MEMORANDUM
OPINION
MARY F. WALRATH, Bankruptcy Judge.
Currently before the Court are cross-motions for summary judgment on claims arising under the Worker Adjustment and Retraining Notification Act (the ‘WARN Act”). The question presented is whether Schultze Asset Management, LLC (“SAM”) is liable with the Debtor as a single employer for the alleged WARN Act violations.
I.BACKGROUND
Tweeter Opeo, LLC (the “Debtor”) filed a voluntary petition under chapter 11 on November 5, 2008. The Plaintiffs commenced this class action adversary proceeding the same day. The Plaintiffs’ class consists of former employees of the Debtor who were fired without the sixty-days’ written notice required by the WARN Act. 29 U.S.C. § 2102(a) (“An employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice -”). The Plaintiffs assert that SAM is an “employer” liable with the Debtor under the WARN Act.
The Debtor’s bankruptcy case was subsequently converted to chapter 7. The Court approved a stipulation staying the proceeding against the Debtor but continuing it as to SAM.
Cross motions for summary judgment were filed raising the following issues: (1) whether SAM and the Debtor are a single employer under the WARN Act, (2) if SAM and the Debtor are a single employer, whether SAM is entitled to the faltering company exception available under the WARN Act, and (3) whether the Debtor acted in good faith, thereby precluding damages under the WARN Act.
Notices of completion of briefing on the cross-motions for summary judgment were filed and the matter is ripe for decision.
II.
JURISDICTION
The Court has core subject matter jurisdiction over this adversary proceeding. 28 U.S.C. §§ 1334(b)
&
157(b)(2)(A), (B) & (0).
III.
DISCUSSION
A.
Summary Judgment Standard
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 disputes as to any material fact exist.
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 [CJourt 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 Mortg. Inv. Corp. (In re Am. Home Mortg., Inc.),
No. 07-51741, 2008 WL 4753342, at *3-4, 2008 Bankr.LEXIS 2805, at *12 (Bankr.D.Del. Oct. 30, 2008).
B.
The WARN Act
1.
Prima Facie WARN Act Violation
Under the WARN Act, a covered employer cannot close a plant or conduct
mass layoffs of at least fifty employees before the end of a sixty-day period that begins to run only when the employer serves sufficient written notice of the upcoming plant closing or mass layoffs to each employee or the employees’ representative. 29 U.S.C. § 2102(a).
To state a
prima facie
WARN Act claim in this action, the Plaintiffs must establish that (a) the Debtor was an “employer” covered under the WARN Act; (b) the Debtor’s corporate headquarters (40 Pequot Way, Canton, Massachusetts) and the adjacent building (10 Pequot Way) constituted a “single site of employment” under the WARN Act;
(c) the permanent shutdowns of the Massachusetts and Pennsylvania facilities caused at least fifty employees from each site to suffer an “employment loss”; and (d) the WARN Act’s mandatory sixty-day written notice was not provided to each “affected employee.”
a.Employer
An “employer” is defined by the WARN Act as any “business enterprise” that employs 100 or more full-time individuals. 29 U.S.C. § 2101(a)(1); 20 C.F.R. § 639.3(a). The parties agree that the Debtor is a covered “employer” under the WARN Act.
b.Single Site of Employment
The parties dispute whether 40 and 10 Pequot Way constituted a single site of employment. SAM contends that they are not because each location served completely different functions and was referred to by different internal location codes.
The Plaintiffs argue that 40 and 10 Pequot Way do in fact constitute a single site of employment because the two buildings were contiguous. The Plaintiffs note that the two buildings were adjacent to each other at the end of a cul-de-sac and shared a parking lot, a receptionist, IT equipment, and some departmental offices. SAM does not dispute these facts.
Proximity and contiguity are the two most significant criteria in making single site determinations.
See Frymire v. Ampex Corp.,
61 F.3d 757, 766 (10th Cir.1995) (“[Tjhese regulations suggest that proximity and contiguity are the most important criteria for making single site determinations.”). When buildings are immediately proximate or contiguous, a single site is presumed.
