                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 16a0014p.06

                  UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 HOBERT FREEL TACKETT, et al.,                           ┐
                                 Plaintiffs-Appellees,   │
                                                         │
                                                         │     No. 12-3329
       v.                                                │
                                                          >
                                                         │
 M&G POLYMERS USA, LLC, et al.,                          │
                       Defendants-Appellants.            │
                                                         ┘
                 On Remand from the Supreme Court of the United States.
                   No. 2:07-cv-126—Gregory L. Frost, District Judge.
                                   Argued: October 6, 2015
                           Decided and Filed: January 21, 2016

             Before:COLE, Chief Judge; KEITH and MERRITT, Circuit Judges.

                                     _________________

                                          COUNSEL

ARGUED: K. Winn Allen, KIRLAND & ELLIS LLP, Washington, D.C., for Amicus Curiae
ERISA. Allyson N. Ho, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas, for Appellants.
Julia Penny Clark, BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for Appellees. ON
BRIEF: Allyson N. Ho, John C. Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas,
Texas , Christopher A. Weals, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for
Appellants. Julia Penny Clark, Jeremiah A. Collins, BREDHOFF & KAISER, P.L.L.C.,
Washington, D.C., David M. Cook, Jennie G. Arnold, COOK & LOGOTHETIS, LLC,
Cincinnati, Ohio, for Appellees. K. Winn Allen, KIRLAND & ELLIS LLP, Washington, D.C.,
Douglas A. Darch, BAKER & MCKENZIE LLP, Chicago, Illinois, Bobby R. Burchfield, KING
& SPALDING LLP, Washington, D.C., for Amici Curiae.




                                                1
No. 12-3329                Tackett, et al. v. M&G Polymers USA, et al.                        Page 2


                                             _________________

                                                 OPINION
                                             _________________

        COLE, Chief Judge. This case returns to us for the third time, this time on remand from
the Supreme Court, which abrogated the primary precedent on which our prior decisions relied.
See M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015) (vacating Tackett v. M&G
Polymers USA, LLC, 733 F.3d 589 (6th Cir. 2013) (“Tackett II”); abrogating Int’l Union, United
Auto., Aerospace, & Agric. Implement Workers of Am. (UAW) v. Yard-Man, Inc., 716 F.2d 1476
(6th Cir. 1983)).      On remand, we were directed to construe the parties’ agreements using
“ordinary principles of contract law.” M&G Polymers, 135 S. Ct. at 937.

        Because prior factual determinations as to the parties’ agreements were made in the
“shadow of Yard-Man,” we remand to the district court to make these determinations, in the first
instance, in light of the Supreme Court’s holding.

                                        I.       BACKGROUND1

        A.       Factual Background
        Plaintiffs-Appellees are Ohio residents, retirees, and spouses of retirees (“Retirees”) from
a plant owned by Defendant-Appellant M&G Polymers USA, LLC (“M&G”). From 1991 to
2005, the Retirees entered into several collective bargaining agreements (“CBA”) with M&G
and its predecessors, which included Pension and Insurance Agreements (“P&I”) outlining
retiree health care benefits (collectively, “Agreements”). The P&Is provide that the employer
will make “a full Company contribution towards the cost of [health care] benefits” for certain
retirees. In December 2006, M&G announced that Retirees would, for the first time, be required
to contribute to their health care costs or risk being dropped from the plan.

        B.       Procedural History
        Retirees filed a class action suit against M&G and its health care plans (collectively,
“Defendants”) alleging that the Agreements under which they retired granted a vested right to

        1
         We presume the reader is familiar with this case, which was detailed in Tackett II, 733 F.3d at 593–95,
vacated and remanded, 135 S. Ct. 926 (2015). Therefore, we only provide an abbreviated background here.
No. 12-3329             Tackett, et al. v. M&G Polymers USA, et al.                Page 3


lifetime contribution-free health care benefits. Defendants argued certain side letters or “cap
letters” established caps they would pay towards Retirees’ cost of benefits. Defendants further
argued Retirees had always been expected to contribute to the cost of their health care benefits,
but M&G never required them to do so until 2006.

        Initially, the district court dismissed the complaint, finding the Agreements and cap
letters foreclosed Retirees’ claims based on “simple principles of contract construction.” Tackett
v. M&G Polymers USA, LLC, 523 F. Supp. 2d 684, 695 (S.D. Ohio 2007) (“Tackett 2007”).) On
appeal, we held “[i]n determining whether the parties intended health care benefits to vest, this
Court applies the principles first described in Yard–Man.” Tackett v. M&G Polymers USA, LLC,
561 F.3d 478, 489 (6th Cir. 2009) (per curiam) (“Tackett I”). In applying Yard-Man to the
limited language at issue in the P&I, we found that the Agreements evinced an intent to vest
Retirees’ with lifetime contribution-free health care benefits. Id. at 489–91.

