Temme et al v. Bemis Company Inc

Filing 50

ORDER signed by Judge J P Stadtmueller on 5/28/09: granting 12 plaintiffs' motion to certify this case as a class action; certifying the specified plaintiff class; designating the named plaintiffs as the class representatives and appointing plaintiffs' counsel as counsel for the class. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ T H O M A S TEMME and SHIRLEY TEMME, individually and as a class of persons similarly situated Plaintiffs, v. B E M IS COMPANY, INC., Defendant. ____________________________________________ C a s e No. 08-CV-090

ORDER
P la in tiffs Thomas Temme and Shirley Temme ("the Temmes") filed a class a c tio n lawsuit against defendant Bemis Company, Inc. ("Bemis") arising from B e m is 's alleged failure to provide life-time retiree health benefit coverage at the le ve ls promised in a 1985 Plant Closing Agreement ("the Agreement"). The

T e m m e s purport to represent a class of retirees, spouses, surviving spouses and d e p e n d e n ts receiving health benefits from Bemis under the Agreement. The

T e m m e s now move the court for certification of the proposed class. Based on the a n a lys is set forth below, the court will grant the motion for class certification. BACKGROUND The proposed class members are former employees of the Hayssen M a n u fa c tu rin g Company ("Hayssen") plant in Sheboygan, W is c o n s in , and their s p o u s e s , surviving spouses and dependents. Hayssen is a subsidiary of the At that time, the

d e fe n d a n t, Bemis, and closed its Sheboygan plant in 1985.

b a rg a in in g unit employees of the plant were represented by the International Union,

U n ite d Automobile, Aerospace and Agricultural Implement W o rk e rs of America, and its Local 1423. The union entered into a plant closing agreement with Hayssen in N o ve m b e r 1985. Bemis has provided health benefits under the agreement to

c o ve re d retirees and their spouses and dependents ever since. Bemis transferred h e a lth coverage for these individuals from a Blue Cross/Blue Shield plan to a CIGNA h e a lth plan effective January 1, 2005. The switch in health plans resulted in

in c re a s e d deductibles and prescription drug co-pays for participants. Two years la te r, on January 1, 2007, Bemis made additional changes by eliminating p re s c rip tio n drug coverage. The Temmes assert that the changes constitute

re d u c tio n s in benefits, thereby breaching the Plant Closing Agreement and violating th e Employee Retirement Income Security Act (ERISA) and the Labor Management R e la tio n s Act (LMRA). The Temmes filed a motion for class certification in conjunction with their la w s u it. In their motion, the Temmes propose a class consisting of all persons who, a s of December 31, 2004,1 were receiving health benefits from Bemis pursuant to th e November 5, 1985 closing agreement covering production and maintenance e m p lo y e e s at Hayssen's Sheboygan facility. c e rtifica tio n is now before the court. The Temmes' motion for class

The plaintiffs' m o tio n for class certification states that they seek certification of a class "consisting o f all persons who as of Decem b e r 31, 2004 were receiving health benefits from Bem is ..." (Pls.' Mot. Class C e r t. 1) (em p h a s is added). However, the plaintiffs' com p la in t specifies that the proposed class "consists of a ll persons who as of Decem b e r 31, 2006 were receiving health benefits from Bem is pursuant to the closing a g r e e m e n ts ..." (Pls.' Com p l. ¶ 21) (em p h a s is added). The court considers the class proposed in the m o tio n f o r class certification as the plaintiffs' putative class.

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AN A L Y S IS Federal Rule of Civil Procedure 23 governs class action lawsuits. The court c o n d u c ts a two-step analysis under the rule to determine whether class certification is appropriate. The plaintiff must first satisfy the four prerequisites established in R u le 23(a), which include: 1) numerosity; 2) commonality; 3) typicality; and 4) a d e q u a c y of representation. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2 0 0 6 ); See also Fed. R. Civ. P. 23. Failure to meet any of the prerequisites of the ru le precludes class certification. Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2 0 0 8 ). In addition, the plaintiff must also satisfy one of the conditions of Rule 23(b). A llia n c e to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). c o u rt will address each of the requirements in turn. I. N u m e r o s i ty N u m e ro s ity , pursuant to Rule 23, requires the class to be "so numerous that jo in d e r of all members is impracticable." Fed. R. Civ. P. 23(a)(1). In determining w h e th e r joinder is impractical, the court considers the potential size of the class, the g e o g ra p h ic disbursement of potential members, the type of relief sought, and the "p ra c tic a lity of relitigating the central issues of the controversy." Quiroz v. Revenue P r o d . Mgmt., Inc., 252 F.R.D. 438, 441 (N.D. Ill. 2008). The determination is not a m e re numerical threshold; as few as 40 members can render joinder impractical u n d e r particular circumstances. See id. The

