source: Caselaw Access Project

author: JULIA SMITH GIBBONS, Circuit Judge. BERNICE BOUIE DONALD, SUTTON, Circuit Judge,

license: Public Domain

text:
    Jack REESE; Frances Elaine Pidde; James Cichanofsky; Roger Miller; George Nowlin, Plaintiffs-Appellees, v. CNH INDUSTRIAL N.V.; CNH Industrial America, LLC, Defendants-Appellants.
    No. 15-2382
    United States Court of Appeals, Sixth Circuit.
    Argued: October 19, 2016
    Decided and Filed: April 20, 2017

      ARGUED: Bobby R. Burchfield, KING & SPALDING LLP, Washington, D.C., for Appellants. Darcie R. Brault, MCKKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Appellees. ON BRIEF: Bobby R. Burchfield, KING & SPALDING LLP, Washington, D.C., for Appellants. Darcie R. Brault, MCKKNIGHT, CANZA-NO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Appellees. Douglas A. Darch, BAKER & MCKENZIE LLP, Chicago, Illinois, for Amicus Curiae.
    Before: GIBBONS, SUTTON, and DONALD, Circuit Judges.
   GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined in the judgment. DONALD, J. (pg. 887), delivered a separate opinion concurring in the result. SUTTON, J. (pp. 887-93), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendants-appellants CNH Industrial N.V. and CNH Industrial America LLC (collectively “CNH”) appeal the district court’s order granting plaintiffs’ motion for reconsideration. The trial court reversed its grant of summary judgment for CNH and instead granted summary judgment for plaintiffs. In this appeal, CNH again asks this court to find that plaintiffs’ right to lifetime healthcare benefits failed to vest. If, however, we were to find that plaintiffs’ right had vested, CNH believes the district court erred in finding that CNH’s proposed changes were not “reasonably commensurate” with plaintiffs’ current plan.

This matter is complicated by a change in the law since this long-running litigation began. In light of M & G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 190 L.Ed.2d 809 (2015), which abrogated this circuit’s Yard-Man line of cases, the district court had to revisit the question of whether plaintiffs had a vested right to lifetime healthcare benefits. The court ultimately found that they did. Because we find that the CBA is ambiguous, and because the extrinsic evidence indicates that parties intended for the healthcare benefits to vest for life, we affirm the district court’s vesting determination. Remand to the district court is proper, however, because it failed to properly weigh the costs and the benefits of the proposed plan, as instructed by Reese II.

I.

This case’s long and complicated factual and procedural history has been recounted several times by this court and by the district court. Plaintiffs, former employees of CNH who retired between 1994 and 2004, filed suit in the Eastern District of Michigan in 2004, seeking a declaration that they were entitled to lifetime healthcare benefits, an injunction requiring CNH to “maintain the level of retiree health care benefits currently in effect,” and damages for injuries the retirees might sustain if the benefits were terminated. Reese v. CNH Am. LLC, 574 F.3d 315, 319 (6th Cir. 2009) (Reese I). In 1971, CNH (then known as Case Corporation) and the United Automobile, Aerospace, and Agricultural Workers of America (“UAW”) entered into a collective-bargaining agreement (“CBA”), in which CNH agreed “to provide healthcare insurance to its retired employees and their spouses who were receiving a [pension or a spouse’s pension]” from the company. Id. at 318. “From 1974 through 1995, each CBA (in three- or four-year terms) renewed this commitment in ‘substantially unchanged’ form, and each CBA provided that employees did not have to pay premiums in order to receive coverage.” Id. (internal citations omitted).

In 1998, CNH and UAW entered into the CBA that generated this lawsuit. Id. That CBA was in effect until May 2, 2004, and provided that:

Employees who retire under the Case Corporation Pension Plan for Hourly Paid Employees after 7/1/94, or their surviving spouses eligible to receive a spouse’s pension under the provisions of that Plan, shall be eligible for the Group benefits as described in the following paragraphs.

Id. The paragraphs that followed listed the “Medical” and “Prescription Drug” benefits available to all classes of covered retirees regardless of the duration of their service before retirement. Id- “The CBA does not spell out what ‘Medical’ benefits are included; it just says that eligibility for specific coverage will be based on each plan’s eligibility requirements, and goes on to note that no contributions ... are required for the Health Care Plans....” Id. (internal quotations and citations omitted.)

Ultimately, the district court and the Reese I court faced two questions: “Did [CNH] in the 1998 CBA agree to provide health-care benefits to retirees and their spouses for life? And, if so, does the scope of this promise permit CNH to alter these benefits in the future?” Reese v. CNH Am. LLC, 694 F.3d 681, 683 (6th Cir. 2012) (Reese II). In Reese I, this court answered both questions in the affirmative, but remanded to the district court so that it could determine “how and in what circumstances CNH may alter [the healthcare benefits].... ” Reese I, 574 F.3d at 327. On remand, the district court failed to reach the reasonableness question and did not create a factual record upon which this court could rule. Reese II, 694 F.3d at 683. Instead, it found that CNH could not unilaterally make changes to the scope of plaintiffs’ healthcare benefits, which was in conflict with our commands in Reese I. Thus, the case was remanded to the district court again, this time with a list of seven factors to consider when making its reasonableness-of-the-proposed-plan determination and with clear instructions that CNH could make unilateral changes to the plan. Reese II, 694 F.3d at 685-86.

While on this second remand, another unexpected wrinkle was added to this case when the Supreme Court abrogated this circuit’s Yard-Man decision and its progeny. M & G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 930, 190 L.Ed.2d 809 (2015) (Tackett). Because Yard-Man created an inference in favor of employees in collective-bargaining cases, Reese I, 574 F.3d at 321, the district court was required to reconsider whether plaintiffs had a vested right to lifetime healthcare benefits. Initially, the district court found that they did not, noting that it was “[constrained by the Supreme.Court’s decision” in Tackett. (DE 445, Op. & Order, Page ID 16912.) However, on plaintiffs’ motion for reconsideration, the district reversed course and found not only that plaintiffs’ rights were vested even after Tackett, but also that CNH’s proposed changes were unreasonable. Thereafter, CNH filed this timely appeal.

II.

We review the district court’s grant of summary judgment de novo. Domingo v. Kowalski, 810 F.3d 403, 410 (6th Cir. 2016) (citing Green Party of Tenn. v. Hargett, 767 F.3d 533, 542 (6th Cir. 2014)). Construing the evidence in the light most favorable to the nonmovant, id. (citing Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)), summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.

Before the Supreme Court decided Tackett, the rights created by collective-bargaining agreements were reviewed with a thumb on the scale in favor of employees. Tackett, 135 S.Ct. at 935. This doctrine, known most commonly as the YardMan inference, was the law in this circuit for more than thirty years. And it was the law in effect when this court and the district court initially reviewed the rights at issue in this case. In Tackett, the Supreme Court abrogated the Yard-Man inference and instructed courts to apply “ordinary principles of contract law” when reviewing collective-bargaining agreements. Id. at 937. Thus, the Supreme Court found, despite Yard-Man and its progeny’s claim to the contrary, that we had not been employing ordinary contract-interpretation principles. What is hard to disentangle, however, is how many, if any, of the contract principles created by the Yard-Man line of cases survive Tackett. Presumably, not every contract-interpretation principle found in those cases impermissibly relied on inferences in favor of employees. But, Tackett required us to revisit those old rules to weed out impermissible assumptions and inferences.

On remand from the Supreme Court, we interpreted the high Court’s instructions, and noted the following, non-exhaustive list of ordinary principles of contract law:

• [A]s with any other contract, the parties’ intentions control.
• Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.
• Although a court may look to known customs or usages in a particular industry to determine the meaning of a contract, the parties must prove those customs or usages using affirmative ev-identiary support in a given case.
• [T]he written agreement is presumed to encompass the whole agreement of the parties.
• Courts [should] avoid constructions of contracts that would render promises illusory' because such promises cannot serve as consideration for a contract.... [A] promise that is “partly” illusory is by definition not illusory.
• [CJourts should not construe ambiguous writings to create lifetime promises .... [Contracts that are silent as to their duration will ordinarily be treated not as “operative in perpetuity” but as “operative for a reasonable time.”
• [T]raditional rules of contractual interpretation require a clear manifestation of intent before conferring a benefit or obligation.
• Contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.
• When a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.

Tackett v. M & G Polymers USA, LLC, 811 F.3d 204, 208 (6th Cir. 2016) (Tackett III) (citing Tackett, 135 S.Ct. at 933-37). The Tackett III court went on to cite additional principles highlighted by Justice Ginsburg’s concurrence:

• Under the cardinal principle of contract interpretation, the intention of the parties, to be gathered from the whole instrument, must prevail.
• [W]hen the contract is ambiguous, a court may consider extrinsic evidence to determine the intentions of the parties .... [F]or example, the parties’ bargaining history.
.•No rule requires “clear and express” language in order to show that parties intended health-care benefits to vest.
• Constraints upon the employer after the expiration date of a collective-bargaining agreement ... may be derived from the agreement’s “explicit terms,” but they may arise as well from implied terms of the expired agreement.

