i guess we could have gone on some more hello this is mr hauser i was dropped all right well we we were looking for yes so we're we're glad you're back and i was certain that the folks would go on for two hours until it was my turn  appellants and this is an appeal of a summary judgment we're here on to novo review the federal government is powerless to resurrect a corporation which the state has put out of  for all purposes that has been the law in the united states set forth by the united states supreme court for almost a century and there is no contrary authority cited either by  commencement of the proceedings was non existent it was dead for all legal purposes it could be either sued or be sued service of process on it was an impossibility and even appearance an answer of attorney under alternative theory either that they were in a controlled group of corporations with liberty lighting or alternatively that they were trades or business under trade or business says under common control with liberty lighting under arrest and we established that summary judgment that neither of those propositions are true pension benefit guarantee corporation failed to establish that either of those propositions are true and so we're asking the court to send this back with instructions to enter summary judgment for all of the of palin's and against pension benefit alternatively if the court takes there was an issue of fact because any issue  fact at all should have been viewed in the light most favorable to us and frankly although i don't think it changes the outcome this this district court reviewed almost every fact against us and assume the worst instead of the b communications i looked up to the judge he either practiced or was a judge in illinois for almost fifty years and he held fighting in rapier manner the th circuit case which in turn relies on the united states supreme court when read together the illinois statutory scheme continue the existence of the dissolved corporation for five years after it's dissolved in our case that would have been a nine hundred and ninety two dollars and then for to suing why would it be appropriate in other words when there's no indication one way or the other whether this was reported as having been dissolved to the pension benefit cases illinois for the proposition that even an equitable principles wouldn't prolong the even the technical existence of the corporation and we go beyond the intermediate appellate courts that the supreme court  fixed ten point beyond which the corporation ceases to exist so the highest court in illinois believes that the corporation ceases to exist notwithstanding certain equitable principles saying the thing that i don't that is troubling to me is we're looking for uniformity among all of the state and that's one of the goals of risk and we're also looking to protect the pension to allow a corporation and i'm not saying that your corporation did this necessarily but just theoretically to just go ahead and slough off into the night and there's and to congress left the existence of corporations and if that's the phrase corporation the phrase trade or business it's all built on an existing body of state so by definition that law is going to vary slightly slightly from state to state in florida for example judge reinhart originally thought this might be a florida corporation and so in florida corporations do almost exist almost forever at least for some purposes but either way or the other problem is a risk that gives p v g c virtual army of remedies that they can use already to try to get around what could be viewed as  is maybe something done wrong but pension benefit does not choose to argue that something was done wrong here right we're only here under the strict liability prong of the statute right so the only thing that matters is whether it was a corporation or a trade or business on a fixed date we're not arguing fall but if there were a fall your honor they have the ability to disregard evasive transactions they can sue plan administrator for breaching produce jury duties and they have a extraordinary statute of limitations to do so they get extended limitation periods for time of discovery issues they have a catch all that lets them bring any cause of action at all and they have deference they could have chosen either in dealing with us or any other entity to choose fixed or alternative or even an artificial date of terminations that's advantageous to them so that they're within their limitation periods or within their definitions of traitor businesses for example it occurred to me in this case they could have asked mr wharton lee to try to reform this corporation so that it would actually exist in their dealings with him and they didn't do that but that's so i'm out of time so i will reserve for oral argument thank you for a  to respond to opposing counsel suggestion that if that's the case if there's an evasiveness problem they have other tools in your quiver i guess there are other areas in your quiver that you could do you could go ahead and use in order to gain compliance and to make somebody liable what is your response to that well no we really we really don't and first of all i don't and so we would be out of luck frankly as far as as far as a recovery although it's possible that in those circumstances we might have said well you know we can even though the all the evidence is twenty years old we federal common law which which really doesn't deal with the bankruptcy ok well there's no i'm not saying a corporation well actually under one of our theories we we would we do argue that there's basically three alternatives and one of them is that the sponsor remains a member of the control group