        First, the “full Company contribution” language suggests that the parties intended
        the employer to cover the full cost of health-care benefits for those employees
        meeting the age and term-of-service requirements. Keeping in mind the context
        of the labor-management negotiations identified in Yard–Man, [716 F.2d 1476
        (6th Cir.1983)] we find it unlikely that Plaintiff USW would agree to language
        that ensures its members a “full Company contribution,” if the company could
        unilaterally change the level of contribution. The CBA has no limitation on the
        amount of a company contribution and if the Defendants’ argument were
        accepted, the company presumably could lower the contribution to zero without
        violating this language. Such a promise would be illusory.
        Second, the limiting language, “[e]mployees will be required to pay the balance of
        the health care contribution,” follows the provision requiring contributions by
        those retirees who had not attained the requisite seniority points. From the
        placement of this language, we can reasonably infer that it did not apply to all
        retirees, but only to those retirees who had not attained the requisite seniority
        points.
        Third, the collective bargaining agreement tied eligibility for health-care benefits
        to pension benefits. This is another factor indicating that the parties intended the
        health care benefits to vest upon retirement.

Id. at 490.

        On remand, the district court held that Retirees had a vested right to contribution-free
health care benefits based on the inference in Yard-Man. See Tackett v. M&G Polymers USA,
No. 12-3329              Tackett, et al. v. M&G Polymers USA, et al.                 Page 4


LLC, No. 2:07-CV-126, 2011 WL 3438489, at *13−14 (S.D. Ohio Aug. 5, 2011) (“Tackett
Bench Trial”). Following a bench trial, the district court held that the cap letters did not apply to
Retirees, id. at *19, and granted a permanent injunction reinstating Retirees’ lifetime
contribution-free health care benefits, Tackett v. M&G Polymers USA, LLC, 853 F. Supp. 2d
697, 698–99 (S.D. Ohio 2012).

        When Defendants appealed, we cited the Yard-Man contract interpretation principles
embraced by Tackett I.

        (1) “[L]ook to the explicit language,” (2) evaluate that language “in light of the
        context” that led to its use, (3) “interpret each provision . . . as part of the
        integrated whole,” (4) construe each provision “consistently with the entire
        document and the relative positions and purposes of the parties,” (5) construe the
        terms “so as to render none nugatory” and to “avoid illusory promises,” (6) look
        to other words and phrases in the document to resolve ambiguities, and
        (7) “review the interpretation . . . for consistency with federal labor policy.”

Tackett II, 733 F.3d at 599 (quoting Tackett I, 561 F.3d at 489 n.7 (quoting Yard-Man, 716 F.2d
at 1479–80)). We found that the district court did not clearly err in finding the cap agreements
inapplicable to Retirees. Tackett II, 733 F.3d at 597. As a result, we affirmed the district court’s
finding that Retirees’ lifetime contribution-free health care benefits had vested. Id. at 600.

        The qualifying language in Tackett I implied that the CBA language, though
        indicating intent to vest, contained enough ambiguity to permit examination of
        such additional evidence [as the cap letters].
        The district court’s presumption that, in the absence of extrinsic evidence to the
        contrary, the agreements indicated an intent to vest lifetime contribution-free
        benefits was in accordance with both Tackett I and the CBA language promising a
        “full contribution” to qualifying employees. To the extent that vesting was
        presumed, it was not the district court that, sua sponte, shifted the burden of
        proof, but rather the language of the CBA and its linkage of health care benefits to
        pension benefits that led to the conclusion that retirees had a vested right to health
        care benefits and, in the absence of evidence to the contrary, a vested right to
        contribution-free health care benefits. Having reached the conclusion that
        benefits were vested, it was then reasonable for the district court to conclude that
        those benefits could not be bargained away without retiree permission.

Id. (internal citation omitted).
No. 12-3329               Tackett, et al. v. M&G Polymers USA, et al.                   Page 5


       On certiorari, the Supreme Court abrogated Yard-Man and its progeny, finding that Yard-
Man required us to analyze CBAs with a “thumb on the scale” in favor of vesting. M&G
Polymers, 135 S. Ct. at 935; id. at 938 (Ginsburg, J., concurring). On remand, the Supreme
Court directed us to review the parties’ agreements and determine whether benefits vested using
“ordinary principles of contract law.” M&G Polymers, 135 S. Ct. at 937 (unanimous op.).

