Robert D. Sprague, Plaintiffs-Appellees/cross-Appellants v. General Motors Corporation, Defendant-Appellant/cross-Appellee

Educ., (1st 773, Department appropriate 736 F.2d length because the of the M- of 359, Cir.1984), 1996, aff'd, 471 U.S. proceedings S.Ct. Team was reasonable. The dis- (1985). In eases trict court L.Ed.2d 385 where the should have reviewed this deter- mination, which dialogue clearly disputed lack of stems from the school dis was also appropriate summary judgment. trict’s failure to conduct sufficient “child- find,” may appropriate. reimbursement Ill way,

Put another reimbursement after a placement appropriate, unilateral can be find, therefore, We that the district court’s upon finding sufficiently proce- serious grant summary judgment inappropri- dural failures the school district. Ash See ate in this Accordingly, case. we REVERSE Dist., Oswego 585, v. Lake Sch. 980 F.2d 589 the district court and REMAND for further (9th Cir.1992); Hall ex rel. Hall v. Vance proceedings opinion. consistent with our Educ., County Bd. 634-35 (4th Cir.1985). though Even the Does had general knowledge some availability

services, apprise the failure Metro to specific procedural

Does of their and sub- rights

stantive could make reimbursement a

proper remedy. Therefore, reject we Metro’s claims that SPRAGUE, al., D. Robert et Plaintiffs- general the Does’ knowledge meant as a Appellees/Cross-Appellants, they matter of law that were not entitled to reimbursement. Mere knowledge is not sufficient to inquiry, partic- foreclose this CORPORATION, GENERAL MOTORS ularly procedural when there is evidence of Defendant-Appellant/Cross- by the failures school district. The extent of Appellee. knowledge determined,

the Does’ needs to be 94-1896, 94-1897, Nos. 94- degree as well as the laxity. Metro’s 1898 and 94-1937. Then, these two factors needed to be other, weighed against weight each with due Appeals, United States Court of given to the ALJ’s determinations. The ALJ Sixth Circuit. factors, weighed course, but the dis- trict performed court should have its own Argued April 23, 1997. analysis, evidence, based on all available Decided Jan. merely rather than adopting summary judgment the ALJ’s evaluation of the admin-

istrative record. This will be the district

court’s task on remand.

C

The district court also should have

given separate consideration to reimburse

ment for “pendency” the six-month period

between the Does’ first official contact with

Metro in requesting October the M- meeting,

Team and the bring decision to Doe system

into the April Metro 1994. It is that,

possible if even were not entitled pre-pendency reimbursement, the Does pendency entitled to reimbursement. recognized possibility, ALJ but pendency

found that reimbursement was not briefed),

Stephen Shapiro M. (argued and Mayer, Platt, Chicago, IL, Brown & Kenneth (briefed), Platt, Mayer, Geller Brown & S. DC, (briefed), Washington, Robert F. Walker Gordon, Paul, Hastings, Elliot K. Janofsky & Walker, Monica, CA, for Santa General Mo- Corp. tors Green, (ar- M. Karen L. Handorf Susan briefed), Department gued and U.S. of La- bor, Solicitor, DC, Washington, Office Monarch, Nancy Department E. U.S. of La- bor, Solicitor, DC, Washington, Office Secretary Amicus Curiae Labor. Mary Signorille, Ellen American Associa- Persons, DC, Washington, tion Retired Amicus Curiae American Association of Re- tired Persons. (briefed),

David M. Heilbron Leslie Lan- (briefed), (briefed), Page dau B. Barnes MeCutchen, Enersen, Doyle, & Brown San CA, Francisco, for Amicus Curiae Chamber States, Michigan Commerce the United Association, Manufacturers Industry ERISA Committee. MARTIN, Judge;-LIVELY,

Before: Chief MERRITT, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, Judges. and Circuit NELSON, J., opinion delivered the of the court, RYAN, BOGGS, NORRIS, in which SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, JJ., and 406-08) joined. LIVELY, (pp. MERRITT, 408), (p. separate JJ. delivered opinions part in concurring dissenting in MARTIN, part. 408-16), (pp. C.J. delivered separate opinion, a dissenting which COLE, JJ., joined. MOORE and (briefed), Christopher G. Mackaronis OPINION Ray- Fay (argued mond C. briefed), Hillary L. NELSON, DAVID A. Judge. Circuit Pettegrew, Bell, Boyd Lloyd, Washington, & purported This is a action in class which DC, Peters, Douglas J. Charfoos & Christen- employees of the de- —retired sen, Detroit, for Plaintiff-Appéllee MI fendant, General Corporation allege Motors — 94-1896, Nos. 94-1897 and 94-1898. that GM Employee violated the Retirement (briefed), Christopher G. Mackaronis Ray- Security Income Act of 29 U.S.C. Fay (argued briefed), mond C. Hillary seq. (“ERISA”), §§ L. by denying 1001 et them Bell, Pettegrew, Boyd Lloyd, Washington, fully “paid-up” & lifetime health care benefits. DC, Plaintiff-Appellee in No. 94-1937. court a The district certified class of some Prior to 1985 the health care benefits were 50,000 had taken retire- employees who provided through arrangements private with ment, grant class the court declined but 34,000 who insurers. insurers issued each covered “general retirees” status to about company’s person describing with the a certificate insurance accordance retired in had the underlying the terms and conditions of general retiree normal criteria. As policy. court held that the benefits plaintiffs, the pertinent not vest under question did fully in 1985. GM became self-insured At retirees, As to the documents. document, company prepared that time the however, court held each the district entitled “The General Motors Health Care 50,000 the class had entered members of Program Employees,” Insurance Salaried separate that called for into a contract that set forth the terms and conditions of be furnished for life benefits program. health care GM’s self-insured alternative, recipient. In the no cost document, district court found that this to- estopped rely the court ruled gether subsequent documents announc- documents to defeat on the terms of comprised ing changes coverage, GM’s any early claims of retiree. care from and after benefits plan gave participants 1985.2 The new judgment of dis- shall affirm the

We choice retirees, between traditional fee-for-serviee but court as to the trict managed in a coverage enrollment care the court’s certification class reverse organization. supplemen- GM continued Insofar as the merits of early retirees. coverage program, shortening the name tal plaintiffs are named claims asserted Comprehensive Expense Medical Pro- concerned, claims fail as we conclude gram. of law. matter long practice GM has made inform retirees of its salaried providing coverage by care them health A containing compa- summaries of the booklets policies ny’s programs. insurance health paying part began Motors In put out a booklet entitled Prior to 1974 GM its health insurance for salaried of the cost of Program for Salaried “The GM Insurance surviving spouses. their Three retirees1 and Employees.” After ERISA took effect in years the full cost basic later GM assumed “Highlights of Your 1974 the booklet became retirees, and insurance for its salaried health in Beginning 1977 GM also GM Benefits.” surviving to in 1968 extended this benefit “Your Benefits issued booklet called (In simplici- spouses as well. the interest publications Retirement.” Each of these surviving spouses will ty, to further reference through different editions. went a series of omitted.) generally be contained lan- A number of the booklets insurance, health GM In addition to basic guage informing plan participants supplemental offered salaried retirees plan pay to health health care called for GM Compre- was called the coverage under what during insurance costs retirement: Pro- Expense Insurance hensive Medical (cid:127) eligible ... to you “If retire and are gram. Participants optional program in this under the receive retirement benefits required pay premi- a share of the were provisions Retirement Pro- ums, cer- of the GM co-payment required was for may Employees, you gram for There were also annu- Salaried tain medical services. keep your hospital, surgical and basic al deductibles. static, here, Although signi- the content of the 1. As used term "salaried retirees” here; no the district court this fact has relevance employees had re- non-union GM who been fies found, clearly agree, all versions and we salaries, wages, hourly ceiving at the rather than right amendment or termi- reserved to GM the they either retired. All of are time single GM We therefore refer to nation. shall spouses surviving or the of sala- retirees salaried something "plan," recognizing that this ried simplification. expense coverages age. medical effect---- mal retirement The inducements have included, monthly pro- pay premium among things, GM will the full other offers to pension vide charge coverag- for such benefits to at subscription longer levels not peri- reduced reflect es.” The General Motors Insurance (1968). expected ods over which such can be benefits Program Employees for Salaried to accrue. Some of the nearly The 1971 version was identical. initiatives, programs company-wide were (cid:127) “Hospital-Medical Coverages: ba- Your applied particular others plant, while to a Corpo- coverages provided sic will be at division, plants group or divisions. your ration expense for lifetime....” (1974). Highlights employees Your accepted early GM Benefits Salaried who re- sign tirement were often asked to documents (cid:127) coverages ‘Tour basic care will be evincing acceptance of the terms of the provided expense your at GM’s for life- particular program under which time----” Your Benefits Retirement retiring. From 1974until 1984 GM utilized (1977). accep- so-called form” “short statement of (cid:127) pays any “General Motors the full cost of typically tance. This lan- document included care con- coverages basic health along guage following lines: tinued for most retired “Management has discussed me eligible surviving spouses chil- possibility retiring Special under dren of deceased Your Bene- retirees.” Early provisions Retirement of the Gener- (1977). fits in Retirement Program al Motors Retirement for Sala- However, put most of the also booklets Employees. ried have evaluated participants on notice of GM’s applicable benefits provi- me under the change or terminate the health care at Program agreeable sions of the and am any time: Retirement____” accepting Special Early (cid:127) wholeheartedly “General Motors believes In adopted “long 1984 GM form” state- Program this Insurance men GM of acceptance. typically read, ment It women, expects continue part, something like this: However, Program indefinitely. re- “Management has discussed with me the right modify, revoke, serves the sus- option of continuing my employment with terminate, pend, or change Program, or accepting General Motors an immediate time____” part, in whole or in special Special retirement under the Re- The General Motors Insurance Program provisions tirement of the General Motors (1965, Employees for Salaried and Program Retirement for Employ- Salaried 1971). I ees. appli- have evaluated the benefits (cid:127) Corporation “General Motors reserves cable to me under provisions of the amend, right change to or terminate Corporate Special General Motors Wide Programs Plans and described Separation Program have to decided (1985). this booklet.” Your GM Benefits accept them. (cid:127) Corporation “The right reserves the to amend, modify, suspend, or its terminate I am with special satisfied the terms of the by benefit or Programs Plans of action retirement accept offer and this offer vol- its Board of Directors.” Your Benefits untarily knowledge with full signifi- (1985). in Retirement cance, by including accepting the fact that any way it I waive in any claim connected

