2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-29-2008

Omer Masse v. APA Transp Corp

Precedential or Non-Precedential: Precedential

Docket No. 07-1050

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 07-1050, 07-1051, 07-1052

 

IN RE: APA TRANSPORT CORP. CONSOLIDATED

LITIGATION

TEAMSTERS LOCAL UNION NO. 560,

Appellant No. 07-1050

__________

IN RE: APA TRANSPORT CORP. CONSOLIDATED

LITIGATION

BRIAN CAMPBELL; JOHN CRONIN JR.;

ANDREW IMPERATORE; OMER MASSE;

GARY PEGORARO; DEBORAH TETRO;

and RICHARD YURCISIN,

Appellants No. 07-1051

 

IN RE: APA TRANSPORT CORP. CONSOLIDATED

LITIGATION

TEAMSTERS PENSION TRUST FUND 

OF PHILADELPHIA AND VICINITY; 

TEAMSTERS HEALTH AND 

WELFARE FUND OF PHILADELPHIA 

AND VICINITY; and TEAMSTERS 

LOCAL NO. 470,

Appellants No. 07-1052

 

On Appeal from the United States District Court 

for the District of New Jersey

Honorable Garrett E. Brown, Jr.
2

(Civ. A. No. 02-CV-3480)

___________

___________

Argued March 11, 2008

 

Before: FUENTES, CHAGARES and ALDISERT, Circuit

Judges.

(Opinion Filed: August 29, 2008)

___________

David Grossman

Cohen, Leder, Montalbano & Grossman

1700 Galloping Hill Road

Kenilworth, NJ 07033

Counsel for Appellant

Teamsters Local Union No. 560

John C. Lankenau

Lankenau & Miller

Suite 10A

20 West 86th Street

New York, NY 10024

Counsel for Appellants

Brian Campbell; John Cronin Jr.; Andrew Imperatore; Omer

Masse; Gary Pegoraro; Deborah Tetro; and Richard Yurcisin

Paul A. Friedman [ARGUED]

Blank Rome

405 Lexington Avenue

The Chrysler Building

New York, NY 10174

Counsel for Appellants

Teamsters Local Union No. 470; Teamsters Pension Trust Fund

of Philadelphia and Vicinity; Teamsters Health and Welfare
3

Fund of Philadelphia and Vicinity

Keith R. McMurdy [ARGUED]

Fox Rothschild 

100 Park Avenue

Suite 1500

New York, NY 10017

Counsel for Appellees

APA Truck Leasing, APA Transport Corp.

Shea H. Lukacsko

Fox Rothschild

75 Eisenhower Parkway

Roseland, NJ 07068

Counsel for Appellees

APA Truck Leasing, APA Transport Corp.

 

OPINION

 

FUENTES, Circuit Judge.

APA Transport Corporation (“APA Transport”) closed its

facilities and terminated all of its employees on February 20, 2002.

It had informed its employees of the impending shutdown and

layoffs only a week earlier. Following the shutdown, a number of

non-union and union employees, along with certain Employee

Retirement Income Security Act (“ERISA”) funds, filed suit

against APA Transport and affiliated entities claiming that they had

violated the notice provisions of the Worker Adjustment and

Retraining Notification Act (“WARN Act”), 29 U.S.C. § 2101, et

seq., which requires that an employer provide 60 days’ notice

before a plant shutdown unless the employer qualifies for certain

exceptions. On appeal, we address: (1) whether the ERISA funds

have standing to sue under the WARN Act; (2) whether APA

Transport and an affiliated company, APA Truck Leasing, could be

considered liable pursuant to the WARN Act as a “single

employer”; and (3) whether APA Transport qualifies for the
 This dispute is significant because the degree to which the two 1

entities were related determines whether they constitute a “single

employer” under the WARN Act. See discussion infra at Section

II.C.

 Appellants are the Employee Plaintiffs and the Plaintiff Funds. 2

See definition infra at Section I.B.

4

“faltering company” exception to the notice provisions of the

WARN Act.

I. Background

A. Facts of the Case

APA Transport was a trucking business founded in 1947

and dissolved on February 20, 2002. APA Transport’s main

offices were located in North Bergen, New Jersey, with other

terminals and facilities throughout the Northeast. Pursuant to

collective bargaining agreements, APA Transport’s union

employees were represented by Teamsters Local 470 (“Local 470”)

and Teamsters Local 560 (“Local 560”).

The co-owners of APA Transport – Arthur Imperatore, Sr.

and Armand Pohan – also owned more than 30 other companies at

the time APA Transport closed, many of which continue to operate

today. One of these companies is APA Truck Leasing, which is

involved in leasing motor vehicles. Imperatore and Pohan were

officers and directors of both APA Transport and APA Truck

Leasing and – along with Fred Astle and Burton Trebour – directed

the day-to-day affairs of both companies. The parties to this appeal

dispute the degree to which APA Transport and APA Truck

Leasing were connected to each other. Appellants argue that the 1 2

two companies were closely related, highlighting the following

facts: the companies made non-formal loans to one another; APA

Transport provided non-union employees of APA Truck Leasing

with medical, pension, 401(k) and workers’ compensation benefits;

non-union employees of APA Truck Leasing received the same

benefits as APA Transport employees; and APA Transport

provided payroll, office supplies, accounting and other services for
5

APA Truck Leasing. APA Transport, by contrast, contends that the

two companies operated separately, and points to the following

facts: APA Transport and APA Truck Leasing did not share

employees; the companies handled the discipline of employees

separately; the companies had separate contracts with different

unions; and the companies maintained separate financial books and

records.

On December 19, 1996, APA Transport entered into a Loan

and Security Agreement (“Loan Agreement”) with Transamerica

Business Capital Corporation (“Transamerica”). The Loan

Agreement provided APA Transport with a revolving credit facility

that allowed it to borrow up to $40 million, secured by real

property, equipment and accounts receivable. The Loan

Agreement required APA Transport to provide Transamerica with

regular reports as to outstanding accounts receivable and to comply

with certain financial covenants. 

Following the execution of the Loan Agreement, APA

Transport suffered consistent losses. As a result, it defaulted on

loan covenants on multiple occasions in 1999, 2000 and 2001.

