
    IN RE: AE LIQUIDATION, INC., et al., Debtor. Annette Varela and John J. Dimura on behalf of themselves and all others similarly situated, Plaintiffs, v. Eclipse Aviation Corporation, Defendant.
    Case No. 08-13031 (MFW)
    Jointly Administered Adv. No. 09-50265 (MFW)
    United States Bankruptcy Court, D. Delaware.
    Signed November 18, 2014
    
      Gregory F. Fischer, M. Claire McCud-den, Cooch & Taylor, P.A., Wilmington, DE, for Defendant.
    Christopher Dean Loizides, Loizides, P.A., Wilmington, DE, Jack A. Raisner, Rene S. Roupinian, Outten & Golden LL, New York, NY, for Plaintiffs.
   Chapter 7

MEMORANDUM OPINION

Mary F. Walrath, United States Bankruptcy Judge

Before the Court are cross-motions for summary judgment on claims arising under the federal Worker Adjustment and Retraining Notification Act (the ‘WARN Act”). The issue presented is whether Eclipse can invoke the “faltering company” or “unforeseeable business circumstances” exceptions to the WARN Act. The Court concludes that the unforeseeable business circumstances exception applies and, therefore, will grant the Trustee’s motion and deny the Plaintiffs’ motion.

I. BACKGROUND

The material facts of this case are undisputed. The Plaintiffs were employed by Eclipse Aviation Corporation (“Eclipse”). Eclipse engineered, manufactured, and sold jet aircraft through its facilities in Albuquerque, New Mexico. European Technology and Investment Research Center (“ETIRC”) was the largest shareholder of Eclipse, and its Chairman, Roel Pieper, was also Eclipse’s Chairman and Chief Executive Officer.

Pre-petition, the business model of Eclipse failed. By November 1, 2008, the company had defaulted on its secured notes and its cash accounts were frozen. (Pis.’ App. at A57.) J. Mark Borseth, Eclipse’s Chief Financial Officer, suggested a bankruptcy filing to its Board of Directors. The Board considered liquidating, but decided on a going-concern sale through “stalking horse” bid procedures. On November 25, Eclipse filed a chapter 11 petition with $20 million in debtor-in-possession (DIP) financing provided by ETIRC. (D.I. 13.)

ETIRC emerged as the stalking horse bidder, representing that a Russian state-owned bank (Vnesheconombank) would finance the sale. These and other terms were memorialized in an Amended Asset Purchase Agreement (the “APA”) between Eclipse and EclipseJet Aviation International, Inc., an affiliate of ETIRC. (D.I. 446, Ex. 1.) On January 23, 2009, the Court entered an order approving the sale.

Despite its approval, ETIRC’s financing, and the closing, were delayed. On February 18, Eclipse sent an email to employees announcing a furlough:

The efforts of many people to finalize the sale of Eclipse to EclipseJet is still on course but slower than we all had hoped for.... [T]he Board of Directors directed management to furlough essentially all of the company’s employees effective today.... You will be contacted at your home address and/or by home phone to notify you when to return to your job or to provide any additional updates.

(Pis.’ App. at A219.)

Despite repeated assurances from ETIRC that funding was forthcoming, the sale ultimately did not close. On February 24, management sent a second message to employees:

We are very sad to report unexpected news today. Despite the efforts of many people at EclipseJet Aviation and ETIRC to obtain necessary funding to close the -purchase of the assets of Eclipse Aviation, the closing of the sale has stalled and our company is out of time and money. Given the dire circumstances in today’s global marketplace and the lack of additional debtor-in-possession funding, the senior secured creditors of the Company filed a motion today ... to convert the Chapter 11 case to a Chapter 7 liquidation. This action, under the circumstances, is being supported by the directors of Eclipse.
What does this mean for each employee? The furlough converted to a layoff effective Thursday, February 19, 2009. Most regrettably, you will not be paid the paycheck due on Thursday, March 5, 2009 nor is any vacation pay available. You may have certain rights to seek payment in the bankruptcy proceeding; you may receive additional information about that from the bankruptcy court.

(Trustee’s Answering Brief at 31.) On February 25, a termination benefits package was mailed to the employees. On March 5, the Court converted Eclipse’s case to chapter 7 and subsequently appointed Jeoffrey L. Burtch as trustee (the “Trustee”).