B my separation with employment more For than two en- decades GM has I acknowledge General Motors. no that gaged systematic prior reductions in the representations, promises size agree- or its salaried my workforce. In this relating employment connection ments and re- company special early has re- launched tirement have been made Mo- programs tirement designed to contrary agreement induce sala- tors which are to this ried workers to retire reaching before nor- special retirement offer and coverage special become effective health care for of the retirement

my acceptance only employees and retirees. In agree- both salaried the entire and offer constitute plan participants who tradi- Motors. case elected me and General between ment coverage, changes eligible for tional fee-for-service I shall not be understand an for no further included annual deductible and shall have $200 recall to work for Fee-for- Motors individuals and families. employment $250 with General right to participants required were service to make of its subsidiaries.” Corporation services, co-payments up 20% medical variants, all but had numerous Both forms co-payment of By an annual maximum $500. early retiree had that the stated essence changes, reason of these two fee-for-service “ac- applicable” the benefits “reviewed participants find themselves could re- benefits, for In return such eept[ed] them.” year sponsible paying for as much as $700 early agreed to waive certain retirees (with (with coverage) or fami- individual $750 they might against have had causes action ly coverage) previously that would been have GM. paid by GM. early signed all a statement Not retirees only changes These were not the made to merely signed a “state- acceptance. Some the health care for salaried retire, appar- of intent” to while others ment hearing Vision and aid cover- retirees. ently signed nothing. eliminated, example, ages were for while special explaining its ear- In the course of cost-sharing partici- there were for increases numer- ly programs, GM made retirement Comprehensive pants in the Medical Insur- representations oral and written about ous time, however, Program. At ance the same early health care benefits available coverages improved. some benefits and partici- Most of the retirees particular pated in exit interviews where a D program was described. retirement present lawsuit was commenced by plant were conducted These interviews August retirees salaried who staff, members of the benefits supervisors, changes challenged legality of the Many also others. retirees health care took effect in 1988. applicable summarizing received documents plaintiffs’ complaint The main thrust of the benefits. These summaries often provide was that had bound itself to health insurance informed retirees that their spouses basic salaried Again/how- life: paid by GM for would life, entirely coverage at GM’s ever, put the re- such documents sometimes expense. right coverage to such vested right change tirees on notice of GM’s retirement, according upon plaintiffs, advised, summaries benefits. Certain coverage changed never be so the could Corp. re- example, Motors “General revoked. amend, change or termi- serves the separate Seven causes of action were Programs nate described.” (1) maintain pleaded: failure to the written early retirees received individualized Some (2) ERISA; required by plan documentation early programs. about retirement letters (3) plan; breach violation of the health care early explicit- of retirees a small number And (5) (4) contract; fiduciary duty; of of breach ly representatives about future asked GM (6) equitable promissory estoppel; failure The an- changes to health care benefits. (7) information; supply requested and fail- to seems, given, it accurate —bene- swers were comply requirements ure with the changed the future. fits could be plan descriptions. summary The named represent class plaintiffs purported to a of C individuals, 84,000 similarly-situated some 50,000 early early in about of whom were retirees and Late in 1987 announced that GM 34,000 general retirees.3 year significant changes of whom following would the salaried, agreed to retire be- “early non-union who retirees" refers to 3. The term 396 retirees, partial summary general

The court entered district to whom it made no judgment making promises benefits, after favor GM the v. Sprague vest followingrulings: Corp., F.Supp. General Motors 857 (E.D.Mich.1994) 1188-89 (“Sprague (cid:127) plaintiffs’ the benefits did not vest under III”); plan, Sprague the terms of the welfare (cid:127) Corp., chang- GM was held F.Supp. estopped to be from General Motors 768 (E.D.Mich.1991) ing I”); early the health (“Sprague care benefits of the 610-11 retirees based on the oral and written (cid:127) summary plan descriptions generally the representations them, it made to id. at put plaintiffs the on notice GM’s 1190-92; and id.; plan, to amend or terminate the (cid:127) enjoined GM was during appeal from (cid:127) plaintiffs claim the had no for breach of making further changes adverse fiduciary duty, having acted a health prevailing care benefits the fiduciary capacity amending when the plaintiffs, id. at 1192-93. plan, id. at 612. August In the district court en- I, Sprague After the district court allowed a judgment tered final all embodying of its early proceed the a on bilateral previous rulings. plaintiffs per- and GM theory everyone pro- contract and allowed timely appeals, fected and each of the afore- theory. procedural estoppel ceed an rulings mentioned challenged was one litigation shaped by course of the was further side or appeals the other. The were consoli- following pretrial rulings: dated, three-judge panel of this court (cid:127) plaintiffs jury were not entitled to a rulings affirmed the early favor of the trial, Sprague v. Corp., General Motors retirees and remanded case for reconsid- (E.D.Mich.1992); F.Supp. eration of the (except plaintiffs’ issues (cid:127) proceed retirees could not as demand) jury on which the district court had class; held Sprague for GM. See v. General Motors (cid:127) early proceed retirees could as a (6th Cir.1996). Corp., 92 majori- A pursuant 23(b)(2), class to Rule Fed. ty of the judges active of this court subse- R.Civ.P. banc, quently voted rehear case en panel Following trial, thereby decision lengthy vacated. bench dis- (6th Cir.1996). F.3d 204 rulings Supplemental trict court made these on the briefs merits: filed, having been having and the ease been (cid:127) GM was found to have made a bilateral argued court, the full ready before we are contract with each retiree to vest issue our final decision. retirement, health care benefits Sprague v. General Motors (E.D.Mich.1994) II

F.Supp. ”); (“Sprague II 50,000 In certifying class retir- (cid:127) these bilateral contracts were held ees, the district court concluded that plans enforceable as ERISA as modi- prerequisites class satisfied four of Rule id4; general plan, fications to the 23(a), (numerosity, Fed.R.Civ.P. commonali- (cid:127) GM estopped ty, was held not to be typicality, adequacy representa- tion)5 changing care benefits and that the action could be maintained II, tween special Sprague 1988 under one of voluntarily GM’s After dis- programs. missed their "general supply request- The term claims failure to salaried, ed comply information and failure retirees” to with refers to the non-union requirements summary plan descriptions. retired, "voluntarily who age either at 65 or stipulation, arising Pursuant to the claim before, and were able to do so without GM's alleged the failure to maintain a written consent, pursuant to the ternis of the General prejudice. instrument was dismissed with Program Motors Retirement for Salaried Em- ployees.” Sprague v. General Motors 843 23(a) 5. Rule reads as follows: 266, F.Supp. (E.D.Mich.1994). 269 "Prerequisites to a Class Action. One more may members of a class sue or be sued as decision, a 23(b)(2).6 by the made certification class then time it The was Rule under subclasses, permitted rejected primary four as the district court had the into divided 23(c)(4). of subclasses consisted general plaintiffs. The claim of named Rule the retiree (1) “long signed form” early retirees who explain presently, For we shall we reasons retirement, early of acceptance of doing statements correctly court acted believe that the (2) form” state- signed who had “short those The have no com- plaintiffs so. basis for (3) acceptance, had those who ments of certify to plaining proposed of a refusal only of intent” to retire “statements signed representatives class class where the of the (4) no early, and those for whom relevant merits, prevail cannot on the the defen- (As said, we could have documents be found. dant, GM, contesting not not the decision general certify the retir- court refused to the certify general to of a class retirees. class.) appeals the certification as a ees retirees, plain- while early class of the of the A to appeal the court’s refusal tiffs district general certify class of retirees. We turn now to the class that was certi- regard retirees. fied—the With Although class we will reverse a 23(a), analysis Rule confine we shall our if only decision the district court certification commonality typicality requirements. the discretion, v. Blue Schachner abused Ohio, 889, Blue F.3d & Shield Cross of commonality requirement deals — (6th Cir.), denied, -, cert. U.S. Al questions (cid:127)with of or fact. shared law (1996), 136 L.Ed.2d 117 S.Ct. 23(a)(2) speaks though “questions” of Rule may certify class with court not district only plural, have said need the we that there requirements the “rigorous analysis” of out Amer be one common the class. Falcon, Tel. Co. of Rule at not Sys., ican 1080. It is Med. 2364, 2372, 102 S.Ct. U.S. suffice, every question that how common will (1982). No class fails L.Ed.2d ever; sufficiently gener at a abstract level of prerequisites four of of Rule satisfy all the alization, any set of can be said almost claims 23(a) certified, may be and each class meet commonality. look display What we are pass must also at ing prerequisites those of ing for issue resolution is a common 23(b). set forth Rule least one tests litigation. will which advance Inc., Sys., In re American Med. (6th Cir.1996). 1069, 1079 began, case claims of When class, purported both all of members court’s refus- We conclude that the district retirees, did share general retirees and certify general al to class or sub-class All retirees’ issues. salaried certain common as far as the unexceptionable retirees by the governed benefits were care Ironically, perhaps, are concerned. interpre plan, proper same welfare may been have better- general Similarly, plan was at tation of the issue. than for class treatment suited summary plan set retirees, GM issued a common having descriptions significance which was retire, received individualized inducements time court By as the district itself issue well. their claims on the base however, question, up took the certification summary plan description booklets —docu- already been questions common had retirees. But these ments common all salaried satisfied, (a) addi- parties only and in representative sites of on behalf all if subdivision (1) joinder all the class so numerous tion: (2) ques- impracticable, there are members is class, (3) tions of law or fact common (2) party opposing acted or the class has representative the claims or defenses applica- grounds generally to act refused typical parties are the claims or defenses of class, thereby appropriate making ble to the class, (4) parties representative will relief, corresponding de- injunctive final protect fairly adequately the interests of respect as a claratory to the class relief 23(a), the class.” Rule Fed.R.Civ.P. whole____” 23(b)(2), Rule Fed.R.Civ.P. may Actions An action 6. "Class Maintainable. prerequi- as if the maintained a class action be 398 proof An claim certify estoppel requires did not of what district court