After each default, Transamerica and APA Transport negotiated

agreements whereby the breaches were waived and/or the

applicable covenants were amended. APA Transport was also

negatively affected by the September 11, 2001 terrorist attacks

because it conducted a significant amount of business in the New

York City metropolitan area; following the attacks, APA Transport

reported that its revenues fell 30 percent. As a result, APA

Transport’s reduced accounts receivable limited the amount of

money it could continue to borrow from Transamerica under the

Loan Agreement.

On October 24, 2001, Transamerica convened a meeting

with APA Transport at Transamerica’s offices to discuss how APA

Transport was “going to operate going forward, given [its] losses.”

(Joint Appendix (“J.A.”) 520a-521a.) The attendees included

Pohan and Imperatore; Transamerica’s president, Steven Fischer;

and Transamerica representatives Christopher Norrito and Michael

Burns. The Transamerica representatives expressed concern about

the state of APA Transport’s finances, communicated to Pohan and
 It was clear to both parties at this point that Transamerica was 3

the only financial institution that would provide APA Transport

with additional financing, given that APA Transport was so

encumbered by the obligations of the Loan Agreement. 

6

Imperatore that Transamerica would not continue to fund APA

Transport’s operating losses and indicated that Pohan and

Imperatore would need to put additional capital into the company

before Transamerica would extend any additional financing. APA 3

Transport stated that it would seek additional financing, and

Transamerica responded by stating that its “options were open” for

extending the Loan Agreement. (J.A. 1465a.) However, APA

Transport made no formal request at the meeting to secure

additional financing or to extend the Loan Agreement. 

In November 2001, Transamerica notified APA Transport

that it was once again in default on the Loan Agreement. On

December 10, 2001, Transamerica agreed to a fifth waiver and

amendment to the Loan Agreement to cure those defaults.

The Loan Agreement wasset to expire on February 28, 2002

(the “Termination Date”), at which point the entire loan amount

was due. Under the Loan Agreement, any requests for extensions

or renewals of the Loan Agreement were required to be in writing

60 days prior to the Termination Date. However, as of the end of

2001, APA Transport had made no written or oral request for

Transamerica to extend or renew the Loan Agreement; the parties

had not begun to gather the documentation required for such an

extension or renewal; and APA Transport officials had taken no

steps to invest additional capital in the company. 

On January 2, 2002, Astle sent a letter (the “Astle Letter”)

to Norrito requesting additional financing for APA Transport, to be

secured by mortgages on two freight terminals owned by

companies related to APA Transport. The letter asserted that each

of the terminals was worth $4 to $5 million, and requested that

Transamerica extend an additional loan of $5 to $6 million to be

secured by mortgages on these properties. There is no evidence

that work was undertaken on the preparation of appraisals,
7

environmental reports or environmental indemnity agreements for

these properties, all which would have been necessary to obtain the

mortgages. Moreover, the Astle Letter did not specifically seek an

extension or renewal of the Loan Agreement, nor did it mention the

impending Termination Date.

On January 15, 2002, a second meeting was held between

Transamerica and APA Transport to discuss the state of APA

Transport’s finances, with Pohan, Astle, Norrito, Burns and Fischer

in attendance. At the meeting, Transamerica made no commitment

with respect to additional financing; it also neither indicated that it

would extend its loan beyond the Termination Date nor increased

its lending to APA Transport. 

On January 24, 2002, Pohan sent a letter to Fischer (the

“Pohan Letter”). The letter stated that he was “renewing [the]

request that Transamerica provide [APA Transport] with an

additional loan to carry us through this recessionary winter and the

losses attendant thereto.” (J.A. 1042a.) It reiterated the offer made

in the Astle Letter for APA Transport to arrange to secure

additional financing with mortgages on the two terminals. The

letter concluded by stating that Transamerica’s “prompt response

to this request is most urgent, since the ability of the ownership to

fund the anticipated losses in the next few weeks has just about

been depleted.” (Id.)

Transamerica did not respond to the Pohan Letter with a

credit memorandum or credit approval. In the first week of

February, Pohan had a phone conversation with a Transamerica

representative, during which Pohan was informed that it would be

difficult to persuade Transamerica’s credit department to approve

additional financing unless APA Transport’s owners put additional

money into the company. Then, on February 13, 2002,

Transamerica sent APA Transport a letter formally notifying it that

the Loan Agreement would terminate pursuant to its terms on

February 28, 2002, and that Transamerica would not agree to

extend the Loan Agreement to provide additional financing.

Unable to continue functioning without such financing,

APA Transport shut its terminals on February 20, 2002. The first
8

notice to employees of the shutdown was given in a February 11,

2002 letter from APA Transport to the president of Local 470,

which was received on February 14, 2002. The letter stated that in

accordance with the WARN Act, it was providing notice that APA

Transport was permanently closing its terminal in Philadelphia,

Pennsylvania effective February 20, 2002. The letter further stated

that all employees at the location would be permanently laid off,

and that APA Transport had given a “shortened” WARN notice

because it had been 

actively seeking financial assistance to alleviate its

severe economic problems. If APA [Transport] had

provided an earlier shutdown notice, it would have

precluded our ability to obtain the financing

necessary to continue in business. APA [Transport]

has now been notified that its request for this critical

financing has been rejected and, accordingly, it can

no longer afford to operate.

(J.A. 1047a). On February 14, 2002, APA Transport sent similar

letters to representatives of Local 560 and to all non-union

employees.

As a result of the shutdown, all APA Transport employees

– those represented by Local 470, represented by Local 560 and

non-union employees – were terminated. APA Transport paid no

wages or benefits to any employee after February 22, 2002.

Approximately six weeks after the shutdown, APA Truck

Leasing lent APA Transport between $10 and $15 million. The

loan was secured by an Open-End Mortgage and Security

Agreement dated June 5, 2002 on APA Transport’s North Bergen

terminal facility.

B. Procedural History

Several complaints were filed against APA Transport, APA

Truck Leasing and certain other related entities (the “APA
 These entities are: APA International Corporation; APA 4

World Transport Corporation; Imperial Delivery Service, Inc.; and

Transport Flexonomics, Inc. The Plaintiff Funds and the Employee

Plaintiffs have not appealed the District Court’s decision with

respect to the APA Entities.

 There was a third plaintiff, the Freight Drivers and Helpers 5

Local Union Number 577 (“Local 577”), which alleged violations

of the WARN Act. The District Court granted summary judgment

in favor of APA Transport, APA Truck Leasing and the APA

Entities against Local 577 because those claims were brought by

employees at facilities with fewer than 50 full-time employees and

thus were statutorily excluded. Local 577 did not appeal the

District Court’s decision.