See Kephart v. Data Systems Int'l., Inc.,
243 F.Supp.2d 1205, 1221 (D.Kan.2003). Here, this presumption is reinforced by the shared parking lot, IT equipment, and departmental offices. The Court concludes that 40 and 10 Pequot Way constitute a single site of employment.
c.Number of Employees Terminated
SAM does not dispute that at least fifty employees were terminated at the Massachusetts facility. SAM argues, however, that the shutdown at the Pennsylvania facility did not cause the loss of employment for fifty or more employees.
The Plaintiffs rely on the deposition of the Debtor’s former Chief Executive Officer, George Granoff, who testified that “from May 1, 2008 until October 31, 2008, [the Debtor] employed at least 50 employees ... at [the Pennsylvania] facility.” (Granoff Dep. at 14:14-20.) The Plaintiffs add that the Debtor’s issuance of WARN Act notices (on the termination day) to employees terminated at the Pennsylvania facility is evidence that at least fifty employees worked at the facility.
In response, SAM quotes the deposition testimony of the Debtor’s Vice President of Human Resources, Michael Rudman, who stated that as of October 31, 2008, the first day of the terminations, “it was very much on the cusp of whether there were fifty people or not” at the Pennsylvania facility. (Rudman Dep. at 33:20-34:12.) Mr. Rudman also testified, however, that fifty-four employees worked at the Pennsylvania facility on October 20, 2008, only eleven days before the terminations. (Rudman Dep. at 76:13-82:17.)
The Court finds that the Debtor terminated at least fifty employees at the Pennsylvania facility. SAM’s evidence is not sufficient to overcome (or cast doubt on) the direct testimony of the Debtor’s CEO that at least fifty full-time workers were employed at the Pennsylvania facility until October 31, 2008.
Further, under the WARN Act, if two or more groups of employees at a single site are terminated within any ninety-day period, it is considered one termination for purposes of the WARN Act, “unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of [the WARN Act].” 29 U.S.C. § 2102(d). In this case, SAM acknowledges that fifty-four employees worked at the Pennsylvania facility as of October 20, 2008. Therefore, either fifty-four employees were terminated on October 31 or were terminated at different times between October 20 and 31, clearly within ninety days. SAM failed to establish any facts to demonstrate the employment losses at the Pennsylvania facility were the result of separate or distinct actions. Consequently, the Court concludes that at least fifty employees were terminated at the Pennsylvania facility for purposes of the WARN Act.
d.
Sixty-Day Notice Requirement
SAM concedes that same-day notice, rather than sixty-day notice, was given to the employees terminated on October 31, 2008 and November 7, 2008. The Court, therefore, concludes that the Plaintiffs have established each of the elements of a WARN Act violation.
C.
Single Employer Status under the WARN Act
The Plaintiffs contend that SAM and the Debtor constituted a single employer under the WARN Act. The single employer liability test is “ultimately an inquiry into whether the two nominally separate entities operated at arm’s length.”
Pearson v. Component Tech. Corp.,
247 F.3d 471, 495 (3d Cir.2001). The Third Circuit has adopted the Department of Labor (“DOL”) five-factor test to determine whether a lender or parent is liable with its borrower/subsidiary as a “single employer.”
Pearson,
247 F.3d at 494.
Accord Childress v. Darby Lumber, Inc.,
357 F.3d 1000, 1006 (9th Cir.2004).
The five-factor DOL test considers: (1) common ownership, (2) common directors and/or officers, (3) the
defacto
exercise of control, (4) unity of personnel policies emanating from a common source, and (5) the dependence of operations between the entities.
See Pearson,
247 F.3d at 495. These five factors constitute a non-exhaustive list and the fact-finder may consider other evidence of entanglement.
Id.
1.
Common Ownership
The Plaintiffs argue that SAM indirectly owned and controlled the Debtor. The Plaintiffs also assert that SAM was indirectly a substantial lender to the Debt- or.
