my name is frank sabatini and i do represent the power with the court's permission i would reserve four minutes mistakenly concluded that the traditional common law rule of successorship liability should apply in the context of a delinquency action under a recess second the district court failed to follow the seven circuits position in artistic furniture which we believe is fully consistent with the law of the supreme court and of this court and third because it applied the incorrect standard the district court failed to recognize that as a matter of law robertson should bear successorship liability mr seventeen zero zero am i correct that aside from how the if you change your position somewhat on appeal well we change our but we always thought that artistic furniture should apply so we never change our position what happen with both parties rely on artist furniture which we want in this court and the other side did not challenge artist encourage at the fair and so were we believe that artistic furniture should be adopted we always follow that now we actually believe the judge barry that the rationale of littlejohn does support us and that is because the court in littlejohn gave a methodology for applying  the common law of a recess but the district court in its in vocational littlejohn i believe characterized what's at stake here is in ordinary didn't well yes and i think i mean is you're not you're certainly not embracing that a pro no never did what happened was a warden ery day which comes from page two or nine a little john opinion when it happened was a little john we were the plaintiffs in that case and we sued the file we being the fun and we sued on the basis of a merger and we said that there was liability in that case the other side relied on artistic furniture and golden state bottling and said you need  ians action notice for there to be liability which hadn't existed in that case now what happened there was that the court said that it said that in an hour in an asset sale you have a case where a plaintiff is suing one company under a collective bargaining agreement signed by the other company you're suing the successor under contract signed by the president says and they said that was not  what was in littlejohn littlejohn was merely an ordinary debt but we are a case where we are suing one party rubert can under a collective bargaining agreement that was signed by state wide and so therefore that is not an ordinary debt and i think that the district court confused those those two would artistic furniture change with the approach to making a career change the result well  the record is very clear that the fire you know where your friends are arguing that's what i'm going to get them when they step up ok but now and as far as continuity judge smith i would point to the supreme court's decision in fall river dye now in that case the supreme court found continuity there were a lot of differences between the businesses one was much the successor was much smaller than the buyer there were different types of business that were done and as so interesting in four river dying the supreme court said the reason why there was continuity in fall river dying it said first of all you focus on the employees who went from the successor to the and fall river dying says with those employees view their positions as being unchanged by the transition  opponents make some talk about asphalt but that is really a dead issue that the record mr sally who had been the counsel for statewide state and we've cited this in our brief that the asphalt the paving work was a large piece of state wives business back in the eighty's but it had died by then by the ninety's and certainly by the transition and just llobet or i believe that in the year two thousand and six which was the first year after the asset sale rupert tunes of business consisted of a levin point two million dollars in revenue and of that eight point nine million was highway work which they got from only from doing this purchase goods before that time they just did general construction and gas stations so there is no doubt that all this work all of these employees  they they had there were the same bargaining unit came over eight of nine employees they have the same union that they had before they had the same collective bargaining agreement which was assume and this or these  not exist in fall river guyon so it's actually stronger than fall river guy they have the same benefits from the same employee benefit plan that they had coming over they have the same supervisors and by the way if there's any had the same acquit mint that was purchased they had the same customer which was the state in new jersey making roads that was the bulk of their work everything was the same so i i think that this case is issue with his finding of no continuity that one of the exceptions applies the continuous operation oh yeah i would say that we would not try to win this case under the traditional and why is that is that because there is no commonality of ownership exactly and that a requirement but that is under which cited the general electric pays the traditional common law rules so the traditional common law rules you can have a de facto merger of two comments which require commonality you could have a disguised continuation which would require that you could have fraud you're going to need one of these elements that that really shows it but i that exactly and judge perry one of the reasons why the traditional common law rule was designed to require commonality of ownership their theory being that they wanted to encourage the fluidity of that the purchaser if the that purchaser has noticed they can make arrangements in the in the corporate purchase and that could have a happened here it's interesting because judge irene it did have some discussion with the way to sell this company and actually you could have had a three way deal in this case i mean if mr rupert grint the rupert and people of the baron out of said look we want to buy this company but we don't want we're