 The District Court had jurisdiction over these cases pursuant 6

to 28 U.S.C §§ 1337 and 1367, and 29 U.S.C. § 2104(a). 

9

Entities”) beginning in 2002. These complaints alleged violations 4

of ERISA and/or the WARN Act and sought back wages and

benefits. One set of plaintiffs was comprised of two ERISA funds,

the Teamsters Pension Trust Fund of Philadelphia and Vicinity and

the Teamsters Health and Welfare Fund of Philadelphia and

Vicinity (Local 470) (together, the “Plaintiff Funds”), which

alleged violations of the WARN Act and ERISA. A second set of

plaintiffs was comprised of a class of non-union employees and

Local 560 (the “Employee Plaintiffs”) who alleged violations of the

WARN Act and ERISA.5

The cases were consolidated in the United States District

Court for the District of New Jersey in May 2003, after which both 6

the Plaintiff Funds and the Employee Plaintiffs filed multiple

amended complaints that added certain parties. Thereafter, APA

Transport moved for summary judgment as to the claims asserted

by the Plaintiff Funds, alleging that the Plaintiff Funds lacked

standing. The Plaintiff Funds and the Employee Plaintiffs

simultaneously filed motions for partial summary judgment

asserting that the Plaintiff Funds had standing under the WARN

Act; that APA Transport, APA Truck Leasing and the APA

Entities should be considered a “single employer” for WARN Act
10

purposes; and that APA Transport did not qualify for the so-called

“faltering company” exception to the WARN Act. APA Transport

then filed a cross-motion for summary judgment as to the “faltering

company” defense. At the same time, APA Truck Leasing and the

APA Entities filed cross-motions for summary judgment regarding

the “single employer” issue.

On December 7, 2006, without oral argument, the District

Court granted APA Transport’s summary judgment motion as to

claims asserted by the Plaintiff Funds, holding that the Plaintiff

Funds lacked standing under the WARN Act. The District Court

also granted summary judgment to APA Transport on the “faltering

company” defense. Finally, it granted APA Truck Leasing and the

APA Entities summary judgment on the “single employer” issue,

concluding that none of those companies could be considered a

“single employer” with APA Transport. On December 13, 2006,

the District Court dismissed all remaining issues as moot, and on

December 29, 2006, entered final judgment.

A timely appeal followed. We have jurisdiction pursuant to

28 U.S.C. § 1291.

II. Discussion

There are three issues on appeal. We first consider whether

the District Court was correct to conclude that the Plaintiff Funds

do not have standing under the WARN Act. Next, we determine

whether the District Court was correct to conclude that APA

Transport and APA Truck Leasing did not constitute a “single

employer” for WARN Act purposes. Finally, we address whether

the District Court was correct to conclude that APA Transport

qualified for the “faltering company” exception to the WARN Act

notice requirement.

Our review of all three legal issues, which were decided at

summary judgment, is de novo. TKR Cable Co. v. Cable City

Corp., 267 F.3d 196, 199 (3d Cir. 2001). We construe the facts in

the light most favorable to the nonmoving party. Id. Summary

judgment is appropriate if “there is no genuine issue as to any

material fact and . . . [the moving party] is entitled to judgment as
11

a matter of law.” Fed. R. Civ. P. 56©.

A. Brief Overview of the WARN Act

The WARN Act was enacted in 1986 in response to

extensive worker dislocation that occurred in the 1970s and 1980s

when employees lost their jobs, often without notice, as companies

were merged, acquired or closed. The purpose of the WARN Act

is to protect workers by obligating employers to give their

employees advanced notice of plant closings. This allows workers

who will be laid off time to “adjust to the prospective loss of

employment, to seek and obtain alternative jobs and . . . to enter

skill training or retraining that will allow [them] to successfully

compete in the job market.” Hotel Employees & Rest. Employees

Int’l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 182

(3d Cir. 1999) (citation omitted). 

The WARN Act provides that covered employers –

generally, those that employ at least 100 full-time workers at a

single site of employment – must provide 60 days’ written notice

before a closing or mass layoff. See 29 U.S.C. § 2101 et seq. The

Act dictates that notice be given to affected employees or their

union representative, the state dislocated worker unit and the chief

elected official of a unit of local government. Id. § 2102(a).

Employers that violate the WARN Act are liable to their employees

for back pay and benefits for each day notice is not provided, up to

a maximum of 60 days. Id. § 2104. The WARN Act contains three

exceptions to the notice requirement: the “faltering company”

exception, the “business circumstances” exception and the “natural

disaster” exception. Id. § 2102(b); 20 C.F.R. § 639.9. 

B. Standing to Sue Under the WARN Act

The Plaintiff Funds, joined by the Employee Plaintiffs,

contend that the District Court erred when it concluded that the

Plaintiff Funds did not have standing to bring suit under the

WARN Act. For the reasons that follow, we conclude that the

District Court correctly determined that the Plaintiff Funds lack

standing.
12

The WARN Act limits employer liability “to each aggrieved

employee who suffers an employment loss.” 29 U.S.C. §

2104(a)(1). It further enumerates who may bring a suit:

A person seeking to enforce such liability, including

a representative of employees or a unit of local

government aggrieved under paragraph (1) or (3),

may sue either for such person or for other persons

similarly situated, or both, in any district court of the

United States for any district in which the violation

is alleged to have occurred, or in which the employer

transacts business.

Id. § 2104(a)(5). The WARN Act defines the term “representative”

with reference to labor organizations, which are the “exclusive

representative[s] of employees” under federal labor law. Id. §

2101(a)(4). A “unit of local government” is defined as a “political

subdivision of a State.” Id. § 2101(a)(7). 

The District Court concluded that the Plaintiff Funds did not

have standing to sue under 29 U.S.C. § 2101(a)(4) because,

although employee welfare and benefit plans are included in those

benefits to which an aggrieved employee is entitled under the

WARN Act, the Plaintiff Funds themselves “cannot be ‘aggrieved

employees’ under the WARN Act.” In re APA Transport Corp.

Consol. Litig., No. 02-CV-3840, 2006 WL 3534029, at *6 (D.N.J.