There is no dispute about the chain of equity ownership. George Schultze and his immediate family members are 100%
owners of SAM. SAM is the general partner of (and owner of 1-2% of the limited partnership interests in) Schultze Partners, LP. Schultze Partners, LP, owns approximately 37% of Schultze Master Fund, Ltd., which owns 100% of Schultze Holding Corp. which in turn owns 82% of the Capital Units of equity in Tweeter Newco, LLC (“Tweeter Newco”) which finally owns 100% of the equity of the Debtor.
The Plaintiffs also contend that SAM managed and instructed various entities, namely, Schultze Master Fund, Ltd., Schultze Apex Master Fund, Ltd., and Arrow Distressed Securities Fund (the “Lenders”) to lend approximately $30 million to Tweeter Newco, the Debtor and the other Debtor entities.
SAM holds indirect ownership interests in Schultze Master Fund and Schultze Apex Master Fund.
SAM responds that the Court cannot find common ownership between SAM and Tweeter as a matter of law.
Guippone v. BH S & B Holdings LLC,
No. 09 Civ. 1029(CM), 2010 WL 2077189, at *4 (S.D.N.Y. May 18, 2010) (“grandparent corporations are not common owners of the subsidiaries of their subsidiaries”). SAM argues that it is far removed from the Debtor (separated by Tweeter Newco, Schultze Holding Corp., and Schultze Master Fund Ltd.) and is a great-great-great grandparent at best. Therefore, SAM argues that
Guippone
precludes the Court from finding common ownership between SAM and the Debtor.
The Plaintiffs reply that
Guippone
is not binding on this Court and cite other cases where common ownership is found among distantly related corporate affiliates, such as a great-great-grandparent of an indirect subsidiary.
See, e.g., Richards v. Advanced Accessory Sys., LLC,
No. 09-11418, 2010 WL 3906958, at *5-6, 2010 U.S. Dist. LEXIS 103613, at *15 (E.D.Mich. Sept. 30, 2010).
The Court does not agree with the holding of the
Guippone
case that there is a per se rule that grandparents cannot share common ownership with an indirect subsidiary. As the Plaintiffs have shown, SAM has significant indirect ownership interests in the Debtor and, therefore, further inquiry is necessary.
In this case, SAM also had financial control over the Debtor through its lender relationship. O’Brien testified that George Schultze arranged for the Lenders to pay off Wells Fargo, the former senior lender, and became “first in line as a lender.” (O’Brien Dep. at 105:9-14.) Thereafter, the Debtor’s ability to use its cash collateral was “ultimately ... George Schultze’s decision. It was his money.”
(Id.
at 106:5-8.) Even Sehultze’s thoughts on mass terminations were important because “he’s a lender of the company ... [and] there are costs associated with terminations, or with any plan that really you go down the road with.”
(Id.
at 96:18-25.) The Lender’s position enabled Schultze to make critical decisions for the Debtor and, even when he was not directly acting as the decision-maker, the Debtor felt Schultze needed to be brought “on board.”
(Id.
at 94:20-25.)
Financial control itself is sufficient to satisfy the common ownership factor.
See Pearson,
247 F.3d at 494 (“ ‘financial control’ will suffice to satisfy the ‘common ownership’ prong of the integrated enterprise test, and it is likely that the DOL factors should be interpreted similarly....”) (citation omitted). SAM had financial control over the Debtor and sub
stantial indirect ownership interests in the Debtor. Therefore, the Court finds that these factors are sufficient to meet the first prong of the test.
2.
Common Directors and Officers
Neither party disputes the legal standard used to determine whether common directors and officers exist between SAM and the Debtor. This factor examines whether any of the same individuals were a part of the formal management teams of each company.
Id.
at 498 (holding that the common officers and/or directors prong of the test should look only to whether some of the same individuals comprise or, at some point, did comprise the formal management team of each company).
