united states district court for the northern … · 2019. 5. 9. · 3 the district of arizona...

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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ASARCO LLC, §

§

Plaintiff, §

vs. § Case No:

§ 3:18-cv-2813-N

UNITED STEEL, PAPER AND FORESTRY, RUBBER, §

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND §

SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC;§

INTERNATIONAL BROTHERHOOD OF ELECTRICAL §

WORKERS, LOCALS 518, 570, AND 602; INTERNATIONAL §

ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, §

LOCAL 2181; INTERNATIONAL BROTHERHOOD OF §

BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITH, §

FORGERS AND HELPERS, LOCAL 627; INTERNATIONAL §

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, §

WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 104; §

INTERNATIONAL UNION OF OPERATING ENGINEERS, §

LOCAL 428; MILLWRIGHTS, LOCAL 1914; UNITED §

ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE §

PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED §

STATES AND CANADA, LOCAL 741; and BRENDA FRAZIER; §

§

Defendants. §

BRIEF IN SUPPORT OF MOTION FOR DEFENDANT CLASS CERTIFICATION

Case 3:18-cv-02813-N Document 52 Filed 05/07/19 of 21 PageID 1526

Case 3:18-cv-02813-N Document 52 Filed 05/07/19 Page 1 of 21 PageID 1526

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Table of Contents

I. INTRODUCTION ................................................................................................................. 1

II. FEDERAL RULE OF CIVIL PROCEDURE 23 ............................................................ 1

A. The Requirements of Rule 23(a) are Satisfied for the Defendant Class. ...................... 3

1. Rule 23(a)(1): The Defendant Class is so Numerous and Geographically

Dispersed as to Make Joinder Impracticable. .......................................................... 4

2. Rule 23(a)(2): There are Questions of Law and Fact Common to the Defendant

Class. ............................................................................................................................ 5

3. Rule 23(a)(3): The Class Representatives’ Claims are Typical of the Claims of

the Proposed Class. ..................................................................................................... 6

4. Rule 23(a)(4): The Named Representatives Will Fairly and Adequately

Represent the Interests of the Proposed Class Members. ....................................... 7

B. This Action Satisfies the Requirements of Rule 23(b). ................................................. 12

1. The Requirements Under Rule 23(b)(2) are Satisfied. .......................................... 13

2. In the Alternative, the Requirements Under Rule 23(b)(1)(A) are Satisfied. ...... 14

III. LOCAL RULE 23.2 ......................................................................................................... 15

IV. CONCLUSION ................................................................................................................ 16



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TABLE OF AUTHORITIES

Cases Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412 (5th Cir. 1998).......................................... 12

Barnes Group, Inc. v. International Union United Automobile, Aerospace & Agricultural

Implement Workers of America, 2017 WL 1407638 (D. Conn. April 19, 2017) .................. 2, 14

Blake v. Arnett, 663 F.2d 906, 912 (9th Cir. 1981) ........................................................................ 10

Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483-84 (2d Cir. 1995) ................. 10

Contreras v. ASARCO LLC, Case No. 18-3534-PHX-SRB (D. Az.) ....................................... 9, 11

Cottillion v. United Ref. Co., No. 09-140, 2013 WL 5936368, at *6 (W.D. Pa. Nov. 5, 2013) .. 13,

14

Davies v. Dallas County, Texas, 2018 WL 4537202 at *2 (N.D. Tex. Sept. 20, 2018) ................. 6

Feder v. Elec. Data Sys. Corp., 429 F. 3d 125, 129-30 (5th Cir. 2005) ......................................... 7

Funeral Consumers Alliance, Inc. v. Service. Corp. Int’l, 695 F.3d 330, 345 (5th Cir. 2012) ...... 3

Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973) .................................................................... 7

In re Gap Stores Securities Litigation, 79 F.R.D. 283, 290 (N.D. Cal. 1978) .............................. 11

In re Rodriguez, 695 F.3d 360, 365 (5th Cir. 2012) ..................................................................... 12

In re: ASARCO LLC, et al., Case No. 05-21207 (final order entered March 15, 2007) ................. 3

Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) .............................................. 5

John Morrell & Co. v. United Food and Commercial workers Int’l Union, AFL-CIO, 825 F.

Supp. 1440, 1443 n.1 (D.S.D. 1993) ........................................................................................... 2

Lightbourn v. Cty. of El Paso, 118 F.3d 421, 426 (5th Cir. 1997) ................................................. 5

Lillie v. Stanford Trust Co., 2016 WL 10591374 at *4 (N.D. Tex. May 2, 2016) ..................... 4, 6

Louisiana Safety Ass’n of Timbermen – Self I, 2018 WL 4043228 at * 8 (Bkrptcy Ct. W.D. La.