Dec. 7, 2006). In support of this position, the District Court

adopted the analysis of United Mine Workers of America, District

12 v. Midwest Coal Co., No. TH 99-C-141-T/H, 2001 WL

1385893 (S.D. Ind. Aug. 31, 2001). There, plaintiffs alleging a

violation of the WARN Act sued to recover, inter alia,

contributions that their employers were required to have made to

certain benefit funds during the violation period. Midwest Coal,

2001 WL 1385893, at *3. The court ruled that the plaintiffs were

not entitled to recover the amount of the contributions because the

WARN Act set forth the exclusive remedies for a violation of the

Act in 29 U.S.C. § 2104, and contributions did not qualify as one

of the remedies explicitly listed. Id. at *10. In addition, the court

concluded that the plaintiffs were not entitled to recover

contributions because “[n]one of the funds for which [the]
 The court in Midwest Coal expressly disagreed with the 7

decision reached by the court in Martinka Coal. See Midwest

Coal, 2001 WL 1385893, at *10 n.7 (concluding that Martinka

Coal was “wrongly decided”).

13

[p]laintiffs seek contributions by [the defendant] qualifies as an

‘aggrieved employee’ under the [WARN] Act.” Id. The District

Court reasoned that if the benefit plans in Midwest Coal could not

be considered “aggrieved employees” under the WARN Act,

neither could the plans here; and consequently, the Plaintiff Funds

did not have standing. In re APA Transport Corp., 2006 WL

3534029, at *6.

On appeal, APA Transport argues that this reasoning is

correct, and further argues that if employees are not entitled to

ERISA contributions as part of their WARN Act damages, then the

Plaintiff Funds have no claim upon which to sue. The Plaintiff

Funds respond that the funds in Midwest Coal were not ERISA

funds and argue that the analysis there is consequently not

transferrable to this case. The Plaintiff Funds also cite United

Mine Workers of Am. Int’l Union v. Martinka Coal Co., 45 F.

Supp. 2d 521 (N.D. W.Va. 1999), aff’d, 202 F.3d 717 (4th Cir.

2000), for the proposition that contributions to ERISA plans are

benefits that fall under the WARN Act damages rubric set forth in

29 U.S.C. § 2104(1)(B). The Plaintiff Funds argue that because 7

they are charged, pursuant to ERISA, with aggressively pursuing

the funds to which they are entitled on behalf of the employees

whom they serve, and because contributions to ERISA plans are

benefits that can be recovered as damages when there has been a

WARN Act violation, the Plaintiff Funds should be entitled to sue

to recover those contributions.

We believe the parties’ arguments are premature. The initial

issue we must resolve – a question that both the District Court and

the parties did not address – is whether the Plaintiff Funds can be

considered “person[s]” permitted to seek enforcement of the

WARN Act pursuant to 29 U.S.C. § 2104(a)(5). This is an issue of

first impression in this Circuit and it appears that no other circuit

has considered whether benefit plans should be considered
14

“person[s]” under 29 U.S.C. § 2104(a)(5).

 As noted above, the relevant provision of the WARN Act

provides that a civil suit may be brought by “[a] person seeking to

enforce such liability, including a representative of employees or

a unit of local government aggrieved under paragraph (1) or (3).”

29 U.S.C. § 2104(a)(5). The WARN Act fails to define the word

“person.” The rules of construction for federal statutes broadly

define “person” as “includ[ing] corporations, companies,

associations, firms, partnerships, societies, and joint stock

companies, as well as individuals” unless the “context [of the

statute] indicates otherwise.” 1 U.S.C. § 1. 

Here, there is nothing in the context of the statute that

indicates to us whether Congress intended to more narrowly

proscribe those “person[s]” who can enforce the WARN Act. Nor

does the language of the pertinent provision provide a clear answer.

Rather, it states that the category “includ[es] representative[s] of

employees or [] unit[s] of local government aggrieved under

paragraph (1) or (3).” 29 U.S.C. § 2104(a)(5) (emphasis added).

It is a well-established canon of statutory construction that when

the word “including” is followed by a list of examples, those

examples are generally considered illustrative rather than

exhaustive. See, e.g., Massachusetts v. E.P.A., 127 S. Ct. 1438,

1476 (2007) (Scalia, J., dissenting) (“The word ‘including’ . . .

indicate[s] that what follows will be an ‘illustrative’ sampling of

the general category that precedes the word.”); United States v.

Grassie, 237 F.3d 1199, 1215 (10th Cir. 2001) (“[W]e regard the

statutory use of the word ‘including’ . . . as the preface for a

representative or illustrative example, and not as a term of

restriction or exclusion for anything not expressly specified.”). But

“canons [of construction] are not mandatory rules. They are guides

that ‘need not be conclusive.’” Chickasaw Nation v. United States,

534 U.S. 84, 85 (2001) (quoting Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 115 (2001)).

However, we need not decide whether the statute should be

interpreted in a manner consistent with the canon based on the

statute alone because authoritative regulations address the very

question at issue. We have explained that when “a relevant statute
15

is silent or ambiguous, we will defer to any reasonable regulations

promulgated by the [agency charged with administering the

statute].” Bd. of Tr. of Trucking Employees of N.J. Welfare Fund,

Inc.-Pension Fund v. Kero Leasing Corp., 377 F.3d 288, 294 (3d

Cir. 2004); see also Smriko v. Ashcroft, 387 F.3d 279, 295 (3d Cir.

2004) (“agency regulations ‘have the force of law’” (quoting

Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988))); Martinka

Coal Co., 202 F.3d at 720 n.2 (4th Cir. 2000) (WARN Act

regulations have the force of law “unless they are irreconcilable

with the clear meaning of a statute, as revealed by its language,

purpose, and history” (internal quotation marks and citation

omitted)). The Secretary of Labor is charged with “prescrib[ing]

such regulations as may be necessary to carry out” the WARN Act.

29 U.S.C. § 2107(a). Here, the regulations promulgated by the

Department of Labor (“DOL”) pertaining to “WARN Act

enforcement” state that

[e]nforcement of WARN will be through the courts,

as provided in section 5 of the statute. Employees,

their representatives and units of local government

may initiate civil actions against employers believed

to be in violation of § 3 of the Act. The Department

of Labor has no legal standing in any enforcement

action and, therefore, will not be in a position to

issue advisory opinions of specific cases. The

Department will provide assistance in understanding

these regulations and may revise them from time to

time as may be necessary.