Id. at 208-09 (citing Tackett, 135 S.Ct. at 937-38 (Ginsburg, J., concurring)). “Importantly,” Tackett III noted, “the Court rejected Yard-Man’s inferences in favor of retirees, but also declined to adopt an ‘explicit language’ requirement in favor of companies.” Id. at 209 (citing Tackett, 135 S.Ct. at 937-38 (Ginsburg, J., concurring)); see also Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B., 501 U.S. 190, 203, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) (“[A] collective-bargaining agreement [may] provide!] in explicit terms that certain benefits continue after the agreement’s expiration,” but nevertheless, “constraints upon the employer after the expiration date of a collective-bargaining agreement ... may arise as well from the express or implied terms of the expired agreement itself.”). Thus, relying heavily on Justice Ginsburg’s concurrence, Tackett III removed presumptions in favor of vesting, but also explicitly declined to shift that presumption to the employer.

The Tackett III court then proceeded to discuss what effect the absence of any durational language has on the vesting of rights. It held that:

[W]hile the Supreme Court’s decision [in Tackett] prevents us from presuming that “absent specific durational language referring to retiree benefits themselves, a general durational clause says nothing about the vesting of retiree benefits,” we also- cannot presume that the absence of such specific language, by itself, evidences an intent not to vest benefits or that a general durational clause says everything about the intent to vest.

Tackett III, 811 F.3d at 209. The Tackett III court highlighted that the retirees in that case acknowledged that the agreements at issue lacked clear and express language vesting benefits, but still remanded the case to the district court so that it could determine whether certain documents were part of the agreements or “may otherwise serve as extrinsic evidence.” Id. at 210 & n.3.

While, in some cases, the presence of a general-durational clause will cure any ambiguity as to the duration of benefits, see Gallo v. Moen, Inc., 813 F.3d 265, 268 (6th Cir. 2016) (finding that, due to the lack of a specific end date, the CBA’s healthcare benefits should be governed by agreement’s general-durational clause), the general-durational clause here does not. This is so because the parties in this case carved out certain benefits, such as life insurance and healthcare insurance, and stated that those coverages ceased at a time different than other provisions of the CBA. True, this provision says only that healthcare coverage continues past the date of retirement and is silent on whether the benefits continue past the termination date of the agreement. But, when read in conjunction with the whole instrument, as Tackett III commands, this silence, rather than resolving ambiguity, furthers it. We cannot, and should not, presume that the general-durational clause here says everything about the parties’ intentions. Tackett III, 811 F.3d at 209.

To find ambiguity in this case, partially from the silence as to the parties’ intentions, does not offend the Supreme Court’s mandate from Tackett that we not infer vesting from silence. There is surely a difference between finding ambiguity from silence and finding vesting from silence. The latter is impermissible after Tackett; the former permits the court to turn to extrinsic evidence to determine the intent of the parties — precisely the goal in any contract dispute.

Further, just as the Supreme Court has commanded that we not infer vesting from silence, it has directed us not to infer vesting from the tying of benefits to achievement of pensioner status. But, as with silence, it has not directed us to ignore tying’s ability to create ambiguity. Here, healthcare benefits were tied to pension eligibility. This, by itself, says little about whether those healthcare benefits should vest for life. It does, however, ere-ate an ambiguity about the parties’ intentions. Inferring vesting from tying alone violates Tackett and ordinary principles of contract interpretation. Finding an ambiguity from tying allows a court to explore the extrinsic evidence to discover what the parties actually intended. This, as with silence, does not offend any principle of contract interpretation. Instead, it moves us closer to the ultimate goal in any contract dispute: discovering the parties’ true intentions. See Tackett III, 811 F.3d at 208 (holding that the “cardinal principle of contract interpretation” should govern: what were the parties’ intentions?) (citing Tackett, 135 S.Ct. at 937-38 (Ginsburg, J., concurring)).

Silence as to the duration of retiree healthcare benefits, when combined with those benefits’ coupling to pensioner status and their segregation from other entitlements in the CBA, overcomes any presumption that the general-durational clause should govern. See id. (noting also our limitation on presuming that a general-durational clause, by itself, conclusively answers the question of vesting). If these elements were not present, or if the CBA clearly stated that the general-durational clause was intended to govern healthcare benefits, the CBA would most likely be unambiguous. But this is not the case, and Tackett III prohibits us from relying exclusively on the general-durational clause to resolve this matter. Here, presuming that the CBA’s general-durational clause says everything about the parties’ intentions ignores evidence, taken from the whole instrument, indicating that the parties may have intended the benefits to extend beyond the end of the CBA. Giving dispositive weight to the general-durational clause here would move the thumb from the employees’ side of the scale and place it on the side of employers. Tackett, however, sought to create a level playing field, not to foster an equally inequitable one. Accordingly, we reach the extrinsic evidence in this case to determine the parties’ intent.

The district court previously reviewed the extrinsic evidence and found that the plaintiffs’ rights had vested. The record supports the district court’s finding. For example, in an accounting document, CNH calculated the costs of certain retirees’ benefits, and when determining healthcare costs, based the figure on the employees’ life span. It is unlikely that an employer would base the future cost of supplying an employee with healthcare insurance on the employee’s life span, as CNH did here, if that employer knows that its healthcare obligations expire at a fixed date. Further, CNH representatives repeatedly told the company’s employees that retirees would have healthcare coverage for their lifetimes. For example, in a June 18, 1990 letter to Reba Williams, the spouse of a deceased retiree, CNH informed her she would have medical insurance “coverage[ ] for [her] lifetime.” (DE 153, Exh. 61.) And CNH intended to provide group insurance coverage to the spouses of retirees “in a consistent manner” to the way it handled Williams’s claim. (DE 154, Exh. 62.) These and other examples in the record indicate that CNH, the retirees, and the retirees’ spouses, intended and expected that the healthcare benefits provided were vested for life.

However, unless a CBA says otherwise, the vesting of healthcare rights does not prevent reasonable modifications to those rights. Reese I, 574 F.3d at 325. Thus, we must consider whether CNH’s proposed changes are reasonable. In Reese II, we remanded this case to the district court so that it could consider, again, whether the proposed changes to plaintiffs’ plans were reasonable. Reese II, 694 F.3d at 683. In so doing, we listed seven non-exhaustive factors that the district court should consider. Id. at 685-86. Those factors were:

[1] What is the average annual total out-of-pocket cost to retirees for their healthcare under the old plan (the 1998 Group Benefit Plan)? What is the equivalent figure for the new plan (the 2005 Group Benefit Plan)?
[2] What is the average per-beneficiary cost to CNH under the old plan? What is the equivalent figure for the new plan?
[3] What premiums, deductibles and co-payments must retirees pay under the old plan? What about under the new plan?
[4] How fast are the retirees’ out-of-pocket costs likely to grow under the old plan? What about under the new plan? How fast are CNH’s' per-beneficiary costs likely to grow under each?
[5] What difference (if any) is there between the quality of care available under the old and new plans?
[6] What difference (if any) is there between the new plan and the plans CNH makes available to current employees and people retiring today?
[7] How does the new plan compare to plans available to retirees and workers at companies similar to CNH and with demographically similar employees?

Id. On remand, and after reconsidering whether plaintiffs’ rights had vested, the district court proceeded to consider these factors. It grouped the first five together and stated that these factors all pertain to comparing the proposed plan to the current plan. The district court then considered the two remaining factors at the end of its analysis: a comparison of the proposed plan to the plans CNH offers current employees and retirees and a comparison of CNH’s proposed plan to other similar companies’ plans.

The district court ultimately concluded that CNH’s proposed plan was not reasonably commensurate with the current plan, relying primarily, if not exclusively, on the first five factors — specifically, the increased costs to plaintiffs under the proposed plan. The district court found that plaintiffs and current employees and retirees “are in roughly similar positions in terms of their healthcare situation,” but yet found that this factor did not weigh strongly in favor of either party. It also found the final factor — -the comparison between CNH’s proposed plan and the plans offered by similar companies — did not weigh in favor of either party, and in its reasoning questioned the utility of this factor.

The district court’s analysis erred in several ways, and remand is necessary to address these mistakes. Reese II made clear that the district court was to consider not only any increased costs to plaintiffs, but also any additional benefits that inured to them. Reese II, 694 F.3d at 685. Specifically, we asked the district court to determine if “the retirees’ benefits differ in material respects from those offered to current employees and people retiring today,” and whether the proposed changes to the plan “are reasonable in light of changes in health care (including access to new medical procedures and prescriptions).” Id. (internal quotations and citations omitted). Thus, while the district court held that the two plans provide roughly the same “quality of care” because both provide coverage for “medically necessary” procedures, this ignores that, before a procedure can be medically necessary, it must be medically possible. As we noted in Reese II, “[n]ew and better medical procedures arise while others become obsolete. And it is the rare medical innovation that costs less than the one it replaces.” Reese II, 694 F.3d at 683. Thus, “[rjetirees, quite understandably, do not want lifetime eligibility for the medical-insurance plan in place on the day of retirement, even if that means they would pay no premiums for it.” Id. at 683-84. Instead, “[tjhey want eligibility for up-to-date medical-insurance plans, all with access to up-to-date medical procedures and drugs.” Id. at 684. The district court’s failure to consider the increased benefits, along with the increased costs, necessitates remand.