From June 2007 until late 2008, the boards of directors for both Tweeter New-co and the Debtor were composed of the same five directors: Timothy O’Brien, Carl Youngman, Julia Bykhovskaia, George Granoff, and chairman George Schultze. (SAM’s Responses to Pl.’s First Set of Interrogs., #8.) Four of the five were connected to SAM: Julia Bykhovsk-aia and Timothy O’Brien worked directly under George Schultze as analysts at SAM; Carl Youngman served on SAM’s Advisory Board; and George Schultze was the Managing Member and 100% owner and controller of SAM. (O’Brien Dep. at 11:6-17, 38:3-20; Granoff Dep. at 45:4-14.)
The Plaintiffs also contend that George Schultze was part of the management teams at the Debtor and SAM. SAM admits that George Schultze acted as SAM’s Managing Member. George Schultze held the
de facto
position of CEO at SAM and was the boss of all SAM employees. (Kel-erchian Dep. at 19:22-23, 20:1-9.) Schultze was also the CEO and Managing Member of Tweeter Newco. (Limited Liability Company Agreement of Tweeter Opeo, LLC, Stamped SAM 1439-43; Youngman Dep. at 39:8-24, 40:1-4, Ex. 4.)
SAM notes, however, that the Plaintiffs do not argue that the other three directors related to SAM were formal, or even
de facto,
officers or directors of SAM. Therefore, SAM contends that they do not meet the common directors and/or officers prong of the test.
The Court agrees with SAM that the facts presented establish that George Schultze is the only common director and/or officer of the Debtor and SAM. It is clear from the evidence that George Schultze was CEO of Tweeter Newco for some time and was chairman of the boards of directors for Tweeter Newco and the Debtor. He executed documents as Managing Member of Tweeter Newco, was Managing Member and an owner of SAM, and
de facto
boss of all SAM employees. Thus, the Court finds that George Schultze was part of the formal management teams of SAM and the Debtor.
Further, it is clear that Schultze and SAM controlled the other three directors of the Debtor who were employees, or on the advisory board, of SAM. Therefore, the Court concludes that this prong has been met.
3.
De Facto Exercise of Control
The core inquiry of the
de fac-to
exercise of control factor is “whether the parent [or lender] has specifically directed the allegedly illegal employment practice that forms the basis for the litigation.”
Pearson,
247 F.3d at 491.
See also, In re APA Trans. Corp. Consol. Litig.,
541 F.3d 233, 245 (3d Cir.2008)
(de facto
exercise of control factor looks at who was the decision-maker responsible for the employment practice giving rise to the litigation).
It is undisputed that on October 4, 2008, Tim O’Brien (a director of the Debtor and SAM-employed analyst) told the then-CEO
of the Debtor, George Granoff, that George Schultze wanted Granoff to terminate half of the Debtor’s employees at the Massachusetts corporate center. The Plaintiffs state that this is evidence that SAM, through George Schultze, specifically directed the allegedly illegal employment practice of terminating employees without following the WARN Act, which forms the basis for this litigation.
SAM argues that this evidences only that Schultze had a general concern for the Debtor’s profitability, as an investment. SAM suppoi’ts this inference with Granoffs testimony that he understood “half of the employees” to be a figure of speech and that George Schultze had often suggested reductions in payroll as a means to increase profits.
(See
Granoff Dep. at 53:8-10,14-18.)
The Plaintiffs also cite an email communication from SAM employee, O’Brien, to the Debtor’s employees regarding the subsequent termination of Granoff as evidence of SAM’s control:
Unfortunately this evening, we had to formally terminate George Granoff. I have worked closely with him as I know all of you have for the past year and we at Schultze do appreciate his, as well as all of your hard work. We all know how difficult the current operating environment is, and unfortunately due to this economic environment, coupled with the poor performance of the firm, we felt we needed tighter control of Tweeter within our own organization.... I, as well as the Schultze organization, are fully dedicated to seeing what is best for all interested parties. We will need and want your support to see this through.