The Plaintiffs commenced a class action adversary proceeding on March 3, 2009, alleging a violation of the federal WARN Act. On February 14, 2014, the Plaintiffs filed a Motion for Partial Summary Judgment, arguing that Eclipse cannot invoke the “faltering company” or “unforeseeable business circumstances” defenses. On April 24, 2014, the Trustee filed a cross-motion for summary judgment on the unforeseeable business circumstances defense.

II. JURISDICTION

The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334(b) and 157(a). This matter affects the bankruptcy claims administrative process and is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), & (O). See In re Jamesway Corp., 235 B.R. 329 (1999).

III. DISCUSSION

A. Summary Judgment

Summary judgment is proper if there is no genuine dispute over any material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Fed. R. Bankr.P. 7056. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The movant bears the burden of establishing that no genuine dispute as to any material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is material when it could “affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party establishes a prima facie case in its favor, the opposing party must go beyond the pleadings and identify specific facts showing more than a scintilla of evidence that a genuine dispute of material fact exists. See, e.g., Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348; Michaels v. New Jersey, 222 F.3d 118, 121 (3d Cir.2000).

The filing of cross-motions for summary judgment does not alter the Court’s analysis. “The [C]ourt must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure, § 2720, at 23 (1983). See also Wells Fargo Bank, N.A. v. Am. Home Mortgage Inv. Corp. (In re Am. Home Mortg., Inc.), No. 07-51741, 2008 WL 4753342, at *3-4 (Bankr.D.Del.2008).

B. Federal WARN Act

Under the federal WARN Act, an employer cannot order a plant closing or mass layoff without giving 60 days’ written notice to affected employees. 29 U.S.C. § 2102(a)(1). The purpose of this requirement is to allow workers the opportunity “to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow [them] to successfully compete in the job market.” 20 C.F.R. § 639.1(a).

It is undisputed that Eclipse did not provide employees with notice 60 days pri- or to termination. Eclipse sent an email announcing a furlough on February 18, 2009, and a second email on February 24, retroactively converting the furlough to a layoff. Any notice, therefore, was given after-the-fact.

The Trustee, however, argues that the WARN Act’s statutory exceptions apply. Under the WARN Act, two relevant exceptions permit less than 60 days’ notice: the faltering company exception and the unforeseeable business circumstances exception. To qualify for either, an employer must give as much notice as is practicable and, at that time, provide a brief statement explaining the reason for the shortened notice period. 29 U.S.C. § 2102(b)(3). The burden is on the employer to show that a statutory exception applies. See In re Advanced Accessory Systems, LLC, 443 B.R. 756 (2011) (holding that former employer met its burden of proof that the unforeseeable business circumstances exception applied).

1. Faltering Company Defense

The faltering company defense provides: An 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).

Department of Labor regulations clarify that there are four requirements for invoking this defense. The employer must demonstrate: (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. In re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 246-47 (3d Cir.2008) (summarizing 20 C.F.R. § 639.9(a)(1)-(4)).

The Trustee falls short of meeting the requirements of the faltering company defense. Importantly, Eclipse was not “actively seeking capital” on December 26, 2008, which is when notice would have been required. At that time, Eclipse had signed the APA with ETIRC’s acquisition entity and was seeking additional bids for a going-concern sale. The regulations describe “actively seeking capital” as pursuing “financing or refinancing through the arrangement of loans, the issuance of stocks, bonds, or other methods of internally generated financing,” or “seeking additional money, credit, or business through any other commercially reasonable method.” 20 C.F.R. §. 639.9(a)(1). Case law makes clear that a sale of the business does not meet this definition. Law v. Am. Capital Strategies, Ltd., CIV. 3:05-0836, 2007 WL 221671 at *10 (M.D.Tenn.2007) (“This Court concludes that [the faltering company] exception is inapplicable where, as here, the closings and/or layoffs occur as a result of a failed business sale.”); Local 397, Int’l Union of Elec., Elec., Salaried, Mach. & Furniture Workers, AFL-CIO v. Midwest Fasteners, Inc., 763 F.Supp.78 (D.N.J.1990) (negotiating the sale of a company does not qualify as “actively seeking capital”).