(Aug. 22, 2018) ......................................................................................................................... 10

Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir.), vacated on other grounds, 442 U.S. 915

(1979) .................................................................................................................................. 10, 11

Mary Kay Inc. v. Reibel, 327 F.R.D. 127, 129 (N.D. Tex. 2018) (citations omitted) .................... 2

Maytag Corp. v. International Union, United Automobile, Aerospace, and Agricultural

Implement Workers of America, 271 F.R.D. 504 (S.D. Iowa 2010) (certification order) and

Order (S.D. Iowa June 22, 2010) ...................................................................................... 2, 9, 10

Mezyk v. U.S. Bank Pension Plan, Nos. 09-38410-696, 2011 WL 601653, at *9 (S.D. Ill. Feb. 11,

2011 (Rule 23(b)(1)(A) ............................................................................................................. 14

Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) .............................. 4, 7

Pender v. Bank of Am. Corp., 269 F.R.D. 589, 598-99 (W.D.N.C. 2010) ................................... 14

Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1080-81 (7th Cir. 2013) ................................ 10

Research Corp. v. Pfister Assoc. Growers, Inc., 301 F. Supp. 497, 499 (D.C. Ill. 1969) ............ 10

Serna v. Transport Workers Union of America, AFL-CIO, 202 L.R.R.M. (BNA) 3274, 2014 WL

7721824 at *2 (N.D. Tex. Dec. 3, 2014) ..................................................................................... 4

Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.1993) ....................................................... 5

Strawser v. Strange, 190 F. Supp. 3d 1078, 1080 (S.D. Ala. 2016) ....................................... 10, 11

Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386, 397 (E.D. Pa. 2001) ............................. 14

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 358-59 (2011) .................................................... 5, 6

Watson v. Shell Oil Co., 979 F.2d 1014, 1022 (5th Cir. 1992) ....................................................... 4

Windstream Corp. v. Berggren, No. 4:08CV3173, 2008 WL 5456037 (D. Neb. Dec. 31, 2008) . 2,

6, 11, 13



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Rules Federal Rule of Civil Procedure 23(a) ............................................................................................ 1

Rule 23(b)(1)(A) ............................................................................................................................. 1

Rule 23(b)(2) ................................................................................................................................... 1

Other Authorities 7A Wright & Miller, Federal Practice and Procedure § 1764 (3d ed.) ......................................... 5

7A Wright & Miller, Federal Practice and Procedure §1768 (3d ed. 2005) ............................... 10



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I. INTRODUCTION

Plaintiff ASARCO LLC (“ASARCO”) moves for Certification of a Defendant Class of

Retirees (including their spouses and eligible dependents) pursuant to Rule 23 of the Federal Rules

of Civil Procedure.

ASARCO seeks a declaration of its rights to modify, and/or terminate, medical and

prescription drug benefits provided to certain retired employees, who retired between January 1,

2007 and November 30, 2015, under the terms of the January 1, 2007 Basic Labor Agreement

(“2007 BLA”). As set forth in this Brief, this case is well suited for class litigation. The issues are

relatively straightforward and involve construction of one written labor agreement and one written

health plan document. The governing law is clear, following recent decisions from the United States

Supreme Court on the same issues raised in this declaratory judgment action. The proposed

Defendant Class meets all four requirements of Federal Rule of Civil Procedure 23(a), and this case

is properly maintainable as a class action under Rule 23(b)(2), or alternatively under Rule

23(b)(1)(A).

II. FEDERAL RULE OF CIVIL PROCEDURE 23

ASARCO seeks to certify the following Defendant class:

Any person:

(a) Who was an employee-participant, a dependent of an employee-participant, or a spouse

of an employee-participant in the ASARCO welfare benefit plans that provided for

retiree medical and prescription drug benefits as set forth in section 1 of the 2002 Ray

SPD, and

(b) who retired between January 1, 2007 and November 30, 2015, including any Retirees

who provided the requisite retirement notice by November 30, 2015 and then retired

within 180 days of providing the notice, or a dependent-participant or spouse-participant

of an employee who retired between January 1, 2007 and November 30, 2015 (or

provided the requisite retirement notice by November 30, 2015 and then retired within



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180 days of providing the notice) from a union-represented position with ASARCO

under the terms of the retirement income plan for hourly-rated employees.