20 C.F.R. § 639.1(d) (emphasis added). This provision, unlike the

related provision in the statute itself, indicates that only employees,

union representatives and units of local government may bring suit.

 Neither party cites this regulation, much less contends that it is in

“conflict with the plain language of the statute.” K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 292 (1988). Consequently, we will

apply the DOL regulation, which compels the conclusion that

Plaintiff Funds are not “person[s]” that may enforce the WARN

Act. 

For the foregoing reasons, we conclude that the District
16

Court correctly concluded that the Plaintiff Funds do not have

standing to bring suit under the WARN Act.

C. “Single Employer”

We next address the question of whether APA Truck

Leasing and APA Transport constitute a “single employer” for

WARN Act purposes. If the two entities are a “single employer”

then we need not reach the question of whether APA Transport

may avail itself of the “faltering company” defense, as APA

Transport would not be able to demonstrate that it was “faltering”

because it would have had adequate capital to operate. For the

reasons that follow, we conclude that the District Court correctly

determined that APA Transport and APA Truck Leasing cannot be

considered a “single employer.”

The WARN Act defines the term “employer” as “any

business enterprise” that employs 100 or more full-time employees.

29 U.S.C. § 2101(a). The WARN Act does not define “business

enterprise”; however, DOL regulations issued under the WARN

Act provide that two or more affiliated companies may be

considered a single business enterprise for WARN Act purposes.

20 C.F.R. § 639.3(a)(2). The regulations state that “independent

contractors and subsidiaries which are wholly or partially owned by

a parent company are treated as . . . a part of the parent or

contracting company depending upon the degree of their

independence from the parent.” Id.

In Pearson v. Component Technology Corp., 247 F.3d 471

(3d Cir. 2001), we adopted the five factors listed in those

regulations to create a balancing test that would determine whether

related companies are liable under the WARN Act on “single

employer” grounds. The five factors are as follows: (1) common

ownership, (2) common directors and/or officers, (3) de facto

exercise of control, (4) unity of personnel policies emanating from

a common source, and (5) dependency of operations. Id. at 487-90;

20 C.F.R. § 639.3(a)(2). We further indicated that the five-factor

test was a balancing test in which a number of facts and

circumstances may be relevant. Pearson, 247 F.3d at 490.

However, the factors are not balanced equally: the first and second
In Pearson, we noted that “[n]either the WARN Act itself, nor 8

the regulations, explicitly discuss the statute’s applicability to

lenders,” but rather focus on entities with parent-subsidiary

relationships. 247 F.3d at 491. However, we ultimately concluded

that “under some circumstances, a lender can become so entangled

with its borrower’s affairs so as to engender WARN Act liability.”

Id. Thus companies with a lendee-lender relationship – such as

APA Truck Leasing and APA Transport – may be considered a

“single employer” for WARN Act purposes. In any event, APA

Transport and APA Truck Leasing do not dispute the applicability

of the Pearson framework.

17

factors, common ownership and common directors and/or officers,

are not sufficient to establish that two entities are a “single

employer.” Id. at 494 (“ownership – and even ownership coupled

with common management – is not a sufficient basis for liability”).

In the context of summary judgment, we held that the

“WARN Act test for intercorporate liability presents a question of

fact,” but noted that “[our] decision to characterize it as such does

not preclude an inquiry as to whether plaintiffs have put forth

enough evidence to create a genuine issue of material fact.” Id. at

497. In fact, in Pearson itself, we applied the test and concluded

that the “evidence proffered by the plaintiffs simply [did] not

establish the high degree of integration required by the analysis set

forth in this opinion” to survive summary judgment. Id. at 505.

Here, the District Court concluded that the evidence was not

sufficient to create a genuine issue of material fact, and held that

APA Transport and APA Truck Leasing could not be considered 8

a “single employer” for WARN Act purposes. While the Employee

Plaintiffs had demonstrated (and APA Transport and APA Truck

Leasing did not dispute) “common ownership” and “common

directors and/or owners” (the first two factors), as APA Transport

and APA Truck Leasing shared all of the same stockholders and

maintained the same presidents and vice-presidents, the District

Court then determined that the third, fourth and fifth factors

weighed against the conclusion that APA Transport and APA

Truck Leasing should be considered a “single employer.” For the
 This approach was improper, because the analysis for the 9

“dependency of operations” factor, which considers the general

administrative structure of two related entities, differs from the

analysis for the “de facto exercise of control” and “unity of

personnel policy” factors, which look to decision-making and

personnel policies of the two entities, respectively. However,

despite this oversight, the District Court reached the proper

conclusion for this factor.

18

third factor, “de facto exercise of control,” the District Court found

that lower levels of management at the two companies were

supervised on a company-by-company basis, and that as such there

was autonomy in supervision. In re APA Transport, 2006 WL

3534029, at *13. The District Court also found that despite

intercompany loans, the two companies were autonomous in terms

of finances because each company had independent wage rates, pay

scales, salaries and payrolls. Id. For the “unity of personnel

policies emanating from a common source” factor, the District

Court found that each company possessed its own employees and

its own policies regarding compensation, vacation and sick time;

that the companies hired and fired employees on an individual

basis; and that, to a large extent, personnel files were maintained

separately. Id. at *14. Finally, for the “dependency of operations”

factor, the District Court relied on its analysis for the third and

fourth factors and determined that it weighed in favor of APA

Transport and APA Truck Leasing as well. Id. As only the first 9

two factors weighed in favor of the Employee Plaintiffs, and these

two factors alone are not sufficient to demonstrate that two entities

are a “single employer,” the District Court concluded that APA

Truck Leasing and APA Transport “[could not] reasonably be

considered a ‘single employer’ for WARN Act purposes.” Id.

On appeal, the Employee Plaintiffs do not dispute the

underlying factual findings of the District Court, but contend that

there is a genuine issue of material fact as to the ultimate question

of whether APA Transport and APA Truck Leasing constitute a

“single employer.” We disagree. As we stated earlier, that the

balancing test requires a fact-intensive analysis does not “preclude

an inquiry as to whether plaintiffs have put forth enough evidence
19

to create a genuine issue of material fact.” Pearson, 247 F.3d at

491. We agree with the District Court that no reasonable juror,

employing the five-factor test, could find that APA Transport and

APA Truck Leasing were a “single employer.”