                   II.     ORDINARY PRINCIPLES OF CONTRACT LAW

       Our review begins with the Supreme Court’s decision in M&G Polymers, which
unanimously concluded we should review the Agreements applying “ordinary principles of
contract law.”     See id. at 935–37; id. at 938 (Ginsburg, J., concurring).           Such “ordinary
principles” include the following:

                [A]s with any other contract, the parties’ intentions control.

                Where the words of a contract in writing are clear and unambiguous, its
                 meaning is to be ascertained in accordance with its plainly expressed
                 intent.

                Although a court may look to known customs or usages in a particular
                 industry to determine the meaning of a contract, the parties must prove
                 those customs or usages using affirmative evidentiary support in a given
                 case.

                [T]he written agreement is presumed to encompass the whole agreement
                 of the parties.

                Courts [should] avoid constructions of contracts that would render
                 promises illusory because such promises cannot serve as consideration for
                 a contract. . . . [A] promise that is “partly” illusory is by definition not
                 illusory.

                [C]ourts should not construe ambiguous writings to create lifetime
                 promises. . . . [C]ontracts that are silent as to their duration will ordinarily
                 be treated not as “operative in perpetuity” but as “operative for a
                 reasonable time.”

                [T]raditional rules of contractual interpretation require a               clear
                 manifestation of intent before conferring a benefit or obligation.
No. 12-3329                Tackett, et al. v. M&G Polymers USA, et al.                          Page 6


                Contractual obligations will cease, in the ordinary course, upon
                 termination of the bargaining agreement.

                When a contract is silent as to the duration of retiree benefits, a court may
                 not infer that the parties intended those benefits to vest for life.

M&G Polymers, 135 S. Ct. at 933–37 (unanimous op.) (citations omitted). The Court did not
purport to discuss all of the ordinary principles of contract law. See id. at 935–37 (noting only
those ordinary contract principles that Yard-Man violated). Justice Ginsburg’s concurrence
identified additional “ordinary principles of contract law”:

                Under the cardinal principle of contract interpretation, the intention of the
                 parties, to be gathered from the whole instrument, must prevail.

                [W]hen the contract is ambiguous, a court may consider extrinsic evidence
                 to determine the intentions of the parties. . . . [F]or example, the parties’
                 bargaining history.

                No rule requires “clear and express” language in order to show that parties
                 intended health-care benefits to vest.

                Constraints upon the employer after the expiration date of a collective-
                 bargaining agreement . . . may be derived from the agreement’s “explicit
                 terms,” but they may arise as well from implied terms of the expired
                 agreement.

M&G Polymers, 135 S. Ct. at 937–38 (Ginsburg, J., concurring) (citations omitted).2 Still, the
parties identified additional “ordinary principles of contract law” that may be relevant here,
including that contracts incorporate existing law, Norfolk & W. Ry. Co. v. Am. Train Dispatchers
Ass’n, 499 U.S. 117, 130 (1991); see also 11 Williston on Contracts § 30:19; 3 Corbin, Contracts
§ 551, and that subsequent changes in the law are not incorporated unless the contract so


        2
          The M&G Polymers majority did not purport to disregard or disavow all other ordinary principles of
contract law that it did not expressly identify. Reliance on Justice Ginsburg’s concurrence is appropriate in this
instance because it identifies other principles of contract law. Compare J.P. v DeSanti, 653 F.2d 1080, 1089 (6th
Cir. 1981) (relying on concurrences in two Supreme Court cases to “assure that there would be no
misunderstanding” as to the meaning of the Court’s opinion and to remove “any doubt about the Court’s analysis”),
with Alexandar v. Sandoval, 532 U.S. 275, 285 n.5 (2001) (noting that a concurrence that is merely “consistent
with” the majority, but not “coextensive,” cannot “force the majority to address a point they found it unnecessary
(and did not wish) to address, under compulsion of [a] new principle that silence implies agreement.”).
No. 12-3329               Tackett, et al. v. M&G Polymers USA, et al.                       Page 7


indicates, Kia Motors Am., Inc. v. Glassman Oldsmobile Saab Hyundai, Inc., 706 F.3d 733, 738
(6th Cir. 2013) (quoting 11 Williston on Contracts § 30:23).