The district court focused heavily on cost-shifting provided for in the proposed plan. It did so with good reason: many of the Reese II factors dealt with changes in costs for CNH and for plaintiffs. In considering those changes in costs, however, the district court made several mistakes. For those Medicare-eligible plaintiffs, the district court considered only the costs shifted away from CNH, and apparently presumed that plaintiffs would foot this entire bill. Of course this is not true; a substantial portion of the costs shifted to Medicare-eligible plaintiffs will be covered by the federal government. Thus, the true cost-shifting is less than that highlighted by the district court.

The district court also erred by focusing too heavily on the future increased costs to non-Medicare-eligible plaintiffs. No plaintiff-retiree, and very few plaintiff-spouses, will be ineligible for Medicare in 2032. Thus, the most dramatic cost-shifting under the proposed plan is more paper tiger than realistic expectation. There are, however, thirteen plaintiffs — very young spouses of retirees — who would be ineligible for Medicare in 2032. These unlucky thirteen would be subject to drastic increases in costs for their healthcare, and the district court refused to ignore them in its reasonableness analysis. Although it was right to acknowledge this small subset of the class, the district court -placed an undue amount of weight on their costs. In any institutional setting, there will be certain members who are harmed by policy decisions. These thirteen spouses fall into that camp.

Because the proposed plan was materially similar to the plan offered to current employees and retirees, while being less expensive to plaintiffs, the district court further erred in finding that this factor did not favor either side. First, the mere fact that the proposed plan was equal in substance to the plan offered to current employees and retirees weighs in favor of reasonableness. Reese II asked the district court “[wjhat difference (if any) is there between the new plan and the plans CNH makes available to current employees and people retiring today?” Reese II, 694 F.3d at 686. Thus, this reasonableness benchmark asked the district court to determine if the proposed plan was similar to the current plans being offered by CNH. The district court found that it was. Second, not only does the proposed plan place plaintiffs in substantially the same position in terms of healthcare benefits as current employees and retirees, but plaintiffs also pay less for these same benefits.

The district court was motivated to find this factor in equipoise by looking to benefits that post-2004 employees and retirees received outside the healthcare-benefit context. For example, while their premiums are higher than those under the proposed plan, current employees and retirees also receive higher pensions and a onetime contribution to a health-savings account. Requiring consideration of these benefits, subsequently bargained for by UAW and CNH, would essentially grandfather all past-retirees into the new CBA from which they were explicitly excluded. Requiring an equal increase in plaintiffs’ healthcare benefits for every benefit or concession won by current CNH employees is not part of the Reese II framework. The proposed plan must offer healthcare benefits similar to those received by current employees and retirees. It does not have to exceed this requirement to compensate plaintiffs for benefits to which they are not entitled. To do so would be not only unfair to CNH but also could have adverse consequences on future collective-bargaining agreements.

Finally, the district court erred in determining whether the proposed plan was reasonable in light of changes to healthcare. This factor asked the district court to review plans offered by “companies similar to CNH and with demographically similar employees.” Reese II, 694 F.3d at 686. The district court discounted the utility of this factor, noting that “[njaturally, the proposed plan will compare favorably to some plans and not to others, and the parties will surely locate the plans that support their respective litigation-induced positions and select those plans as comparators.” (DE 450, Op. & Order, Page ID 17031.) Yet, even though it acknowledged the inherent biases of the parties’ “cherry-picked” plans, the district' court still used plaintiffs’ comparator as the basis for its decision. (Id. at 17030, 17031.) It is true that the last factor is less than clear about what qualifies as a “similar company” or what exactly is meant by “demographically similar employees,” but this does not warrant ignoring as irrelevant the aggregate data of 900 companies. Many of these companies are large corporations (Ford, General Motors, AT&T, etc.) that are similar to CNH, and, while not perfect comparators, this aggregate data is worthy of consideration.

The district court also held that it could not consider the reasonableness of the proposed plan in piecemeal fashion. CNH challenges this holding and urges us to remand so that the district court can examine the proposed plan in this way. There is no law directly on point, and neither Reese I nor Reese II addresses this directly. There is language in both cases, however, that suggests that the court could permit the district court to sever the proposed plan and address each part individually. CNH claims Reese I supports its position that the terms of the proposed plan may be severed and examined individually. Specifically, it says that Reese Fs direction to the district court “to decide how and in what circumstances” CNH may alter such benefits suggests that the court may sever the terms. See Reese I, 574 F.3d at 327. Although not cited by CNH, language in Reese II also suggests that the terms may be severed. There, the court held that the reasonableness inquiry here “is a vexing one” and that “if the parties cannot resolve the [issues] on their own, we (and the district court) will do our best to resolve it for them.” Reese II, 694 F.3d at 686. Thus, we see no reason why the district court cannot examine individual terms of the proposed plan for reasonableness. And, allowing the district court to determine which terms are reasonable, and which are not, might facilitate the settlement process between the parties and could lead to a quicker resolution of this long-running litigation.

On remand, the district court should reconsider the factors presented in Reese II, with special attention on the increased benefits to plaintiffs — including those benefits created by progress in medical procedures and prescriptions. The district court should also consider how much of the cost to Medicare-eligible retirees will be borne by the federal government or others. And lastly, the district court should reconsider whether the proposed plan is reasonable in light of the plans offered at similar companies — ie., large manufacturing corporations with union representation. It should also look to the individual terms proposed and determine, if not reasonable on the whole, whether individual pieces of the plan are reasonable.

rv.

For the reasons stated above, we affirm the district court’s finding that plaintiffs’ right to lifetime healthcare benefits vested. Remand is necessary, however, so that the district court can reconsider the reasonableness of CNH’s proposed plan in light of Reese I, II, and the instructions they provide.

CONCURRENCE

BERNICE BOUIE DONALD,

concurring.

I agree with the lead opinion as to affirming the district court’s vesting determination and, so, concur in the judgment. I write separately, however, to reassert my disagreement with this Court’s previous determination that despite a lifetime vesting, CNH may unilaterally modify the scope of the retirees’ healthcare benefits.

In Reese I, the Court held that “to the extent [the district court] suggests that these benefits must be maintained precisely at the level provided for in the 1998 CBA, it is not supported by the 1998 CBA, extrinsic evidence provided by the parties or common sense.” Reese I, 574 F.3d at 327. The converse, that CNH may “reasonably” alter these benefits, however, is not supported by this Court or Supreme Court precedent. As I noted in my dissent in Reese II, “[s]everal decisions of this Court, as well as Supreme Court precedent, express the principle that, once a retiree’s health care benefits have vested for life, an employer’s unilateral modification of the scope of those benefits is a violation of the Labor Management Relations Act.” Reese II, 694 F.3d at 687 (citing Allied Chemical & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 181 n.20, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971); Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006)). My review of this issue and the relevant law, unchanged by the Supreme Court’s decision in Tackett, causes me to continue in my belief that because we have found that the retirees’ healthcare benefits vested for life, “the level of those benefits must be deemed vested in scope and not subject to unilateral modification by CNH.” Reese II, 694 F.3d at 688.

Considering, however, the well-established law-of-the-case doctrine, see Caldwell v. City of Louisville, 200 Fed.Appx. 430, 432-33 (6th Cir. 2006) (“The law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of the case”), I recognize the limitations— although not the impossibility — in reaching a result that is inconsistent with that reached at this Court’s first review of this ease.

DISSENT

SUTTON, Circuit Judge,

dissenting.

In a 9-0 decision reversing our court in M & G Polymers USA, LLC v. Tackett, the Supreme Court asked us to do two things: (1) to interpret collective bargaining agreements “according to ordinary-principles of contract law,” and (2) to stop using the extraordinary Yard-Man “inferences,” which had “placfed] a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” — U.S. -, 135 S.Ct. 926, 933, 935, 190 L.Ed.2d 809 (2015). With the unanimous overruling of UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), those twin directives became one: apply normal rules of contract interpretation to promises with respect to healthcare benefits.

Because our court had long insisted that the Yard-Man inferences sprang from ordinary contract law, the Supreme Court proceeded to guide us about what counts as an ordinary contract principle and what does not. The Court told us to respect “general durational clauses” in collective bargaining agreements, reminded us that “courts should not construe ambiguous writings to create lifetime promises,” and directed us that, “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id. at 936-37.

These principles should make quick work of this case. In this collective bargaining agreement, the company never promised to provide healthcare benefits for life, and the agreement contained a dura-tional clause that limited all of the benefits and burdens of the contract (not otherwise extended or shortened) to the six-year term of the agreement. In every other circuit in the country, that would end this case. The durational clause would control, and the healthcare benefits would last as long as the durational clause said they would.

Not here. The court concludes that the company made a lifetime commitment to provide healthcare benefits as a matter of law. Is this the application of “ordinary principles of contract law”? I am dubious. I know of no other area of contract law in which an agreement’s promises, subject to an uncontradicted durational clause, could be found ambiguous as to their duration— and then interpreted to last for life. The court’s approach to this contract is ordinary only in this circuit and only in ways that contradict the Supreme Court’s unambiguous directives about how to interpret such contracts. I respectfully dissent.