As an initial matter, we think it important to consider the

policy considerations that animate the WARN Act. The purpose of

the Act is to penalize those employers that close a plant and fail to

comply with the notice requirements of the statute. Thus, the

question of whether two entities constitute a “single employer” for

WARN Act purposes “is ultimately an inquiry into whether . . . two

nominally separate entities operated at arm’s length” or whether,

following an “assessment of the amount of control” exercised by

one entity over another, it can be determined that two entities

should be considered jointly liable for the closing and the

subsequent lack of notice. Id. at 495-96. Accordingly, the goal of

the five-factor test here is to determine whether APA Truck

Leasing had become “so entangled with [APA Transport’s] affairs

so as to engender WARN Act liability,” or whether the two

continued to function at arm’s length as separate entities. Id. at

491. 

Turning to the decision of the District Court, we note it was

correct to conclude that the first two factors – “common

ownership” and “common directors and/or owners” – are not

sufficient to deem two entities a “single employer.” The Employee

Plaintiffs are thus incorrect to argue that they should survive

summary judgment on the “single employer” issue solely because

APA Truck Leasing and APA Transport were owned by the same

individuals and shared directors and officers.

Consequently, the remaining three factors are determinative.

Factor three looks to whether there was “de facto exercise of

control” of APA Trucking by APA Transport or vice versa. The

core of this factor is whether one company “was the decisionmaker responsible for the employment practice giving rise to the

litigation.” Id. at 503-04. Here, a review of the facts adduced by

the parties indicates that while APA Truck Leasing may have made

certain loans to APA Transport and shared certain administrative

functions, it was not “controlling” APA Transport and played no
20

role in APA Transport’s decision to close its facilities. Thus, factor

three does not support a finding that APA Transport and APA

Truck Leasing constitute a “single employer.”

Factor four looks to whether there was a “unity of personnel

policies.” The overall question is whether the companies “actually

functioned as a single entity with regard to [their] relationship[]

with employees.” Id. at 499. To reach an answer, we consider

whether the two companies in question engaged in centralized

hiring and firing, payment of wages, and personnel and benefits

recordkeeping. See Vogt v. Greenmarine Holding, 318 F. Supp. 2d

136, 142-43 (S.D.N.Y. 2004). While the two companies did share

certain benefit plans and some employee monitoring functions

(specifically, APA Transport did the background security checks

for APA Truck Leasing’s new hires, and machinists at both

companies were given the opportunity to bid for positions at the

other company), there is no evidence that the two companies

“actually functioned as a single entity” with regard to their

respective employees. Pearson, 247 F.3d at 499. Employees were

hired and fired independently; reported separately to supervisors at

their respective companies; were paid from separate payrolls;

reported tax obligations to the federal government under separate

ID numbers keyed to their company; and had separate labor

contracts. This factor also does not support a finding that APA

Transport and APA Truck Leasing were a “single employer.”

The fifth and final factor is whether there was a

“dependency of operations” between the two companies. To

determine whether two companies are dependent on one another,

we look to the “existence of arrangements such as the sharing of

administrative or purchasing services, interchanges of employees

or equipment, and commingled finances.” Id. at 500 (citations

omitted). Although the Employee Plaintiffs insist that the two

companies commingled finances, the record indicates that the loans

between APA Truck Leasing and APA Transport were made at

arm’s length. Moreover, APA Transport and APA Truck Leasing

were clearly not “dependent” upon one another to continue

operation, and there is no stronger evidence for this fact than that

APA Truck Leasing continued to operate without incident after

APA Transport folded. Thus, the fifth factor also cannot support
 In reaching its conclusion, the District Court stated that 10

no genuine question of material fact has been set

forth by [the Employee] Plaintiffs. [The Employee]

Plaintiffs set forth facts that [APA Transport and

APA Truck Leasing] do not refute, rather, [APA

Transport and APA Truck Leasing] point to

additional evidence to support their assertion that

they are not “employers” under WARN. As such,

the Court will apply the uncontradicted evidence

provided to the DOL factors referenced by the Third

Circuit Court of Appeals in determining whether

[APA Transport and APA Truck Leasing] can be

considered a single employer for WARN Act

liability purposes.

In re APA Transport, 2006 WL 3534029, at *12. As we have held

that the five-factor test for intercorporate liability is a question of

fact, Pearson, 247 F.3d at 497, a district court cannot reach its own

independent conclusion about how those factors should be

balanced. Instead, a district court can only grant summary

judgment for a defendant if no reasonable juror could engage in the

appropriate balancing and determine that the two entities constitute

a “single employer.” If a reasonable juror could weigh the facts

under the balancing test and come out either way – that is, if there

is sufficient evidence in the record to support either finding – then

the question of whether the two entities constitute a “single

21

a finding that APA Transport and APA Truck Leasing were a

“single employer.”

Because the final three factors are clearly in favor of APA

Transport and APA Truck Leasing, and because a finding that two

companies share the same ownership and certain directors (the first

two factors) is not in and of itself sufficient to find that two entities

were a “single employer,” we conclude that no reasonable juror

could find that APA Transport and APA Truck Leasing functioned

as a “single employer” based on the facts presented. We therefore

affirm the District Court’s decision on this issue. 

10
employer” must be submitted to a jury. See, e.g., Am. Ad Mgmt.,

Inc. v. GTE Corp., 92 F.3d 781, 791 (9th Cir. 1996) (when the “law

clearly envisions that [a] balancing test is normally reserved for the

jury . . . summary judgment is only appropriate if after viewing the

evidence in the light most favorable to the non-moving party, there

is no genuine issue of material fact”). To the extent that the

District Court did its own balancing instead of determining whether

no reasonable juror could reach a different outcome, it did so in

error.

22

D. The “Faltering Company” Exception

The Employee Plaintiffs’ final argument is that the District

Court erred when it granted summary judgment to APA Transport

and APA Truck Leasing on the question of whether APA Transport

qualified for the “faltering company” exception to the WARN Act

notice requirement. As noted above, if we had determined that

APA Truck Leasing and APA Transport were a “single employer”

for WARN Act purposes, then the “faltering company” defense

would not be available because APA Transport would have had

adequate capital to continue to operate. However, we have

concluded that no reasonable juror could find that the two

companies constitute a “single employer.” Therefore, we must

focus on the question of whether APA Transport has established

the elements of its affirmative defense sufficient to survive

summary judgment. For the reasons that follow, we conclude that

APA Transport cannot avail itself of the “faltering company”

defense.