2. Unforeseen Business Circumstances Defense

The Trustee further argues that the WARN Act’s unforeseeable business circumstances defense applies. An employer can avoid a WARN Act violation where a closing was caused by “business circumstances that were not reasonably foreseeable” 60 days in advance and within a particular 14-day period. Hotel Employees & Rest. Employees Int’l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 184-85 (3d Cir.1999) (reading 20 C.F.R. § 639.7(b) and § 639.9(b) together). To invoke this defense, the employer must show that: 1) the claimed circumstance was unforeseeable, and 2) the layoffs were caused by that circumstance. Gross v. Hale-Halsell Company, 554 F.3d 870, 875 (10th Cir.2009). Unlike the faltering company defense, the regulations do not suggest that this exception should be narrowly construed. In re Jevic Holding Corp., 496 B.R. 151, 163 n.36 (Bankr.D.Del. 2013).

a. Foreseeability

Deciding what qualifies as unforeseeable is a fact-intensive inquiry. The regulations do not offer examples of circumstances that are per se unforeseeable. However, an important indication of such circumstances is a “sudden, dramatic, and unexpected action or condition outside of the employer’s control.” 20 C.F.R. § 639.9(b)(1).

The test is an objective one: “When determining whether a closing was caused by unforeseeable business circumstances, we evaluate whether a ‘similarly situated employer’ in the exercise of commercially reasonable business judgment would have foreseen the closing.” Elsinore Shore Assocs., 173 F.3d at 186 (quoting 20 C.F.R. § 639.9(b)(2)). In Elsinore Shore Assocs., the Court concluded that it was not reasonably foreseeable that the government would revoke a casino’s license for not maintaining adequate cash reserves. Although the casino was “not without notice” that the Casino Control Commission might take action, the decision could have come “earlier or considerably later in time or not at all.” Id. Thus, at the time notice would have been required, the Court found that the casino could not have anticipated a particular date or 14-day period when layoffs might occur.

In Jevic Holding, the Court held that a lender’s refusal to forbear was reasonably unforeseeable. There, as here, the employer had been struggling financially for some time, and had also considered a section 363 sale or liquidation among the options for dealing with its financial problems. However, based on projections from its consultants, the employer reasonably expected that it could stay afloat by meeting the requirements of its lending agreement and avoiding default. Further, its lender had “repeatedly agreed to extend forbearances” before finally terminating the credit facility. Jevic Holding, 496 B.R. at 162.

In this case, the Trustee has shown that ETIRC’s failure to close on the sale of Eclipse was not reasonably foreseeable as of December 28, 2008, 60 days before employees received notice of termination. The following month, in January 2009, the Court held a hearing on the proposed sale. At that time, Mr. Pieper testified that ETIRC had lined up the necessary financing commitments and that, aside from the entry of a sale order, there were no contingencies in connection with the purchase. (D.I. 448 at 112.) On February 3, Mr. Pieper and an ETIRC officer, Daniel Bolo-tin, told Eclipse’s Board that there was a high likelihood that funding would be approved by the Russian government in the coming days. (Pis.’ App. at A204.) On February 16, Mr. Pieper and Mr. Bolotin confirmed that Russian Prime Minister Putin had given final approval for the financing and that no additional approvals were necessary. (Pis.’ App. at A213.) ETIRC made many other such representations during the 60 day period. In addition, ETIRC itself had already committed $20 million in DIP financing to Eclipse in anticipation of the sale closing. (D.I. 230.)

The Plaintiffs respond that ETIRC had been unable to obtain funding from the Russian government for an earlier project, the commitment letters that ETIRC submitted did not appear to be binding, and no other qualified buyers had come forward in the sale process. Based on these facts, the Plaintiffs argue that it was not reasonable for Eclipse to rely on ETIRC to fund an asset purchase.

The Court disagrees with the Plaintiffs’ conclusion. As the case law clarifies, “[i]n determining whether a crippling business circumstance is foreseeable, we must bear in mind that ‘it is the probability of occurrence that makes a business circumstance reasonably foreseeable, rather than the mere possibility of such a circumstance.’ ” Roquet v. Arthur Andersen LLP, 398 F.3d 585, 589 (7th Cir.2005) (quoting Watson v. Mich. Indus. Holdings, Inc., 311 F.3d 760, 765 (6th Cir.2002)).