“The idea of a defendant class is not novel. Indeed, the text of Rule 23(a) expressly

contemplates such classes, stating that ‘[o]ne or more members of a class may sue or be sued as

representative parties on behalf of all members.’ Rule 23(a) (emphasis added). Federal courts have

therefore long permitted plaintiffs to move for certification of a defendant class after suing a putative

class representative.” Mary Kay Inc. v. Reibel, 327 F.R.D. 127, 129 (N.D. Tex. 2018) (citations

omitted).

Just as with plaintiff classes, the proposed defendant class must be adequately defined and

clearly ascertainable. The class above meets these requirements. Identification and ascertainment of

class members will be made through corporate records on retirements and medical insurance

coverage. In prior cases, courts have certified retiree classes, including as defendant classes. See,

e.g., Maytag Corp. v. International Union, United Automobile, Aerospace, and Agricultural

Implement Workers of America, 271 F.R.D. 504 (S.D. Iowa 2010) (certification order) and Order

(S.D. Iowa June 22, 2010), Ex. A, APP 1-30;1 Windstream Corp. v. Berggren, No. 4:08CV3173,

2008 WL 5456037 (D. Neb. Dec. 31, 2008); John Morrell & Co. v. United Food and Commercial

workers Int’l Union, AFL-CIO, 825 F. Supp. 1440, 1443 n.1 (D.S.D. 1993); Barnes Group, Inc. v.

International Union United Automobile, Aerospace & Agricultural Implement Workers of America,

2017 WL 1407638 (D. Conn. April 19, 2017).

In 2003, ASARCO and related entities filed a declaratory judgment class action ("2003

ASARCO retiree litigation") against various unions and retirees, as representatives of retiree classes,

seeking a declaration that it had the right to modify retiree healthcare benefits. The District Court in

1 A copy of the unpublished Order granting the motion for defendant class certification in the Maytag

case is attached to this Brief as Exhibit A, APP 1-30.



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the District of Arizona certified retiree classes. See ASARCO, Inc. v. United Steelworkers of

America, AFL-CIO/CLC, No. 03-1297-PHX-FJM (D. Az. June 15, 2004) (included in Appendix as

Exhibit B, APP 31-33). In fact, the District Court defined the classes to include the Unions

themselves, and the Union Defendants were defendant class representatives. See id., APP 31-32.

In 2007, the parties entered into a Settlement Agreement ("2007 Settlement Agreement") to

resolve the 2003 class action. The 2007 Settlement Agreement is already filed in the record of this

case, as Exhibit 4 to the Moving Defendants’ Motion to Dismiss or Transfer, Dkt. #18-5, filed Nov.

16, 2018, at pp. 3-4 of 52. The U.S. Bankruptcy Court for the Southern District of Texas entered an

order granting final approval of the 2007 Settlement Agreement with a defendant class as proposed

by ASARCO, represented by both individual retirees and by the Union parties, including the United

Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers

International Union, AFL-CIO/CLC (“USW”) and the International Brotherhood of Electrical

Workers (“IBEW”) Local 602, among others. See id., Dkt. #18-5 at pp. 2-4 of 52; In re: ASARCO

LLC, et al., Case No. 05-21207 (S. D. Tex. Bkrptcy Ct. final order approving settlement agreement,

entered March 15, 2007). See Exhibit C, APP 36 n.3.

“To obtain class certification, parties must satisfy Rule 23(a)’s four threshold requirements,

as well as the requirements of Rule 23(b)(1), (2), or (3).” Funeral Consumers Alliance, Inc. v.

Service. Corp. Int’l, 695 F.3d 330, 345 (5th Cir. 2012) (citation omitted).

A. The Requirements of Rule 23(a) are Satisfied for the Defendant Class.

Under Rule 23(a), class certification is proper if:

(1) the class is so numerous that joinder of all members is impracticable (numerosity),

(2) there are questions of law or fact common to the class (commonality),



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(3) the claims or defenses of the representative parties are typical of the claims or defenses

of the class (typicality), and

(4) the representative parties will fairly and adequately protect the interests of the class

(adequacy of representation).

Fed. R. Civ. P. 23(a).

1. Rule 23(a)(1): The Defendant Class is so Numerous and

Geographically Dispersed as to Make Joinder Impracticable.

Although there is no bright line rule for establishing numerosity, Watson v. Shell Oil Co., 979

F.2d 1014, 1022 (5th Cir. 1992), a class numbering in the hundreds is sufficiently numerous to

render joinder of all parties impracticable. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624

(5th Cir. 1999) (explaining that a class of 100 to 150 generally satisfies the numerosity requirement).

