warneke notice to workers at other locations but not of san jose airport that globe not the federal government laid off these workers and the globe didn't go out of business it simply decreased the number of employees that had working at san jose under the plain language of the statute under existing case law those allegations you know themselves are sufficient to state a claim under the warnings the court need look no further than the government contracting cases under the warner in those cases where the federal government has determined that it no longer needs a defense contractor to provide a particular defense equipment be it a fighter jet or a bomber or anything else the court did not find that the defense contractor was exempted from the war in act when the federal government terminated the contract and that terminations resulted in layoffs what the courts look to there is whether or not it was reasonably a trial apart from the government contracting cases the court can look at other cases that involve government closures of facilities like the elsinore shore casino case there again it was the government's the the real starting point here whether the employer  in the complaint and in fact the alleged facts that shows if that probably was not the case these layoffs took place in phases it wasn't as if the federal government came in one day and said we're taking over to bad conduct by the federal government just like the layoffs were caused in the government contracting cases by the conduct of the federal government and you have two different paradigms here you have the bank cases on the one hand and you have the government time laid off the workers the federal government terminated the employment here there was no clean break as we allege in the complaint between the federal government coming in and taking over the location san jose airport there were layoffs in phases there's evidence in the record that in fact local employees continue to work some close employees continue to work at the airport for a substantial period of time all that goes to the issue of control obviously in the bay case if the bank has no control over what the federal government did with those employees when it did it here we've alleged in a number of ways the globe did have control let me let me give you an example let's say in discovery we find out that in june of two thousand and two follow sat down with the federal government and worked out a plan how are we going to transition it to jose airport well let's lay off this many employees and the state and you can bring in a group there and then after that group gets started maybe we'll lay off some more on the stuff on this other day if that is what occurred in this doesn't this suggest something like that very well may have occurred based on the stuff you communications we know of having been unable to do a discovery if that had occurred globe has control globe has enclosed has the ability to give the warneke notice and i think that's the crux of what the case is about if globe knew that these layoffs were coming why isn't it like any other employer that employs over one hundred people but it's some point in the future i'm going to ask you know now have a different jacket on working for the federal government that would be it if in fact that had happened we'd be in the bank analogy if the t s a had come in and said ok we're going to take over today we're going to take this workforce we're going to employ them and then later on the t s a laid them off that would be like the bank case but here you've got a group of employees who are told at a meeting with globe don't  case but we don't know if that's the case the kids were thrown out on a motion to dismiss before we had a chance to even explore that it is middle east yes if the government kept globe in the dark and said don't worry don't worry we're going to take over your employees and then on september twenty seventh it that changed our mind you know we're going to take over in three days to fire all your employees globus got a pretty good affirmative defense under their own forseeable business circumstances but we don't know that we can't know that because it's a fact based factual a factual development may very well prove that it wasn't they may not have known the full sixty days but under the warren act if you've got no didn't you need to share that notice with the employees of the employees are the ones to get the rug pulled out from under them and the employer have no obligation these or give them notice or compensate them for the time period that the employer has been noted now in the bank cases again the employer had no control the federal government came in and took over took over the work force and the federal government decided what to do with that work force here that's not the case here the federal government said in february of two thousand two we're going to federalize security at the airport and then go to september of two thousand two globes healthy employees you can be laid off in a few days some of you are and some of your going to might be laid off a little later we're going to do it in phases well what happens between february and september the globe have noticed vehicle the employer orders the layoffs here in just the same way that the employer ordered the layoffs in the government contracting cases in in in a lower and healthier and in the elsinore short to the government the government didn't have it's proof of control the employer here just like the employer in those cases has some control with a defense contractor in in in war or could have said well we're just going to  employer did that's what you yes the what the federal government said it was going to do was the direct and proximate result of these layoffs are the direct approximate result of what the government said it was going to do yes but that doesn't mean the globe had no option control it goes to the issue just like the government contractor just like elsinore shorter's whether they have control over what they're doing with their employees at the time they have notice that these employees need to be laid off in here again honor apart from that allegation the complaint contains allegations that the layoffs were to occur in phases that we asked to amend the complaint to point out that employees continued to work there we specifically allege the globe had sufficient notice to be able to tell the employees that the layoffs were going to occur so the issue of control that was not present in the bank cases was present  and at least that's what i've been allege and that is what we should be entitled to explore  this is the same type of distinction has come up in the in other contacts that don't involve government takeovers they involve secured creditors and debtors they involve parent subsidiary companies where the issue is which is which company employees the the and the employees at the time of the layoffs this court made clear in the chauffeur driver's case it said the quote the crucial question is whether the defendant at the time of the business was operating a business was a going concern and was that the defendant that laid off the workers and that both those questions were answered affirmatively here global wasn't put out of business its employees were not subsumed into the why there should be an exception here for the warning act if in fact the globe had noticed if globe knew in june the three hundred workers were going to be laid off on september twenty seventh there is no reason whatsoever to make an exception to the warning that everybody knew from november of two thousand and one that global wouldn't have any security in the air for a while everybody knew that i don't feel i didn't know was exactly what happened at any particular airport your honor i don't see how you can make those statements and we have facts on the record that show in two thousand and four there were still glove employees working there far as i know if you go to san francisco airport today you might be people with bloviation badges on still working there so while everyone knew that the federal government had an intention of federalizing airport security no worker as soon as the airport had any idea if they were going to lose a job or when they were going to lose a job and if globe where that but didn't share that information with the workers that's exactly what the war next is designed to prevent is is holding back that information and forcing the workers to shoulder the burden of the la mind what really happened literally globus the employer and literally blow the laying off so why literally doesn't the act apply right and i think we have to look at it the principle three building blocks that say the warrant act doesn't apply here