Whether the Eighth Circuit conflicts with this Court's holding that retirement healthcare vesting may be proved by 'explicit terms', 'implied terms', or 'industry practice'

QUESTIONS PRESENTED Applying “ordinary principles of contract law,” this Court held that retirement healthcare vesting may be proved by “explicit terms, implied terms, or industry practice.” CNH Industrial v. Reese, 1388 S.Ct. 761, 764-765 (2018). Earlier, four Justices recognized that “no rule requires ‘clear and express’ language” to show that contracting parties intended retirement healthcare to vest and continue beyond expiration of the collective bargaining agreement (“CBA”). M&G Polymers v. Tackett, 135 S.Ct. 926, 938 (2015) (Ginsburg, J., concurring). Pacheco v. Honeywell Int’l., 918 F.3d 961 (8th Cir. 2019), decided below that a CBA promise of healthcare for retirees until “age 65” is not “explicit vesting language.” The Eighth Circuit refused to consider “implied terms” and “industry practice” to determine whether the promised healthcare was intended to continue beyond CBA expiration. The Eighth Circuit decision raises questions warranting review under S. Ct. Rules 10(a) and (c): 1. whether the Eighth Circuit conflicts with this Court’s holding that retirement healthcare vesting may be proved by “explicit terms” or by “implied terms” or by “industry practice”; 2. whether the Eighth Circuit conflicts with the Fourth and Ninth Circuits and the highest courts in Illinois and Maryland, which all hold that “age 65” CBA promises are explicit and vest healthcare until each retiree turns 65—the Medicare milestone— regardless of CBA expiration; and ii 3. whether the Eighth Circuit conflicts with the Third and Seventh Circuits, which hold that federal common law ambiguity principles require consideration of the parties’ practice, performance, admissions, and “real-world context,” as necessary to interpretation of fringe benefit promises.