This requirement does not impose a specific numerical threshold; rather, the Court must consider

whether joinder of all class members together is impracticable based on class size, as well as the

geographic dispersion of class residency. E.g., Lillie v. Stanford Trust Co., 2016 WL 10591374 at

*4 (N.D. Tex. May 2, 2016); Serna v. Transport Workers Union of America, AFL-CIO, 202

L.R.R.M. (BNA) 3274, 2014 WL 7721824 at *2 (N.D. Tex. Dec. 3, 2014). Here, there are at least

approximately 740 persons in the Defendant Class dispersed across approximately thirteen states.

Approximately two hundred members of the class reside in Texas, and the great majority of those

members reside in the Northern District of Texas. See Exhibit D, Affidavit of Stacy Sinele, at ¶¶ 3-

5, APP 39.2 The sheer size and wide geographic diversity of the Defendant Class makes joinder

2 Although Defendants may argue that it would be “better” to certify a class in Arizona, the facts are

that hundreds of members of the class do not live in Arizona. In this case, ASARCO proposes to

name as class representatives two individuals who worked for ASARCO in Arizona, and who now

reside in the Northern District of Texas. ASARCO further proposes that the USW serve as class

representative. It indisputably represents the interests of class members who reside in Arizona as



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impracticable and therefore Rule 23(a)(1) is satisfied.

2. Rule 23(a)(2): There are Questions of Law and Fact Common to the

Defendant Class.

The commonality requirement is met if there exists a single legal question which “affect[s] all

or a significant number of the putative class members.” Lightbourn v. Cty. of El Paso, 118 F.3d 421,

426 (5th Cir. 1997). “The threshold of ‘commonality’ is not high . . . [T]he rule requires only that

resolution of the common questions affect all or a substantial number of the class members.” Jenkins

v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). (citations omitted). Indeed, “[‘e]ven a

single [common] question’ will do.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 358-59 (2011)

(citation omitted).

Common questions of law and fact predominate in this case and apply to all members of the

Defendant Class. Specifically, the common questions include whether ASARCO has the right to

modify the medical and prescription drug benefits of the Retirees. Common factual issues include

the language of the 2007 BLA and the 2002 Ray SPD health plan document, which applied to all

members of the class. Common questions of law include the precedents of the U.S. Supreme Court

regarding construction and determination of collective bargaining agreements and health plan

documents on the issue of whether medical and prescription drug benefits are a vested right for

retirees or whether the company has the ability to change the terms of such benefits, including after

the termination of the labor agreement between the employer and unions. These common questions

of law and fact sufficiently satisfy Rule 23(a)(2).

well as those who reside in Texas, and there is no dispute that the USW regularly conducts business

in the Northern District of Texas.



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3. Rule 23(a)(3): The Class Representatives’ Claims are Typical of the

Claims of the Proposed Class.

Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of

the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The test for typicality, like

commonality, is not demanding. Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.1993). The

requirement is satisfied if there is “similarity between the named plaintiffs’ legal and remedial

theories and the theories of those whom they purport to represent.” Lightbourn, 118 F.3d at 426. See

7A Wright & Miller, Federal Practice and Procedure § 1764 (3d ed.).

“A representative’s claim is typical if it arises out of the same event, course of conduct or

legal theory as the claims of the other proposed class members.” Lillie, 2016 WL 10591374 at *4.

See also Serna, 2014 WL 7721824 at *3; Windstream Corp., 2008 WL 5456037 at *2 (finding that

the defenses of the class representatives and members of the retiree class stem from a single event,

the amendment of the retiree health plan, and are based on the same legal theory that certain welfare

benefits were vested); Davies v. Dallas County, Texas, 2018 WL 4537202 at *2 (N.D. Tex. Sept. 20,

2018) (commonality and typicality tend to merge, as both requirements serve as guideposts for

determining whether the named [representative’s defenses] and the class [defenses] are so

interrelated that the interests of the class members will be fairly and adequately protected in their

absence) (citing Wal-Mart, 564 U.S. at 378 n.5).

Here, the defenses of the Unions (including USW and International Brotherhood of

Electrical Workers (“IBEW”) Local 602) and the individual class representatives Brenda Frazier,

Minh Dang, Sang Nguyen, Wayne Johnson, Henry Murray, Terry Schardein and Randy Flowers are

typical of those of the other members of the proposed class.3 See Ex. D, Affidavit of Stacy Sinele, at

3 On April 5, 2019, ASARCO moved for leave of Court to file a First Amended Complaint, which

contains six additional defendant class representatives, named in the text. See Dkt. # 46.