decided. The I, Sprague particular person, a after its statements were made to the until decision class (a) statements, person interpreted that the unam- how the those where the ruled court person justifiably to the relied on biguously GM’s amend or whether reserved (b) plan, the to his detriment. See that summar- statements Part terminate the IV, infra; change Armistead v. ies the reservation of this Vemitron did not (6th Cir.1991). right. F.2d Because of proof, estoppel their focus on individualized Sprague The that after issues remained typically inappropriate claims are for class I, Sprague but as anything were common. SIPCO, Inc., treatment. Jensen v. See said, permitted early we retirees to have (8th Cir.1994) (estoppel “must theory proceed on a contract and an bilateral applied precision factual and there with theory.7 estoppel theory Neither was sus- fore is not a suitable basis for class-wide ceptible prem- The to class-wide treatment. denied, relief”), cert. U.S. S.Ct. theory ise of the bilateral contract was that (1995). 1428, 131 L.Ed.2d an GM had made individual “side deal” with early putative each retiree. Each side deal early GM’s to the retirees statements were any pertinent document the involved retiree Among things, not uniform. other the state- might signed have the statements of (1) person ments on making varied based —and seen, acceptance, nothing as we have said (2) representation, particu- on based more about health than that insurance special early program lar retirement early accepted “applicable” retiree bene- (3) (4) applied, facility facility, from any pertinent representations fits' —as well as variety time to time. Given the wide retiree, might have made whether made, representations there must have been orally, writing, or both. might A retiree early subjective in the variations retirees’ signed “long have a form” statement ac- representations understandings and in form,” a ceptance, or a “short or “statement might on them. retirees reliance Some retire, nothing of intent” to or at all. He interpreted have GM’s statements mean might speak have heard GM officials about their benefits were vested. Others early special program at a might have understood that their benefits group meeting, might pro- a have seen subject change. were Some summary GM, gram compiled by might might on have relied GM’s statements about meeting have had a one-on-one with his su- benefits, health care while for others the pervisor person. or with GM benefits He might statements have no made difference at might particular plant have retired from a early. all in the decision to retire particular given partic- division and been variations, myriad Given these seems to ular representations, might set of or he have us plaintiffs’ clearly claims lacked plant retired from a different in a different commonality. Sys., See American Med. given completely division and been differ- (granting F.3d at 1081 mandamus reverse representations. ent set of Proof that GM a class claim certification where each turned had to confer vested benefits on contracted causation, reliance, damages issues of one necessarily prove retiree would not member). peculiar were to each class that GM made such a had contract with a depended upon Because each claim different retiree. peculiar facts and circumstances to that plaintiffs’ estoppel theory plaintiff, appropri- was class-wide relief not susceptible even less ate.8 class-wide treatment. I, Sprague plaintiffs’ majority opinion Bittinger

7. After claims for failure Tecumseh Co., (6th Cir.1997) (a plan, provide to maintain a written requested failure to Products 123 F.3d 877 case information, comply opinion failure decided after the instant was circulated court) summary description requirements purport re- to the en does banc to limit temporarily Although Sys. mained holding intact. American these Med. Unlike Ameri- might potentially Sys., Bittinger have counts raised can common Med. case did involve a questions, they eventually dismissed. See of law or fact common class: 4, supra. relying note bargaining agree- same on the collective members an to obtain

B dred class effort representative sample purportedly of the early retirees fails the The class of representations and communications made 23(a) as well. This test of Rule typicality necessary GM. That it was to do so fairly to those the class claims “limit[s] test strongly suggests to us that relief class-wide plaintiffs’ named encompassed the improper. was Sys., 75 American Med. claims.” omitted). (citation quotation that conclude the district court We whether sufficient “Typicality determines in certifying abused its the class of discretion injury the relationship exists between may members Some class plaintiff conduct affect- named and the the form, signed may have the same some have class, may prop- so the court ing the documents, may received the same or some nature erly attribute a collective to the have meetings attended the same about the necessary A con- challenged conduct.... program, but taken as a requirement the is sequence typicality of widely whole the class claims were based on representative’s interests will be that the divergent facts. Class-wide relief was represented the aligned with those of any necessary awarded here without connec claims, own group, pursuing his tion to the of each merits individual claim. plaintiff will also advance the inter- named permit Rule 23 not does that result.9 (citing the class Id. of members.” ests Conte, Alba Newberg B. Herbert plaintiffs The of the 114 claims named Actions, 3-13, at 3- Newberg on Class court, however, regardless still before (3d ed.1992) (internal quotations pur- represent whether these individuals omitted)). ported class. We see no not to ad- reason plaintiffs’ dress the merits of the named claims, pursuing In their own claims. advance the inter named could not the entire retiree class. Each ests of all, claim, depended after on each individual’s Ill these,

particular interactions with GM—and said, person per as have we varied A plaintiff proved A named who his own son. recovery plaintiffs’ theory The first proved necessarily any have claim would that GM committed a of the terms of breach body Chicago else’s claim. Retired Po See implemented documents when it City Chicago, lice Ass’n documents, changes in 1988. Under the (7th Cir.1993) (typicality requirement was according plaintiffs, their health care groups where not satisfied different of class vested, having benefits were vested —and representations), received different members without benefits could not altered — denied, U.S. -, 305, 136 117 S.Ct. cert. plaintiffs’ consent. (1996). premise of the L.Ed.2d requirement simply as typicality stated: rejected theory, court this district goes plaintiff, go the claim the named so documents, holding including premise That is not the claims class. summary plan descriptions, effectively here. valid to amend or part reserved a on GM’s holding, plan. The court’s terminate the in the litigation The course district view, correct; manifestly we shall demonstrates, think, our was amply we court judgment en- summary affirm that was typicality lacking. The district court testimony tered on this issue. from more than three hun- favor GM took ment, commonality Bittinger have necessitated each class claimed absence of would member guaranty agreement of life- contained certification. a denial of class time, Bittinger, fully-funded 123 F.3d at benefits. such was before the 884. No common use did not 9. The district court's of subclasses grant- when court class certification was district solve Subclasses are not substi- problem. the case at Even if all the other ed in bar. compliance tute with Rule 23. here, requirements met of Rule 23 had been plan pen between intent to vest “must be found in distinguishes

ERISA pension plan A plans plans. welfare documents must be in sion stated clear employees” income to “provides express v. El language.” Wise Paso Natural by (5th employ Co., 929, “results in a income Cir.), or deferral 986 937 cert. Gas F.2d extending to the periods termination denied, 870, ees 196, 114 126 510 S.Ct. U.S. beyond....” employment ... or 29 (1993); Unisys L.Ed.2d 154 see also In re 1002(2). plans, contrast, § in Welfare U.S.C. Corp. Litig., Retiree Med. ERISA 58 Benefit ... plans or include “established maintained (3d Cir.1995) 896, (same); F.3d v. 902 Gable medical, purpose providing ... for the Co., Inc., 851, Cup Sweetheart 35 F.3d 855 surgical, hospital or or benefits....” care (4th Cir.1994) (same), denied, U.S. cert. 514 1002(1). plan § Id. Because (1995). 1057, 1442, 115 131 L.Ed.2d 321 S.Ct. provided partici health insurance to its here prove It is plaintiffs’ burden to GM’s plan. pants, it was a See Musto v. welfare intent to vest. Id. 897, F.2d 2 Corp., American Gen. 861 901 n. plaintiffs seriously disputed have not Cir.1988) (6th (a plan medical insurance is a plan permitted that the itself GM to amend denied, 1020, 109 plan), 490 U.S. welfare cert. or plain- terminate benefits.10 Instead the (1989). 1745, 104 S.Ct. L.Ed.2d summaries, plan tiffs focus on the which are plans specifically Welfare ex must “be written in manner calculated requirements empted vesting to which by average plan partici- be understood subject. pension plans are 29 U.S.C. pant, sufficiently and shall be accurate 1051(1). Therefore, employers § gener “are comprehensive reasonably apprise such ERISA, ally any free any under reason at participants rights and beneficiaries of their time, adopt, modify, or terminate welfare plan.” obligations under the 29 U.S.C. plans.” Curtiss-Wright Corp. Schoonejon v. 1022(a)(1). 73, 78, 1223, 1228, 131 gen, 514 U.S. 115 S.Ct. (1995) (citing L.Ed.2d 94 Adams v. Avondale In Edwards v. Farm Mut. Ins. State Auto. (6th Indus., Inc., 943, Cir.), cert. (6th Co., 134, Cir.1988), 851 F.2d we held denied, 498 U.S. S.Ct. 112 that summary plan “statements ain are bind- (1990)). Employers may L.Ed.2d 529 vest ing and if such statements conflict with those so, welfare benefits if choose to do itself, plan summary govern.” shall Employees See Rail however. Inter-Modal Application principle, Edwards Atchison, v. & Topeka Ry. Ass’n Santa Fe plaintiffs say, compels judgment —Co., U.S. -, -, 1513, 1516, 117 S.Ct. disagree. favor. We (an (1997) employer may 137 L.Ed.2d 763 “contractually freedom” not cede[ ] its to vest principle announced Edwards benefits). Equip. See also In re White Farm plan on ERISA’s directive that based (6th Co., 1186, 1193 Cir.1986), 788 F.2d where summary plan administrators furnish de may parties we held that “the themselves set scriptions participants and beneficiaries. by agreement private design, out or as set requirement This generally did not become documents, plan out whether retiree wel Musto, effective until 1977. See 861 F.2d at vest, they may benefits fare whether be 904. We hold could not GM liable for viola Boyer terminated.” To effect the same see statutory requirement tions of a on based Douglas Components prior actions taken to the effective date (6th Cir.1993). requirement. any If the have pre-1977 cause of on

To action based GM’s sum vest benefits is to render maries, probably them forever unalterable. is not one vesting Because based plan appears likely welfare It required by only benefits ERISA. law, an employer’s booklets commitment vest such issued in are thereafter lightly; benefits not to be inferred relevant inquiry.11 We shall assume plan expressly "fa]ny Program may The 1985 stated that terms and conditions of the changed any Corporation.” payment by time rate the enrollee and other plaintiffs argue summary

