may have police the court my name is jeffrey croll and i represent the appellant the automobile mechanics local seven a one pension fund i have reserved two minutes for rebuttal this court to reverse the district court's opinion for two reasons first the district court's opinion should reversed as a matter of law based on this court's recent decision it's a sarah fee ma'am with at the very least this matter must be remanded back to the district court for further consideration under the modified notice rule set forth  the district court's opinion should be reversed because all three liability does not require the showing of the anti union animists now turning to the first issue as a scorched earth currency as shown there are two factors the trial court must review in order to determine whether or not to impose successor liability those are notice in continuity of operations here it's clear that the district court held that there were too many questions of fact with regard to the continuity the knew of the of operations factor there fore the court solely determined the notice could not be satisfied thereby precluding the pension plan from prevailing on its successor liability claims s this court's jurisprudence has also shown successor liability is an equitable doctrine and that equitable doctor requires this court excuse me the reviewing courts to determine and balance federal labor policy with free market principles now here in the courts and in congress there is overwhelming support to further retirement benefits for retirees and that's what this the courts here have developed the successor liability theory of a liability to deal with it's not a rigid notice rule forever changed the landscape changed forever before in a district court here and in the district courts kates in man went up and in our k and concrete they had a rigid rule that required that she actually have notice of the withdrawal liability prior to the sale in order to satisfy that notice standard however in man web the court held that the purchaser need not know quote unquote the precise extent of the liability is very strange specifically to employee benefits liabilities now what are employee benefits liabilities those are obligations to contribute to a pension fund a welfare fund and with all i ended up at my question you say you say the success buy a company without knowing what your liabilities are well you can't you can't sit in a situation where you allow the purchaser to do nothing you can't allow them to not take any sort of investigatory steps following that specific knowledge of the fact that there is an obligation to contribute to the pension fund so what are the investigatory steps that it should take well as this court has recognized use attack and wheeler be snyder if there isn't some sort of investigatory obligation that must be taken now here the m p p a which is the very state actually which provides for withdrawal liability allows a purchaser or excuse me allows a contributing employer to go to the pension fund and request an estimate of that withdrawal liability here that didn't happen rather than taking those steps and determining what the liability was they turned a blind eye to it and if this court were going to say that the purchaser can  can actually find out from the from the other now on the pension fund what the withdrawal liability is the purchaser doesn't have a right the original signatory entity does though but  understand if i'm purchasing a company i want to know what withdraw liability i'm going to have you say i can't find not will you be if you can ask the seller to request it from the pension fund what is my liability that's what the statute provides for it authorizes the selling employer a contributing employer to take that step i'm talking about the purchaser correct it could have to sell it right right  well here this wasn't a free market transaction at all whatsoever though where that would have to come into play this was a father selling his legacy to his son so we can continue that so far is thinking about know seem to think that this that the buyer has any right to the information that the statutory authority does not provide a specific right to the buyer no but the i don't see see how it makes any sense to make fire liable for a liability that can estimate that that i don't believe is correct it certainly can ask the now has no has no recourse he cannot find out what the withdrawal what withdrawal i belittle he will be stuck with what turned lives he calls off the deal that is absolutely right t all liabilities that accrued prior to the sale in question in here the parties use the broadest term that they could ever think of when referring to potential withdrawal liability benefits liabilities well as i stated what else are those other than  n sunday you are as i understand absolutely a father and son deal how about dad with my live bone he could have asked but we believe it's a preconceived plan by these folks to avoid ever paying the withdrawal liability here because the record it will show that specifically rather than informing the pension fund that this was an asset transfer right it's said that in a letter dated may thirtieth to the union that a maritimes changing its name to full circle and never told the pension fund never put the pension fund i'm notice that there was even going to be a sale therefore big based on this court's investigatory obligations that are fund as to what that exact liability or estimated liability is and if the seller says no then as i indicated they can seek an addendum to fit cation agreement or they can call off the deal they have to be aware of what their liabilities are now turning to the second issue the district court erred in holding that the pension fund could not establish alter ego liability as this court knows there are three factors that a reviewing court should look at to determine whether or not alter ego liability should be impos the question on the factor that is in question here is the second factor which is normally deemed the fraudulent intent factor now this court in central transports rip determined that you did not have to have an exact showing a fraudulent intent in order to satisfy that second factor instead you could show that a trans am transaction ocurred now that is clearly what happened here but what's more and let me go back specifically to the district court's opinion the court referred to that that that was a possibility but in that same exact paragraph still require that there be some showing fraudulent intent so it erred as a matter of law i the court the district court's judgment should be affirmed in the case should not be remanded for reconsideration in light a man whether because the record developed by the son fails to establish that mark previously referred to as the son had notice of him sees possible withdraw liability first it's undisputed the only evidence presented by the funds with the prior to the closing the asset purchase agreement mark was aware the agency had an obligation to contribute to the