going to pay i think it's two point six million dollars because they paid one point six million for the business and one million for the real estate they knew or mr einhorn was they could have said mr einhorn mr smith if mr smith wants us to buy this otherwise he's not going to get any money mr einhorn wants to survive it we're going to spend two point six million dollars we're not going to spend any more you decide how to decide it just as long as we get a bill of sale and a release  the exact type of deal that golden state bottling artistic furniture and this court in the version ascii of pinion thought should be done to allow the fluidity of war brasserie while protecting the employee would be the end of that decision for her verse one future because we know that we're talking about five hundred thousand dollars due i'm john landesman my pleas the court and i represent m l roberts and construction company i have ten minutes of time the question facing the court is what success or liability standard should be applied risk what is the correct standard and arisa does not provide the answer and so the court is in this instance required to fill in the gaps the question is should it be the traditional common law standard which as we heard earlier encourages the fluidity of corporate assets and applies to ordinary debts or should it be the exception to the rule which is the golden state bottling rule which the supreme court has said and the courts recognize is deviates from the the the common law rule and provides a more and that is that that's really the question your honor why shouldn't we look into it why didn't you and i me answer the answer is that in this case unlike in golden state bottling which dealt with the national labor relations act and we have other cases that extend golden state bottling into pregnancy discrimination act or title seven should it go to a risk where there's no victimized employee let's be clear in this case there is no victimized employee i'm s that's right because all your friend would agree with well i believe that he would have to agree with me because here there are no individual participants or employees of state wide the predecessor that are not going to receive employee the victimized employee is in a different position than the fund the fund can conduct audit it's to avoid this word of liability if it's a miser employee can terminate the fund i don't understand how and but the victim and one of the victims is the are the other employers who have to to make up the short fall for the employer who didn't pay correct in  what benefits could be adjusted or the investments in the funds could have a terrific year and there could be no why in theory don't know me any way you look at it there the fund is without the infusion of half a million dollars in cash that it otherwise would have received what's your radical about the fund is shorted a half a million dollars and the question is so that half a million dollars be treated as an ordinary debt and we look at the plain language of this court's decision littlejohn and it discusses filling in the gap in the context of an emergence of a merger under arrest and says that this is an ordinary debt it is a debt that has its genesis in a collective merger you can see that this is not a merger i would i would certainly concede that but in littlejohn the the court was faced with the question should we apply the golden state bottling role the expansive role under ris dollars this is the the it's not the amount respectfully your honor it's not the amount of money that the court should look at because an ordinary debt it's the nature of the debt if this debt what for example i think the fund in this case is more akin to an insurance company some collective bargaining agreements say that the employees are going to get their benefits their pension and health benefits through a multi employer funds like the fund in this case others say that they're going to get those annuity benefits or health insurance benefits through investment companies or through insurance companies that's the position that the fund stands in this case the fund it has a debt that has its obligation or its genesis in the collective bargaining agreement agreement it's not a case where the employees are actually suffering directly this is  and that's what littlejohn says that's what the the holding of littlejohn is and respectfully to the extent that the fund is arguing that extension do a balancing to the extent artistic earn if you would say we have to balance here you say that the balance should come down against the funds because they've got all this money out there anyway and their people are going to be right the fund with the balancing judge barry does come down  incorrectly in regions view in artistic furniture it's it's our position that artistic furniture was wrong wrongly decided and that when you are balancing the equities and you look at the poli with the successor in that case be held liable for the predecessors manufacturing a defective crane and in that case the third circuit said no we are concerned with the fluidity of corporate assets and even though we had a sympathetic creditor in an injured worker a person who had been injured by a crane the the court was not willing to stiff deviate from the traditional common wall rule and the traditional common law rule says that we have a an ordinary debt and we're not going to apply a more expansive standard usage just a moment ago that artistic furniture was wrongly decided you didn't previously argue that did you in fact didn't you proceed just as if artistic and it was the apple not before this court but you're correct your honor that before your reply to us that rupert on did not know that the state wide had a debt to the funds before the assets refused well your honor with respect to the notice issue and i heard your honor earlier give me a but we didn't know the exact amounts and we did not know that einhorn would be looking to rupert's and for that that you did not know they would be looking to but you