(Rudman Dep. at 103:22-24, Ex. 19.) The Plaintiffs argue that this email demonstrates that Schultze/SAM played a central role in the Debtor’s employer-employee relationships, including specifically employee terminations. They highlight the phrase “we [SAM] felt we needed tighter control” as particularly relevant to the
de facto
exercise of control factor.
In another email dated October 19, 2008, O’Brien stated that George Schultze was “now on board with the idea that mass terminations should be done in conjunction with understanding the WARN issue from a dollar standpoint, a formal announcement of our decided path (most likely liquidation — we will need [Wells Fargo’s] support for this), a liquidator in place, security set up in the stores, etc.” (Boucher Dep. at 83:4-24, 84:1-24, 85:1, Ex. 6.) At the time the email was sent, SAM employee O’Brien was the sole remaining director of the Debtor. Therefore, the Plaintiffs contend that the use of the word “our” must include
George
Schultze and SAM.
The Plaintiffs also note that SAM’s inside general counsel, David Lurvey, was involved by O’Brien in the Debtor’s affairs. O’Brien sent numerous emails regarding the Debtor’s employment practices to Lur-vey. (Boucher Dep. Exs. 7-9, 11.) Lur-vey was compensated by SAM, not the Debtor, for his time. (O’Brien Dep. at 46:21-25, 47:1-8.) The Plaintiffs argue that this evidences that SAM (through Lurvey) was supervising O’Brien’s activities at the Debtor.
The Plaintiffs also note that in 2007, Janet Kelerchian, a SAM employee, was instructed by George Schultze to meet with Tweeter’s management and assist with firing some of the Debtor’s employees at the Massachusetts facility. (Kelerchian Dep. at 27:11-25, 28:1-5.) Kelerchian was never employed by the Debtor and was compensated by SAM for her travel expenses and work, which included compiling a list of eighty employees of the Debtor to be terminated at the Massachusetts facility. (Kelerchian Dep. at 27:20-24, 28:10-13, 33:7-24, 34:1-14.)
Two weeks prior to the October 31, 2008, terminations at issue in this case, George Schultze again instructed (and paid) Kelerehian to return to the Massachusetts facility to support O’Brien. (Kelerehian Dep. at 36:2-10, 37:6-25, 38:1-7.) Kelerehian testified that she returned in 2008, spent one day in Massachusetts, attended a meeting, and spoke with employees, but denies doing anything for or related to the Debtor while at the Massachusetts facility in 2008. (Kelerehian Dep. at 37:1-25, 38:8-11.) The Plaintiffs argue that Kelerchian’s 2007 and 2008 activities demonstrate that SAM entangled itself in the Debtor’s business operations (including employee terminations) and disregarded the legal separateness of the Debtor and SAM.
SAM disputes that it exercised
de facto
control over the Debtor. SAM responds that one cannot infer a lack of arms-length dealings between the Debtor and SAM based on Kelerchian’s 2007 or 2008 activities, because she was not involved in the 2008 terminations. SAM also argues that its involvement with the Debtor’s employment practices was sporadic and not sufficient to establish this factor.
The Court finds that the Plaintiff has established
de facto
control by SAM of the Debtor’s employment practice. The Gra-noff termination letter evidences SAM’s control over the Debtor, especially the portion that states, “we felt we needed tighter control of Tweeter within our own organization.” George Schultze repeatedly called for reductions in payroll to increase profits. Further, George Schultze ordered Kelerehian to terminate employees of the Debtor in 2007, demonstrating his control over the Debtor’s employment practice. With SAM employees on the Debtor’s board, SAM’s inside counsel supervising their actions, and SAM employees directly involved with terminating employees of the Debtor, the Court finds that SAM’s exercise of
de facto
control over the Debtor on the WARN Act issue was particularly egregious.
See Pearson,
247 F.3d at 504 (concluding that if the
de facto
exercise of control is “particularly egregious,” then liability is warranted).
4.
Unity of Personnel Policies
The fourth factor, “the unity of personnel policies emanating from a common source,” is “targeted toward discerning whether the nominally separate corporations actually functioned as a single entity with respect to [personnel] policies on a regular, day-to-day basis.”