11. The that the preserved pursuant in 1977 later to clauses that the booklets issued the com- that all of pany’s right summary serve as to terminate the under intended to provided.” Unisys which those benefits descriptions. 12; Wise, Corp., 58 n. F.3d at 904 see also summary plan descrip Most of the 986 F.2d at 934. unambiguously reserved GM’s tions Not all summaries clearly stated example: For plan. or terminate the amend plan. that GM or could amend terminate the (cid:127) Corporation Motors reserves “General But the to allude to in power failure this amend, change to or terminate right the prejudice some of not the booklets did GM’s Programs in the Plans and described itself, right, clearly plan in the stated to (1984). booklet.” Your GM Benefits this change plan’s the terms. (cid:127) Corporation the to right “The reserves amend, suspend, modify, or terminate its place, principle In the first the Programs benefit or action Plans apply announced in Edwards does to not Your its Board of Directors.” Benefits Prods., silence. 98 Foltice Guardsman Cf. (1985). in Retirement — (6th 933, Cir.1996), denied, F.3d 938 cert. by pointing out that plaintiffs The counter U.S. -, 117 137 475 S.Ct. L.Ed.2d summaries also told them that then- these (“if (1997); Edwards, 851 F.2d at such coverage paid “at no would be cost to” health plan statements those in the conflict and “for Such lan- [their] lifetime[s].” them itself, summary govern”) (emphasis the shall they argue, ambiguity created an guage, added). summary plan An from the omission the summaries that must be resolved within not, description by negative implication, does by extrinsic evidence. Jensen, plan alter the of the terms itself. rejected argument in the We have this Wise, 952; at 986 F.2d F.3d at 938. reject again now. no past, and we it We see definition, summary reason is obvious: summary plan description in a ambiguity every thing not detail will include of the the participants that tells both that terms of failure to in summarizes. GM’s include some plan the current entitle them to insur- right change of its the summaries a notice to throughout ance at no cost retirement and trump plan clearly-stated right does the not plan subject are that the terms of the current plan in to do so the itself. change. place, In the second was not GM summary saying this as “To read that plan in required summary to disclose changed way in such plan can never be plaintiffs’ descriptions that the were benefits for as to mandate retiree contributions (“a Jensen, not at 952 vested. See F.3d coverage medical read into continued [summary plan plan descrip welfare SPD summary something its authors did not plan required that tion] not disclose (a provide put promise there lifetime vested”); Gable, at benefits not insurance), ‘paid up’ reading while medical (“ERISA require spe not does SPDs clearly summary something of the that out cifically possibility that those address (an put express was there reservation of changed, be as ERISA might terms later Musto, right change plan).” undeniably permits”) (quotation citation at 906. (“ERISA omitted); Wise, F.2d at in a explained the Third Circuit similar As not the inclusion within SPDs does mandate case, promise “the was a made rights procedures”). of amendment qualified promise one: was retiree provided specifies life ERISA detail the information medical benefits were for plan every summary description “shall company plans, chose to terminate not thereafter, requirement description phased beginning in 1974 and the summaries issued employers sought just Either only those in 1977 thereafter. who issued exemption way, for the rea- temporary would the same: some sort excused result text, GM, contend, developed compliance. sons in the summaries from immediate proved exemption. deprive to amend or such an did not never that it had may plan. we at terminate be correct that should look 1022(b). § Among vesting contain.” See 29 U.S.C. retirees’ health care benefits, summary must is “a the items a include are said to be enforceable either as provisions providing description of the general plan, modifications to the or as Despite Id. pension themselves, nonforfeitable benefits.” plans ERISA as matter of having required that summaries inform federal common law. participants vesting un- about benefits place “has an elaborate ERISA scheme pension plans, Congress require der did not (cid:127) rights for beneficiaries to learn their plans; such information for neither welfare time, obligations a scheme that is built Department did the its ERISA of.Labor around reliance on face of written reporting regulations. and disclosure See 29 Curtiss-Wright, documents.” 514 U.S. at 2520.102-3(n) (summary plan C.F.R. de- implement 115 S.Ct. at 1230. To contain, scriptions “[i]n shall the case of an scheme, requires every plan ERISA employee pension plan, description benefit pursu- “shall be established and maintained explanation plan provisions and of the for ... ant to a written instrument.” 29 U.S.C. added). vesting”) (emphasis The absence of 1102(a)(1). § requires, ERISA also as we requirement plans a similar for welfare said, summary plan descrip- have a written (the Jensen, no mistake. See 38 F.3d at 952 “reasonably apprise partici- tion that will ... require to “failure SPDs disclose non- pants rights and beneficiaries of their and omission”). vesting cannot be an inadvertent obligations plan.” under 29 U.S.C. ERISA, all, “comprehensive after is a and 1022(a). statute,” Corp. reticulated Nachman v. Pen- writing The requirement ensures that “ev 359, 361, sion Guar. 446 U.S. Benefit ery employee may, examining plan 1723, 1726, (1980), 100 S.Ct. 64 L.Ed.2d 354 documents, exactly rights determine what his reporting and the require- disclosure obligations plan.” are under the Cur “comprehensive.” ments themselves 83, tiss-Wright, 514 U.S. at 115 at S.Ct. 1230 83, Curtiss-Wright, 514 at U.S. 115 S.Ct. at 1280, (quoting Rep. H. Cong., No. 93d 2d apply 1230. judge-made We decline 297, reprinted Sess. Cong. in 1974 U.S.Code way rule of Edwards in such a augment as to 5038, 5077-78). & Admin. News And the provisions the detailed disclosure of the stat- requirement predictability lends certain ute. Gable, ty employee plans. benefit 35 F.3d plan Neither the GM itself nor at 857. This serves the interests of both plan various summaries of the states or even employers employees. See Gordon v. implies plaintiffs’ that the benefits were vest- Inc., (6th Pumps, Barnes 999 F.2d 136 Accordingly, ed. we conclude that the dis- Cir.1993); Adams, 947; Gable, 905 F.2d at correctly trict court acted in granting sum- 857; Metropolitan F.3d at Moore v. Ins. Life

mary judgment plaintiffs’ onGM the claim Co., (2d Cir.1988). company that the violated the terms of its “Congress plan intended that docu plan. exclusively

ments and govern SPDs an em ployer’s obligations plans.” under ERISA B Moore, 856 recognize F.2d at 492. We turn theory We next to the that GM bilat- may foolproof “[t]his not be a informational erally contracted with each retiree scheme, although it quite thorough. Ei early, vest benefits. All of the retirees took way, ther it is the Congress scheme that special early retirement under one of the Curtiss-Wright, devised.” U.S. programs by offered GM between 115 S.Ct. at 1231. argue and 1988. The that, held, as the district court the state- consistently Our court has refused to ments, promises, representations recognize GM oral plan modifications to written made to them in pro- certain,” connection with these quite documents. “[W]e are we grams, and the they signed, documents that explained, Congress, have “that passing binding ERISA, created bilateral contracts. The al- did not participants intend that contracts, leged supposedly provided employee which plans benefit should be left to the purport plans, to be ERISA and we in find- not of oral uncertainties communications to treat them as such. decline rights they given precisely what ing out Musto, 861 F.2d at 909- plan.” under their “plans” plan For informal or us to sanction Therefore, a written the “clear terms of “amendments”—whether oral or written-— may not modified plan employee benefit employee would leave the law of benefits undertakings on the superseded by oral or uncertainty state of and would create disin- 910; Id. at see also employer.” part of employers to offer benefits in the centives Gordon, (same); Boyer, 986 at 137 place. first a result is not the inter- Such (same). plaintiffs may not F.2d at employees generally, it is ests of certain- by personnel oral statements GM invoke ly compatible goals with the of ERISA. modify of the written the terms order Moore, “Altering F.2d at 489: Cf. plan. non-plan welfare on the basis of docu- communications, particu- ments and absent accept argument Neither can we showing larized of conduct tantamount superseded was modified fraud, would undermine ERISA.” accep by written “statements of either plaintiffs signed by some of the named tance” IV representations received the written argue estopped [the defendant’s] from “That some GM. enforcing written the terms writing made in is irrelevant statements were trial, against After the bench the them. plan profess not to be amend- as do that no mis- district court found GM made Corp., 36 F.3d Borst v. Chevron ments.” leading representations the to retir- (5th denied, Cir.1994), 1308, 514 cert. 1323 III, Sprague F.Supp. 857 at 1188-89. ees. 1699, 1066, 561 115 131 L.Ed.2d U.S. S.Ct. finding appears That unassailable. As to the (1995). representations sug None of GM’s retirees, however, district, the court being gested plan that the modified. estopped enforcing from ruled that GM was moreover, acceptance, The statements plan misrepresented plan’s it the the because re merely employee that the “ha[d] said this, believe, at 1189-92. In we terms. Id. applicable to [him]” viewed the benefits the court erred as a matter of law. modifying the “aceept[ed] them.” Far estoppel equitable have held that We us, it plan, seems to terms of the welfare cases, may theory in ERISA at be viable plan’s language incorporated the terms.12 Armistead, plans. regard to welfare least equita an 944 F.2d at 1298. The elements of acceptance The statements claim, Ar- estoppel as Every ble announced plans themselves. not ERISA (1) panel, are as follows: there must specify funding mecha mistead plan must ERISA rep language amounting to a nism, be or operational and adminis conduct must allocate (2) fact; party resentation of material responsibilities, must state how trative facts; estopped must be aware of the true plan. 29 be payments made to and from the are (4). (3) Gable, that 1102(b)(1)-(2), party estopped to be must intend § See U.S.C. on, (documents party representation be acted or at 857 n. do F.3d reasonably estoppel be asserting the must requirements plan docu satisfy ERISA’s estopped so in party to be plan docu lieve qualify do not as ERISA ments tends; (4) estoppel ments). party asserting the at least conceivable that While (5) facts; the true must be unaware of plan might not meet an enforceable ERISA asserting estoppel must reason alleged party requirements, the bilater all of these justifiably rely representation on the ably or here met none of them. al contracts at issue at to his Id. 1298.13 acceptance” simply did detriment. The “statements of benefits, accept only pension then the “statements present purposes, we 12. For say nothing acceptance” about have whatever phrase appli- "benefits assertion that the retirees’ plan. the health care pension retirees]” referred to [the cable to If, plausibly argues welfare benefits. as GM explicitly Although held that we have never phrase suggests, the referred and as the context estoppel cognizable under promissory claims however, Principles estoppel, holding can The court’s was correct as vary unambig fiduciary far as it went. applied to the terms of GM did not act as a not be documents; estoppel only deciding change can be its plan uous health insurance ambiguous plan policies. Corp. Spink, v. invoked in the context Lockheed 517 U.S. 882, -, 1789, v. provisions. See Fink Union Central S.Ct. 135 L.Ed.2d Life (8th Co., Cir.1996); (1996); Musto, 489, 492 Ins. 94 F.3d 912. The Lines, Inc., however, plaintiffs argue, Air Hudson Delta district — (11th Cir.1996), denied, 458 n. 12 cert. court misconstrued the breadth of their fidu claim, -, ciary duty they say, 137 L.Ed.2d 217 claim. The en U.S. S.Ct. (1997). compassed all of rep There are at least two reasons oral and written GM’s First, seen, estoppel this. as we have re- resentations to them connection with the justifiable special early quires programs. reasonable or reliance We estoppel. par- party asserting agree interpretation That with this of the com seldom, ever, plaint. ty’s if be reason- reliance can justifiable able or if it is inconsistent with the fiduciary ERISA defines a in func unambiguous plan clear and terms docu- tional terms: party. to or