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¶¶ 6-15, APP 39-43. The class representatives likely will argue, all based on the same legal theories,

that ASARCO does not have the right to modify medical and prescription drug benefits of ASARCO

Retirees under the 2007 BLA and the incorporated 2002 Ray SPD. Whether or not ASARCO can

unilaterally amend or terminate retiree medical and prescription drug benefits for the Defendant

Class and the class representatives clearly aligns the interests of all class members with their

representatives.

4. Rule 23(a)(4): The Named Representatives Will Fairly and

Adequately Represent the Interests of the Proposed Class Members.

In order to satisfy Rule 23(a)(4), the moving party must show that (1) the class

representatives share common interests with the class members, and (2) class counsel must be

qualified to vigorously pursue the interests of the class. Gonzales v. Cassidy, 474 F.2d 67, 72 (5th

Cir. 1973). In examining whether class representatives share common interests with the proposed

class members, as long as the proposed representatives have a sufficient stake in the outcome of the

litigation and are united in asserting a common right, then the class members’ interests are aligned.

Mullen, 186 F.3d at 625-26 (finding that the class will be adequately protected “because the Named

Plaintiffs’ interests are identical to the interests of the proposed class” with respect to the legal

claims being made). The Fifth Circuit also recognizes that this requirement is satisfied where class

representatives have no conflicts of interest. Feder v. Elec. Data Sys. Corp., 429 F. 3d 125, 129-30

(5th Cir. 2005). There are no known conflicts between the class representatives and class members

in this case. See Ex. D, Affidavit of Stacy Sinele, at ¶¶ 17-18, APP 43.

Defendant Brenda Frazier is a retired hourly employee of ASARCO, and former member of

the USW, who retired on January 31, 2009 from the Amarillo Copper Refinery. She is a citizen and

resident of Grand Prairie, Texas, in the Northern District of Texas, Dallas Division. Defendant Minh

Dang is a retired hourly employee of ASARCO, and former member of the USW, who retired on



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June 30, 2013 from the Amarillo Copper Refinery. Defendant Sang Nguyen is the spouse of

Defendant Minh Dang. They are citizens and residents of Keller, Texas, in the Northern District of

Texas, Fort Worth Division. Defendant Wayne Johnson is a retired hourly employee of ASARCO,

and former member of the USW Local 937, who retired on July 31, 2010 from the Mission Complex

in Sahuarita, Arizona. He is a citizen and resident of Big Spring, Texas, in the Northern District of

Texas, Abilene Division. Defendant Henry Murray is a retired hourly employee of ASARCO, who

retired on April 30, 2014 from the Mission Complex in Sahuarita, Arizona. He is a citizen and

resident of San Angelo, Texas, in the Northern District of Texas, San Angelo Division. Defendant

Terry Schardein is a retired hourly employee of ASARCO, and former member of the USW and of

IBEW Local 602, who retired on August 31, 2007 from the Amarillo Copper Refinery. He is a

citizen and resident of Amarillo, Texas, in the Northern District of Texas, Amarillo Division. While

an employee of ASARCO, Defendant Schardein was the secretary of the union negotiating

committee for the 2007 BLA with ASARCO. Defendant Randy Flowers is a retired hourly

employee of ASARCO, and former member of the USW, who retired on April 30, 2016 from the

Amarillo Copper Refinery, after having given ASARCO the requisite retirement notice by

November 30, 2015. He is a citizen and resident of Amarillo, Texas, in the Northern District of

Texas, Amarillo Division.

All of these individual Defendant class representatives have been provided with medical and

prescription drug benefits by ASARCO, first as active employees and currently as retirees (and, in

Sang Nguyen’s case, as a spouse of a retiree). These Defendants share a common link with all other

members of the Defendant Class. They are all persons who retired from ASARCO between January

1, 2007 and November 30, 2015 (including those who gave notice of their intent to retire by

November 30, 2015 and then retired within 180 days after the notice) (and spouses and dependents



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of such persons). They share with the other Defendant Class members the fact that their rights and

ASARCO’s rights with respect to retiree healthcare are determined by ERISA and by the terms of

the 2007 BLA and its incorporated health plan. It is the common links that make this case suitable

for one in which to certify the Defendant Class. See Ex. D, Affidavit of Stacy Sinele, at ¶¶ 15-21,

APP 42-43.

The individual class members include both retirees who previously worked at ASARCO’s

Copper Refinery in Amarillo, and retirees who previously worked at ASARCO’s Mission Complex

in Arizona. This Court has personal jurisdiction over all of these individual Defendants.