The faltering company exception is an affirmative defense

to liability, which means the employer bears the burden of

establishing its elements. 20 C.F.R. § 639.9. As a threshold

matter, a company seeking to qualify as a “faltering company”

must demonstrate that it had inadequate capital to continue

functioning and, as such, was in a “faltering” state. Id.

The statutory provision states that 
23

[a]n employer may order the shutdown of a single

site of employment before the conclusion of the

60-day period if as of the time that notice would

have been required the employer was actively

seeking capital or business which, if obtained, would

have enabled the employer to avoid or postpone the

shutdown and the employer reasonably and in good

faith believed that giving the notice required would

have precluded the employer from obtaining the

needed capital or business.

29 U.S.C. § 2102(b)(1). The DOL regulation interpreting the

“faltering company” exception of the WARN Act breaks the

provision into its component parts, so that to benefit from the

defense an employer must prove: (1) it was actively seeking capital

at the time the 60-day notice would have been required, (2) it had

a realistic opportunity to obtain the financing sought, (3) the

financing would have been sufficient, if obtained, to enable the

employer to avoid or postpone the shutdown, and (4) the employer

reasonably and in good faith believed that sending the 60-day

notice would have precluded it from obtaining the financing. 20

C.F.R. § 639.9(a).

According to the Conference Report issued when Congress

passed the WARN Act, the key elements of the defense, which is

intended as a “narrow one,” are 

that the employer was “actively seeking capital or

business”; second that, had the employer obtained

this capital or business, it “would have enabled the

employer” to prevent or forestall the shutdown; and

third, that the employer “reasonably and in good

faith believed” that giving the notice required would

have precluded the employer from obtaining the

necessary capital or business that it had a realistic

opportunity to obtain. Thus, to avail itself of this

defense an employer must prove the specific steps it

had taken, at or shortly before the time notice would

have been required, to obtain a loan, to issue bonds

or stock, or to secure new business. This duty to
24

seek capital or business falls on the employer . . . .

134 CONG. REC. S8686-01 (1988) (emphasis added). The central

aspects of Congress’s stated purpose have been codified in the

DOL regulations; namely, that the faltering company defense

should be construed narrowly and that, to access the defense, the

employer must demonstrate that it was taking the specific steps

required “at the time that 60-day notice would have been required.”

20 C.F.R. § 639.9(a)(1).

Before this Court, the Employee Plaintiffs challenge only

the first two of the four elements of the defense, asserting that APA

Transport was not actively seeking capital at the time the 60-day

notice would have been required, and that it did not have a realistic

opportunity to obtain that financing. The Employee Plaintiffs have

thus conceded the final two elements (that the financing, if

obtained, would have been sufficient to prevent a shutdown; and

that APA Transport reasonably believed that giving WARN Act

notice would have hindered its ability to get that financing), and we

will not discuss them here. We note that for the two elements we

will consider, we must conclude that APA Transport has

established both elements in order to uphold the District Court’s

decision. Furthermore, we note that the parties do not argue that

there are material underlying facts in dispute. Appellants’ Br. at

48-52; Appellees’ Br. at 18-22.

The District Court concluded that APA Transport had been

“actively seeking” financing based on APA Transport’s meeting

with Transamerica on October 24, 2001 and its request at that time

for additional financing. It stated that it was “not reasonable to

insist that APA Transport take specific, actual and literal steps on

December 20, 2001, when they had taken said steps on October 24,

2001.” In re APA Transport, 2006 WL 3534029, at *17. The

District Court explained that to require APA Transport to take such

“specific, actual and literal steps” would “effectively eliminate any

practical application of the ‘faltering business’ exception as it

would require said employer to read the minds of the financial

institution or institutions from which it seeks its financing.” Id.
25

On appeal, the Employee Plaintiffs assert that the District

Court misstated the timeline of events in its opinion. The District

Court found that at the October 24, 2001 meeting, APA Transport

offered mortgages on two properties to secure additional financing

from Transamerica. Our review of the record indicates that the

Employee Plaintiffs are correct, as APA Transport did not offer

those mortgages to Transamerica until January 2, 2002. APA

Transport concedes this point. 

The Employee Plaintiffs argue that this discrepancy is

significant; although Transamerica and APA Transport discussed

in general terms APA Transport’s need for additional financing at

the October 24, 2001 meeting, there was no affirmative attempt by

APA Transport after that meeting to actually secure that financing.

The offer of the properties did not occur until January 2, after the

60-day period set forth by the WARN Act had begun. On these

facts, the Employee Plaintiffs contend that APA Transport cannot

prove that it was “actively seeking” financing when the period

began. 

APA Transport makes two arguments in response. First, it

agrees with the District Court that APA Transport was not required

to take specific steps at or near the beginning of the 60-day window

because such a requirement “ignores the reality that prediction of

the date a company will need to shut down is not an exact science”

and would mean that companies would be ineligible for the

exception because they started their financing efforts “too late to

save the company.” Appellees’ Br. at 22. Second, APA Transport

contends that it was in fact “actively seeking” financing at the

beginning of the period. It argues that it indicated that it would

seek additional financing from Transamerica at the October 24,

2001 meeting, and that once a “lender confirms that the borrower

was seeking capital, that should be the end of the inquiry” as to

whether the borrower was “actively seeking” capital. Id. at 19.

APA Transport further contends that the Court should take into

account that business decisions “can take some time and that the

year-end holidays . . . occurred in the interim” so that there should

have been no expectation that APA Transport would take

additional steps in December 2001 to secure the financing. Id.
26

We turn first to APA Transport’s argument that the District

Court was correct to hold that it was “not reasonable to insist that

APA Transport take specific, actual and literal steps on December

20, 2001,” when the 60-day period began, In re APA Transport,

2006 WL 3534029, at *17, because “prediction of the date a

company will need to shut down is not an exact science.”

Appellees’ Br. at 22. This approach essentially asks this Court to

read a “foreseeability” requirement into the faltering business

exception: in APA Transport’s view, if an employer does not

foresee that it is 60 days away from a plant closing, it should not be

held liable for failing to take specific steps at the time to secure

financing. We believe such an approach runs counter to both the

text and the purpose of the WARN Act. 