did know they was in the area happening three hundred eighty five thousand dollars plus well now with fees and things like that it's over a million but at the other if i could i know the red light is on can i make one more point the point is under the under the golden state bottling line of cases the one of the rationales justifying deviating from the traditional common law rule is because they want to hold the successor to the terms of a collective bargaining agreement that was entered into by the predecessor here that's not the case and i think that it's important for the court to keep in mind the distinction between the funds as an entity which have no privity of relationship in terms of collective bargaining agreement or any other contract with state wide well robertson for that matter versus the locals themselves local six seven six of the teamsters had the collective bargaining agreement and that's a distinction of someone's going to see and say we want to hold you to the collective bargaining agreement it would have been the local the local did not attempt to do so here instead the local negotiated a new agreement  didn't the claim is that my client either neglected to inform written of its potential successor liability or should have done more to draw knew about it while i believe you i would agree with you completely judge perry i believe the record reflects that they knew about and it was provided for riverdance principals contend that they were informed by my client that he had nothing for you i never said they provided for i said they knew i understand i understand your honor asked me what is that it was a legal issue directly with any legal issue or for that matter any right were obligation directly that effects your client that well that is correct directly as correct your honor indirectly your honors will because i would argue if the court upholds the decision of the district court and dismisses the complaint asked ruben i would argue as a matter of will my client has the liability and that would be the law of the case subsequent the judge arena leave in were were granted leave the file supplemental briefing on our motion for summary judgment on the ground that the law of the case was now the ribbon it was not a successor as a matter of what my client couldn't be a lot i'll try to keep my remarks should have five minutes i'm rumored to be the successor to the state wide for this reason the funds were also on notice of the pendency of the sale of the funds sat at the table during the negotiation to try and settle the injunction of the sale and the funds amicably resulting in no no absolutely not your honor i think the point is the case law such as golden state which has applied successor liability to four for the protection of workers is because the workers were otherwise without a remedy they impose excessive liability for for instance unfair labor practices because there was no other way for the workers to have a remedy in this case the funds how to remedy the funds had a cause of action against state why that a cause of action against robert in which they pursu d unfortunately state wide a turned out to be judgment proof i don't think the policy severus a as judge arena snowden and as his weapon in the littlejohn decision this is a business that which just happens to have its genesis edition that doesn't compel the application of the policies of a receipt because ultimately the goal here is not the protection of an injured worker it's the protection of a pension fund i thought i understood what you were saying that i completely agree someone has to pay the five hundred thousand dollars short for what's going to come out of someone's pocket with the point is here the funds had a remedy unfortunately they were unable to collect on that remedy because they settled and they suffered with someone that turned out to be judgment proof the equities  putting one unfairly discharged worker to work with the successor company seems to me different than saying to  why shouldn't that trouble me well judge because i may agree that the remedy here is larger because the violation that the successor engaged in which the was more serious than just now irene one employee having i half a million dollars in liability to funds that's a pretty big damage to do to those employees and so i would think about that word on didn't do would undertake that responsibility right and so that's why its successor liability is the only way to get a remedy in this i mean i mean it's it's clear as  have all assets and also they had contact by buying those those acids or some by bringing those employees over and made it possible for them to get the state of new jersey highway were remember took over some jobs that had been saved they took over many jobs if you go over twenty four forty two and they took over they were awarded eight from the beginning it took over twenty four forty two that were in the middle and they kept doing this well done by the time that they did the sale the paving was done and there were the records would say but in the eighty's in the ninety's and i had a hard time understanding how if you're doing highway construction you can put up signs you can put funds the same supervisors the same acquit me i think they say though that some of them less than a little while a lot of the most of them left within three months they were all gone there were they left in november and december from between october and december of most of the employees went with them and they were gone within three to three months the majority are right then they were replaced that bargaining unit was replaced and you see that's the idea of a multiplayer plan and bargaining units that is that bargaining units what has the personality and in those employees continued they took over in that unit and it was eight or nine that came over i would say the employees and you really only do it that second that you transfer and for river dying even though they later lost their majority status once they made it at the point of the transition it