Dewhurst et al v. Century Aluminum Company et al

Filing 212

MEMORANDUM OPINION & ORDER granting 205 JOINT MOTION to Modify the Class Definition Contained in the Class Certification Order. Signed by Judge John T. Copenhaver, Jr. on 5/23/2017. (cc: attys; any unrepresented party) (tmr) (Modified on 5/23/2017 to note motion has been granted) (skh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
HAROLD DEWHURST, and DAVID
BRYAN, on behalf of themselves
and all other persons similarly
Situated, and UNITED STEEL, PAPER
AND FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED INDUSTRIAL AND
SERVICE WORKERS INTERNATIONAL UNION,
AFL-CIO/CLC,
Plaintiffs,
v.

Civil Action No. 2:09-1546

CENTURY ALUMINUM COMPANY, and
CENTURY ALUMINUM OF WEST VIRGINIA,
INC., AND CENTURY ALUMINUM MASTER
WELFARE BENEFIT PLAN, and DOES
1 THROUGH 20
Defendants.

MEMORANDUM OPINION & ORDER
Pending is the joint motion to modify the class
definition contained in the class certification order, filed
February 9, 2017, in order to accommodate the $23 million proposed
settlement in this case.

I.

Background

The history of this case is long and not directly
relevant to the pending motion, so it will only be discussed
briefly.

On November 13, 2009, the individual plaintiffs, who are

retired employees from a facility operated by one or more of the
defendants, instituted this action in the United States District
Court for the Southern District of Ohio.

They were joined by the

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union, AFLCIO/CLC.

On December 23, 2009, the action was transferred to the

Southern District of West Virginia.
The class action complaint alleged that Century Aluminum
Company’s (“Century”) decision to unilaterally modify or cancel
medical benefits that it provides to retirees, spouses, surviving
spouses, and dependents of retirees contravened the applicable
collective bargaining agreements (“CBA”) in violation of section
301 of the Labor Management Relations Act, 29 U.S.C. § 185, and
violated sections 502(a)(1)(B) and (a)(3) of the Employment
Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B) and
(a)(3).
On June 24, 2010, the court certified a class consisting
of approximately 437 individuals.
2

See Plaintiff-Participants’ Am.

Memo. in Supp. of Mot. for Class Certification (ECF Doc. No. 32)
at 2.

The class definition in the class certification order

consisted of all persons:
who (1) are or were employee-participants in the Kaiser
Aluminum Corporation and/or Ravenswood Aluminum and/or
Century Aluminum of West Virginia, Inc. employee benefits
plans which provide for retiree medical benefits, and (2) as
to whom the USW had been the participants’ collective
bargaining representative, and who worked at the Ravenswood,
West Virginia plant at the time of their retirement, and (3)
who retired from Ravenswood Aluminum Corporation or Century
Aluminum of West Virginia, Inc. after February 6, 1989 and
before June 1, 2006, and (4) who are affected by Century
Aluminum of West Virginia Inc.’s modification to or
termination of retiree health benefits announced on or about
October 19, 2009. In addition, all dependents of
participants, or spouses or surviving spouses of participants
who meet criteria 1-4.
Class Certification Order (ECF Doc. No. 78) at 4.
The same day the court certified the above class, the
court denied plaintiffs’ motion for a preliminary injunction,
finding that plaintiffs were not likely to succeed on the merits
of their claims.

See Dewhurst v. Century Aluminum Co., 731 F.

Supp. 2d 506 (S.D. W. Va. 2010).

On June 30, 2010, plaintiffs

noticed their appeal of that ruling.

On August 24, 2011, the

United States Court of Appeals for the Fourth Circuit affirmed.
See Dewhurst v. Century Aluminum Co., 649 F.3d 287 (4th Cir.
2011).

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After motion practice and discovery, including a stay
for purposes of permitting the parties to continue their attempts
to settle the case, the court granted Century’s motion for summary
judgment on September 9, 2015, finding that the language in the
applicable collective bargaining agreements provided that the
retirees’ healthcare benefits only remained in effect for the
terms of those agreements, and that those benefits did not vest
beyond the terms of the agreements.

See Dewhurst v. Century

Aluminum Co., No. 2:09-cv-1546, 2015 WL 5304616 (S.D. W. Va. Sept.
9. 2015).

The court entered judgment for Century and dismissed

the case.
Plaintiffs filed a timely appeal to the Fourth Circuit
on October 7, 2015.