with persons under common control with whether or not it's a corporation that has only one of the alternative another is that it remains a corporation either under state law or under federal law under federal common law is there no rule against the well i think that they were speaking of it's ability to be sued or sue and that's not we're not trying to see lighting here the only statute clearly is that a  until the company is gone and we're in two thousand and twelve with the sponsor of the well we say the company has not gone at the very most it ceased to exist as a corporation it did not cease to exist altogether twelve without even need those payouts that were required of the i mean they all run into this problem a lot not so going where is if you had gotten better legal advice he would have terminated it as well yes and i you know i i don't know if i can go into mr means but we certainly do not see him i'd like to discuss that prayer business alternative in more detail if i may i want to point out that in that case you can't avoid applying federal common law because trade or business is not defined in business was for the purpose of the deducting gambling losses from income and that definition was tricky business was continuous a regular activity for the purpose of income or profit and that definition might be appropriate federal common law in some cases but it's c down to that point we would have participated in the bankruptcy we would have filed a notice of appearance we would have gotten noticed of our day for the proof of claims and we would have also investigated whether the plan should be terminated and based on what eventually happened it seems very likely we would have concluded that it should be terminated and we would have initiated terminations even though we may do even law which is a footnote and could indicate provides that quote a dissolve corporation shall continue its corporate existence but shall carry on no business except for the purpose of winding up its affairs unquote in other words new jersey law explicitly a dissolve corporation not only continues its existence but continues its corporate existence until it has wound up its affairs appellants just indicated that florida corporations also would not cease to exist sponsors distress and then solving sponsor and any state law providing that it is all corporation immediately ceases to exist so completely conflicts with the recess purposes as to be preempt well i have to admit i haven't looked into it i haven't looked into any of the cases any other states other than illinois but even illinois if you look at the statute that we've cited in our brief there's no limit on the winding up period and i don't see why p v c it's not can you see the obligation to wind up a corporation if the corporation and its owners directors obligation to wind it up  again robert hauser for the account the court ready we are all right thank you so not only is pension benefit asking you to disregard  illinois case law on the existence of the corporation they're also asking you to disregard illinois state law on who owns the stock it is clear from illinois intermediate appellate case law that the stock ceases to exist and instead the possessions of the corporation is any path to the shareholders so there is another layer of law that they asking the court to disregard and i don't concede i don't believe that the court can hold that state corporations law is preempted under the authority of chicago title and there's certainly no evidence that congressional intent upset state corporations law at least in so far as who owns the top of a corporation that has always been a traditional subject of state ownership he cannot talk about the plan as opposed to illinois the example during my opponent's argument but a sole proprietorship can own a can sponsor a defined benefit plan and in a sole proprietorship there is no separate corporate form that the owner passes away the plan has no sponsor period and therefore there's no are they terminated this plan and twenty four i mean there was somebody acting on behalf of the plan to do that who was that was bizarre it's really an agreement between mr wharton lee who signed as the putative president of liberty lighted after going to considerable effort to warn pension benefit that he that he wasn't really the president didn't have a sarti they entered into a stipulation which i think is actually dated in two thousand and thirty that the plan would terminate on a date certain but you your position is he was not acting as the plan sponsor when sponsor the plan but i think he was sufficiently clear this certainly no estoppel against him given that he warned them through counsel that he didn't think he had a fart so that wouldn't be a basis to enter summary judgment it's it might be an issue of fact if it matters but again our position is it doesn't matter because this entity was not a trade or business and i think it was conceded below that it was not a trade or business we've they're not conceding here but they conceded that below that liberty lighting was no longer a trader business in the current court we also need to show that it's not a corporation and it's certainly not a corporation under the only entity which is capable of calling it a corporation and mr weren't w not entitled to own the stock of it under the law the only entity that was entitled to dictate who owned it which council thank you what is what would have happened if lawyers have made sure that pension benefit was involved and i don't i don't agree that they didn't get notice we suspect that they got notice but it's too late these many many years later to prove it but it would have been to his benefit because any