        Importantly, the Court rejected Yard-Man’s inferences in favor of retirees, but also
declined to adopt an “explicit language” requirement in favor of companies.                      See M&G
Polymers, 135 S. Ct. at 937 (unanimous op.), 938 (Ginsburg, J., concurring); Litton Fin. Printing
Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B., 501 U.S. 190, 207 (1991) (“[A] collective-
bargaining agreement [may] provide[] in explicit terms that certain benefits continue after the
agreement's expiration,” but nevertheless, “constraints upon the employer after the expiration
date of a collective-bargaining agreement . . . may arise as well from the express or implied
terms of the expired agreement itself.”) (emphasis added).3 Thus, while the Supreme Court’s
decision prevents us from presuming that “absent specific durational language referring to retiree
benefits themselves, a general durational clause says nothing about the vesting of retiree
benefits,” we also cannot presume that the absence of such specific language, by itself, evidences
an intent not to vest benefits or that a general durational clause says everything about the intent
to vest. See M&G Polymers, 135 S. Ct. at 935, 937 (unanimous op.) (noting that Sprague v.
General Motors Corp., 133 F.3d 388, 400 (6th Cir. 1998) and Yard-Man were decided using
different principles of contract construction as to the requirement for “clear and express”
language, but falling short of endorsing or denouncing Sprague). We need not decide here
whether Sprague’s “clear and express language” requirement comports with ordinary principles
of contract law.

                         III.    VESTING UNDER THE AGREEMENTS

        We now consider whether the documents that make up the Agreements here vest Retirees
with lifetime contribution-free health care benefits using ordinary principles of contract law.

        A.      Applicability of Cap Letters

        Defendants argued extensively in their briefs that the cap letters are part of the
Agreements or can serve as extrinsic evidence of dealings with Retirees. Retirees disagree.

        3
        Though Retirees acknowledged that the Agreements lack clear and express language vesting benefits, the
Supreme Court did not direct judgment on this issue.
No. 12-3329             Tackett, et al. v. M&G Polymers USA, et al.               Page 8


“Whether a given document is part of a written contract is a question of fact.” E.g., Thomasville
Furniture Indus., Inc. v. JGR, Inc., 3 F. App’x 467, 473 (6th Cir. 2001).

       Though Defendants did not identify any particular Yard-Man inferences that influenced
the district court’s conclusions, they argue that Tackett Bench Trial was decided in the “shadow
of Yard-Man.” On its face, the district court determined, independent of Yard-Man or its
inferences, that the cap letters were not part of the Agreements. See Tackett II, 733 F.3d at 597;
Tackett Bench Trial, 2011 WL 3438489, at *14–19. However, given the district court’s stated
confusion over our Yard-Man instruction, see Tackett Bench Trial, 2011 WL 3438489, at
*13−14, the extent to which the district court was influenced by Yard-Man remains unclear. It is
similarly unclear whether the parties were influenced by Yard-Man during the trial.           For
example, they may not have introduced certain evidence or arguments because of Yard-Man’s
mandate. Now that Yard-Man has been abrogated, additional evidence or arguments may be
relevant to an inquiry under ordinary contract principles. Thus, we remand so the district court
may determine whether the cap letters, or other documents, are part of the Agreement or may
otherwise serve as extrinsic evidence.

       B.      Reverting to Tackett 2007

       Defendants also argue this court should reinstate the district court’s initial decision
dismissing the complaint, because it rested on “simple principles of contract construction.” See
Tackett 2007, 523 F. Supp. 2d at 695. However, Tackett 2007 largely relied on the cap letters
and did not consider other evidence submitted by Retirees. See Tackett 2007, 523 F. Supp. 2d at
689–90. Once that evidence was considered, the district court held that the cap letters did not
apply to Retirees. See Tackett Bench Trial, 2011 WL 3438489, at *14–19. In light of our
decision to remand, we anticipate that the district court will consider any admissible evidence
that is probative of the Supreme Court’s direction to construe the parties’ Agreements under
“ordinary principles of contract law.”

                                     IV.    CONCLUSION

       For the foregoing reasons, we remand so the district court can decide, among other
things, outside the “shadow of Yard-Man,” (1) what documents make up the parties’
No. 12-3329            Tackett, et al. v. M&G Polymers USA, et al.                 Page 9


Agreements; (2) whether reference to extrinsic evidence is appropriate; and (3) whether the
Agreements, and any extrinsic evidence that may be considered, vests with Retirees lifetime
contribution-free health care benefits.   The district court should use ordinary principles of
contract law to answer these questions, without a “thumb on the scale” in favor of either party.