After briefing was completed, the parties

renewed their settlement discussions and reached an agreement in
September 2016.

On January 13, 2017, the parties filed a Joint

Motion for Limited Remand in the Fourth Circuit, requesting remand
so that this court could conduct settlement approval proceedings.
The Fourth Circuit granted the motion on February 7, 2017.
On February 9, 2017, the parties filed a joint motion
in this court for: (1) modification of the class definition; (2)
preliminary approval of the settlement agreement; (3) approval of
the proposed class action notice; (4) preliminary approval of the
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enhancement awards; and (5) an order setting the dates for
objections to the proposed settlement and for the fairness
hearing.
Plaintiffs filed the third amended complaint on June 26,
2012, which was the operative pleading when the court granted
summary judgment.

The third amended complaint undertook to change

the class definition to:
all current or former employees of Century, along with their
spouses, dependents and surviving spouses who either (1)
retired (other than with a deferred vested pension) from RAC
or CAWV after February 6, 1989 and prior to November 1, 2010
and who are not currently receiving medical benefits from
CAWV, (2) retired or retire (other than with a deferred
vested pension) from CAWV on or after November 1, 2010 and
prior to the effective date of a new CBA and who may be
currently receiving medical benefits from CAWV, or (3)
retired or retire from CAWV after the layoff at the
Ravenswood Plant in February 2009 and prior to the effective
date of a New CBA after losing their active medical coverage
while on layoff and as to whom CAWV has denied or asserted
that it will deny retiree medical coverage due to their not
being enrolled in the active medical plan at the time of
their retirement.
Third Am. Compl. at ¶ 32.

Although the court granted plaintiffs’

request to amend the complaint, the purpose of which was to change
the class definition, the parties did not request amendment of the
class certification order.
As an unconditional part of the proposed settlement of
the parties, they now request that the court amend the class
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definition.

The proposed class definition, which the parties

asserted is an expanded one at the conference with the court on
April 7, 2017, consists of 758 or more individuals.

It is defined

as follows:
all current or former employees (including laid off
employees) of CAWV’s Ravenswood facility (“Ravenswood Plant”)
and their spouses, dependents, and surviving spouses who
either (1) retired (other than with a deferred vested
pension) from RAC or CAWV after February 6, 1989 and prior to
November 1, 2012 and who are not currently receiving medical
benefits from CAWV, (2) retired or retire (other than with a
deferred vested pension) from CAWV on or after November 1,
2012 and who may be currently receiving medical benefits from
CAWV, or (3) retired or will retire from CAWV after the
layoff at the Ravenswood Plant in February 2009 after losing
their active medical coverage while on layoff and as to whom
CAWV has denied or asserted that it will deny retiree medical
coverage due to their not being enrolled in the active
medical plan at the time of their retirement. Employees who
break service after November 1, 2012 without immediate
pension eligibility are not Class Members.
Proposed Settlement Agreement at 1.4.

The parties also seek to

change the class type, which was originally certified as a Rule
23(b)(1)(A), (b)(2) and (b)(3) class to a Rule 23(b)(1)(A) and/or
(b)(2) non-opt out class.

See id. at 10.1.1.

The mandatory

nature of the class definition and Rule 23(b)(1)(A) and/or (b)(2)
certification is set forth as follows:
Class Certification Order. An order must be entered by the
Court in the Dewhurst Case modifying the Court’s class
certification order of June 24, 2010 so that the Class is
defined as in 1.4 supra as a non opt-out class action under
Rule 23(b)(2) and/or Rule 23(b)(1)(A) of the Federal Rules of
Civil Procedure. . . .
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Proposed Settlement Agreement at 10.1.1.
II.

Analysis

As noted, the parties seek to amend the class
certification order by changing the definition of the class to the
one contained in the proposed settlement agreement and
additionally seek to change the class to a Rule 23(b)(1)(A) and/or
Rule 23(b)(2) non-opt out class.
A. Change of Class Definition in Light of Rule 23(c)(1)(C)
Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure
states, “An order that grants or denies class certification may be
altered or amended before final judgment.”

Fed. R. Civ. P.

23(c)(1)(C).
As noted, the court entered judgment in favor of
defendants on September 9, 2015.

On October 7, 2015, plaintiffs

initiated an appeal of the summary judgment determination in the
Fourth Circuit.

Before a decision on the appeal was issued, the

parties reached a settlement, which led the Fourth Circuit to
remand the case to this court for the limited purpose of
conducting settlement approval proceedings.