in the first is the actual language of the statute the second is the way the department of labor has interpreted it and the third of course is how the law was applied in the banks  or a mass layoff and that's what was debated in congress in the savings and loans crisis that's what the department of labor considered that's what the court in the in the back in the savings and loan cases talked about is this an employer order  screening services was ordered by an act of congress that said these jobs will be federalized ok and so the that was the act of congress was doing that the t s a was ordering it and one day globus is managing these airport screening jobs and the next day the t s a is managing those at the order of congress at the direction of the t s a anglo has no control or ability to say no we're going to maintain these which airport so so again he said yes the purpose of the act isn't being fulfilled because notice could be given in any particular airport thinning upon what the employer now knows that they want and the fundamental building blocks of the warren act are is that the employer has control over the circumstances that the employer has the ability to remedy the circumstances that are leading to the plant shutdown or the mass layoff and that the employer has caused in some measure the downturn in business or the circumstances that have led to this mass layoff or plant shutdown and that's why this case is distinct from the government contracts case that's why this case is distinct from the casino case look at the the atlantis to see you know new jersey there there was an issue of the license being pulled that the employer in that case was operating a bad business they weren't maintaining the license of the government had required they cost the circumstances they had control over and had they taken action with the government at the time they might have done the negotiating team that license or renewing that license in the government contracts case if you look at the twelve  venger in the mcdonnell douglas and general dynamics cases if you read reading those cases closely the the contractors negotiated for months if not years on how to maintain the a twelve avenger they had control over the circumstances they were working with the government and they can remedy those circumstances like performing better on those contracts and they certainly when the government decides to pull those contracts they were the contractor  question was the cause of the reason for the government acting in this case there is there is no basis for it to contend and certainly you know it's beyond belief to suggest the globe caused these circumstances or that globe had control and could go to the t s a and say well we don't think this layoff is proper at this time or this many people should be laid off at this particular time and glug couldn't go to the t congress and say well we think if we just do some things differently here perhaps that san jose globe can continue on and maintain these particular jobs the the the a lot asked to look at that particular site  this isn't going to apply when the government comes over and takes over a bank and in that department let labor distinguished the casino like cases and the government contracts cases from when the f b i s used it you know over a bank the circumstances national security and the act of congress in november of two thousand and one are at least as compelling as the crisis the face of the country and i think on its face you would say it's even more compelling that there is such a hierarchy of national situations national security and airport security right that the highest of those so the situation is much more compelling now than what we faced with the banks and i would ask the court to take another look at the buck case which is the leading bank cases and there what happened was certainly the f b i steve was the defendant but the employer was when the last took place was boatman's with the private bank that took over the bridge bank what happened was the at the i c comes and picks takes over offer employment to a couple hundred employees which led to it so while we can see that the yes he was that the thin in that case it's clear that that that the court had before it the circumstances in which the private employer bowman's was not offering employment to these people all right so in that in that case i would say it's not just about the government the court is looking at the warren act and the focus what wasn't whether globe was an ongoing entity the focus was who had control of the differently now the words when that morning of the takeover the globe employee walks out to the same spot to start screening people and there's a big guy with a t s a badge and a gun and saying you're done i'm doing this job now  the question i think they're posing is was there a chance for globe to warn the employees ahead of that and comply with the act to give them a chance to adjust prior to getting thrown off the was the government that was controlling the date the nature the timing the circumstances of the takeover and that if and when the t s a showed up on that day and said we're doing this job that globe had had no control in layoff so you know this is a motion for judgment pleadings and that's what's before us so there are four days notice there that they knew about now you know discovery would would tell us exactly what the date was and so forth but that's what we have before us i would contend that that's not an issue for the court even if it had been you know if they had been able to get sixty days ninety days or whatever the case may be the fact is that the government was controlling all this and that it could change and so forth and it doesn't take  a wild imagination to understand why the government wouldn't tell the contractor this is national security after all they want to advertise to the world even private even private contractors when this takeover is going to take place when that transition and the action is no yes i guess what you're saying is  what's interesting about mr mcadams argument is a lot of it is fact based technology the relevant issues here are did they have control over the date or the nature or the timing we alleged facts indicating that in fact they did that the layoffs a place in phases date was something that perhaps they knew about in august but you change for different groups of employees the only issue that differs is the vix this case any different from the  notice to the employees and if you look at the federal regulations which we attached to our reply brief and if you look at the elsinore shore's case they point out that this isn't the first time somebody come up and said we think that there should be an exception to the warning for government order closing the department of justice rejected that excessive exception and every court in as analyzed it has rejected that exception they say there's no exception to the warren act we go back to the affirmative defense to the factual inquir with that's that was exactly my point in the hypothetical if they knew they couldn't have done that that's that's the part that's that's the question they can't invent a thing about it they may have had said or may not have had something to do with a particular date alleging the fact that we're able to come up with facts that we can only get through a freedom of information request from the federal government about the nature of the current contractual terminations here so a motion to dismiss judgment on the pleading stage we should be entitled to a undermine this general premise that seems to be in this court today that globe was completely shut out of this business and had no ability to continue operating there in fact globe employees were operating at that airport two years after these supposed government ordered closures so some think something was going on and there were some negotiations there was someone between the government and globe about who's going to be laid off and when they were going to be laid off i think w simply summarized the purpose of the warning it said that the warning actually is a wage workers equivalent of business interruption insurance and here there's no reason why globe should be able to deny coverage under that insurance policy by citing an exclusion that isn't anywhere in the policy they shouldn't be able to get out of their obligation under the warrant act by saying well this is a government ordered closure so when we don't have to comply with the war act when the cases that have analyzed government ordered closures have said there is no such exception when the department of justice has said there's no such exception and we defined judicially created an exception here we put the entire burden of