ments available furnished Second, estoppel to allow person a-fiduciary respect to override the “[A] would, (i) plan clear terms of plan any documents to the extent he exercises something enforce other than the docu- discretionary authority discretionary or That ments themselves. would not be con- respecting management control of such sistent with ERISA. any authority or exercises or control respecting management disposition bar, In the case at we conclude assets, (iii) ... or he has discretion- plaintiffs’ estoppel claims fail as a matter ary authority discretionary responsibili- said, of law: As we have GM’s and most ty in plan.” the administration of such summary plan descriptions issued 1002(21)(A). U.S.C. years plaintiffs unambiguously over the “[fiduciary Thus duties under attach ERISA right to or reserved GM amend termi particular just persons, particu- not but to plan. clearly- nate the In the face of GM’s persons lar performing particular functions.” right stated to amend —a in contained Fasteners, Inc., Hozier v. Midwest 908 F.2d plan plaintiffs which the had access (3d 1155, Cir.1990). 1158 pre- ERISA also many and in of the summaries responsibilities fiduciary, scribes the of a given allegedly sug on statements —reliance acting which “solely include in the interest of not, gesting contrary was and could not participants and beneficiaries” and “for be, justifiable, especially reasonable when purpose” “providing the exclusive benefits GM never told the that their bene participants and their beneficiaries....” Musto, fully paid-up. fits were vested See 1104(a)(1). § 29 U.S.C. at 907. F.2d Howe, Varity 489, Corp. In 516 U.S. 497-504, 1065, 1071-73, 116 S.Ct. V (1996), Supreme L.Ed.2d 130 Court held theory recovery, applicable only The last employer that an in fiduciary capaci- acted a retirees, ty is that in making misrepresentations GM was when to its fiduciary duty employees breach it plan. owed such about their benefit The em- ployer retirees as administrator of their in subsidiary welfare that case a created new plan. debt, The district court parent dismissed this claim to enable the to shed some of its entirety, in holding employer its that an knowing subsidiary might that the well fail. fiduciary 491-93, anot when it amends or terminates Id. at 116 S.Ct. at 1068. The em- I, plan. Sprague a F.Supp. ployer at 612. induced to transfer to the ERISA, Cir.I992) (holding we see support no reason to treat the two forms that the facts did not estoppel differendy. Flacche v. Sun promissory estoppel theory). a Cf. Life Canada, 730, (6th Assurance Co. in provisions point at some the future.” misleading deliberately subsidiary with new Gable, 35 F.3d at 857. subsidiary would be new that the assurances employee ben financially successful failure, may properly if it be called GM’s financially sound be efits would such, company to this: the did not amounted 493-95, 116 at S.Ct. change. Id. at would every possible op- early retirees at tell the many it told them portunity that which had employer, mak- that the The Court held namely, that the terms of the times before— the status misrepresentations about ing these is, in subject change. There plan were “discretionary exercising plan, was of the view, our a world of difference between plan’s with the authority” in connection employ- employer’s misleading of deliberate “administration,” as those “management” or begin Varity Corp. failure to ees GM’s 1002(21)(A). § Id. at 502- are used terms every plan participants communication Applying the law of at 1073. 116 S.Ct. with a caveat. trusts, the fiducia- it inform which said would said, place, In as we have the second 495-97, at 116 S.Ct. ry inquiry, id. at required to disclose in its sum GM was not “conveying information the Court stated that descriptions was mary plan likely future of benefits” about the subject or termination. See to amendment plan administration. discretionary act of a 1022(b); § 29 C.F.R. 2520.102-3. 29 U.S.C. 502-04, The em- at 1073. Id. at S.Ct. strange if fidu It would be indeed ERISA’s capacity fiduciary acted a ployer therefore duty ciary imply be standards could used misrep- its employees, it when misled that ERISA’s detailed to disclose information of fiducia- amounted to a breach resentations provisions require do not to be disclosure ry duty. Curtiss-Wright, 514 U.S. at disclosed. See may Varity Corp. that GM teaches in (Congress did not 115 S.Ct. at fiduciary capacity when have acted in a it devised “to tend the informational scheme program to the explained its retirement far-away provision supplemented be law, however, we Jensen, As a matter statute”); retirees.14 part another a breach not believe that GM committed III.A., do 952; supra.15 Part see also fiduciary duty. In the first any applicable construction, spe statutory As a matter of early retirees that place, never told the statutory provision governs cific fully paid their health care benefits would “comprehensive” disclo one—and here the upon What GM up or vested retirement. fiduciary provisions control the broad sure rather, them, their many was that told of agrees: duty The Fourth Circuit standard. by their coverage paid GM for was to be ... accept argument we would “To the undeniably true under This was lifetimes. general fiducia- that ERISA’s have to hold then-existing plan. the terms of GM’s plan fiducia- ry duty provision requires ... Explanations of benefits participants documents to ries to furnish the docu- in addition to by very and beneficiaries promissory their “tend to sound specific that ERISA’s disclosure explanations may ments these nature. While plan administra- provision requires ... the company’s a current intentions state holding would con- furnish. Such a they cannot ex- tor to respect plan, the specific stat- principle the flict with possibility the pected to foreclose Faircloth general statutes.” govern utes require will changing financial conditions 648, Co., F.3d Lundy Packing plan v. company modify welfare benefit a by documents, already oth- "activities controlled plan no confined to GM made Other than the 14. Varity Corp., 516 specific legal duties....” general We do er representations to the retirees. 504, Con- at 1074. But when fiduciary duty 116 S.Ct. could U.S. how a breach of not see careful- Department of Labor have representations gress doc- in the arise from GM’s that must ly prescribed a detailed list of matters uments themselves. plan participants beneficia- be disclosed to ries, judges add to that federal Supreme it ill-behooves Court has We mindful that the fiduciary duty not be list. must cautioned that the — (4th denied, law, U.S. -, Cir.1996), tiffs’ cert. claims as a matter there was (1997). 738, 136 nothing jury L.Ed.2d 677 for a to decide. S.Ct. any aware of court of We are not fiduciary imposing liability VII

appeals decision a information that failure to disclose is Finally, early argue that the At least required to be disclosed. three issuing in district court erred limited in- is fiduciary that there no circuits have held junction appeal. They pending contend that duty planned changes in disclose benefits injunction the court have issued an should even the before termination scope liability coextensive of GM’s with the official. those become Pocchia v. actions. as court. determined None of their (2d 275, Cir.), Corp., NYNEX 81 F.3d however, merit, having early claims retir- — denied, U.S. -, 302, 136 117 S.Ct. cert. obviously injunction ees are not entitled to an (1996); Indus., v. Payonk L.Ed.2d 220 HMW any injunction sort. The will be vacated. (3d Inc., Cir.1989); Stan- (4th ton Oil Gulf VIII Cir.1986). fortiori, A can there be no fidu- ciary duty possibility to disclose of a The certification the class of retir- change See future in benefits. Restatement REVERSED, injunction ees and the (Second) (1959) Trusts Comment d applies VACATED. Insofar as it (“Ordinarily duty is not under trustee class, plaintiff unnamed member of the beneficiary to furnish information to judgment final of the district court is VA- request him the absence such applies CATED. Insofar as to .the named information”). plaintiffs, judgment is the final AFFIRMED IN PART IN an and REVERSED PART. The pos- Had retiree asked about the parties shall bear own costs. sibility changing, of the and had he answer, a misleading received or had GM on provided misleading own LIVELY, initiative infor- Judge, concurring Circuit plan,

mation about the part future or had part. dissenting required by imple- been ERISA or its original panel As a member of menting regulations future, to forecast the appeal heard this I voted to remand both the presented. case have been different would general issues by the retirees and raised But we do not think GM’s accurate those raised retirees. Further representations program of its current can study in light Judge opinion Nelson’s con- reasonably misleading. be deemed GM hav- majority vinces me that is correct ing given information, out no inaccurate holding general that the claims of the retir- fiduciary duty. there was no breach of ees Accordingly, should be dismissed. I con- majority opinion cur to the extent it VI summary judgment affirms for General Mo- ' Although plaintiffs sought a jury trial tors on the claims of claims, their precedent on ERISA our circuit agree dissent, I Judge Martin’s how- teaches that were not entitled to one. ever, in its conclusion that the district court (6th 263, Corp., Daniel Eaton F.2d 839 268 correctly certified a class action for the Cir.), denied, 826, 109 76, cert. 488 U.S. S.Ct. early of early claims the retirees and that the (1988); 102 L.Ed.2d 52 see also Bair v. Gen retirees had health vested care benefits for (6th Corp., eral Motors F.2d 1094 895 Cir. rest their lives. 1990) (same). plaintiffs argue The that sub sequent Supreme Court decisions cast doubt There is a fundamental difference be- see, precedents, e.g., Chauffeurs, on these tween the two claims of the sets of retirees. Teamsters, Helpers, general Local No. 391 v. The based their claims sole- 558, documents, Terry, 1339, ly U.S. 110 S.Ct. on which reserved the (1990), L.Ed.2d change plan. but we need not address terms The question; reject early retirees, hand, we plain- because on the other claimed denied, GM, supported by a cert. U.S. S.Ct. agreement with new (1976): typical repre “[t]o L.Ed.2d 150 agreement to leave new consideration —their always sentative’s claim need not involve the early, as a conse- employment law, provided same facts or there is a com significant future costs. to save GM quence fact or law.” 75 at correctly found mon element of the district court I believe contracts 1078. into bilateral that GM entered Further, I believe early retirees.