Several ordinary contract principles tell us how to resolve this case. One says that the four corners of the collective bargaining agreement are a good place to start. “Because ‘the written agreement is presumed to encompass the whole agreement of the parties,’ and because Congress has placed special emphasis on the ‘written terms’ of retiree healthcare plans, we must enforce those terms as written.” Gallo v. Moen Inc., 813 F.3d 265, 270 (6th Cir. 2016) (quoting Tackett, 135 U.S. at 936, 933, 10 S.Ct. 972), cert. denied, — U.S. -, 137 S.Ct. 375, 196 L.Ed.2d 293 (2016); see also 29 U.S.C. § 1102(a)(1). In this instance, the key is what the agreement does and does not say. It never promises lifetime healthcare benefits. What is written are two things: a specific promise of retiree healthcare benefits and a general durational clause that ends the entire agreement on “May 2, 2004.” That means the benefit lasts as long as the commitment — until May 2, 2004.

Reinforcing that conclusion is another traditional principle. “[Contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); see Tackett, 135 S.Ct. at 937. This agreement does not contain any written terms saying that healthcare benefits are excepted from the dura-tional clause. Just the opposite: The agreement says that the Group Benefit Plan “will run concurrently with this Agreement and is hereby made a part of this Agreement.” R. 439-4 at 45 (emphasis added). The durational clause, and the absence of any provision setting a time frame for healthcare benefits, is all anyone needs to know to decide this case. The benefits do not last beyond May 2, 2004, because the agreement did not promise them beyond that date. Any other approach to the issue, Tackett explained, “distort[s] the text” of the agreement by “refus[ing] to apply general durational clauses to provisions governing retiree benefits.” 135 S.Ct. at 936.

A third principle cements this conclusion. “[W]hen a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id. at 937. In this case, the healthcare-benefits promise is silent as to the length of the commitment, and the agreement contains an expiration date of six years. That means the promise ends on May 2, 2004, unless and until the parties agree to extend it in the next collectively bargained agreement (just as they had so often done in the past).

Last but not least is this: Even if there were no durational language, even in other words if there were no six-year limit to the agreement, we still could not construe this -agreement’s commitments as lifetime promises. “[T]he traditional principle,” Tackett noted, is “that courts should not construe ambiguous writings to create lifetime promises.” Id. at 936. “[Cjontracts that are silent as to their duration will ordinarily be treated not as ‘operative in perpetuity’ but as ‘operative for a reasonable time.’ ” Id. (quoting 3 A. Corbin, Cor-bin on Contracts § 553, p. 216 (1960)).

These principles should resolve this case. And they would resolve this case in every other circuit in the country. Before Tackett, ours was the only circuit that applied a presumption in favor of treating healthcare benefits as promises for life. See Noe v. PolyOne Corp., 520 F.3d 548, 568 (6th Cir. 2008) (Sutton, J., concurring in part and dissenting in part). The other circuits applied the just-mentioned rules of interpretation to contracts just like this one, confirming that these rules are indeed “ordinary,” and thus respected the dura-tional clauses in each of them. See, e.g., Senior v. NSTAR Elec. & Gas Corp., 449 F.3d 206, 218 (1st Cir. 2006); Joyce v. Curtiss-Wright Corp., 171 F.3d 130, 134 (2d Cir. 1999); UAW v. Skinner Engine Co., 188 F.3d 130, 140 (3d Cir. 1999); Rossetto v. Pdbst Brewing Co., 217 F.3d 539, 543 (7th Cir. 2000); see also Raymond A. Franklin, Note, Vesting Retirement Benefits: Revisiting Yard-Man and Its Unacknowledged Presumption, 25 J. Civ. Rts. & Econ. Dev. 803, 821-22 (2011). After Tackett, unsurprisingly, the other courts of appeals continue to enforce general dura-tional clauses in similar agreements — including a unanimous Fourth Circuit decision from just a few weeks ago. See Barton v. Constellium Rolled Prods.-Ravenswood, LLC, 851 F.3d 349, 354 (4th Cir. 2017); see also Finley Hosp. v. NLRB, 827 F.3d 720, 725 (8th Cir. 2016); Michels Corp. v. Cent. States, Se., & Sw. Areas Pension Fund, 800 F.3d 411, 421 (7th Cir. 2015).

There is one area, it’s worth pointing out, in which our circuit has followed these traditional rules. Pre-Tackett and post-Tackett, we have honored these principles if the healthcare-benefits promise was contained in an employment agreement between an individual and the company, as opposed to a collectively bargained agreement. See Sprague v. Gen. Motors Corp., 133 F.3d 388, 400 (6th Cir. 1998) (en banc). That means we have applied a presumption in favor of lifetime vesting where it is needed least (company promises in which the employees were collectively represented by a union), not where it is needed most (company promises in which the employees have no representative). Notably, Tackett favorably cited Judge Nelson’s decision in Sprague, suggesting we should apply the same rules in both settings. Tackett, 135 S.Ct. at 936-37.

I am hard pressed to understand our hesitance in following the path that the Supreme Court has set for us, that the other circuits have long followed, and that we have followed when it comes to non-collectively bargained agreements with respect to the same subject matter. In what area of contract law would we disregard a durational clause? I know of none. How, then, can this be the application of ordinary contract principles? I know not.

In abrading an inter-circuit split (and an intra-circuit split) that the Supreme Court just sutured shut, the court with respect makes too much of the silence in the healthcare-benefits provision about the length of the commitment and too little of the durational clause’s express limitation of these benefits to “May 2, 2004.” Contractual ambiguity, it may be true, gives courts a warrant to search the record for extrinsic evidence of contractual meaning. But that warrant requires a textual finding unfound here — that there are two competing interpretations, both of which are fairly plausible readings of the language. See TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d 574, 582-83 (6th Cir. 2010); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 425 (2012). Put differently, if there is only one fair reading of the agreement, that is the end of the matter.

So it should end here. Everyone agrees on one fair reading: that retiree healthcare benefits would last, like the rest of the promises in the agreement, until the contract expired on May 2, 2004. The majority offers another: that the contract promised retiree benefits for life. But the contract principles that the Court spelled out in Tackett do not permit that reading.

Consider the court’s efforts to identify ambiguity and to resolve it in favor of a lifetime promise. It points to a provision in the Group Benefit Plan that says pension-eligible retirees “who retire ... after 7/1/94” and their spouses “shall be eligible for the Group benefits as described in the following paragraphs [which include medical coverage]. All other coverages cease coincident with the date of employment termination due to retirement.” R. 439-3 at 28. But this provision says only that healthcare coverage continues past the date of retirement. It does not say that benefits continue past the termination date of the agreement, much less that they continue for life.

Silence about the length of this commitment, the court adds, supports a finding of ambiguity. In the court’s words: “when read in conjunction with the whole instrument, ... this silence, rather than resolving ambiguity, furthers it.” Maj. Op. 882. But that is true only if we ignore what “the whole instrument” says. When read in conjunction with a durational clause that expressly limits all provisions of the agreement to six years, silence as to a benefits provision must submit to the durational clause, not override it.

Nor does this interpretation require us to “presume that [the] general durational clause says everything about the intent to vest.” Tackett v. M & G Polymers USA, LLC, 811 F.3d 204, 209 (6th Cir. 2016); see Maj. Op. 882. That is a straw man. The durational clause sets an end date, hardly a surprise in a collective bargaining agreement, and that end date applies when nothing in the agreement contradicts it. No presumptions necessary. And no ambiguity. Silence on the duration of the retiree healthcare benefits means that the agreement’s general durational clause is still the only provision specifying when those commitments terminate — May 2, 2004. See Gallo, 813 F.3d at 269-70. Any other approach is Yard-Man re-born, rebuilt, and re-purposed for new adventures.

The court is troubled that “[gjiving dis-positive weight to the general-durational clause here would move the thumb from the employees’ side of the scale and place it on the side of employers” and that “Tackett sought to create a level playing field, not to foster an equally inequitable one.” Maj. Op. 883. No worries there. As just shown, there is no risk in giving “dis-positive weight” to an express general du-rational clause so long as courts honor express limits or extensions of promises in the agreement. More fundamentally, Tack-ett did not direct courts to give employees and employers an equal shot in litigation regardless of what their contract said; it ensured that collective bargaining agreements would be interpreted by the same, ordinary principles as other contracts. Equality between contracts, not between litigants faced with different contractual commitments. In any other area, we would say an uncontradicted general durational clause controls all of the promises in an agreement. If that puts a thumb on any side of the scale, it’s because the text of the collectively bargained agreement put it there. And silence cannot lift it.

How, one might ask, does the court sidestep the Supreme Court’s command that, “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life”? Tackett, 135 S.Ct. at 937. Isn’t that rule applicable here? Don’t the court’s repeated references to “silence” about the duration of the healthcare-benefits commitment implicate the rule? The majority demurs “because the parties in this case carved out certain benefits, such as life insurance and healthcare insurance, and stated that those coverages ceased at a time different than other provisions of the CBA.” Maj. Op. 882. But that is a recycling of the point addressed above— that the agreement says that retiree healthcare benefits continue after the date of retirement, quite understandably, but not after the expiration date of the agreement. All the court has to go on to extend the benefits past the end of the agreement, once again, is: silence. And under Tackett, we cannot infer vesting from silence.

The court next claims ambiguity about whether the healthcare benefits last a lifetime because eligibility for healthcare benefits is linked to pensions and because pensions are vested lifetime commitments. But the tying language in this contract has nothing to do with the duration of the healthcare benefits. The agreement says that pensioners “shall be eligible” for healthcare benefits for as long as the agreement provides those benefits — that is, until May 2, 2004 — not for as long as retirees earn a pension. The court admits that the tying of healthcare benefits to pensioner status “by itself, says little about whether those healthcare benefits should vest for life. It does, however, create an ambiguity about the parties’ intentions.” Maj. Op. 882.