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At the April 7, 2017 conference, the court directed the
parties to provide authority for whether Rule 23(c)(1)(C)
permitted amending the class certification order after the court
had granted summary judgment and entered a judgment order in favor
of defendants.

In the joint filing provided on April 12, 2017,

the parties simply assert that the court may amend the class
certification order despite the entry of the judgment order
because in its limited remand order, the Fourth Circuit remanded
the case for settlement approval proceedings pursuant to Rule 23,
which, the parties contend, includes modification of the class
certification order.

Joint Submission at 2.

Rule 23 does not define “final judgment” for the
purposes of 23(c)(1)(C).

In 2003, Rule 23(c)(1)(C) was changed to

permit modification of the class certification order prior to
entry of final judgment as the previous version of the rule
allowed modification only before “the decision on the merits,” a
term that in application proved to be somewhat ambiguous.

The

advisory committee notes that explain that change shed some light
on the meaning of “final judgment” in that rule, stating,
[This change] avoids the possible ambiguity in referring to
“the decision on the merits.” Following a determination of
liability, for example, proceedings to define the remedy may
demonstrate the need to amend the class definition or
subdivide the class. In this setting the final judgment
concept is pragmatic. It is not the same as the concept
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used for appeal purposes, but it should be flexible,
particularly in protracted litigation.
Fed. R. Civ. P. 23(c)(1)(C), Advisory Committee Notes (2003).
In addition to the Advisory Committee’s view that final
judgment in the Rule 23(c)(1)(C) setting is subject to a pragmatic
concept and that it should be a flexible one, particularly in
protracted litigation, a number of cases prior to the 2003 rule
change had suggested that the prior rule allowed for exceptions
arising in “unusual circumstances” when the parties are not
prejudiced.

See, e.g., Scott v. City of Anniston, Ala., 682 F.2d

1353, 1357-58 (11th Cir. 1982) (stating that Rule 23(c)(1) does
not permit a court, “absent unusual circumstances, to amend the
class after” the time permitted in Rule 23(c)(1)); Smith v.
Armstrong, 968 F. Supp. 50 (D. Conn. 1997) (“[E]ven assuming
arguendo that Rule 23(c)(1) permits a postjudgment
decertification” when unusual circumstances exist and the
amendment will not prejudice the defendant, “the circumstances
here do not warrant ‘a departure from the general rule against
post-judgment class certification amendments.’” (citations and
quotations omitted); White v. Bowen, 116 F.R.D. 12, 14-15
(S.D.N.Y. 1987) (stating “the text of Rule 23(c)(1) . . .

clearly

does not invite amendments to class certification orders after
judgment. . . . [T]he explicit permission to alter or amend a
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certification order before decision on the merits plainly implies
disapproval of such alteration or amendment thereafter,” but then
concluding that the Second Circuit has not “established an
absolute rule against post-judgment amendments” to class
certification and noting that such amendments have been allowed
“in unusual circumstances, where an amendment will not prejudice
the defendant”) (internal citations and quotations omitted)); cf.
Vizcaino v. U.S. Dist. Court for Western Dist. of Washington, 173
F.3d 713, 721-22 (9th Cir. 1999) (stating “We are aware of no
authorities defining what ‘unusual circumstances’ allow a district
court to circumvent the restriction imposed by Rule 23(c)(1)” and
finding that the reasons the district court cited did not justify
modification of the class after the time allowed in Rule 23(c)(1)
and additionally did not comply with the circuit court’s mandate
earlier issued in that case).
Here, a number of unusual circumstances are present that
warrant amendment of the class certification order after the entry
of the judgment order.

The parties in this case have agreed to

settle plaintiffs’ claims after more than seven years of
litigation, despite the court’s grant of summary judgment in
defendants’ favor.

The Fourth Circuit, while not ruling on the

court’s grant of summary judgment, did determine that the court
did not abuse its discretion in denying plaintiffs’ motion for a
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preliminary injunction on the grounds that they were not likely to
succeed on the merits of their claims.

See Dewhurst v. Century

Aluminum Co., 649 F.3d 287 (4th Cir. 2011).

In addition, in a

similar case involving Constellium Rolled Products-Ravenswood,
LLC’s decision to alter the health benefits program of its
retirees, the Fourth Circuit has recently determined that the
governing collective bargaining agreement did not provide for
vested retiree health benefits, where the collective bargaining
agreement similarly provided that benefits would remain “in effect
for the term of this . . . Labor Agreement.”

See Barton v.