Furthermore, the Union Defendants – in particular the USW and IBEW Local 602, both of

which represent employees in the Northern District of Texas and both of which had prominent

officer positions on the union negotiating committee for the 2007 BLA -- will fairly and adequately

represent the interests of the Defendant Class because their defenses are the same as those for the

members of the Defendant Class. See Maytag Corp., supra (June 22, 2010 Order attached as Exhibit

A, APP 11-13) (finding the UAW to be an adequate and appropriate representative with standing of

a class of retirees); 2003 ASARCO retiree litigation, Ex. B, APP 31-32 (certifying classes including

the Unions and appointing Unions as defendant class representatives) and Dkt. # 18-5 at pp. 2-4 of

52 (2007 Settlement Agreement with same provisions) and Ex. C, APP 34-38 (Bankruptcy Court

order approving same). All Defendant Class members and the class representatives share the same

interest in showing that ASARCO does not have the right to modify medical and prescription drug

benefits of ASARCO Retirees under the 2007 BLA and the incorporated 2002 Ray SPD.

Rule 23(g)(1)(C) provides that in appointing class counsel, the Court must consider:

(1) the work counsel has done in identifying or investigating potential claims in the

action,

(2) counsel’s experience in handling class actions, other complex litigation, and



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claims of the type asserted in the action,

(3) counsel’s knowledge of the applicable law, and

(4) the resources counsel will commit to representing the class.

Fed. R. Civ. P. 23(g).

Defendants' counsel, Feinstein Doyle Payne & Kravec, LLC, are highly qualified, as they

have substantial experience in class action matters in general and with respect to ERISA class cases

in particular. In addition, they have significant LMRA expertise. These same counsel represented the

Union defendants and individual named defendant class representatives in the 2003 ASARCO retiree

litigation. See Ex. B, APP 33; Ex. C, APP 35; Dkt. # 18-5 at pp. 3 and 21 of 52. These same

counsel have long represented the class of retirees at issue in this lawsuit, dating from prior to the

filing of the lawsuit. See ASARCO’s Response to Motion to Dismiss, Dkt. #29, at p. 9 and

Appendix to Response to Motion to Dismiss, Dkt. #30, at APP 39-40 (March 4, 2014 letter of

William Payne purporting to represent subclass of ASARCO retirees who retired in 2007 and later).

These same counsel represent the Unions and retiree plaintiffs in the case of Contreras v. ASARCO

LLC, Case No. 18-3534-PHX-SRB (D. Az.) currently pending in the District of Arizona. See Ex. D,

Stacy Sinele Affidavit, at ¶ 22, APP 43-44. Given the dominant role that class counsel play in

managing such cases, as opposed to the realistically low level of input and control of the individual

class representatives, the competency and experience of class counsel here, and their experience with

retiree litigation, including with ASARCO, is a factor strongly demonstrating adequacy. See Phillips

v. Asset Acceptance, LLC, 736 F.3d 1076, 1080-81 (7th Cir. 2013).

In the context of defendant class actions, adequacy to serve as a class representative should

not be confused with eagerness, or more particularly, reluctance to be named as a defendant.

When a defendant class is involved as in this case, reluctance to act as a class

representative is suspect, as strategically motivated. See Research Corp. v. Pfister



11

Assoc. Growers, Inc., 301 F. Supp. 497, 499 (D.C. Ill. 1969) (“This court weighs the

defendants’ protestations that they do not ‘desire’ to represent the entire class, but

this is hardly enough to overcome the overwhelming evidence of their ability and

intention to challenge the plaintiff’s assertions . . .. In any event, this factor of

‘desire,’ as opposed to ability should not be given more than token weight.”); 7A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure §1768 (3d ed. 2005). “The fact that the name representatives are reluctant

does not necessitate the denial of class certification if the court finds that they have

the incentive and ability to protect the entire class effectively.” 7A Wright, Miller &

Kane, supra § 1770; see also Blake v. Arnett, 663 F.2d 906, 912 (9th Cir. 1981)

(“[W]here a defendant class is involved, the court can designate representatives over

whom it already has jurisdiction, even if they do not wish to serve.”).

Maytag Corp., supra (Order dated June 22, 2010 at pp. 12-13, Exhibit A, APP 12-3). Rule 23 does

not require a willing representative, merely an adequate one. Where there are legal issues common

to the class, the representative who defends his own interest will also be protecting the interests of

the class. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483-84 (2d Cir. 1995) (citing

Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir.), vacated on other grounds, 442 U.S. 915

(1979)); In Louisiana Safety Ass’n of Timbermen – Self I, 2018 WL 4043228 at * 8 (W.D. La.