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T h e Temmes assert that there are approximately 50-53 members of the p u ta tive class. However, Bemis contests the approximation and asserts that the a c tu a l number of class members is 25, representing only 16 households. Bemis a rrive s at this alternative number by arguing that certain potential class members are n o t covered by the Plant Closing Agreement because they retired prior to the A g re e m e n t's effective date. Thus, Bemis concludes, these retirees cannot claim a b re a c h of the Agreement and cannot constitute putative class members. Bemis fu rth e r argues that the plaintiffs fail to explain why joinder of these individuals would b e impractical. If this court accepts Bemis' argument regarding applicability of the Agreement to only 25 potential class members, then the number of potential members likely d o e s not constitute the "numerosity" required under Rule 23. However, this court d o e s not read the Plant Closing Agreement so narrowly. Instead, the court finds th a t, for purposes of class certification, the Plant Closing Agreement and its health b e n e fits provisions apply to all the Hayssen Sheboygan plant retirees, spouses, s u r vivin g spouses and dependents currently receiving health benefits from Bemis, re g a rd le s s of whether the underlying retirement occurred before or after November 1985. To resolve the applicability of the Agreement to all putative class members, th e court first looks to the language of the Plant Closing Agreement. The language d o e s not explicitly state whether or not the Agreement incorporates health benefit

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g u a ra n te e s made to pre-Agreement retirees under previous collective bargaining a g re e m e n ts . Instead, the language guarantees the eligibility of certain individuals fo r retiree health benefits. The Agreement reads in relevant part: R e tire d Employee Medical Benefit In d iv id u a ls who attain age 60 and have at least six years of continuous s e rv ic e by 12-31-85, and who elect to commence their retirement b e n e fits by 12-31-85, will be eligible for the retired employee medical b e n e fit. Individuals who attain age 58 or 59 by 12-31-85 and who in d ic a te by 12-31-85, their intent to commence retirement benefits at a g e 60 will be eligible for the retired employee medical benefit. (P la n t Closing Agreement, Docket #16, Attachment 2, p. 5). The language

g u a ra n te e s only the eligibility of individuals and does not state outright that the A g re e m e n t guarantees the "Retired Employee Medical Benefit" itself. However, a c o m m o n s e n s e interpretation of the Agreement and Bemis's treatment of retirees tell u s that such a guarantee was intended. The Plant Closing Agreement does not define "retired employee medical b e n e fit" or what this benefit entails anywhere in its language. Thus, in order for the "R e tire d Employee Medical Benefit" section of the Plant Closing Agreement to be g ive n effect, it must incorporate a "Retired Employee Medical Benefit" provision from a separate document, such as the previous collective bargaining agreement. If not, th e Agreement language ensuring "eligibility" would be meaningless because it w o u ld merely provide retiree eligibility for an undefined and unguaranteed benefit. T h u s , logic requires that the Agreement incorporate a previous retiree health benefit g u a ra n te e not appearing within the five page Agreement.

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In d e e d , the plaintiffs provide evidence that the Plant Closing Agreement in te n d s such an incorporation of previously guaranteed health benefits. The

p la in tiffs provide the affidavit of Charles Conrardy ("Conrardy"), a former UAW In te rn a tio n a l Representative who represented the employees at the Hayssen plant in Sheboygan. (Conrardy Aff. ¶¶ 2-3, Docket #16, Attachment #1). Conrardy