with the majority that while The concedes welfare findings of fact and court’s that the district by not vested benefits are the terms following bench trial of law conclusions ERISA, employer give up an can its freedom court, by to deference are entitled not to such benefits. I believe this is a vest affirmed. should be employer just The ease where the did that. issue, “early court class action district found respect to the With presented special package ... as a its discretion was deal court did not abuse district care, early separate and dis- consisting of the retir- included certifying a class regular pro- early retirees were all tinct from the GM retirement The claims of the ees. gram.” Sprague that GM v. General Motors a common contention: based on (E.D.Mich.1994) F.Supp. with re- 843 a new condition for them created II). clearly by 0Sprague finding enter- This is not health care benefits spect to future erroneous; by contrary, supported them it is agreements that accorded ing into new general evidence. Unlike the re- given general never substantial rights vested tirees, Thus, “commonality” early sought retirees were out requirement 28(a) and offered inducements to leave their was satisfied. Rule employment reaching normal before re- further, believe, require- “typicality” I age. The retirees necessar- tirement by the district court’s creation ment was met ily rely only documents that had subclasses, by the evidence of four defined unilaterally health care created benefits. (long upon early retirees relied which retirees, hand, early on the other relied acceptance, short form form statement agreements that the welfare on new modified acceptance, of intent statement statement having only plan. Rather than benefit retire, representations at time of and oral employer’s “gift” unilateral of health care entering agreement into retire- coverage, they bargained employer with the ment). majority typicality states coverage. I believe under the cir- for their plaintiff who lacking because named “[a] court cumstances of this case district necessarily claim not proved his own would properly the evidence of the considered Supra, proved anybody else’s claim.” have beyond plan retirees that went documents. appears rely on a This statement findings, court’s based on this The district Inc., Sys., in In re American Med. statement evidence, that GM supported conclusion Cir.1996). (6th Yet, what 75 F.3d 1069 deny estopped to retirees life- “in Sys. actually says is that American Med. time health benefits. claims, plaintiff pursuing his own the named majority I error mem- also believe will also advance the interests class added). fiduciary concluding I that GM did not act (emphasis be- bers.” Id. at 1082. early retir- capacity dealings in its with the of class members estab- lieve the interests employer agree that an does underlying contention that all ees. While lishing the ordinarily fiduciary in adminis- act as rights by the new bilat- were accorded vested plan, it to me that the tering a welfare seems agreements would be advanced each eral early retire- in which GM reached plaintiff pursuing or class member his manner named employees nec- agreements with these Sys. American Med. does not ment own claim. fiduciary relationship. essarily prove anybody involved a require plaintiff a named that not re- majority that GM was The stresses by proving his own. American else’s claim state, explanation to quired along with approval the fol- Sys. quotes Med. also with coverage care was that health language v. Mo- lowing from Senter General (6th Cir.), at ex- their lifetimes GM’s provided be 525 n. 31 tors MERRITT, right pense, Judge, concurring retained the Circuit in that it also' part dissenting part. and in disagree. I change commitment. Given seeking agreement a new that was GM agree I with two conclusions found previous employees changed those their Judge opinion Nelson’s for the en banc court: of their expectations about the time retire- (1) Judge that District Feikens was correct ment, equity not in remain silent if GM could 34,000 in declining certify right change it intended to reserve a they retirees as a class because were on important always eliminate this benefit the future. notice that General Motors could benefits, employees modify their health misleading was to tell these even after re- It (2) tirement; many there too they company-provided health would have differences in the various contractual ar- throughout their lives at-the same care while rangements representations made to in- that it was claim- failing time to advise them early dividual retirees to merit class certifica- ing right to withdraw the to reserve agree, tion I and unified treatment. do not employees accepted early benefit after however, plain- that the actions of the named setting in retirement. Given the which GM tiffs who were retirees should be dis- presenting employees was these with a new agree portion I missed. of Chief retirement, relating set conditions to their Judge dissenting opinion Martin’s that calls fiduciary obligation GM had a to be com- portion for a remand of this of the case to the pletely open, with no undisclosed conditions. District- Court for consideration of the indi- majority It seems to me that reads plaintiffs vidual eases the named on the Howe, 489, 116 Varity Corp. appears 516 U.S. S.Ct. merits. It that at least some of the (1996), had,vested early retirees 134 L.Ed.2d 130 much too nar lifetime benefits at by any the time of rowly. Varity, Supreme In retirement unencumbered Court em right reservation GM that it retained the phasized applicability principles of trust modify. plaintiffs These named should not requirement and the fundamental of ERISA summarily merely thrown out of court fiduciary “discharge that a his duties with because the class actions fail. respect plan solely in the interest participants (quoting and beneficiaries.” MARTIN, JR., F. Judge, BOYCE Chief 404(a)). Varity, ERISA 516 U.S. at Judges join, with whom MOORE and COLE light 116 S.Ct. at 1074. Viewed of trust dissenting. principles requirement, and this ERISA before this Court is whether duty completely open owed a to be and forth General Motors has created lifetime coming employees with the that it wanted to to basic health care for its retirees. The en unfair, early. juncture It retire at this majority banc found that former Mo- General relationship, rely in their on a reservation employees tors salaried do not have vest- that was neither discussed nor referred to. care, right in ed free lifetime health which This was a situation where silence was mis promised retirement. leading. reservations only This decision not makes it more difficult descriptive materials all related to normal for tens of thousands of retired General Mo- When, instigation, retirement. at GM’s some employees tors to receive the health care early, they were induced to retire deserved, they thought they but it also flouts should have been told these reservations Basically, majority the law. the en banc applied relationship to the new created ignores ambiguities finds no claim. It if that was GM’s intent. arguments. conflates I believe that a finer them, fiduciary duty There was a to inform analysis necessary. caliber of I write to duty. and GM breached that highlight my differences with the en banc majority point shortcomings and to out in its respectfully majority’s dissent from the analysis. retirees, denial all relief to both putative named class mem- majority The en bane found bers. every Motors’s favor on issue claim. Insurance”). eight tors All of the ‘Tour GM majority denied class certifica- The en banc group that of retir- Benefits” and “General Motors Insurance” it found one tion because promised -winning on the merits booklets lifetime health benefits at chance of ees had no company’s expense of retirees lacked for salaried General group other and that the employees commonality. spouses, It Motors and their and typicality and requisite any only the 114 four contained reservation of Gener- the claims of further found that rights agreement. merit. Ac- al Motors’s to amend the were without named Hall, majority, According to Beach General Motors’s cording to en banc retirees plans, of health care ‘Tour Ben- right a vested to health care director GM did not have effectively booklets to active sal- Motors reserved efits” were distributed because General 1966, 1974, employees published in in all cases. It aried right its to amend 1977, 1980, Motors In- the retirees did not have a and 1985. “General also found that for surance” booklets also were distributed to contract with General Motors bilateral benefits, employees plaintiffs’ estoppel published that active salaried lifetime 1965, 1968, In- Motors unam- and 1971. Motors failed because General “General claims change promise surance” booklets that biguously right reserved the bene- included majority pay” will the health costs of Finally, the en banc deter- “GM insurance fits. also reserves the Motors did not breach but noted “GM mined General terminate, modify, revoke, gave right suspend, out fiduciary duty to retirees because disagree change Program.” inaccurate information. ‘Tour GM Bene- no promised majority expense fits” health care “at GM’s conclusions the en banc your only lifetime” but the 1985 edition reached. carried disclaimer or reservation of repeatedly The facts have been stated else- Therefore, rights. from 1974 to 1985 Gener- where, recap they bear a brief because but employee al Motors distributed booklets that they heavily plaintiffs. in favor of weigh promised free lifetime health care and con- right to The case involves General Motors’s rights. tained no reservation of 84,000 plans care retir- change the health 34,000 roughly published ‘Tour The case involves sala- General Motors also Ben- ees. ver- employees who retired in the due course efits Retirement” New ried brochures. 1977, 1980, They are were issued in and 1985. of their General Motors careers. sions promised From “Your Benefits in Retirement” “general the so-called retirees.” coverages will be “[y]our retire- basic health care General Motors offered lifetime,” 50,000 expense your packages, roughly provided at GM’s ment incentive coverag- the in- but also noted that “GM health care employees took retirement at subject change in future.” They es ... are of General Motors. ducement declaration, “early types of re- In a sworn Hall wrote that so-called retirees.” Both given to sala- variety of information ft’om 1977 and 1985 booklets were tirees received employee He not indicate to whom regarding Motors ried retirees. did General the 1980 books were distributed. There insurance. in Re- that “Your Benefits some indication particulars A of the of the quick discussion employees, tirement” went to active but Motors written materials General distributed This provides no definitive answer. record analysis that necessary predicate for the remained a for the dis- would have The factual recitation will show that follows. If trict court to answer on remand. General repeatedly promised retirees General Motors saying Hall is correct in Motors’s care, variety in a of written lifetime health given after booklets were materials, only occasionally included a retired, not have though, the booklets could change retiree reservation of its employees’ deci- entered the calculus in- Among primary benefits. sources to retire. sion “Highlights formation booklets entitled (‘Tour Benefits”) Metropoli- Motors contracted with General of Your GM Benefits” Blue Pro- tan Life and Blue Cross and Shield “The Motors Insurance (“General period from During the Employees” provide Mo- insurance. gram for Salaried 410 (4) retire; for no intent’ to those whom Motors contract-