Bkrptcy Ct. (Aug. 22, 2018); Strawser v. Strange, 190 F. Supp. 3d 1078, 1080 (S.D. Ala. 2016); 2

Newberg on Class Actions, § 5.12 (5th ed.). The Court must not too readily accede to the protests of

named defendants that they do not want to serve as representatives, for to permit them to abdicate so

easily would vitiate the effectiveness of the defendant class action, which is authorized by Rule 23.

See Marcera, 595 F.2d at 1239; Strawser, 190 F. Supp. 3d at 1080. See also In re Gap Stores

Securities Litigation, 79 F.R.D. 283, 290 (N.D. Cal. 1978) (“the best defendant class representative

may well be the one who most vigorously and persuasively opposes certification since he is the one

most likely to guarantee an adversary presentation of the issues”).

It bears noting, as well, that the USW in particular has shown no reluctance whatsoever to

raise the same defenses and legal theories as the retirees. It, along with others including members of

the same putative class that is involved in this lawsuit, has sued ASARCO in the Contreras Case



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asserting that ASARCO does not have the right to modify or terminate medical and prescription drug

benefits for retirees who retired during the 2007 BLA.

Defendants’ counsel, with the resources of the Union Defendants, have the resources

necessary to defend this suit; have investigated the claims in this suit; and have already invested

substantial time and resources in representing the interests of the proposed class. They have shown

themselves to be vigorous and active class counsel by filing pre-answer motions on a variety of

grounds. See id.; Windstream Corp., 2008 WL 5456037 (review of the docket sheet demonstrates

that the class representative have vigorously prosecuted the interests of the class through qualified

counsel). Consequently, the adequacy requirement under Rule 23(a)(4) and Rule 23(g) is satisfied.

B. This Action Satisfies the Requirements of Rule 23(b).

Having satisfied the requirements of Rule 23(a), the proposed class can properly be certified

under Rule 23(b)(2) or, in the alternative, Rule 23(b)(1). Fed. R. Civ. P. 23(a) & (b). Rule 23(b)

provides that a class may be certified if:

(1) the prosecution of separate actions by or against individual members of the class

would create a risk of (A) inconsistent or varying adjudications with respect to

individual members of the class which would establish incompatible standards of

conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which h would as a

practical matter be dispositive of the interests of the other members not parties to the

adjudications or substantially impair or impede their ability

to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final injunctive relief or



13

corresponding declaratory relief with respect to the class as a whole.

Fed R. C. P. 23(b)(1) & (2).

1. The Requirements Under Rule 23(b)(2) are Satisfied.

Rule 23(b)(2) allows a class to be certified where plaintiffs can establish that:

The party opposing the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole[.]

Fed. R.Civ. P. 23(b)(2). Subsection (b)(2) is invoked when “broad, class-wide injunctive or

declaratory relief is necessary.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412 (5th Cir. 1998).

Rule 23(b)(2) classes are “assumed to be a homogenous and cohesive group with few conflicting

issues among its members.” Id. at 413 (citations omitted).

Courts have identified two requirements for proceeding under Rule 23(b)(2). First, the

defendant's actions or refusal to act must be generally applicable to the class as a whole, and (2)

declaratory or injunctive relief must predominate over damages sought. In re Rodriguez, 695 F.3d

360, 365 (5th Cir. 2012)

This case satisfies both Rule 23(b)(2) tests. First, ASARCO acted on grounds applicable to

the Defendant Class as a whole when it decided to modify the medical and prescription drug benefits

of all the Defendant Class members effective January 1, 2020. Second, ASARCO seeks declarative

relief that ASARCO has the right, under the 2007 BLA, ERISA, and the terms of ASARCO’s

employee welfare benefit plans as set forth in the 2002 Ray SPD, to amend, and to even terminate,

the medical and prescription drug benefits to ASARCO Retirees who retired between January 1,

2007 and November 30, 2015 (including any retirees who provided the requisite retirement notice by

November 30, 2015 and then retired within 180 days of the notice) under the terms of the retirement

income plan for hourly-rated employees. See Windstream Corp., 2008 WL 5456037 at *3 (finding



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that Rule 23(b)(2) was clearly satisfied in defendant retiree class case involving plan amendment);

2003 ASARCO retiree litigation, Ex. B, APP 31-33 (certifying defendant retiree class pursuant to

Federal Rule of Civil Procedure 23(b)(2).

2. In the Alternative, the Requirements Under Rule 23(b)(1)(A) are

Satisfied.

“[C]ertification pursuant to Rule 23(b)(1) is ‘especially helpful in ERISA cases where a

defendant provides unitary treatment to all members of a putative class and where litigation of some

class members’ rights could be implicated in suits brought by other class members.’” Cottillion v.

United Ref. Co., No. 09-140, 2013 WL 5936368, at *6 (W.D. Pa. Nov. 5, 2013) (citation omitted).