But if tying says little about vesting, how does it create ambiguity about vesting? I do not know. Tackett at any rate “rejected this kind of ‘tying’ analysis as a relic of a misdirected frame of reference, calling it one of many Yard-Man inferences that was ‘inconsistent with ordinary principles of contract law.’ ” Gallo, 813 F.3d at 272 (quoting Tackett, 135 S.Ct. at 937). A forbidden inference cannot generate a plausible reading. And without a plausible explanation for treating the healthcare benefits promise as a promise for life, the general durational clause controls. We do not “expect to find lifetime commitments in time-limited agreements.” Gallo, 813 F.3d at 269. To suppose that this agreement’s tying language suggests lifetime vesting clearly enough to override an explicit durational clause is to find an elephant-sized commitment in a linguistic mousehole. See id.; Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). It doesn’t fit, and it doesn’t belong.

Because the retiree healthcare benefits expired on May 2, 2004, the extrinsic evidence invoked by the court is neither here nor there. Still, even setting aside the absence of a contractual ambiguity to resolve — even indeed setting aside the agreement’s provision precluding use of parol evidence, R. 439-4 at 47 — the extrinsic evidence does not support the court’s position. Start with the parties’ bargaining history. “The 1998 CBA not only set the rules for employees who retired during the next six years of that CBA; it also reset the rules for employees who retired after July 1, 1994, which is inconsistent with the notion that the 1990 and 1995 CBAs (using the same [retiree healthcare benefit] language as the 1998 CBA) created unalterable, irreducible health benefits.” Reese v. CNH Am. LLC, 574 F.3d 315, 324 (6th Cir. 2009). After Tackett, that same logic shows a lack of vesting, which is exactly what we concluded in Gallo. That these benefits were reset (or “continued” as in Gallo) after prior agreements expired undermines a theory of vesting because it indicates that they would have to be reset again when this agreement expired. See Gallo, 813 F.Sd at 270.

This bargaining history also casts a clarifying light on the accounting document that shows CNH planned to pay healthcare benefits for the life of the retiree. CNH and the union renewed retiree healthcare benefits in each successive agreement until this litigation began. All that the accounting document shows is that CNH expected that practice to continue and forecast its budget accordingly. We dealt with exactly this situation in Gallo: “That a company to its credit hopes to subsidize healthcare benefits for its retirees for as long as possible does not mean it has promised to do so.” 813 F.3d at 274. Taken in context, the accounting document shows only that CNH hoped and planned to pay lifetime healthcare benefits, not that it was contractually bound to do so. See Witmer v. Acument Glob. Techs., Inc., 694 F.3d 774, 777 (6th Cir. 2012).

Nor is the remaining extrinsic evidence helpful, as most of it predates the relevant time period. The plaintiffs consist of retirees from between July 1, 1994 and April 1, 2005, and this dispute concerns what the company promised to that group. No amount of parol evidence regarding prior agreements, including promises made to workers who retired in the 1970s and ’80s, is probative of the meaning of a set of distinct promises made by a new corporate parent for the first time in 1995, and then in altered form in 1998. The 1993 and 1995 “cap letters” showed that CNH planned to provide coverage beyond the term of the 1995 agreement, but again a commendable and hope-filled plan does not entail a binding commitment. We should reject this argument for the same reason the Fourth Circuit just rejected it: “The Cap Letters both fall far short of Tackett’s, requirement for a clear signal that parties intend for benefits to vest and fail to negate the unambiguous durational language in [the agreement].” Barton, 851 F.3d at 356. The “Letter[s] of Understanding” that accompanied the 1998 agreement, moreover, reinforce the conclusion that the benefits were not vested. One letter provided that CNH could unilaterally alter benefits to reflect new healthcare laws, and the other limited its promise to keep retiree costs constant to “the term of the 1998 labor agreement,” R. 439-3 at 42. Even if admissible, the documents do not establish a lifetime right to healthcare benefits.

* * *

The conundrum of today’s decision is that Tackett tells us to apply ordinary contract principles to these agreements, and yet every other court in the country would handle this case differently. I could double the length of this opinion with applicable quotes from other circuits but will offer just a few to make the point. Here’s one circuit: “[Ejntitlements established by collective bargaining agreements do not survive their expiration or modification .... The mere silence of Collective Bargaining Agreements and plan documents concerning the vestment of welfare benefits fails to give rise to an ambiguity.” Senn v. United Dominion Indus., Inc., 951 F.2d 806, 816 (7th Cir. 1992) (quotation omitted). And another: “Contractual vesting is a narrow doctrine. To prevail, Plaintiffs must assert strong prohibitory or granting language; mere silence is not of itself abrogation [of the right to alter health coverage].” Wise v. El Paso Nat. Gas Co., 986 F.2d 929, 938 (5th Cir. 1993). And another: “Promising to provide benefits for a certain period of time necessarily establishes that once that time period expires, the promise does as well.... Therefore, we conclude that this provision unambiguously establishes that once the CBAs expired, Multifoods was free to reduce retiree medical benefits.” Am. Fed’n of Grain Millers v. Int’l Multifoods Corp., 116 F.3d 976, 981 (2d Cir. 1997). And another: “The most natural reading of a contract that has defined endpoints of 1998 and 2001 is that terms in the contract apply to events between 1998 and 2001.” Des Moines Mailers Union, Teamsters Local No. 358 v. NLRB, 381 F.3d 767, 770 (8th Cir. 2004). And still another: “Silence on duration ... may not be interpreted as an agreement by the company to vest retiree benefits in perpetuity.” UAW v. Skinner Engine Co., 188 F.3d 130, 147 (3d Cir. 1999). And yet another: “The plain language of the CBA and SPD clearly indicates that the retiree health benefits did not vest [because the general durational clause] contains explicit durational language stating that the retiree health benefits continue ‘for the term of the governing CBA.” Barton, 851 F.3d at 354.

Either our circuit or the rest of the country is not applying “ordinary principles of contract law” to these agreements. Tackett, 135 S.Ct. at 937. I fear that we, again, are out of step.

A last point, about the equities. No one likes the thought of ending healthcare benefits for retirees who .have worked for much of their lives and who may not be able to take on new jobs now. But it is by no means clear that this is what would happen if we followed Tackett and ruled that the benefits did not vest. The absence of a contractual right to lifetime healthcare does not mean that these retirees will not receive healthcare benefits. Even aside from existing federal healthcare programs, there’s no reason to think that the incentives that drove the company and the union to agree repeatedly on retiree healthcare benefits in the past will cease to drive the parties to make similar arrangements in the future. During oral argument, CNH confirmed that it intended, if it prevailed on the vesting issue, to bring this class of retirees into a healthcare plan that mirrors the one offered to current employees and more recent retirees. At stake, then, is the plaintiffs’ desire for better healthcare benefits than current employees and recent retirees. Whether that request is fair or not, equitable or not, it isn’t what this collective bargaining agreement provides.

For these reasons, I respectfully dissent.

      . The seven factors are:
      [1] What is the average annual total out-of-pocket cost to retirees for their healthcare under the old plan (the 1998 Group Benefit Plan)? What is the equivalent figure for the new plan (the 2005 Group Benefit Plan)?
      [2] What is the average per-beneficiary cost to CNH under the old plan? What is the equivalent figure for the new plan?
      [3] What premiums, deductibles and copay-ments must retirees pay under the old plan? What about under the new plan?
      [4] How fast are the retirees’ out-of-pocket costs likely to grow under the old plan? What about under the new plan? How fast are CNH's per-beneficiary costs likely to grow under each?
      [5] What difference (if any) is there between the quality of care available under the old and new plans?
      [6] What difference (if any) is there between the new plan and the plans CNH makes available to current employees and people retiring today?
      [7] How does the new plan compare to plans available to retirees and workers at companies similar to CNH and with demographically similar employees?

        Reese v. CNH Am., LLC, 694 F.3d 681, 685-86 (6th Cir. 2012) (Reese II).

      . To the extent that Tackett III and Gallo are in conflict — a dispute about which reasonable minds may differ — Tackett III, being first in time, must govern. To so hold is not an endorsement of Tackett Ill’s reasoning nor is it an indictment of Gallo’s) rather, it simply demonstrates adherence to this court’s precedent. Darrah v. City of Oak Park, 255 F.3d 301, 309-10 (6th Cir. 2001) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)); see also 6th Cir. R. 32.1(b) ("Published panel opinions are binding on later panels. A published opinion is overruled only by the court en banc.”).