n e g o tia ted both the 1985 Plant Closing Agreement and the 1982 Collective B a rg a in in g Agreement between Hayssen and the UAW . (Id. at ¶¶ 2-4, 10). Conrardy a f firm s that the 1982 Collective Bargaining Agreement includes Section 9.02, "R e tire d Employee Medical Benefit," which guarantees medical benefits to retirees a s defined in Section 9.01 of that agreement. (Id. at ¶ 8). He attests that the 1985 P la n t Closing Agreement incorporated these sections, as modified by the Sec. 4d e lig ib ility language of the Plant Closing Agreement quoted above. (Id. at ¶ 14, 17). T h e court may consider this affidavit as part of its evaluation of class certification. S e e Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (stating th a t a judge may receive evidence, including by affidavit, to resolve disputes related to class certification). F u rth e r, Bemis's actions suggest that the Plant Closing Agreement provides h e a lth benefit guarantees to pre-Agreement retirees. Bemis made no distinction b e tw e e n pre-Agreement and post-Agreement retirees in providing health benefits. A ll individuals receiving coverage from Bemis based on previous employment at the H a ys s e n Sheboygan plant, regardless of retirement date, receive the same Bemis

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re tire e medical plan. (Def.'s Mot. Opp. Class Cert. 3; Haberman Aff. ¶ 8). Bemis tre a ts all retirees the same, suggesting that the same guarantee of health benefits a p p lie s . B a s e d on the aforementioned, the court declines to distinguish between those in d ivid u a ls retiring prior to November 5, 1985, and those retiring after. As a result, th e court concludes that the plaintiff's figure of 50-53 2 class members is the a p p ro p ria te starting point for its class certification determination. T h e court now proceeds with its consideration of the Rule 23 requirements, b e g in n in g with "numerosity." The court finds that the putative class is sufficiently n u m e ro u s when considered alongside the impracticality of joining suits of the in d ivid u a l members. The class members include individuals made eligible by

e m p lo ym e n t at, and subsequent retirement from, a plant which closed in 1985. T h e s e health benefit recipients are elderly, having been born primarily in the 1910's a n d 1920's. (Haberman Aff., Docket #21, Ex. 1). Requiring individuals who are in th e ir eighties and nineties to litigate separate cases arising from changes in their h e a lth benefits seems intuitively impractical. Separate litigation appears even more im p ra c t ic a l when noting that the cases arise from the same modifications to their c o ve ra g e , effected simultaneously by the same company, in alleged violation of the s a m e 1985 Plant Closing Agreement. In addition, the number of participants is

In their initial m o tio n for class certification, Plaintiffs cite 50-53 as the num b e r of potential class m e m b e r s . However, in their reply brief, the plaintiffs agree with representations m a d e in the Haberm a n a f f id a v it, subm itt e d by Bem is , that the actual num b e r of Hayssen retirees receiving coverage (and presum a b ly c o n s titu t in g potential class m e m b e r s ) is 62. (Pls.' Reply Br. 2).

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re a s o n a b ly numerous because it totals more than forty. Pope v. Harvard B a n c s h a re s , Inc., 240 F.R.D. 383, 387 (N.D. Ill. 2006) ("Generally, where the m e m b e rs h ip of the proposed class is at least 40, joinder is impracticable and the n u m e ro s ity requirement is met"). The court finds that the plaintiffs meet the Rule 23 "n u m e ro s ity" requirement. I I. C o m m o n a l it y C o m m o n a lity pursuant to Rule 23 requires that "there are questions of law or fa c t common to the class." Fed. R. Civ. P. 23(a)(2). The commonality requirement is generally satisfied by a common nucleus of operative fact. Keele v. Wexler, 149 F .3 d 589, 594 (7th Cir. 1998). Common nuclei of fact typically manifest where the d e fe n d a n t has engaged in standardized conduct towards putative class members. S e e id. Bemis argues that the plaintiffs cannot establish commonality because the p ro o f supporting liability and damages for the named plaintiffs does not support th o s e of other class members. Specifically, Bemis asserts that the Agreement does n o t apply to certain putative class members and that different circumstances s u rro u n d individual class members' eligibility for benefits and their damages c a lc u la tio n s . Bemis also relies on Sprague v. General Motors, a 6th Circuit case, to a rg u e that commonality does not exist in the instant case because retirees had to s ig n individual releases of "any and all claims."