Rule 23(b)(1) applies where “prosecuting separate actions by or against individual class members

would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that

would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would

be dispositive of the interests of the other members not parties to the individual adjudications

or would substantially impair or impede their ability to protect their interests[.]”

Fed. R. Civ. P. 23(b)(1).

The requirements of subsection (A) are met because failure to certify the Defendant Class

could lead to multiple and conflicting judgments. Specifically, conflicting judgments would establish

“incompatible standards of conduct” regarding whether ASARCO modified benefits in violation of

ERISA, and the terms of the 2007 BLA and ASARCO’s medical and prescription drug plan as set

forth in the 2002 Ray SPD. As explained in another ERISA action, if relief were granted in favor of

some participants of a defined benefit plan but not others, the plan would be faced with the

“impossible task” of treating “similarly situated plan participants pursuant to two conflicting

standards.” Cottillion, 2013 WL 5936368, at *6. “In order to avoid this impracticality and establish a



15

single standard of conduct, consistent with the underlying goals of ERISA, class certification

pursuant to Rule 23(b)(1) is appropriate.” Id. See also Barnes Group, 2017 WL 1407638 at * 4;

Mezyk v. U.S. Bank Pension Plan, Nos. 09-38410-696, 2011 WL 601653, at *9 (S.D. Ill. Feb. 11,

2011 (Rule 23(b)(1)(A) certification appropriate “to establish one single standard of conduct for

defendants’ administration of [a defined benefit] Plan” where participants sought “broad declaratory

and injunctive relief” regarding whether plan provisions violated ERISA); Pender v. Bank of Am.

Corp., 269 F.R.D. 589, 598-99 (W.D.N.C. 2010) (certifying Rule 23(b)(1)(A) class where claims

implicated “the fundamental nature of the Plans.”); Thomas v. SmithKline Beecham Corp., 201

F.R.D. 386, 397 (E.D. Pa. 2001) (certifying class under Rule 23(b)(1)(A) in employee benefits case

holding that if relief were granted in some actions but not others, conflicting results could make

ERISA compliance impossible); 2003 ASARCO retiree litigation, Ex. B, APP 31-33 (certifying

defendant retiree class pursuant to Federal Rule of Civil Procedure 23(b)(2).

III. LOCAL RULE 23.2

ASARCO has responded in the previous sections of this Brief to most of the applicable

requirements of Local Rule 23.2. The form of notice to be sent to class members should not be

difficult to fashion, particularly given prior examples of notice in the 2003 ASARCO retiree

litigation and similar cases. ASARCO will bear the expense of notice to class members.

To the extent that discovery is necessary for a class certification hearing, ASARCO

provisionally proposes that discovery of any necessary facts be allowed coextensive with the existing

ongoing discovery period, and that the parties propose a time frame for completing class certification

discovery once Defendants have responded.



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IV. CONCLUSION

A class action is the best method for resolving this dispute fully, fairly, and efficiently, and

this case satisfies all the requirements of Rule 23 for certification of the Defendant Class.

Accordingly, for the reasons stated above, ASARCO respectfully requests that this Court grant the

Motion and certify a Defendant Class as defined above in this Brief.

Respectfully submitted,

Date: May 7, 2019 ASARCO LLC

By: s/David G. Lubben

s/Richard A. Russo

Richard A. Russo Jennette E. DePonte

Illinois State Bar No. 6279733 Texas State Bar No. 00795935

David G. Lubben McCathern PLLC

Illinois State Bar No. 6207729 3710 Rawlins Street, Suite 1600

Davis & Campbell L.L.C Dallas, TX 75219

401 Main Street, Suite 1600 Tele: (214) 741-2662

Peoria, IL 61602 Fax: (214) 741-4717

Tele: (309) 673-1681 [email protected]

Fax: (309) 673-1690

[email protected]

[email protected]

Counsel for Plaintiff ASARCO LLC



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CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that the foregoing document was filed with this

Court and all parties entitled to receive notice via the Court’s CM/ECF system on this 7th day of

May, 2019.

Joseph Gillespie

Gillespie & Sanford LLP

[email protected]

William T. Payne

Pamina Ewing

Joel R. Hurt

Ruairi McDonnell

Feinstein Doyle Payne & Kravaec, LLC

[email protected]

[email protected]

[email protected]

[email protected]

Stanley Lubin

Nicholas J. Enoch

Lubin & Enoch, P.C.

[email protected]

[email protected]

Desmond Chaehun Lee

DeCarlo & Shanley

[email protected]

s/David G. Lubben



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