The Court does not find that it was probable that the sale would fail; rather, there were continual assurances that it would close. In addition, rushing notice of a layoff can mean that “employees may overestimate the risk of closing and- prematurely leave their employer, forfeiting (among other things), seniority and unvest-ed benefits.” Jevic Holding, 496 B.R. at 163. Such a reaction by some employees can doom the proposed sale and result in the loss of jobs for all.

Given the repeated assurances from ETIRC, the Court concludes it was reasonable for Eclipse to believe that funding would be forthcoming and the sale would close. Even if layoffs were foreseeable, the Court concludes that Eclipse was in no position to predict a specific date or 14-day period when the sale would fail and the layoffs would occur.

b. Causation

The Plaintiffs argue that, even if the sale had consummated, ETIRC was not obligated to retain Eclipse’s employees and could have terminated them anyway. Therefore, they argue, the termination of employees was not caused by the failure to close on the sale. The Court rejects this argument.

Eclipse sought to sell its business as a going concern. Eclipse’s work force was highly skilled and integral to the business operations. Two executive management committee members, Mark Borseth and Michael McConnell, testified that they believed ETIRC intended to retain Eclipse’s workforce post-sale. (Def.’s Ex. 3 at 68:19-23; Def.’s Ex. 2 at 84:6-12.) Indeed this Court approved the sale in part because of the expectation that the employees would keep their jobs. (D.I. 450 at 106.) Additionally, the buyer’s contemplated annual budget for the post-sale entity was $125 to $150 million, showing that ETIRC was committed to continuing operations. (D.I. 448 at 107.) Although the Amended APA stated that ETIRC had no hiring obligations, such terms are boilerplate in going-concern sales and merely allow the buyer to pick which employees to retain. For these reasons, the Court concludes that ETIRC’s failure to consummate the sale was the cause of the termination by Eclipse of its workforce.

3. Sufficiency of Notice

Because the unforeseen business circumstances defense applies here, Eclipse was required to give as much notice of the layoff as was practicable. The Court holds that it did. On February 24, Eclipse’s secured lenders moved to convert to a chapter 7 liquidation. Only then was it clear that there would be no going-concern sale. That same evening, management emailed employees notice of the layoff.

In addition to the requirement that notice be sent as soon as practicable, the WARN Act prescribes certain content and delivery requirements. Notice to employees should set forth specific facts explaining the reason for the reduced period of notice. See In re Tweeter OPCO, LLC, 453 B.R. 534, 546-47 (Bankr.D.Del.2011). A proper WARN Act notice should also tell employees whether the planned action will be permanent or temporary, the expected date when the layoff will begin, when the individual employees will be separated, whether “bumping rights” exist, and the name and telephone number of a company official who can be contacted for further information. The notice must be based on the best information available to the employer at the time the notice is served. 20 C.F.R. § 639.7. Finally, delivery of the notice should ensure its receipt. Id. at § 639.8. The Court must consider whether the communications to employees, read together, satisfy the WARN Act. Kalwaytis v. Preferred Meal Systems, Inc., 78 F.3d 117 (1996).

In this case, the February 18 email states that there will be a furlough because efforts to finalize a sale have been unexpectedly delayed. The February 24 email announces that the sale will not close and that the furlough has been converted to a permanent layoff. On February 25, Eclipse mailed a termination package to employees’ home addresses. From these communications, an employee would understand that she had been terminated and why she did not receive earlier notice. Aside from addressing bumping rights, which are not applicable here, the Court concludes that the notices contain the required content.

Finally, the Court need not determine whether, on its own, a message sent to the workplace email of a furloughed employee satisfies the WARN Act’s delivery requirements. Because Eclipse both emailed employees and sent notice to their home addresses, delivery was proper.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the Trustee’s motion for summary judgment and deny the Plaintiffs’ motion.

An appropriate Order is attached.

ORDER

AND NOW, this 18th day of November, 2014, for the reasons set forth in this accompanying Memorandum Opinion, it is hereby

ORDERED, that the Trustee’s motion for summary judgment is GRANTED; and it is furthered

ORDERED, that the Plaintiffs’ Motion for summary judgment is DENIED. 
      
      . This opinion constitutes the findings of fact and conclusions of law of the Court pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
     
      
      . The Plaintiffs concede their New York WARN Act claims are not valid because Eclipse is not an "employer” under the N.Y. WARN regulations.
     