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H o w e v e r, despite Bemis's painfully deliberate distinctions, the court concludes th a t the requisite commonality exists. The claims of putative class members arise fro m standardized conduct ­ Bemis' reduction of members' health benefits in 2005 a n d 2007. Thus, the claims all arise from a "common nucleus of fact." The common n u c le u s is that Bemis previously provided the same health coverage to each putative c la s s member, Bemis instituted the same unilateral changes to potential members' c o v e ra g e at the same time, and the changes resulted in increased deductibles, c o -p a ys and premiums for all potential class members. Bemis's reliance on Sprague does not impact the court's analysis because the c a s e is distinguishable. In Sprague, the district court certified a class of 50,000 G e n e ra l Motors early retirees and divided them into four subclasses based on the typ e , if any, of acceptance of early retirement forms they signed. 133 F.3d at 396-97. T h e court found that the claims lacked commonality because of the "myriad va ria tio n s " of GM's statements to early retirees regarding benefits based on the d iffe re n t individuals making the representation, the particular special early retirement p ro g ra m that applied, the different GM facility involved, and the different time periods in vo lve d . Id. at 398. No such "myriad variations" arise in the instant case. Instead, th e same health care benefits coverage applied to all putative class members prior to 2005, and the same modifications were instituted in 2005 and 2007. As stated previously, this court makes no distinction between those members re tirin g before the effective date of the Agreement and those retiring after.

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T h e re fo re , the time of retirement and an individual "showing" of eligibility under the A g r e e m e n t cannot undermine commonality. Bemis does not contest that each of the p u ta tive class members are currently receiving health benefits related to past e m p lo ym e n t at its Hayssen plant. Thus, no "eligibility" showing is required by in d ivid u a l participants because Bemis has effectively deemed everyone eligible for h e a lth benefits coverage. Contrary to Bemis' argument, the date on which the class m e m b e rs became eligible is immaterial. All members were covered at the time of th e relevant conduct, the 2005 and 2007 reductions in benefits. F in a lly , courts in this district have recognized that alleged violations of ERISA a n d LMRA resulting from reductions in promised retiree health benefits is an a p p ro p ria te subject for class action treatment. See Leannah v. Alliant Energy Corp, _ _ F. Supp.2d __, 2009 W L 497128, at *1 (E.D. W is . Feb. 26, 2009); Senn v. United D o m in io n Indus., 951 F.2d 806, 811 (7th Cir. 1992), rehearing en banc denied, 962 F .2 d 655 (7th Cir. 1992). As in other cases, class action certification is appropriate h e re because the legal issue raised in the complaint, whether Bemis's reduction of re tire e health benefits breaches the Plant Closing Agreement, is common to the p ro p o s e d class and fulfills the commonality requirement of Rule 23. I II . T yp i c a l it y T y p ic a lity pursuant to Rule 23 requires that "the claims or defenses of the re p re s e n ta tiv e parties are typical of the claims or defenses of the class." Fed. R. Civ. P . 23(a)(3). Typicality exists when a plaintiff's claim arises from the "same event or

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p ra c tic e or course of conduct that gives rise to the claims of other class members a n d his or her claims are based on the same legal theory." Rosario v. Livaditis, 963 F .2d 1013, 1018 (7th Cir. 1992). This evaluation is closely related to commonality. Id . Bemis's argument against typicality of the claims hinges, once again, on this c o u rt accepting its assertion that not all individuals currently covered by its health b e n e fits plan are appropriate class members because they are not all covered by the 1 9 8 5 Plant Closing Agreement. If the court does not distinguish between the

p u ta tive class members in this way, which it does not, the class claims easily meet th e typicality requirement. The class claims arise from the same conduct, Bemis' re d u c tio n in benefits in 2005 and 2007, and are based on the same legal theory, a b re a c h of the Agreement. Contrary to Bemis's claims, the interests of the entire c la s s would be advanced if the plaintiffs prevail on their own claim. For the plaintiffs to prevail, the court must determine that Bemis breached the Agreement in reducing th e ir benefits, simultaneously establishing that Bemis breached the Agreement with re g a rd s to other class members. IV . Ad e q u a c y Adequacy, pursuant to Rule 23, requires that the "representative parties will fa irly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). To e s ta b lis h adequate representation, the court considers whether the plaintiff's a tto rn e y is qualified, experienced and generally able to conduct the proposed

