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New amicus brief: A broader view of retiree health care

This fall the Court will hear a case on the future of retiree health care. M&G Polymers USA v. Tackett asks a challenging question:  what language in a union collective bargaining agreement will cause health-care benefits to vest – that is, continue as long as the beneficiary remains a retiree?  Many employers and tens of thousands of retirees have an interest in the Court’s decision.  If benefits are vested, employers are obligated to provide them, regardless of future employer-union negotiations.  If not, they can later be modified or terminated.

In an experiment designed to explore how members of the Supreme Court bar can assist the Court, Goldstein & Russell has submitted an amicus brief in the case.  This is a “true” amicus brief, with no agenda or desire to advocate for a particular outcome.  Instead, the brief’s only goal is to provide the Court with factual information that may be useful in guiding its decision.

Because of the novelty of the submission, and because the firm has no interest in the outcome of the case, it seemed useful to describe the brief here.  The question presented in the case is technical, so it seemed likely that the case would draw relatively few (amicus briefs that would give the Justices a sense of the implications of their ruling for later cases).  In particular, we thought it would be useful to develop a study that would inform the Court about similar ambiguities in collective bargaining agreements, and how frequently they arise.

At issue before the Court are benefits provided through collective bargaining agreements (CBAs).  In evaluating these CBAs, lower courts have looked to a variety of clauses that either suggest or preclude vesting.  For example, if a contract provides benefits “for life,” courts have generally concluded that those benefits are vested. On the other hand, if a contract restricts benefits to “the term of the agreement,” courts have generally concluded the opposite.  Other provisions may render a CBA ambiguous on the question, prompting courts to consider extrinsic evidence such as descriptions of health-care plans and communications between employers and union members.

The specific question before the Court focuses not necessarily on the meaning of particular clauses, but rather on the approach that courts should take to the contracts as a whole – an issue that has divided the lower courts.  The Sixth Circuit presumes that, absent explicit contractual language, retiree benefits were intended to vest, while the Seventh Circuit appears to apply the opposite presumption.  Still other circuits are somewhere in between.

The parties’ briefs at the certiorari stage discuss the scope and significance of this disagreement in the lower courts.  But the merits briefs focus (understandably) on the specific dispute between M&G Polymers and a specific group of retirees, creating the realistic prospect that the Court could decide the case without a full understanding of how its ruling will affect thousands of other CBAs across the country.

That’s where the amicus brief comes in. We reviewed a sample of 100 CBAs for language related to the vesting of retiree health benefits.  By discussing the key provisions in these agreements and tracing patterns in a larger sample size, the brief offers a broader view of retiree healthcare in the United States.

The study found that 60% of the sampled CBAs (70% in the private sector and 50% in the public sector) include at least one clause that is generally understood to preclude vesting.  By contrast, 26% of the agreements (30% private; 22% public) contain at least one clause suggesting that benefits do vest.  14% of the sampled CBAs (6% private; 22% public) include language that is considered ambiguous, and 16% (14% private; 18% public) are completely silent on the question of vesting.  There was overlap across the categories.

A full description of our methodology, the types of provisions we looked at, and an analysis of our data are available in our brief. The data we compiled, including links to every CBA and SPD we review, is available here.

We are interested in seeing whether the Court finds the brief useful, and whether there are other similar cases in which the bar can provide similar assistance to the Justices.

Recommended Citation: Thomas Hopson, New amicus brief: A broader view of retiree health care, SCOTUSblog (Jul. 25, 2014, 10:50 AM),