

 

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_________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART

_________________________________________________ 

SUTTON, Circuit Judge, concurring in part and dissenting in part. Our precedent 

compels the conclusion that Kelsey-Hayes promised to provide retirees health-insurance 

coverage for life. And our precedent compels the conclusion that Kelsey-Hayes violated that 

promise (1) when it created Health Reimbursement Accounts—employer-provided funds that 

employees may spend on health insurance and other healthcare-related expenses as they wish—

that it promised to fund only for two more years (2012 and 2013), and (2) when it reserved the 

right to eliminate all retiree healthcare coverage after that. On this record, there is no need to get 

into whether the company had the right to make other reasonable modifications to coverage for 

years not yet at issue—2014 and beyond. A decision to fund an alternative form of coverage for 

two years does not deliver on a lifetime commitment. And a reservation of rights to end all 

coverage is the antithesis of a lifetime commitment. That should end the discussion. And, to that 

extent, I agree with the majority in full. 

 But the majority proceeds to resolve whether, if Kelsey-Hayes had agreed to fund the 

Health Reimbursement Accounts for life, that would satisfy the company’s obligations. This 

advisory opinion runs into the customary problems associated with “ghosts that slay.” Felix 

Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1008 (1924). The opinion 

offers advice about Health Reimbursement Accounts in 2014, when the company has made no 

promise of providing any Account for any retiree. It offers advice about such Accounts when the 

record is silent about the amount, if any, by which the company would fund each Account. And 

it does all of this on summary judgment, when we have no consensus on how these Health 

Reimbursement Accounts would work. Indeed, given the direction the inferences must run and 

given the evidence in this record, we must assume that the Accounts will provide better

healthcare coverage than the old system and that the administrative burdens on retirees will be 

minor once the new system is in place. 

The court’s dictum also purports to answer a difficult question, one that will grow in 

importance as the legal and policy imperatives of health insurance continue to evolve. The one 

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constant in healthcare is change. No health-insurance program remains fixed, and no company 

offers the same plan year in year out. That puts companies not only in the business of making 

what they make but also of constantly making adjustments to coverage to provide employees 

(and retirees) with basic benefits in a reasonable and reasonably cost effective way. Binding a 

company to provide lifetime benefits may be feasible; binding it to provide benefits in the same 

way for the duration of a retiree’s life is not. The national healthcare law indeed recently ushered 

in an assortment of new requirements for health insurance plans and companies providing 

healthcare insurance. In the context of this moving target, we should be careful about tying the 

hands of companies, employees and retirees. Nor at any rate would an unchangeable healthcare 

plan favor retirees. “Retirees, quite understandably, do not want lifetime eligibility for the 

medical-insurance plan in place on the day of retirement, even if that means they would pay no 

premiums for it. They want eligibility for up-to-date medical-insurance plans, all with access to 

up-to-date medical procedures and drugs.” Reese v. CNH America LLC (Reese II), 694 F.3d 681, 

683–84 (6th Cir. 2012). 

This case highlights the perils of handcuffing a company to one mode of providing retiree 

benefits. By prematurely rejecting Health Reimbursement Accounts for all companies and all 

retirees in the circuit, the majority denies many Kelsey-Hayes retirees (and who knows how 

many others) better and more flexible coverage. For 2012 and 2013, the record establishes, the 

Health Reimbursement Accounts gave retirees more than enough money to purchase equivalent 

coverage, guaranteed them access to an individual insurance plan, provided them with a broker 

to select and obtain an insurance package, and allowed them to pick the most useful combination 

of benefits for their family’s situation. The majority counters that 2014 and 2015 might look 

different, because healthcare costs could go up. Yes, they could, but so could the size of the 

Accounts. The summary judgment record, remember, says nothing about how much money the 

company would contribute to the Accounts after 2013. The majority’s assumption that the 

Accounts will not grow fast enough to keep up with healthcare costs, see Maj. Op. at 13B14, fits 

uncomfortably with—indeed contradicts—its reassurance that it has looked at the evidence “in 

the light most favorable to [the employer],” id. at 5. 

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There is more to these Accounts than money in any event. Instead of a one-size-fits-all 

group insurance plan, the Accounts allow retirees to customize coverage to their needs and to 

access far larger insurance-risk pools at lower costs than one company’s plan could allow. 

Under this new system, a retiree could elect to purchase an individual insurance program that 

covers the same services as the prior Kelsey-Hayes group-insurance plan. Or he could select 

another package that omits some previously covered services and adds others. Excess funds (and 

there were many) could be used to pay medical bills—such as premiums for Medicare Part B, 

co-payments for out-of-network or out-of-area treatment and the cost of specialty drugs or 

medical products—that the company insurance never covered before. Yes, this is not the same 

coverage. But who wants the same thing when he can get something better? Under the 

majority’s reasoning, the same thing is the only thing; “whether the HRAs are ‘better’ . . . is 

immaterial.” Maj. Op. at 14.

 Aside from the irony of hurting many people the majority purports to help (surely some 

of the 400 retirees in this case would prefer fully funded HRAs), I cannot resist remarking on an 

irony in the majority’s straitjacket view of what does, and does not, amount to reasonably 

equivalent healthcare coverage. In deciding that healthcare benefits could “vest,” our case law 

has long relied heavily on an analogy between pensions and healthcare benefits. Reese v. CNH 

America LLC (Reese I), 574 F.3d 315, 324 (6th Cir. 2009). We now have a company that has 

taken us at our word. It has taken its prior healthcare packages for retirees, determined what they 

are worth, committed to provide that money directly to retirees, and allowed them to purchase 

healthcare coverage (with assistance from the company’s consultant) on their own. If one were 

to design a vested healthcare pension program, this is exactly what it would look like—so long 

as it is fully funded into the future. Yet in the absence of a record as to how this plan would 

work in later years, in the absence of any factfinding about its impact (pro or con) on retirees, 

indeed in the absence of any plan at all for 2014 and beyond, the majority purports to hold as a 

matter of law that no such plans may ever satisfy our “vesting” case law. So what would always 

work for pensions will never work for healthcare. Perhaps, as this case shows, the analogy was 

not such a good idea in the first place. If an analogy to pensions does not support this decision, 

what does? Surely not the contract. Nothing in this contract, or any of the relevant contracts in 

our cases, dictates the method of providing retiree healthcare coverage in the future. 

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Instead of issuing an advisory opinion about Health Reimbursement Accounts not before 

us, I would take a different path. I would hold that the company undertook a commitment to 

provide lifetime healthcare coverage, and it breached that commitment by not committing to 

provide care beyond 2013. I would then remand the case to the district court to determine 

whether the company is willing to fund the Health Retirement Accounts beyond 2013 and, if so, 

at what amounts. With this evidence in hand, I would ask the district court to determine how any 

such plans would affect the 400 or so retirees, for better or worse, and determine on that record

whether the company’s method of providing healthcare coverage amounted to a reasonable 

equivalent of what the company has provided before. 

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