1964 when 1985 General employ- companies, Sprague can found.” v. insurance such documents ed with outside 931, of insurance from Corp., F.Supp. certificates 933 received Motors ees General 804 (E.D.Mich.1992). addition, the It is not clear from record early the insurers. In the retir Metropolitan Life us whether represen before ees received other written and oral provided lifetime group insurance certificates personnel. In from Motors tations General with no reservation of health care at no cost II, Sprague court summarized the district plaintiffs claim. Another source rights, as nicely. Sprague, communications these coverage regarding health care information Corp., F.Supp. Motors 843 308- General summaries. These personal benefit (E.D.Mich.1994). The written formula out the late 1970s summaries came between promises tions of Motors’s various General care promised 1985 and benefits early following retirees contained your lifetime.” “for descriptions “Fully health care: of lifetime' GM,” by “paid by Corporation Paid for in- In General Motors became self life,” corporation’s time, “continued at the ex sured. At that General Motors created basis,” Corporation “Corpora pense,” paid “a Motors Health Care Insurance the “General pay full Employees,” the “Draft tion continues to contribution Program for Salaried Plan,” retiree, According spouse eligible dependents,” “[t]he Plan.” to the “Draft cost,” premi- Corporation paying shall contribute the full the full and “at no cost to “GM subscription charge um for health care or retiree.” “ coverages arrangements .... if “suitable There are several issues in this ease— can with the for such continuation be made certification, rights, estoppel, fi- vested class carrier(s).” It is not from the clear record duciary duty underlying question —but before us whether “Draft Plan” was dis- the. clear: Do the have a retirees In tributed lifetime free health care General Motors Sprague I1 the district court referred to promised or can them General Motors re- “underlying “Draft Plan” as an docu- nege promise? finding on its In for General Motors, mente],” Sprague v. General Motors, majority the en banc determined (E.D.Mich.1991), F.Supp. but Gener legally that General Motors was not bound Hall, apparent al Motors’s reference to the promise. profited General Motors has Plan,” deposition “Draft said that em distributing contradictory from a welter of ployees had not received it or been informed coverage. light on its health In materials of its existence. The of the status obscurantism, though, General Motors’s the “Draft Plan” should have been clari paradoxical seems that General Motors fied on remand. n would have some claims dismissed and win Finally, many early signed “state- retirees summary judgment stage. others at the At acceptance” they in which ments acknowl- least, very should have the ben- edged had reviewed the benefits efit of a trial on some issues unravel in accepting available to them offer of web of misinformation Motors has accep- retirement. The statements Instead, profits woven. General Motors signed generally that the tance having operat- a salaried workforce that forms, long came in either short or and the assumption ed under the it would receive among district court delineated subclasses lifetime health care. When the bill came accordingly. class The four retiree due, though, General Motors was allowed to “(1) ‘long signed subclasses were: those who away. walk (2) acceptance; form’ statements of those decision, accep- majority’s To follow the en banc signed who ‘short form’ statements of (3) tance; heads, wins; tails, signed those who ‘statements of it is General Motors convenience, I"); adopted I have ("Sprague Sprague 1. For sake of v. General Motors Corp., numbering system (E.D.Mich.1994) the same as that used F.Supp. 266 ("Sprague majority en banc for the various lower-court 77”); Sprague v. General Motors Corp., Sprague opinions: Sprague v. General Motors (E.D.Mich.1994) III"). F.Supp. ("Sprague (E.D.Mich.1991) F.Supp.

4H by “agreement by private disagree design.” with this out- created employees lose. Id. come, court’s final and believe district part affirmed in

judgment should be right General Motors has created a vested part. As I will and remanded reversed through promises. health care its written show, general could that a district court find I, majority, ambigui- like the en banc find no between 1974 and 1985 retirees who retired material, ty in much of the written but I do right to benefits on did have a vested based steps so in favor of the retirees. to that representations unambiguous of General easily are ques- conclusion taken. The first correctly The district court found Motors. tion is whether the “Your GM Benefits” and binding, retirees did make a bilat- “General Motors Insurance” booklets were contract, under com- eral enforceable federal summary plan descriptions as defined law, for lifetime health care when mon so, § U.S.C. 1022. If the focus shifts to Motors. The retired from General district determining govern should what when the that all the Motors court could find General summary plan description differs from the rely company’s justifiably retirees did on the plan documents. estoppel- promises and therefore have an majority en acknowledges banc properly action. The district court based summary General Motors’s booklets were granted class certification to the retir- supra See summary plan descriptions. at opportunity ees and should have had the majority 400-01. The argues en banc also take a fresh look at class certification for the summary plan descriptions, aas creation general Finally, the court retirees.2 district ERISA, until 1977. See required were not no incorrectly found that General Motors had considers, supra at 400-01. only It therefore fiduciary duty and should have reconsidered post-1977 summary plan booklets to be that decision on remand. supra at 400-01. The en descriptions. See majority’s interpretation banc conflicts with Rights 1. Vested Motors’s General characterization Hall, A. Retirees General booklets. Beach General Motors’s di- plans, rector of health care stated a sworn repeatedly promised Motors its “Although declaration: General Motors de- expense” care “at retirees health GM’s required termined that it was not to meet constantly “improvements” in touted requirements ERISA’s formal for SPDs until plan, yet it health contends that it not did replaced previous November right create a vested to health care. The en summary ‘Highlights of Your booklets with majority agreed, finding banc that most of ... Such booklets have GM Benefits’ summary plan descriptions unambiguous- summary plan description.” served as the In ly right reserved General Motors’s to amend way light of the General Motors seemed to Employment Re- the benefits. Under summary plan treat the 1974 booklet as a Security tirement Income Act of 1974 description, the court should deter- district (ERISA), 1001-1461, §§ in- 29 U.S.C. the 1974 mine the ERISA status of book on surance is a “welfare” benefit as considered my analysis I will remand. base “pension” opposed to a benefit. 29 U.S.C. post-1974 summary assumption that 1002(1) (2)(A). It is & true under ERISA summary plan descriptions. booklets are automatically have a do benefits, In re White summary plan descrip- right vested to welfare General Motors’s Co., Equip. Farm 1192-93 tions suffer from either the internal inconsis- (6th Cir.1986), tency contradictory equally but it is true that a terms or the external inconsistency underlying for- company rights can create vested to such conflict Id. at A is mal documents. In some of the sum- benefits. vested above, plaintiffs. supra See at 408. 2. For the reasons I would retiree named enumerated day plaintiffs deserve their in favor of the named if class I believe the find Merritt, Judge to me that in con- court as It is inconceivable certification were denied. well. part dissenting part, have stated a curring in calls for a none of the 114 named worthy surviving of the claims of the claim dismissal. remand for reconsideration probable lawsuit filed mary plan descriptions there is no internal win previous pre-retire- guarantees Program lifetime booklets and ambiguity —the possi- This is true with no disclaimer. ment interviews have not stressed health care 1974, 1977, changes.” bility ‘negative’. program 1980 “Your GM Bene- summary plan F.Supp. Regardless de- of whether the These at 305. fits” brochures. however, with the “Your Benefits in Retire- scriptions, odds disclaimers in'the documents, which do include ment” brochures act as an effective reserva- underlying plan rights, putative In of such rights. Edwards State tion of the effects a reservation (6th Co., given in nugatory. 851 F.2d 134 are Benefits Farm Auto. Ins. disclaimers Mut. to, Cir.1988), principle prior and for the this enunciated documents distributed Court of, retirement, discrepancies: “This dealing such duration cannot be rescinded for in a post-retirement that statements sum- documents. See v. Circuit has decided Wulf Quantum Corp., if such statements mary plan binding Chem. (6th Cir.1994) itself, plan employee (stating those in the that once conflict with benefit, “illusory” The summary govern.” Id. at 136. it would be shall entitled (internal pension plans retroactively) quota principle governs divest benefit Edwards omitted); plans. Youngstown welfare marks Gentile tion (6th Co., at Door *5 Cir. Steel WL summary plan de- From 1974 to 1985 the 1986) Aug.25, (stating that court “must focus rights scriptions contained no reservation of plan on the documents which were distribut carry guarantee of lifetime health and did they ed to the retirees while were active majority care. The en banc notes that “Ed- employees”). silence,” apply argues wards does not sum, on In the district court should have had that the summaries were silent General plan. Supra opportunity change at an on remand to determine Motors’s however, plain import the 1974 ‘Tour Benefits” ignores, 401. This whether GM book- ’ expense summary plan as “at let was a document of statements such GM’s Retirement,” your summary because the whether the “Your Benefits in lifetime.” Just edition, speak rights particular Motors’s in in the 1980 distribut- does not to General were same.language plan only questions in the ed to retirees. If those used does affirmatively, mean the summaries are silent on the issue. answered there would be an Noting your eleven-year are “for window from 1974 to 1985 in benefits lifetime” documents, summary plan saying tantamount Motors which the which General addition, Edwards, change plan. govern cannot In the en under contained an unam- majority promise biguous banc contends that of lifetime health care. For “[n]either sum- who retired while these sum- itself nor the various retirees effect, implies mary plan descriptions states or even were in maries of Supra promise plaintiffs’ benefits were vested.” uncontradicted would’be sufficient to rights rights their to lifetime Again, at 402. lifetime are vested vest health care. rights. They prove a chance to that in the deserved court. district