      . The “demographically similar employees” language from this Reese II factor must do some work, and we believe comparing collectively-bargained-for agreements to collectively-bargained-for agreements, coupled with limiting the inquiry to large manufacturing corporations, will help ensure that the comparators are similar to CNH.


author: JULIA SMITH GIBBONS, Circuit Judge.

text:
    MAG IAS HOLDINGS, INC.; MAG US Holdings, LLC, Plaintiffs-Appellants, v. Rainer SCHMÜCKLE, Defendant-Appellee.
    No. 16-1550
    United States Court of Appeals, Sixth Circuit.
    Argued: December 6, 2016
    Decided and Filed: April 21, 2017

      ARGUED: William F Cavanaugh, Jr., PATTERSON, BELKNAP, WEBB & TYLER LLP, New York, New York, for Appellants. David Newmann, HOGAN LOVELLS US LLP, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: William F Cavanaugh, Jr., Craig A. Newman, PATTERSON, BELKNAP, WEBB &
    TYLER LLP, New York, New York, Marc L. Newman, THE MILLER LAW FIRM, Rochester, Michigan, for Appellants. David Newmann, Alexander B. -Bowerman, HOGAN LOVELLS US LLP, Philadelphia, Pennsylvania, Catherine E. Stetson, Sean Marotta, HOGAN LO-VELLS US LLP, Washington, D.C., Philip J. Kessler, HONIGMAN, MILLER, SCHWARTZ & COHN, Detroit, Michigan, for Appellee.
    Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.
   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

MAG IAS Holdings, Inc. (MAG Holdings) and MAG U.S. Holdings, LLC (MAG US, collectively plaintiffs) appeal the dismissal of their diversity action against Rainer Schmückle for lack of personal jurisdiction. Because plaintiffs have made a prima facie showing that the district court can exercise personal jurisdiction over Schmückle, we reverse and remand the case for further proceedings consistent with this opinion.

I.

A.

During the relevant time period, the MAG Group was an affiliation of entities that together formed a multinational manufacturing-technology company providing production plants and machinery to make engine and chassis parts for the automotive industry. One of these entities was MAG Holdings, a Delaware corporation. MAG Holdings owned a controlling stake in MAG US, a Delaware limited-liability company. MAG US, in turn, owned one-hundred percent of MAG Automotive LLC (MAG Automotive), a Delaware limited liability company with its principal place of business in Sterling Heights, Michigan. Through a subsidiary, MAG Holdings also owned a majority stake in MAG IAS GmbH (MAG Germany), a German company. MAG Automotive and MAG Germany have since been sold to the Fair Friend Group, a Taiwanese investment firm.

Moshe Meidar is MAG Holdings’s majority shareholder. He previously served as CEO of the MAG Group. Even after stepping down as CEO, Meidar continued as president of MAG Holdings and chairman of MAG US. In addition to Meidar, the MAG US leadership team included Brian Prina (president) and Robert Dudek (secretary and treasurer). Prina and Du-dek also held positions at MAG Automotive: Prina was president, and Dudek was vice-president of finance. Both Prina and Dudek lived in Michigan and worked at MAG Automotive’s Sterling Heights facility.

Rainer Schmückle is a German citizen living in Germany. From November 2014 until his termination in June 2015, Schmückle served as CEO of the MAG Group and managing director of MAG Germany pursuant to an employment contract.

B.

On August 19, 2015, MAG Holdings and MAG US sued Schmückle in Macomb County Circuit Court for breach of fiduciary duty, professional negligence, waste of corporate assets, unjust enrichment, and tortious interference under Michigan law. Plaintiffs allege that, as CEO of the MAG Group, Schmückle “implemented an elaborate scheme” to engineer a “fire sale” of MAG Group assets for his own personal financial benefit. DE 1-2, State Ct. Compl., Page ID 11-12. They claim that Schmück-le’s conduct injured them and their Michigan-based subsidiary, MAG Automotive.

Schmückle removed the case to the United States District Court for the Eastern District of Michigan. He then filed motions to dismiss for failure to state a claim, lack of personal jurisdiction, and forum non conveniens, along with a declaration disputing many of the jurisdictional facts alleged in the complaint. In response, plaintiffs filed affidavits from Dudek and Prina.

With respect to personal jurisdiction, plaintiffs claim that Schmückle “transacted business within the State of Michigan” and that his “actions and activities led to consequences within the State of Michigan.” Id. at 14. In their complaint and supporting affidavits, plaintiffs make a number of allegations about Schmückle’s tenure at the MAG Group as it relates to his Michigan contacts. Plaintiffs allege that when Schmückle was hired in November 2014, he was given a mandate by the MAG Group’s board of directors to improve the company’s financial situation by identifying and pursuing financing options. They allege that Schmückle’s compensation package provided him an equity bonus upon the sale of MAG Group assets, but not for minority investments or other financing arrangements, and that this led Schmückle to act in his own self-interest instead of acting in the best interests of the company.

Plaintiffs assert that Schmückle was responsible for the “worldwide operations of the MAG Group” — including MAG US and MAG Germany — and that he held himself out as the “Global CEO” of the company. Id. at 16; DE 14, Dudek Aff., Page ID 247. They allege that Prina and Dudek reported directly to Schmückle. Prina claims that he had “ongoing and substantive” contact with Schmückle: that they communicated regularly by email and three to four times a week by phone. DE 15, Prina Aff., Page ID 258.

Plaintiffs further allege a number of ways in which Schmückle was closely involved with, and exercised control over, day-to-day operations at MAG US in Michigan. Specifically, they allege that (1) he was involved in determining facility operations, budgets, work flow, and sales priorities; (2) he charged MAG US a € 1.5 million annual administrative fee used to pay a portion of his salary and expenses; (3) he reallocated work from the “consistently profitable” Michigan facility to the “less-profitable” operations at MAG Germany and negatively affected the profitability of MAG US in Michigan; and (4) he told MAG US leaders to prepare to transfer $10 million to MAG Germany to cover an equity shortfall.

Schmückle allegedly visited Michigan twice during his eight-month tenure as CEO. In December 2014, he spent three days in Michigan meeting with the management team, learning about the Sterling Heights facility, and reviewing historical and projected performance. During that trip, Schmückle allegedly instructed Du-dek and his German counterpart to “transfer a portion of the general administration and [R&D] expenses from the German operations to the Michigan operations.” DE 14, Dudek Aff., Page ID 247. In February 2015, Schmückle allegedly returned to Michigan to meet with executives from the Ford Motor Company, MAG Automotive’s largest client.

Plaintiffs also claim that on June 3, 2015, Schmückle met with Prina, Dudek, Meidar, and others in Frankfurt, Germany, to discuss proposals from outside investors. At that meeting, Schmückle allegedly stated that unless the MAG Group assets were sold, he would force the MAG Group into insolvency, despite warnings from Prina and Dudek that such action would cause irreparable harm to MAG US and MAG Automotive in Michigan. Schmückle’s employment was allegedly terminated the next day.

Finally, beyond his involvement with the MAG Group, plaintiffs allege that Schmückle maintains a residence in Portland, Oregon, and that he sits on the boards of at least three companies based in the United States.

The district court, without holding an evidentiary hearing, granted Schmückle’s motion to dismiss for lack of personal jurisdiction on the grounds that exercising personal jurisdiction over Schmückle would not comport with due process. The court did not decide whether the complaint failed to state a claim or whether the case should be dismissed on forum non conve-niens grounds. Plaintiffs filed a timely notice of appeal.

C.

On September 1, 2015, shortly after the Michigan suit was filed, Schmückle filed a wrongful-termination claim against MAG Germany in the' Ulm Regional Court in Germany. There, Schmückle alleged that his termination violated the German Civil Code and that he was due additional salary and benefits payments. MAG Germany argued that terminating Schmückle without notice was proper given “his permanent-refusal to act for the benefit of the company and to safeguard the asset interests of the company and its shareholders and business policies driven by [his] own financial interest[.]” DE 22-3, Ex. 2 to New-mann Decl., Page ID 371. MAG Germany clarified that it was not seeking damages from Schmückle, even though MAG Holdings and MAG US were pursuing such relief in Michigan courts. The Ulm Regional Court issued a judgment on July 15, 2016. The court found that Schmückle was not properly terminated, ordered MAG Germany to make a series of compensatory payments, and otherwise dismissed the suit. Based on the parties’ representations at oral argument, we understand that an appeal in the German litigation is pending.

II.

In deciding a motion to dismiss for lack of personal jurisdiction, the district court may rely “upon the affidavits alone; it may permit discovery in aid of deciding the motion; or it may conduct an evidentiary hearing to resolve any apparent factual questions.” Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing Servas v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)). Although plaintiffs have the burden of establishing that a district court can exercise jurisdiction over the defendant, that burden is “relatively slight” where, as here, the district court rules without conducting an evidentiary hearing. Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quotation omitted). To defeat dismissal in this context, plaintiffs need make only a prima facie showing that personal jurisdiction exists. Id. (citing Theunissen, 935 F.2d at 1458).

We review a dismissal for lack of personal jurisdiction de novo. Infera Corp. v. Henderson, 428 F.3d 605, 614 (6th Cir. 2005). In reviewing the prima facie case, we consider pleadings and affidavits “in a light most favorable to the plaintiffis],”' and do not weigh “the controverting assertions of the party seeking dismissal.” Theunissen, 935 F.2d at 1459. When a prima facie showing is made, remand is appropriate, but the defendant can continue to contest personal jurisdiction by requesting an evidentiary hearing or moving for summary judgment should the evidence suggest “a material variance from the facts” as presented by plaintiffs. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 893 (6th Cir. 2002).

III.