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litig a tio n . Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977). The c o u rt also considers whether the plaintiff has interests antagonistic to those of the c la s s . Id. "Antagonistic or conflicting claims" between class members preclude fair a n d adequate representation by the class representatives. Rosario, 963 F.2d at 1 0 1 8 . Bemis presents only a brief argument against adequacy, asserting a conflict o f interest between pre-Agreement retirees and post-Agreement retirees. However, th e court does not distinguish the class members in this way and Bemis provides no e x p la n a tio n of why the interests of pre- and post-Agreement retirees conflict. T h e re fo re , the court finds that no antagonistic claims exist which would preclude the p la in tiffs from adequately representing the interests of the class as a whole. Further, th e plaintiffs assert that counsel has extensive labor law experience and has p ro s e c u te d a similar case. This court has no reason to doubt the qualifications or c o m p e te n c e of the plaintiffs' attorneys. Thus, the plaintiffs meet all requirements of Rule 23(a) by establishing n u m e ro s ity , commonality, typicality, and adequacy. The court now proceeds to an a n a lys is under Rule 23(b). V. Requirements of Rule 23(b) T o merit class certification, the plaintiffs must meet the numerosity, c o m m o n a lity, typicality, and adequacy requirements of Rule 23(a). However, once th e s e four requirements are established, the plaintiffs must also satisfy one of the

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c o n d itio n s listed in Rule 23(b). The plaintiffs argue that they satisfy the requirements a n d should be certified as a class under either 23(b)(1) or 23(b)(2). Rule 23(b)(1) provides for certification when 23(a) is satisfied and when p ro s e c u tio n of separate actions by individuals would create a risk of either: A) inconsistent or varying adjudications with respect to individual class m e m b e rs that would establish incompatible standards of conduct for the party opposing that class, or B) adjudications with respect to individual class members that, as a p ra c tic a l matter, would be dispositive of the interests of the other m e m b e rs not parties to the individual adjudications or would s u b s t a n tia lly impair or impede their ability to protect their interests. F e d . R. Civ. P. 23(b)(1). The plaintiffs assert that certification under this subsection is appropriate because individual lawsuits filed by the more than 50 putative class m e m b e rs may result in different court decisions on benefits, contrary to ERISA's p ro h ib itio n on treating retirees differently from one another. Bemis responds by m a k in g a brief argument asserting the opposite. Bemis argues that certification of th e class may result in conflicting court orders for coverage because the Plant C lo s in g Agreement does not guarantee health benefits to the pre-Agreement retirees (p re s u m in g the court agrees with this conclusion). Therefore, if post-Agreement re tire e s like plaintiffs prevail, they would receive an order for coverage while the preA g re e m e n t retirees would not receive such an order. Bemis's oft-repeated argument regarding applicability of the Agreement re q u ire s an oft-repeated response from the court. For class certification, the court d o e s not distinguish between potential class member retirees currently receiving -13-

h e a lth benefits from Bemis based on whether they retired pre- or post-Agreement. A s a result, Bemis's single argument against application of Rule 23(b)(1) certification fa ils . Class certification pursuant to Rule 23(b)(1) is appropriate because Bemis may w i n in some cases and lose in others, generating contradictory obligations with re g a rd to required coverage. Thus, the court finds that the plaintiffs satisfy 23(b)(1) b e c a u s e different outcomes may result if each retiree separately adjudicates his or h e r claim to challenge Bemis's reduction of health benefits. See Witmer v. Acument G lo b a l Techs., Inc., Case No. 08-12795, 2009 W L 174916, at *5 (E.D. Mich. Jan. 26, 2 0 0 9 ) (granting Rule 23(b)(1) certification to class of former employees and spouses c la im in g violation of CBAs and plant closing agreements arising from defendant te rm in a tio n of health coverage); Cates v. Cooper Tire & Rubber Co., 253 F.R.D. 422, 4 3 1 (N.D. Ohio 2008) (granting Rule 23(b)(1) certification for class of former e m p lo ye e s , spouses, and dependents seeking to enjoin defendant employer from im p o s in g cap on or requiring additional costs for retiree medical benefits); Reese v. C N H Am. LLC, 227 F.R.D. 483, 489 (E.D. Mich. 2005) (certifying Rule 23(b)(1) class o f retirees and surviving spouses claiming continuing health care benefits under C B A s ). Therefore, the court will certify the class under Rule 23(b)(1). In addition, certification of the class under Rule 23(b)(2) is also appropriate. T h e rule states that a class action may be maintained if Rule 23(a) is satisfied and i f:

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(2 ) the party opposing the class has acted or refused to act on grounds t h a t apply generally to the class, so that final injunctive relief or c o rre s p o n d in g declaratory relief is appropriate respecting the class as a whole; Fed. R. Civ. P. 23(b)(2). The plaintiffs allege that Bemis acted on grounds "generally a p p lic a b le to the class" by instituting the same reductions in putative class members' h e a lth insurance benefits. Further, the plaintiffs seek injunctive relief from these c h a n g e s . Based on these facts alone, Rule 23(b)(2) treatment would seem very a p p ro p ria t e . The difficulty arises, however, when the court considers that injunctive re lie f is just one of the three remedies requested by the plaintiffs. In addition to in ju n c tive relief ordering Bemis to resume the previous health coverage, the plaintiffs a ls o seek damages for the putative members' personal expenses resulting from the c h a n g e s in coverage, as well as damages for mental distress and anguish. (Pls.' C o m p l. 8). The monetary damages add a complicating layer to the analysis because Rule 2 3 ( b )(2 ) certification is only appropriate for a class requesting both injunctive relief a n d monetary damages when the monetary damages "flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory re lie f." Lemon v. Operating Engineers Local 139, 216 F.3d 577, 581 (7th Cir. 2000) (q u o tin g Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)). Rule 2 3 (b )(2) certification is impermissible unless the monetary damages sought are "in c id e n ta l" to the injunctive relief sought. Id. Damages are "incidental" when the d a m a g e calculation is mechanical and does not require individual calculation such -15-

th a t separate damages suits would be a waste of resources. In re Allstate Ins. Co., 4 0 0 F.3d 505, 507 (7th Cir. 2005). In Leannah, a similar case this court recently a d d re s s e d , the court determined that Rule 23(b)(2) treatment was appropriate for a c la s s made up of early retiree participants in the defendant's health benefits plan w h o s e premiums were raised by the defendant, despite the fact that the members s o u g h t monetary damages for out-of-pocket expenses caused by the health plan c h a n g e s , because the damages were "incidental" to the requested injunctive relief. S e e Leannah v. Alliant Energy Corp, 09-CV-169, Class Certif. Order, Docket #33, O c t. 30, 2007. Therefore, if the plaintiffs sought only out-of-pocket expenses, no q u e s tio n would exist because this court already deemed such monetary damages to be "incidental." However, in the instant case, the plaintiffs also seek damages for m e n ta l distress and anguish. Thus, the court must determine whether the addition o f these monetary damages renders the requested damages more than merely "in c id e n ta l" and precludes Rule 23(b)(2) certification. Though a close call, the court concludes that the monetary damages sought re m a in "incidental," despite the addition of damages for mental distress and anguish. D e n yin g Rule 23(b)(2) class certification on the basis of seemingly minor damages fo r "mental anguish" caused by increased co-pays and decreased prescription drug c o v e ra g e underestimates the importance of the injunctive relief the plaintiffs seek. Though damages for "distress" and "anguish" are linked to individual circumstances, th e court does not believe that determination of such damages requires "complex

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in d ivid u a lize d determinations" which preclude 23(b)(2) certification. See Allison, 151 F .3d at 415. Therefore, the court will certify the class under Rule 23(b)(1) and (b)(2). A c c o r d in g ly , IT IS ORDERED that plaintiffs' motion to certify this case as a class action (D o c k e t #12) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that the following plaintiff class be and the same is hereby CERTIFIED: A ll persons who, as of December 31, 2004, were receiving health b e n e fits from Bemis pursuant to the November 5, 1985 Hayssen/UAW L o c a l 1423 and its closing agreement covering production and m a in te n a n c e employees at Hayssen's Sheboygan facility. IT IS FURTHER ORDERED that the named plaintiffs, Thomas Temme and S h irle y Temme, shall be the class representatives, and plaintiffs' counsel, George F . Graf and Sandra Graf Radtke of Gillick W ic h t Gillick & Graf, S.C., are appointed a s counsel for the class under Fed. R. Civ. P. 23(g). D a te d at Milwaukee, W is c o n s in , this 28th day of May, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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