Pearson,
247 F.3d at 490. “[I]n reviewing the unity of personnel factor, it is proper to consider ‘whether the two companies in question engaged in centralized hiring and firing, payment of wages, and personnel and benefits record keeping.’ ”
In re Consol. Bedding, Inc.,
432 B.R. 115, 122 (Bankr.D.Del.2010) (quoting
APA Trans.,
541 F.3d at 245).
The Plaintiffs did not directly address this factor in their motion for summary judgment, but SAM did in its motion. SAM contends that the Debtor had its own team overseeing payroll, personnel policies and procedures, and employee issues; SAM and the Debtor did not share labor policies, hired and fired employees separately, paid employees from separate payrolls, and had separate labor contracts. SAM concedes that George Schultze interviewed the Debtor’s officers, but contends that the Debtor alone was responsible for hiring decisions.
The Court finds that the Plaintiffs’ evidence does not satisfy this factor. There is no evidence that SAM and the Debtor actually functioned as a single entity with respect to personnel policies on a
regular, day-to-day basis.
Lurvey and Kelerchian’s involvement with termination of the Debtor’s employees was important
and relevant for the third factor under the WARN Act analysis, but was only intermittent. Therefore, the Court concludes that this factor has not been established.
5.
Dependency of Operations
The final factor, dependency of operations, “considers the general administrative structure of two related entities” and whether the two entities were “dependent” upon one another to continue operations.
APA Trans.,
541 F.3d at 244 n. 9, 245. Courts usually consider “the sharing of administrative or purchasing services, interchanges of employees or equipment, and commingled finances.”
Pearson,
247 F.3d at 500 (citation omitted). This factor, “by its nature, looks to the daily functioning of the two companies.”
Id.
at 501 (citation omitted).
The Plaintiffs argue that O’Brien’s participation in the day-to-day operations of the Debtor during the two-day transition period between the firing of CEO Granoff and the hiring of incoming CRO Boucher supports a finding of dependency of operations. The Plaintiffs also argue that Kel-erchian’s participation in the Debtor’s termination of its employees in 2007 was an interchange of employees. The Plaintiffs finally argue that the fact that SAM’s attorney, Lurvey, read emails regarding the Debtor’s business demonstrates another interchange of employees.
SAM argues that it did not share administrative services, equipment, employees, or management with the Debtor and did not have any knowledge of the Debtor’s operations. While the Debtor owed approximately $35 million to SAM, SAM argues that all loans were made at arms-length and were formally documented by the Debtor’s outside counsel.
The Court concludes that the Plaintiffs have not satisfied this prong of the test. Looking at the daily functioning of the two companies, there is no evidence that they were dependent upon one another to continue operations.
6.
Single Employer Conclusion
The
de facto
exercise of control carries special weight in the five-factor test.
See Pearson,
247 F.3d at 504. If the
de facto
exercise of control is “particularly egregious,” then liability is warranted.
Id.
Evidence that one entity directed another entity to act can also warrant liability.
See Pearson,
247 F.3d at 496.
In this case, the Court concludes that the Plaintiff has shown common ownership, common directors and officers and the
de facto
exercise of control by SAM over the Debtor. The latter factor was particularly egregious because SAM exercised control over the Debtor’s hiring and firing decisions, particularly those relevant to this litigation. Therefore, the Court will grant summary judgment in favor of the Plaintiffs on the issue of single employer liability.
D.
Faltering Company Defense
SAM raises the faltering company exception — a statutory excuse for noncompliance with the sixty-day notice requirement of the WARN Act — asserting that the Debtor had insufficient capital to continue functioning and was thereby in a faltering state.
See
29 U.S.C. 2102(b)(1). The Third Circuit requires that the Court construe the faltering company exception narrowly.
See APA Trans.,
541 F.3d at 247.
The WARN Act employer must meet specific requirements to invoke the faltering company exception. The employer must (i) give as much notice as is practicable and (ii) set forth specific facts in the notice that explain the reason for reducing
the notice period.