In determining whether limited personal jurisdiction exists over a given defendant, we look to both the long-arm statute of the forum state and constitutional due-process requirements. Air Prods. & Controls, Inc., 503 F.3d at 550. The Michigan long-arm statute, however, “extends to the limits imposed by federal constitutional due process requirements and thus, the two questions become one.” AlixPartners, LLP v. Brewington, 836 F.3d 543, 549 (6th Cir. 2016) (quoting Mich. Coalition of Radioactive Material Users, Inc. v. Grienpentrog, 954 F.2d 1174, 1176 (6th Cir. 1992)). The exercise of personal jurisdiction over Schmückle is consistent with due process if Schmückle purposefully availed himself of the privilege of acting or causing a consequence in Michigan, if the cause of action arose from his Michigan activities, and if his actions, or the consequences he caused, have a sufficiently substantial connection with Michigan so as to make the exercise of jurisdiction reasonable. Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 680 (6th Cir. 2012) (citing S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)). After considering plaintiffs’ complaint and affidavits in a light most favorable to them, we conclude that they have made a prima facie showing that personal jurisdiction exists.

A.

First, to determine purposeful availment, we ask whether Schmückle acted or caused a consequence in Michigan such that he invoked the benefits and protections of Michigan law. S. Mach. Co., 401 F.2d at 381. This ensures that Schmückle could have reasonably “anticipate[d] being haled into court there,” see LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1300 (6th Cir. 1989) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)), and it ensures that he is not brought into a Michigan court “solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

The Supreme Court has said that purposeful availment exists if the defendant created a “substantial connection” with the forum state by engaging in “significant activities within [the] State,” or by creating “continuing obligations” to residents in that state. Id. at 475-76, 105 S.Ct. 2174 (internal citation and quotation marks omitted). We have extended this to business relationships “intended to be ongoing in nature.” See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1265 (6th Cir. 1996) (citing S. Mach. Co., 401 F.2d at 385). The Supreme Court has also clarified that although “a defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties,” a relationship with the plaintiff or a third party, “standing alone, is an insufficient basis for jurisdiction.” Walden v. Fiore, — U.S. -, 134 S.Ct. 1115, 1123, 188 L.Ed.2d 12 (2014). Instead, the focus is on “the defendant’s contacts with the forum State itself.” Id. at 1122; see Brewington, 836 F.3d at 551. Additionally, although the Court has said that physical presence in the forum state is not required, Burger King, 471 U.S. at 476, 105 S.Ct. 2174, physical entry by the defendant “is certainly a relevant contact.” Walden, 134 S.Ct. at 1122.

1.

As an initial matter, we are not persuaded by Schmückle’s argument that Walden precludes a finding of jurisdiction in this case. In Walden, the Court considered whether a federal court in Nevada had jurisdiction over a Georgia police officer who had filed a false affidavit against two Nevada residents knowing that it would affect them in Nevada. 134 S.Ct. at 1120. The Court found that the officer lacked minimum contacts because the officer’s conduct occurred in Georgia and he “never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada.” Id. at 1124-25. The officer’s only connection to Nevada was by way of the plaintiffs he targeted there. Id. In holding that “mere injury to a forum resident is not a sufficient connection to the forum,” id. at 1125, the Court distinguished its prior decision in Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), where it had found personal jurisdiction in California over an out-of-state defendant based on a libelous article published there, reasoning that the tort had involved the California community beyond just the plaintiff. Walden, 134 S.Ct. at 1125; Colder, 465 U.S. at 788-89, 104 S.Ct. 1482.

We have had only one occasion to consider Walden’s, impact. In doing so, we held that a Brazilian insurance company, which operated only in Brazil, lacked mini- . mum contacts with Ohio where it was sued for breach of contract after refusing to indemnify a judgment against one of its clients. Maxitrate Tratamento Termico E Controles v. Super Sys., Inc., 617 Fed.Appx. 406, 407 (6th Cir. 2015). We refused to find purposeful availment on the sole basis that the Brazilian insurer knew its refusal to indemnify would have effects in Ohio because doing so would have allowed the plaintiffs to create jurisdiction on the basis of their contacts, not the defendant’s. Id. at 409.

Schmückle argues that because he targeted his conduct only at plaintiffs and not at Michigan itself, Walden forecloses a finding of purposeful availment. Plaintiffs argue that “causing consequences” in Michigan is still sufficient to establish purposeful availment because Walden limited, but did not clearly overrule, the Court’s prior decision in Calder. Neither party is entirely correct. Walden simply holds that an out-of-state injury to a forum resident, standing alone, cannot constitute purposeful availment. See Walden, 134 S.Ct. at 1123-24. The implications of Schmückle’s position are untenable and represent an overly broad reading of Walden. It would severely limit the availability of personal jurisdiction if every defendant could simply frame his conduct as targeting only the plaintiffs and not the forum state. Schmückle seems to recognize as much by admitting that his relationship with MAG operations in Michigan “is a contact with Michigan.” CA6 R. 22, Appellee Br., at 17.

We need not define the exact scope of Walden and its effect on Calder in order to resolve this case. It is enough to say that plaintiffs must do more than claim that Schmüekle’s actions affected them in Michigan and must show that Schmückle had some level of contact with the.state, and that Schmückle cannot avoid jurisdiction by framing all of his activities as contacts with plaintiffs — who happen to be in Michigan — instead of contacts with Michigan itself. Furthermore, Schmüdde’s trips to Michigan and the fact that he held himself out as the MAG Group’s global CEO are sufficient to distinguish this case from Walden.

2.

Plaintiffs argue that Schmückle purposefully availed himself of the benefits of doing business in Michigan by: (1) being CEO of the MAG Group and holding himself out as having “global authority” over MAG operations, including those in Michigan; (2) directing and controlling MAG operations in Michigan; (3) traveling to Michigan on two occasions to meet with executives and customers; (4) initiating calls and emails to the state each week to direct MAG business; (5) transferring business from Michigan to Germany to prop up the German operations at the expense of those in Michigan; (6) engaging Michigan-based executives in strategic financing and sales negotiations; and (7) arranging for the Michigan operations to pay part of his salary by instituting a € 1.5 million transfer payment from MAG Automotive to MAG Germany. These allegations, taken together, are sufficient for plaintiffs to meet their “relatively slight” burden at this stage of the proceedings. See Air Prods. & Controls, Inc., 503 F.3d at 549.

Schmückle argues that his short tenure at the MAG Group precludes a finding that he established an ongoing business relationship in Michigan. This position ignores our prior holdings that the issue is not the quantity, but the quality of a defendant’s contacts with the forum state. See Calphalon Corp. v. Rowlette, 228 F.3d 718, 722 (6th Cir. 2000); LAK, 885 F.2d at 1301. Although he was with the MAG Group for fewer than eight months, Schmückle had established a close working relationship with MAG entities and employees in Michigan. During his two trips to Michigan, he was directly involved in planning for future operations in the state and met with executives from MAG Automotive’s largest client, the Ford Motor Company. This interaction with Ford establishes that Schmückle’s contacts with Michigan extended beyond the fact that the MAG Group had located its operations there. In addition to his trips, he was in regular contact with Michigan-based executives by phone and email.

It was also reasonable for Schmückle to have foreseen that his work with MAG Automotive would subject him to the jurisdiction of Michigan courts. Schmückle is alleged to have held himself out both to MAG employees and to clients as being responsible for MAG’s Michigan operations. And it was during his visits to Michigan, and in his communications with Michigan-based employees, that he allegedly engaged in conduct — devaluing MAG’s operations in Michigan by requiring that work and money to be transferred to operations in Germany — that injured plaintiffs. Finally, to the extent Schmückle did devalue MAG Group assets in Michigan for his own personal benefit, he would have known that his conduct both targeted the state and impacted the Michigan economy more broadly.

Schmückle is correct that the German venue and choice-of-law clauses in his employment agreement provide some evidence of his intent not to be subject to suit in Michigan, but, at this stage of the litigation, those provisions are not dispositive as to our minimum-contacts inquiry. See Intern Corp., 428 F.3d at 617; Calphalon Corp., 228 F.3d at 723. Additionally, those clauses must be balanced against Schmückle’s actions after signing the agreement that support the notion that he did intend to conduct business in Michigan. Because the evidentiary burden on plaintiffs is minimal at this stage, we find that the employment agreement, alone, is not enough to defeat plaintiffs’ prima facie case.

Our holding that plaintiffs made a prima facie showing of purposeful availment is consistent with our prior decisions. In La-nier v. American Board of Endodontics, we found purposeful availment on the part of an out-of-state medical board that was seeking to expand its membership in Michigan. 843 F.2d 901, 911 (6th Cir. 1988). We found that the board’s goal was to have “ongoing, far-reaching consequences in the Michigan dental services market.” Id. This is analogous to Schmückle who, as the MAG Group CEO, was assumedly responsible for growing the footprint of the Michigan-based operations. See also CompuServe, 89 F.3d at 1265 (finding intent to continue a business relationship in Ohio from the quality of defendant’s “deliberate and repeated” contacts); Schneider v. Hardesty, 669 F.3d 693, 702-03 (6th Cir. 2012) (holding that two letters sent to Ohio were sufficient to establish personal jurisdiction in Ohio when false representations in the letters formed the basis for the action); Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 450 (6th Cir. 2012) (finding sufficient contacts between a foreign defendant and the United States, in part, because the defendant’s employees conducted business in the United States).