The plain language of the statute states that a company must

be actively seeking additional financing “as of the time that notice

would have been required.” 29 U.S.C. § 2102(b)(1); see also 20

C.F.R. § 639.9(a) (“[a]n employer must have been actively seeking

capital or business at the time that 60-day notice would have been

required” (emphasis added)). In effect, the WARN Act establishes

“strict liability”: an employer must give notice 60 days prior to a

plant closing, unless it can demonstrate that it falls within one of

three specific enumerated exceptions: (1) the “faltering company”

defense, (2) the “unforeseeable business circumstances” exception,

or the (3) “natural disaster” defense. 29 U.S.C. § 2102(b); 20

C.F.R. § 639.9. The “unforeseeable business circumstances”

exception, which provides for a reduction in the notice period for

“business circumstances that were not reasonably foreseeable” at

the 60-day mark, with circumstances “not reasonably foreseeable”

defined as “some sudden, dramatic, and unexpected action or

condition outside the employer’s control,” indicates that Congress

was not blind to the issue of foreseeability. 20 C.F.R. 639.9(b)(1).

But APA Transport does not contend that it qualifies for the

“unforeseen business circumstances” exception. Rather, APA

Transports appears to contend that a company may qualify for the

“faltering company” defense irrespective of whether it was actively

seeking capital at the time notice was required, so long as it did not

foresee the shutdown that occurred 60 days later. APA Transport

does not point to any statutory language that supports its position.

The DOL regulations, moreover, instruct that the “faltering
27

company” exception is to be “narrowly construed.” 20 C.F.R. §

639.9(a). To allow employers to invoke the defense by arguing

that they did not know a shutdown was 60 days away would risk

allowing the “faltering company” exception, which is an

affirmative defense, to swallow the statute. We are not

unsympathetic to APA Transport’s argument, but it is one that

should be directed to Congress, not this Court. Our obligation is

“limited to one of statutory interpretation.” In re Columbia Gas

Sys. Inc., 33 F.3d 294, 302 (3d Cir. 1994) (“when a statute is clear

and unambiguous, policy arguments cannot deflect us from that

interpretation”); see also Coraggioso v. Ashcroft, 355 F.3d 730,

734 (3d Cir. 2004) (“We are compelled . . . to interpret the statute

as written.”). Consequently, we conclude that the WARN Act does

require that steps to “actively seek financing” be taken “at the time

that 60-day notice would have been required.” 20 C.F.R. §

639.9(a)(1). 

We turn next to the question of whether APA Transport was

in any event “actively seeking” financing on December 20, 2001 to

a degree sufficient to assert the “faltering company” defense. We

must assume that Congress included the word “actively” in the

statute for a reason. See Citizens Council of Delaware County v.

Brinegar, 741 F.2d 584, 591 (3d Cir. 1984) (“[W]e presume that

the words Congress has chosen best reflect the legislative purpose.”

(internal quotation marks and citations omitted)); see also Reiter v.

Sonotone Corp., 442 U.S. 330, 339 (1979) (“In construing a statute

we are obliged to give effect, if possible, to every word Congress

used.”). The word “actively” is generally understood to mean

“characterized by action rather than by contemplation or

speculation.” WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 22 (1993). The DOL regulations provide that

“actively seeking” means “seeking financing or refinancing

through the arrangement of loans, the issuance of stocks, bonds, or

other methods of internally generated financing; or the employer

must have been seeking additional money, credit or business

through any other commercially reasonable method.” 20 C.F.R. §

639.9(a)(1). 

The record indicates that APA Transport and Transamerica

met on October 24, 2001 to discuss APA Transport’s future. We
 The District Court appeared to resolve this dispute by 11

crediting the testimony of a Transamerica executive, stating that his

recollection of the meeting “settled that dispute” asto the definitive

version of events. In re APA Transport, 2006 WL 3534029, at *16.

To do so at summary judgment is improper. See Country Floors,

Inc. v. P’ship Composed of Gepner and Ford, 930 F.2d 1056, 1061

(3d Cir. 1991) (“credibility evaluations are inappropriate in

deciding a motion for summary judgment”).

 While APA Transport did sign an agreement with 12

Transamerica on December 10, 2001 to cure certain defaults in the

existing loan with Transamerica, this agreement did not secure any

additional financing for APA Transport. Nor did APA Transport

seek any additional financing in conjunction with the agreement.

28

note that it was Transamerica, and not APA Transport, that

requested the meeting; and that it was Transamerica, and not APA

Transport, that affirmatively sought to discuss APA Transport’s

financial health. There is some confusion as to what exactly was

said by Transamerica and APA Transport officials at the October

24, 2001 meeting. However, even if we accept APA Transport’s 11

position that, at the end of that meeting, a representative of APA

Transport stated that it would seek additional financing from

Transamerica and that Transamerica told APA Transport that all of

its “options were open” for extending the loan, (J.A. 1465a.), this

single exchange – which did not constitute a formal request for

financing – is insufficient to demonstrate that APA Transport was

“actively seeking” financing from Transamerica as of October 24,

2001. 

Moreover, the record is clear that between the October 24,

2001 meeting and the January 2, 2002 offer of two mortgaged

properties APA Transport took no steps to secure additional

financing from Transamerica. Nor did APA Transport take any

specific steps to seek an extension of the Loan Agreement which

it knew was set to expire on February 28, 2002. APA Transport 12

knew that the terms of the Loan Agreement required that a request

for such an extension had to be made in writing; no such request

was made at any time prior to the 60-day period (or afterwards).

APA Transport’s actions can, at best, be characterized as waiting
29

for Transamerica to offer additional financing. This cannot be

squared with the requirement that APA Transport be “actively

seeking” additional financing.

We therefore conclude that no reasonable juror could find

that APA Transport met its burden for prevailing on this element

of the defense. As APA Transport must fulfill all four

requirements of the “faltering company” affirmative defense in

order to qualify for the defense, we conclude that the District Court

erred in granting summary judgment to APA Transport on this

issue.

III. Conclusion

For the foregoing reasons, we affirm the District Court’s

judgment that the Plaintiff Funds do not have standing pursuant to

the WARN Act and that APA Transport and APA Truck Leasing

cannot be considered a “single employer.” We reverse the District

Court’s judgment that APA Transport presented evidence sufficient

to establish the “faltering company” affirmative defense, and

remand with instructions that the District Court grant summary

judgment to the Employee Plaintiffs on this issue, and for further

proceedings.