See
29 U.S.C. § 2102(b)(3).
In a case on point, an employer provided affected employees reduced notice, in which it stated that it “was not able to give greater advance notice of this termination since this termination arises from unforeseeable business circumstances.”
Grimmer v. Lord Day & Lord,
937 F.Supp. 255, 256 (S.D.N.Y.1996). The employer argued that this explained to employees why they received less than the required sixty-day notice, satisfying the substantive notification requirements of the faltering company exception.
Id.
The
Grimmer
Court rejected this argument, holding that the employer’s interpretation “robs the statutory language of content.”
Id.
at 257. “By providing that an employer must give a brief statement of the basis for the shortened notice, Congress indicated that it intended something more than a citation to the statute or a conclusory statement summarizing the statutory provision.”
Id.
Rather, employers must set forth specific facts that explain to workers why the shortened notice period was necessary in order to benefit from the faltering company exception.
Id. See also Barnett v. Jamesway Corp. (In re Jamesway Corp.),
235 B.R. 329, 340 (Bankr.S.D.N.Y.1999) (holding that the employer’s failure to explain why it did not provide affected employees with the full sixty-day notice was “alone ... grounds for finding that the [cjorrespondence does not provide WARN notice.”).
In this case, the October 31, 2008, notices provided by the Debtor stated: “Unfortunately, due to adverse business conditions outside our control, we are not able to give you advance notice.” (Rud-man Dep. Exs. 13-14.) The November 7, 2008, notices stated: “As a result of our bankruptcy filing and the elimination of some services to our costumers, today we are conducting a significant reduction in our workforce and your position is directly affected by this reduction.” (Rudman Dep. Exs. 15-16.) The Plaintiffs argue that these notices failed to provide the factual circumstances that led to the reduced notification period and, therefore, did not comply with the requirements of the WARN Act to fit the faltering company exception. 29 U.S.C. § 2102(b)(3).
The Court agrees with the Plaintiffs. Because the Debtor failed to explain the reduced notification period in its termination notice, SAM is not entitled to the faltering company exception.
See Organogenesis, Inc. v. Andrews,
331 B.R. 500, 502 (D.Mass.2005) (“An employer who wants to reduce the notification period must comply with the clear statutory requirement that the termination notice contain an explanation for the shortened time.”).
E.
Good Faith
SAM also asserts that it is entitled to the good faith defense under the WARN Act because the Debtor provided the termination notices in good faith.
See
29 U.S.C. § 2104(a)(4). The Plaintiffs argue that SAM cannot raise the affirmative defense of good faith now because it failed to raise it in its answer. The Plaintiffs argue that allowing SAM to raise the affirmative defense now would unfairly prejudice the Plaintiffs, as they had no meaningful opportunity to conduct discovery on facts relevant to the good faith defense. SAM argues that it could not plead the good faith defense in its answer without admitting that it was itself an employer of the Plaintiffs.
The Court disagrees. SAM could have raised the good faith defense in its answer, in the alternative. Because SAM failed to raise this affirmative defense in its answer, the Court concludes it cannot raise it now.
See, e.g., Air Line Pilots Assoc., Int'l. v. Pan Am. Airways Corp.,
No. 02-593-SM, 2004 WL 1887497, at *1, 2004 U.S. Dist. LEXIS 16776, at *4 (D.N.H. Aug. 23, 2004).
IV.
CONCLUSION
For the reasons set forth above, the Court will deny SAM’s motion for summary judgment and grant the Plaintiffs’ motion for summary judgment.
An appropriate Order is attached.
ORDER
AND NOW, this 8th day of JULY, 2011, upon consideration of the Cross Motion for Summary Judgement, it is hereby
ORDERED that the Motion of Schultze Asset Management, LLC, for Summary Judgment is DENIED; and it is further
ORDERED that the motion of the Plaintiffs for Summary Judgment is GRANTED.