UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLARD L. SLOAN, EUGENE J. 

WINNINGHAM, and JAMES L. 

KELLEY,

Plaintiffs,

v.

BORGWARNER INC., 

BORGWARNER DIVERSIFIED 

TRANSMISSION PRODUCTS 

INC., and BORGWARNER 

FLEXIBLE BENEFITS PLANS,

Defendants.

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

U.S. District Judge Paul D. Borman

U.S. Mag. Judge Mona K. Majzoub

BORGWARNER’S STATEMENT REGARDING

TACKETT AND ITS IMPACT ON THIS CASE

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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BorgWarner hereby responds to the Court’s call for a statement summarizing 

its “view of the impact that Tackett may have on this Court’s prior summary 

judgment ruling” and how it “anticpate[s] proceeding in this matter in light of the 

Tackett decision.” (R. 136, Order 1–2.) In short, M & G Polymers USA, LLC v. 

Tackett, 135 S. Ct. 926 (2015), reshaped the Sixth Circuit’s vesting jurisprudence 

and, on the summary judgment record before the Court, makes clear that summary 

judgment for BorgWarner is appropriate. Accordingly, BorgWarner proposes that 

the parties submit supplemental summary judgment briefing addressing how 

Tackett does (or does not) affect this Court’s summary judgment rulings on vesting. 

See Sloan v. BorgWarner, Inc., 1 F. Supp. 3d 743, 753–76 (E.D. Mich. 2014) 

(R. 127, Op. & Order 14–53); (see also R. 133, Order 5 (“[T]he Court’s summary 

judgment ruling . . . assuredly will be affected, one way or the other, by the 

Supreme Court’s resolution of the vesting issue in Tackett.”)).

I. TACKETT REPUDIATED YARD-MAN AND ALL RULES OF 

CONSTRUCTION DERIVED FROM IT.

In Tackett, the Supreme Court of the United States unanimously* vacated 

and remanded the Sixth Circuit’s decision that the retirees’ benefits in that case 

 * All nine justices joined the opinion in Tackett. Justice Ginsburg expressly 

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

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

weight and, to the extent it departs from the majority opinion, the majority opinion 

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

(footnote continued on next page)

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2

were vested. But the Court did much more than merely vacate and remand Tackett. 

The Court expressly rejected the Yard-Man inference and all the rules of contract 

construction that have grown up around it. First, the Court carefully reviewed the 

reasoning of the Yard-Man decision itself, noting its determinations that the “will 

provide” language “was ambiguous,” that inclusion of provisions for terminating 

active employees’ coverage contrasted with the absence of provisions for 

terminating coverage for the retirees, that a promise deemed applicable to some but 

not all retirees was “illusory,” and that the “context” of retiree health benefits made 

them “status benefits” unlikely to be left to future negotiations. 135 S. Ct. at 934.

Then, the Supreme Court discussed decisions following Yard-Man and the 

additional rules of construction that have evolved, including holdings that the 

phrase “will continue to provide” benefits unambiguously vests benefits, that a 

general durational clause “ ‘says nothing’ ” about the duration of retiree benefits, 

and that provisions tying eligibility for retiree health benefits to receipt of pension 

 

2004) (refusing to apply principles in concurring opinion, the author of which 

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

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

the opinion itself because the gloss that an individual [j]ustice chooses to place 

upon it is not authoritative.” B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 

293, 310 (3d Cir. 2013) (internal quotation marks omitted). Justice Ginsburg’s 

suggestion that certain rules of construction might survive is inconsistent with the 

opinion of the Court, and consequently is owed no deference.

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3

benefits indicate that retiree health benefits are vested. Id. at 934–35 (quoting with 

emphasis Noe v. PolyOne Corp., 520 F.3d 548, 555 (6th Cir 2008)).

Following this review, the Supreme Court repeatedly made clear that it 

rejected “the inferences applied in Yard-Man and its progeny.” Id. at 935; see also

id. at 933 (the Yard-Man “inferences conflict with ordinary principles of contract 

law”); id. at 936 (“[T]he Court of Appeals [in Tackett] misapplied other traditional 

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

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

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

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

contract law,” and vacated the decision. 135 S. Ct. at 937. In short, none of the 

rules of construction in Yard-Man or its progeny survive.

II. TACKETT SETS FORTH ORDINARY RULES OF 

CONTRACT CONSTRUCTION THAT GOVERN THIS CASE.

The Supreme Court also set forth rules of construction that must now govern 

construction of CBAs, including:

• “Parties . . . can and do voluntarily agree to make retiree benefits a 

subject of mandatory collective bargaining,” id. at 936;

• Congress determined in ERISA that “retiree health care benefits are 

not a form of deferred compensation,” id.;

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

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

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4

principle of contract law that the written agreement is presumed to 

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

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

retirees obtain a promised benefit, id.;

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

writings to create lifetime promises,” id.;

• It is also a “traditional principle that ‘contractual obligations will 

cease, in the ordinary course, upon termination of the bargaining 

agreement,’ ” id. at 937 (quoting Litton Fin. Printing Div., Litton Bus. 

Sys., Inc. v. NLRB, 501 U.S. 190, 207 (1991)); and

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

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

life,” id. at 937.

At least as significant as these rules of construction is the contrast drawn by 

the Supreme Court between its disapproval of the Yard-Man inference favoring 

vesting for collective bargaining agreements and its approval of the Sixth Circuit’s 

decision disfavoring vesting for non-collectively bargained contracts. It quoted 

with approval Sprague v. General Motors Corp., 133 F.3d 388, 400 (6th Cir. 1998): 

“ ‘Because vesting of welfare plan benefits is not required by law, an employer’s 

commitment to vest such benefits is not to be inferred lightly; the intent to vest 

must be found in the plan documents and must be stated in clear and express 

language.’ ” 135 S. Ct. at 937 (emphasis added). The Court reiterated later that “ ‘a 

collective-bargaining agreement [may] provid[e] in explicit terms that certain 

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benefits continue after the agreement’s expiration.’ ” Id. (quoting with alteration 

Litton, 501 U.S. at 207) (emphasis added).

Thus, the rules of construction governing this case are no longer to be found 

in Yard-Man and the decisions that followed it, which this Court employed 

previously. Rather, the governing rules are set forth in Tackett, and the new rules of 

construction dictate a result in this case different from the one reached last year.

* * *

Accordingly, BorgWarner respectfully urges the Court to accept 

simultaneous fifteen-page briefs from the parties addressing the impact of Tackett 

on the summary judgment ruling, followed ten days later by seven-page replies. 

BorgWarner further urges the Court to suspend all other deadlines while the Court 

reconsiders summary judgment in light of Tackett.

Dated: March 4, 2015

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/Joshua David Rogaczewski

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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CERTIFICATE OF SERVICE

I hereby certify that on March 4, 2015, I electronically filed the foregoing 

BorgWarner’s Statement Regarding Tackett and Its Impact on This Case with 

the Clerk of the Court using the ECF system which will send notification of such 

filing to all ECF participants.

s/Joshua David Rogaczewski

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

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