pension fund there's no evidence as to what mark knew before he signed the acha asset purchase agreement there's no evidence that mark knew that the fund was underfunded or that agency faced withdrawal liability prior to the asset purchase agreement there's no evidence that mark knew of the concept of withdrawal viability before the asset purchase agreement there's no evidence that mark had responsibility at h m c with respect to pension funds or the union or the had prior experience with union pension plans there's not even evidence in the record that the seller h m c had notice of its own potential withdrawal liability in there certainly no evidence whatsoever that this was some kind of preconceived plan to defraud the union or its pension fund particularly when one month prior to the close of the sale mark reached out to the union said that full circle group was coming in that he wanted to negotiate a contract between full circle group in the union and then shortly after the close of the sale the union sent letters to mark which included a participation agreement which completely belies the idea that mark was trying to hide anything he then made voluntary contributions to the union in stopped when the employees voted to decertify the union look at the facts of that case that shows what knowledge is required what is you would have to know that the fund is underfunded that's what the buyer would have to know do you find that out during the course of due diligence and then what what i've seen in all of the courts jurisprudence is that you have to have a shell or are the only based on my understanding he would need to go to the seller because the seller's the only one that has the right to get the information on the phone blanket due diligence requirements in the absence of notice of a specific client and the union suggested mark failed to do due diligence that is not true the record establishes in their own brief says that marc hired an attorney to help him evaluate the assets and to structure the deal and the union's brief specifically says that that attorney was competent to do so and the attorney didn't know anything blood billing apparently not it's not in the record in the attorney's deceased before his deposition could be taken but there's no evidence in the record of that there's just no evidence in the record that the seller knew of a draw ability or that mark knew about withdrawal i believe we look at it if we look at man that's like saying if you don't if you don't know if you don't know you come to you don't have to pay are lots of liabilities which are which do not depend on the awareness of the live person but i don't think that the law expects the asset buyer to assume and know about all the too there are other exemptions there are de minimus reductions there's a six year window where someone who's participating in a plan could pull out there are numerous exemptions where it's not a five but in the on the facts in  undisputed the seller and the buyer knew about withdrawal liability they talked about it before hand one of the owners of the company said he knew all about withdrawal liability who knew that this fund was under funded and he was specifically concerned and wasn't sure if he wanted to do this deal because of the potential for a lot withdrawal viability we have no facts like that here in this case there's no facts that would have put someone who's left holding the bag it's a that when the fund is underfunded and of their own withdrawal viability so are you saying now that they did i can't remember mark that mark didn't know that it was underfunded there is no evidence that he knew it was under funded he didn't know anything about withdrawal either we presented affirmative testimony that he did not know about how high how that can be a defenseless way baffle you have a liability h they just didn't know that payment of income tax is involuntary not voluntary it seems like the same thing we buy it you buy you buy a company you the common law rule has always been that the asset purchaser does not assume the liabilities successor liability is the exception it is not the rule the aristos statute does not specifically provide for successor liability instead if we look at the myth of amendments if we look at section thirteen ninety there congress said the seller remains liable for the withdraw liability unless the asset buyer expressly takes on certain obligations as part of the deal including posting a bond and contributing to a plan so this suggests that congress has already decided that the common law rule is still in place  it's the seller not the buyer that will be live on of congress wants to change the rules under a researcher wants to change the common law rule it will so act notice has been the bedrock principle underlying the court's adoption of the successor liability in each of these cases the corps has said that the buyer needs to have notice that this was forthcoming here there is no evidence that he had noticed that this position to provide that information then the buyer could have followed up with then the court reset this course seller have a duty the seller has a duty when it has notice of an actual liability or claim and here there's no evidence of i can't say that it doesn't make sense but here the claim is against the buyer not against the seller i see that my time has come up but i would like to make a quick point on the alter ego analysis this court has always said the fraudulent intent is the critical element additionally when the district court was responding or to the parties arguments it considered in the alternative whether there was evidence that this was a sham transaction in the district court specifically found that the fund had failed to establish that this was a sham transaction for all these reasons we would respectfully request that this court affirm the district court's judgment in its entirety practical matter is the practical reality is that the two parties to a sale is a are private parties that are not going to go in and advertise to everyone in the world that a sale is occurring that's practical reality and practical reality meet dealing with this on a regular basis is that the pension fund in the union do not become aware of a sale until following that sale therefore they cannot be required to have the burden of informing the parties that withdrawal liability is owed now just referring to the transfer portion that counsel just alluded to now yes the district court did consider based on central transports that if sham transfer could satisfy that second factor unfortunately in that very same paragraph the court then required that there be a showing of fraudulent intent to avoid union or pension doctrine in this case if this court or to allow the impact the district courts case to stand it will be tipping that balance too far in favor of the employers we request that you tip it at least so it's equal so the employees can have an equal chance thanks ok thank you very much to the council next case for argument united states versus wal