Constellium Rolled Products-Ravenswood, LLC, No. 16-1103, ___ F.3d
___, 2017 WL 1948918 (4th Cir. May 11, 2017).

In doing so, the

court of appeals relied on the United States Supreme Court’s 2015
decision in M & G Polymers USA, LLC v. Tackett, 135 S.Ct. 926
(2015), and cited as well its own decision in Dewhurst.
Accordingly, what appears to be the all but certain
outcome of this case should it proceed to decision in our court of
appeals, together with the parties’ cooperation in reaching a $23
million settlement after more than seven years of litigation,
constitute highly unusual circumstances that warrant the demanded
modification of the class definition.

Of course, inasmuch as the

proposed class definition is agreed to by the parties and fosters

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the generous settlement of the case, neither plaintiffs nor
defendants are prejudiced by the modification.
B. Proposed Class Definition
At the April 7th conference with the parties, counsel
for both plaintiffs and defendants assured the court that the
modified class definition does not exclude anyone from the
previously certified class, and only expands the class to include
retirees who lost medical benefits due to events occurring after
the filing of the original complaint.
The court, in its discretion, finds that the
modification of the class definition from the one contained in the
class certification order is appropriate in order to facilitate
the settlement between the parties and include additional persons
affected by defendants’ decision to modify the health benefits of
its retirees.

The court additionally finds that the requirements

of Rule 23(a) - numerosity, commonality, typicality and adequacy
of representation - continue to be satisfied in this case.

The

definition of the certified class is therefore amended to read
exactly as specified by the parties as follows:

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all current or former employees (including laid off
employees) of CAWV’s Ravenswood facility (“Ravenswood Plant”)
and their spouses, dependents, and surviving spouses who
either (1) retired (other than with a deferred vested
pension) from RAC or CAWV after February 6, 1989 and prior to
November 1, 2012 and who are not currently receiving medical
benefits from CAWV, (2) retired or retire (other than with a
deferred vested pension) from CAWV on or after November 1,
2012 and who may be currently receiving medical benefits from
CAWV, or (3) retired or will retire from CAWV after the
layoff at the Ravenswood Plant in February 2009 after losing
their active medical coverage while on layoff and as to whom
CAWV has denied or asserted that it will deny retiree medical
coverage due to their not being enrolled in the active
medical plan at the time of their retirement. Employees who
break service after November 1, 2012 without immediate
pension eligibility are not Class Members.
The class certification order originally certified a
class under Rules 23(b)(1)(A), (b)(2) and (b)(3).

The court finds

it within its discretion and, upon agreement of the parties,
directs the further modification that the class be a Rule
23(b)(1)(A) and (b)(2) non-opt out class.1

C. Notice Pursuant to 28 U.S.C. § 1715
Counsel for the parties have not confirmed with the
court whether they have complied with the requirements contained
in 28 U.S.C. § 1715.

In order to start the running of the 90-day

period prescribed by section 1715, the court directs defendants to

1

While the class was certified, upon request of the parties, as a
Rule 23(b)(1)(A), (b)(2) and (b)(3) class, class notice was never
sent to class members after certification as would be required by
Rule 23(c)(2)(B) for Rule 23(b)(3) classes.
13

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
send the required notices to the appropriate state and federal
Defendants.
officials and thereafter file an affidavit on or before May 31,
ORDER AND NOTICE
2017, confirming that the requirements of it is ORDERED have been
Pursuant to L.R. Civ. P. 16.1, section 1715 that the
following dates are hereby fixed as the time by or on which
satisfied. In the meantime, the court will confer with counsel
certain events must occur:
01/28/2016
Motions under F.R. Civ. notice to the class of
for the parties regarding the proposed P. 12(b), together with the
supporting briefs, memoranda, affidavits, or other
such agreement.
proposed settlement matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
III. Conclusion
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016
Last day to file Report of Parties= Planning
For the foregoing reasons, the joint motion to modify
Meeting. See L.R. Civ. P. 16.1.
the class definition be, and it hereby is, granted. The court
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United of the joint motion Charleston, before
will resolve the remainder States Courthouse in in a separate
the undersigned, unless canceled. Lead counsel
directed to appear.
memorandum opinion and order after the parties have attended to
02/29/2016
Entry of scheduling order.
the court’s request respecting 28 U.S.C. § 1715.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and
to all counsel counsel of and any and to any unrepresented
Notice to all of record record unrepresented parties.
parties.
ENTER: May 23, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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