Schmückle points to Calphalon, 228 F.3d at 718, to argue that he lacked sufficient contact with Michigan because he targeted MAG Automotive “which just-so-happened to be in Michigan.” CA6 R. 22, Appellee Br., at 16-17. Calphalon involved a dispute between an Ohio-based company, Calphalon, and its out-of-state distributor. 228 F.3d at 722. Calphalon argued that the distributor had purposefully availed itself of doing business in Ohio based on its association with Calphalon, even though the distributor’s actual work did not take place in Ohio. Id. We refused to adopt that position, finding that the distributor’s visits to Ohio had occurred simply because Calphalon was headquartered there, not because the distributor was seeking “to further its business and create ‘continuous and substantial’ consequences there.” Id. at 723. Schmückle’s relationship with Michigan, however, was more substantial than that of the Calphal-on distributor’s with Ohio. Schmückle’s trips to Michigan and directives to Michigan-based executives are alleged to have been in an attempt to control, grow, and sell the business. Accordingly, we do not find Calphalon to preclude a finding of purposeful availment here.

B.

Next, we ask whether plaintiffs’ claims “arise from” Schmückle’s contacts with Michigan. Air Prods. & Controls, Inc., 503 F.3d at 553. This requires that Schmückle’s contacts be “related to the operative facts of the controversy.” Bird v. Parsons, 289 F.3d 865, 875 (6th Cir. 2002) (quoting CompuServe, Inc., 89 F.3d at 1267). We have said this is a “lenient standard,” requiring only that the cause of action have a “substantial connection” to the defendant’s activity in the state. Id.

Plaintiffs argue that their claims are connected to Schmückle’s interactions with the MAG Group’s Michigan-based operations. They point to their allegations that he transferred work from Michigan to Germany, diminished the profitability of the Michigan operations, charged MAG Automotive an administrative fee to subsidize the German operations, and otherwise “squandered” Michigan-based corporate assets to create opportunities for his own personal benefit. Schmückle contends that this conduct is “at most a sideshow to the primary conduct that forms the basis” of the complaint. CA6 R. 22, Appellee Br., at 29-30. He argues that the primary thrust of plaintiffs’ allegations is that he wasted MAG Group assets and prevented a minority investment in the company, activity unrelated to his Michigan contacts.

Although Schmückle’s alleged refusal to accept a minority investment and his waste of MAG Group assets are undoubtedly grounds for plaintiffs’ action against Schmückle, narrowing the case in this manner ignores plaintiffs’ allegations that Schmückle, as CEO, took actions to prop up MAG Germany at the expense of the Michigan-based operations. These alleged actions by Schmückle were connected to his visits to Michigan and his directives to Prina and Dudek — Michigan-based executives. Because Schmückle’s contacts with Michigan led to the alleged harm suffered by MAG US and MAG Holdings, we conclude that plaintiffs’ claims “arise from” Schmückle’s Michigan contacts under our “lenient standard.”

C.

Finally, we ask whether the exercise of personal jurisdiction over Schmückle is reasonable. S. Mach. Co., 401 F.2d at 381. This ensures that the exercise of personal jurisdiction is consistent with notions of “fair play and substantial justice.” Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174. When the first two prongs of our personal jurisdiction test are met, there is an inference of reasonableness and “only the unusual case will not meet this third criteria.” Air Prods. & Controls, Inc., 503 F.3d at 554 (quoting Theunissen, 935 F.2d at 1461). We look to the following factors in making a reasonableness determination: (1) the burden on the defendant; (2) the forum state’s interest; and (3) the plaintiffs’ interest in obtaining relief. City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 666 (6th Cir. 2005) (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)).

There is not enough at this point in the litigation for Schmückle to overcome an inference of reasonableness. There will undoubtedly be some burden on Schmückle to defend a lawsuit in the United States. And we recognize that requiring him to do so might disturb his expectations under his employment agreement and create parallel proceedings to the German litigation against MAG Germany. At the same time, Schmückle admits that he owns a vacation residence in Oregon and that he traveled to the United States three times in five months while working for MAG — the two business trips to Michigan, along with a personal trip in April 2015. This suggests that the burden of defending a lawsuit in Michigan may not be as great as it would be for other foreign defendants.

Additionally, Michigan has at least some interest in the litigation. Assuming, as we must, that plaintiffs’ allegations are true, Schmückle caused injury to a business located in Michigan, which also impacted Michigan-based employees like Prina and Dudek. Although Schmückle is correct that neither MAG Holdings nor MAG US is organized under Michigan law, plaintiffs allege that MAG US’s sole asset — MAG Automotive — was located there.

Finally, plaintiffs certainly have an interest in pursuing their claims. Schmückle appears to concede this point. It is unclear, however, whether there is a more appropriate forum for this case such that exercising jurisdiction would be unreasonable. At oral argument, Schmückle was unable to direct us to such a forum in the United States. Therefore, we are left asking whether plaintiffs should be proceeding in the German courts. We are not prepared to decide such a question on the existing record. First, the extent to which the German court could or did consider arguments similar to those presented by plaintiffs in this case is unclear. Second, we believe that further factual development is necessary on the disputed question of where the majority of witnesses are located and whether discovery material is primarily in English or German. Thus, we are left with an unrebutted presumption that it is reasonable for a Michigan court to exercise personal jurisdiction over Schmückle.

Such a holding is consistent with our case law. First, in Fortis Corporate Insurance v. Viken Ship Management, 450 F.3d 214 (6th Cir. 2006), we applied a presumption of reasonableness after plaintiffs established purposeful availment and a cause of action arising out the forum-state contacts of two Norwegian defendants. Id. at 215, 223. We held that such a presumption was not overcome when the parties were able to conduct discovery across borders, most of the witnesses spoke English, and the forum state had a strong interest in the underlying litigation. Id. at 223. Second, although Schmückle relies on our decision in Miller, 694 F.3d at 675, where we found it would be unreasonable to require, a Swiss insurance company to litigate in Michigan, that case is distinguishable. In Miller, we relied on the facts that the defendant had no presence in Michigan, that Swiss law might have applied, that all of the relevant events occurred in Switzerland, that all witnesses and evidence were in Switzerland, that trial materials would have to be translated from German to English, and that there was a possibility that the case would be transferred to Switzerland under the terms of a forum-selection clause. Id. at 681. Although, at first glance, this appears to align closely with the facts of this case, there are three crucial differences. First, the defendant in Miller had not purposefully availed itself of doing business in Michigan, eliminating any presumption of reasonableness. Id. at 680. Second, unlike the defendant in Miller, Schmückle visited Michigan twice. Third, unlike this case, it does not appear that there was any dispute in Miller as to where the relevant events occurred and where evidence and witnesses were located. Id. at 680-81.

Taking this all into account, we conclude that the current record does not overcome the presumption that exercising personal jurisdiction over Schmückle in Michigan is reasonable. See Air Prods. & Controls, Inc., 503 F.3d at 554. Further development of the record, however, would certainly help to inform this analysis should Schmückle choose to further contest the issue of personal jurisdiction on remand.

IV.

Alternatively, SchmücMe asks us to dismiss the complaint on the basis of forum non conveniens. This doctrine allows a court with otherwise valid jurisdiction to decline to exercise such jurisdiction because of case-specific issues of fairness and convenience. See Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 364 (6th Cir. 2008) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). The district court dismissed plaintiffs’ complaint without reaching this question. We have previously refused to consider forum non conveniens questions yet to be addressed by a district court because fact-finding and balancing are more easily accomplished in that court. See NCR Corp. v. Korala Assocs., Ltd., 512 F.3d 807, 818 n.4 (6th Cir. 2008); Serras, 875 F.2d at 1218. Accordingly, we decline to reach the issue here.

V.

For the foregoing reasons, we reverse the district court and remand the case for further proceedings consistent with this opinion.

      . Schmückle asks us to take judicial notice of this proceeding. Because both parties have discussed it in briefing the jurisdictional question before us, we note the existence of German litigation for the limited purpose of our current jurisdictional analysis. See Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 411-12 (6th Cir. 2006); United States v. Garland, 991 F.2d 328, 332-33 (6th Cir. 1993).

      . Plaintiffs allege only limited personal jurisdiction. They do not claim that Schmückle is subject to general personal jurisdiction in Michigan.

      . However, they may be dispositive as to whether, as a matter of contract, Schmückle is entitled to litigate in Germany. But we do not address that issue here.

      . Plaintiffs also argue that Schmückle established an intercompany pricing scheme that raised costs in Michigan that had the corresponding effect of making the Michigan-based portion of the business less competitive and less profitable. Although plaintiffs introduced this claim in the Prina Affidavit, they never raised this issue before the district court. Accordingly, we find that such an argument is waived on appeal. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 614-15 (6th Cir. 2014).

      . We note, however, that the extent of Schmückle's current obligations in the German litigation are unclear given the lack of a record — beyond the representations of counsel that an appeal is pending — as to the current state of the litigation now that the Ulm Regional Court has entered judgment.

      . We note, however, that the appropriate test for the district court to apply turns on whether plaintiffs are bound by the forum-selection clause in Schmückle's employment agreement. Compare Estate of Thomson, 545 F.3d at 364-65 (outlining the traditional forum non conveniens analysis), with Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., - U.S. -, 134 S.Ct. 568, 581, 187 L.Ed.2d 487 (2013) (noting that the "calculus changes" when parties are bound by a valid forum-selection clause).