It is true that from 1977 to 1985 ‘Tour in Retirement” include reserva- Benefits did Early B. Retirees rights noting, It tions of clauses. bears though, that these clauses were the rather The their base claims tepid rights statement that benefits “have been vested to health care on the bilateral changed through years they signed from time to time contracts with General Motors. subject change majority and are the future.” The en bane determined such particularly problematic extra-plan weight no un- This clause is be- documents carried Court, however, always trumpeted cause Motors der ERISA. This had left General improvements. question validity extra-plan changes as The court Sprague quoted open II documents in Musto v. American member General Gen. (6th Cir.1988). In legal department telling Motors’s 861 F.2d 897 Musto General ERISA, “Whether, position Motors staff: is not in sound this Court noted: under “GM virtually every possible permutation almost rights obtain vested employees can ever writ- lifetime health care” when strength of of the words “free on the plan benefits welfare presenting employees. official future benefits to representations outside ten Sprague not decide.” court in II found en- we need The district is a document (1) contracts for the subclass the answer should be forceable at 907. believe Id. (2) retirees, F.Supp. and the in this case. affirmative Judgment noted in its Final district court claims are founded early retirees’ (4) early retirees also had that the subclass agreements early retirement judgment enforceable contracts. That representations General other signed and affirmed. should have been These at retirement. made to them Motors binding, constitute they argue, agreements, Estoppel II. Motors for contracts with General bilateral agree- bargained-for health care —a lifetime prime The General Motors retirees are up only gave retirees not ment. bringing estoppel an claim. candidates for surrendered jobs, some also but clearly employees, Motors wanted action, including bring causes of retirees, employees, potential potential and claims, rights age and discrimination civil rely presentations retirees to on its boastful They argue that this company. against the programs. “Your of its benefit The 1966 bring them to consideration entitles mutual provides example Benefits” booklets an Typi- contract claim. of bilateral a breach representations the sort of General Motors claim falls under cally of contract a breach “Today’s making: General Motors bene- law, preempts state law. and state ERISA important making your in fits are an factor 1144(a). not Preemption need 29 U.S.C. enjoyable your more life more and future for a contract-based the death knell sound question in here secure.” The brochures claim, recog- court though. As the district helpful in undoubtedly were the recruitment nized, beyond plaintiffs can make claims and, personnel, retention of when the state law. came, employ- of certain time inducement Yet, early to take retirement. when ees Sprague in II found The district court they rep- on these retirees claim that relied early retiree early agreements for resentations, calls such reli- General Motors (1) (2) under “enforceable subclasses unjustifiable. ance contracts, or independent as bilateral ERISA care benefit as of GM’s health modifications majority acknowledges The en that banc II, F.Supp. Sprague In plan.” 843 299. theory in ERISA estoppel can be a viable Bren quoted also Justice the district court misstep dismissing in cases but makes a legislative history demonstrates nan: “‘The estoppel claim there early retirees’ because courts to de Congress that intended federal supra at reliance. See was no reasonable fashioning’ re law in velop federal common Sprague in III 400-01. The district court Mutual Massachusetts lief under ERISA.” early prevail on retirees should held that Russell, 473 U.S. Insurance Co. v. estoppel Life promissory equitable 3085, 3097, 105 S.Ct. 87 L.Ed.2d Sprague v. Motors claims. General (1985) (Brennan, J., concurring), quoted in (E.D.Mich.1994). 1182, 1192 F.Supp. are best F.Supp. at 301. These contracts this reli- noted: “I also find that The court common law. enforced under federal justifiable. GM led ance was reasonable reasonably believe retirees the contracts are enforceable Given that special notwith- law, receiving a deal: then common the focus under federal standing language documents terms. The divining turns to the contracts’ receive contrary,-the early retirees would that the Sprague argued II district court cost to at no lifetime health care benefits fully integrated, not which agreements were repeated on at 1191. Reliance them.” Id. to extrinsic evidence. 843 opens the door care, evidence, some- of free lifetime as assurances F.Supp. at 301. This extrinsic caveats, from one of above, times couched with timid materials includes written discussed in the world was not largest corporations personnel used showing that Motors General re- majority’s majority acknowledges general that the in the en banc view. justifiable “may have been for class majority in this determi- tirees better-suited banc erred The en nation, early retirees,” should have than the and “base and the district court treatment ... estoppel cause of common to all finding an their claims documents been affirmed employees.” Supra at salaried action for the commonality, generals numerosity, fulfill III, Sprague court held In district typicality, adequacy representation part general retir- any reliance on the 23(a). In addi- requirements Fed.R.Civ.P. unjust- inherently unreasonable and “was ees tion, require- general retirees meet the F.Supp. at 1189. The en banc ified.” 857 23(b)(3) com- ments of Fed.R.Civ.P. because majority, finding court’s determi- the district questions predominate mon law and fact repre- misleading nation there were no superior action and a class to individual “unassailable,” general sentations of class actions. certification general retirees’ does not even deal with the general for the retirees should be remanded estoppel Why claims. re- could court. to the district reasonably rely on materials that tirees promised repeatedly them lifetime health retirees, en Regarding the bane only occasionally a reserva- care and included majority found the district court abused shown, rights? As I tion of have four certifying its discretion a class with rights in Motors failed to reserve its that, light It found of their subclasses. GM Benefits” in effect from “Your brochures estoppel, the claims of bilateral contract and addition, to 1985. In when General commonality early retirees lacked the rights, did reserve its reserva- Motors requisite for typicality class certification. clear, particularly less than tion was when the district disagree with conclusion that the light of in General Motors’s inces- considered court its discretion a abused when it certified touting “improvements” to the sant of seeking all the class in which members were “one boasting General Motors’s about of and exactly remedy same doing the so under comprehensive employe finest and most the legal theories. same (sic) packages industry.” benefit in the The Bittinger This recent decision in Court’s general issue reasonableness of Co., (6th Tecumseh Prods. 123 F.3d 877 Cir. reliance should have remanded retirees’ been 1997) supports the district court’s decision to the district court. The reliance those early Bittinger certify a class appears who retired from 1974 to emi- 1,200 employees with a class of dealt retired justifiable. nently general For retir- other ter whose lifetime insurance benefits were ees, on representations there were sufficient bargaining minated when the collective part ques- of General Motors to create a were, expired. agreement They Id. at 879. person tion of material fact as to whether partially insur offered funded life and health justifiably rely could on them. coverage if they agreed releases sign ance Some, against company. claims Id. III. Class Certification all, signed but of the class members Strangely, majority although the en banc subsequently Id. The releases. retirees willing paper among is over differences brought class action under ERISA claim contexts, in suddenly other it finds “original ing bargaining that their collective plaintiff group that the is riven fissures lifetime, guaranteed agreement fully- them it when comes to certification. The class Id. court funded benefits.” at 884. The classes, early certification of two question “[t]his found that common all that retirees, general is at issue. required early the rule.” Id. retir The majority en banc certifi- denies- class ees share the common of what GM general grounds promised cation retirees on them order to induce them differences, prevail cannot merits. As I on the retire. To extent there are above, general court have shown retirees could the district could have sub created merits, classes, inspec- attempted fresh begs which as had to do. As to win Bittinger many en typicality, tion of class certification. The banc class shared in 29 1104 are Sprague early retir- described U.S.C. owed.” with the characteristics Co., class, Michigan Berlin v. Bell Tel. 858 F.2d Bittinger there were ees. With (6th Cir.1988). retirement, Had Mo- oral General various dates of numerous members, right tors never created a to free lifetime mem- and some representations to care, it health would be free to amend signed releases. Id. Nonethe- who had bers terminate the insurance for retirees. even less, the evidence “[t]hat court found employer an When establishes plaintiff would not plaintiff varies through vesting, health care benefits lifetime Id. The same is true affect this basic claim.” done, employer as General Motors has early retirees. To Sprague class loses the unfettered freedom to amend or in the ear- there were differences the extent class, plan. terminate the Motors has vio- General the district court accounted ly retiree fiduciary duty, lated its the district court Sprague by creating four for the variations Sprague dismissing plaintiffs’ erred no abuse of discre- There subclasses. fiduciary duty claim. No class that includes doing tion in so. perfectly plaintiffs will be ho- thousands of Conclusion and, as the Fifth Circuit noted mogeneous, corporate This is a case of classic short- Co., Penney v. J.C.

Forbush sightedness. Motors was When General Cir.1993): (5th typicality, “The test for with cash flush and health care costs were commonality, demanding.” is not like low, easy promise employees it was not abuse its discretion district court did Later, retirees lifetime health care. when early retirees and should have certifying the trying Motors was to sweeten the been affirmed. retirees, pot health care was anoth- get er incentive to off General Fiduciary Duty IY. course, payroll. many groaning Motors’s Of majority banc limits its discussion The en promised the executives who lifetime retirees, fiduciary duty to the care to retirees are may in a have acted acknowledges “GM probably long gone since themselves. Rath- capacity explained when it its re- fiduciary pay perhaps off ill-considered er than those early retirees.” program to the Su- regime tirement promises, it is easier for the current finds, majority The en banc then pra promises at 405. say never were made. those however, not Motors did breach tricky paper General There is the little matter of duty. place, “In GM never told the first of lifetime health trail of written assurances care, Motors, retirees that their health care bene- the en banc but General upon fully paid assistance, or vested retire- managed escape fits would be majority’s has them, rather, many of now-regretted ment. What GM told lar- of its the ramifications coverage paid that their was to be was gesse. Supra at 405. In for their lifetimes.” claims for lifetime plaintiff class’s

essence, majority argues banc the en despite care he in shambles General promised free though even General Motors just such repeated assurances of Motors’s health care and later forced lifetime survey wreckage I of these coverage. As bill, promise pay part the initial claims, I that ERISA’s under- am reminded misleading. not protect ... the interests lying purpose is “to employee plans participants benefit plaintiffs, both disagree, and 1001(b). retirees, argue their beneficiaries.” U.S.C. should have a chance to disputes between is not a cure-all for fiduciary duty claims. It is ERISA their breach of companies employees over welfare and company “a does not act a fidu- true that role plans, provides this case deciding pension but ciary capacity when to amend or majority opinion plan.” for ERISA. The en banc benefits Adams terminate welfare insti- Indus., Inc., Motors’s decision to validates General v. Avondale Cir.1990). on retir- (6th true, however, premiums and raise deductibles tute It is also insurance, bes- but decision may materially those ees’ health fiduciary “a not mislead Motors the freedom prudence upon tows loyalty to whom the duties Henry, Corporation; Director, completely. coverage care David eliminate health rights, Corporation; no mat- any reservation of American North Seemingly, North weakly worded or unconnected Corporation, ter how American a Tennessee Cor company rights, will inure a grant poration; Rayon North American Cor obligations in having up live to its poration, Corporation, De Tennessee majority Ultimately, the en banc future. fendants-Appellees, aphorism, puts a new twist on an old good good for General Motors what Bank, ca- First American National country but rather is bad for its for the pacity as Trustee of North American respectfully dissent. I therefore Employee Ownership Corporation Stock

Plan, Defendant.

No. 96-5628. Appeals, United States Court Sixth Circuit. Argued Aug. 1997. Decided Jan. GRINDSTAFF, Individually Karl and as a Rayon

Member, Corpo American North Corporation American

ration/North Committee; Administrative Bill ESOP Ray Davis, Roy Miller, Gary

McKinney,

Williams, White, Shirlene

own and on behalf others simi behalf

larly Employee situated as Owners of Corporation/North

North American Rayon Corporation,

American and as

Participants and Beneficiaries of North Rayon Corporation/North

American Corporation ESOP;

American and Unit American,

ed Textile Workers of AFL

CIO, and its subordinate Local CLC Un 2614, Plaintiffs-Appel Nos.

ion

lants, GREEN, Director, President

Charles Corporation

North American and Mem

ber, Rayon Corpora North American Corporation American ESOP

tion/North Committee; Tony Butts,

Administrative Director,

Vice President North Corporation Member,

American Rayon Corpora

North American Corporation American ESOP

tion/North Committee;

Administrative William E.

Andersen, Director, North American

Case Details

Case Name: Robert D. Sprague, Plaintiffs-Appellees/cross-Appellants v. General Motors Corporation, Defendant-Appellant/cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 7, 1998

Citation: 133 F.3d 388

Docket Number: 94-1896, 94-1897, 94-1898 and 94-1937

Court Abbreviation: 6th Cir.