Linda K. Burnsides v. MJ Optical, 128 F.3d 700

Linda K. Burnsides v. MJ Optical

128 F.3d 700

8th Cir.

1997

Check Treatment

*4 in- еncourages fense these circumstances col- affirm We the district court’s decision that buyer lusion between a seller avoid Commercial rather than MJ was re- liability. WARN There is no evidence of WARN, sponsible notice under collusion to in this In- avoid WARN case. reverse the district court’s decision that deed, employees’ baseless collusion theo- WARN, Commercial did not violate and re- ry ignores the obvious: Commercial had a proceedings mand for further consistent with strong bargain for motive to transfer of its opinion. triggering to avoid WARN’s no- FAGG, WOLLMAN, Before LAY and incentive, requirement. Despite tice -this Circuit compеlled accept found itself only terms dictated interested ORDER willing payment to offer some for assets of Dec. Also, unprоfitable business. the March 24 letter of makes intent clear the appellants’ petition for rehearing is only tentatively agreed to consummate a denied. agreement yet sale with a definitive to be LAY, negotiated. Judge.

Nevertheless, agrеed when Commercial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍I grant petition Burnsides’ for re *5 May equipment to sell its panel hearing. I believe a wrong as were without transferring the Com- dismissing claim Burnsides’ notify mercial obligation had an to the em- Optical. The facts show Commercial and MJ ployees they jobs lose their two Optical acquisition intended the sales to close days. Freight, Nat’l See Teamsters 7,1994.* May 10:00 a.m. on (unforeseeable F.Supp. at 1026 business cir- counsel received the check and executed the requires employer cumstances defense still to approximately documents at 8:30 a.m. give practicable as much 7,May majоrity Under inter known). once causal event becomes Com- pretation, the date of the effective sale was mercial notified should have 7, 1994, May which means the sales transac why explained then and tion complete would not be dеemed until given. Although the district court 8,May 12:01 a.m. on 1994. Yet between Rips found knew or should have known when May 10:00 a.m. on 7th and 12:01 a.m. May signed he purchase agreement the asset on 8th, Commercial announced the termination May 5 that Commercial’s n of the' MJ' rémovеd transferred, not be the district court did not facility. from means This, hold failing Commercial to there was fourteen-hour give notice on that date because of the which neither nor court’s May incorrect that notice view responsibility bore notice to the 7 would have doomed Commercial’s efforts to employees. financing. obtain The district court also did obligаtion WARN statute states the to employees’ assertion that address provide notice of to termination a seller’s liability failing cannot avoid employees passes to the after the ef give days’ notice because Commer- sixty fective “date” of the sale. 29 U.S.C. give cial failed the notice or brief state- 2101(b). hiatus, In order avoid this required Having rejected defense, party where neither financing responsibility has we remand notice, been interpreted by the district “date” has emрloy- court consider the Secretary ees’ damages, Department and to calculate of Labor and the аssertion Commercial’s WARN violation. Labor “time.” See 29 mean 2104(a)(1) (employees 639.4(e); are entitled 54 F.R. 16052.** Such an * (Ex. 2) (A. 0102). suggested regulа- Some commentators ** assign responsibility tions be clarified to interpretive Department rule of of Labor makes this сlear: contrary to the statute. is not interpretation fact, regarding debate Section the Senate meant the “dаte” demonstrates Cong.Rec. the execution of sale.

time of law, an well-settled ease

58679-8680. Under statutory scheme interpretation of a

agency’s great, deference. Stinson v. given

should be States, (1993); Chev- 508 U.S.

United Resources

ron v. Natural U.S.A. Defense (1984). Council, Inc., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍837, 843-44 467 U.S. circumstances, Opti- I beliеve

Under duty give sixty-days notice to owed a

cal all documents

all at the time when a.m. on executed or no later than 10:00 7,1994.

May America, STATES of

UNITED

Plaintiff-Appellee, *6 KLINGER,

Benjamin Defendant-

Appellant.

No. 94-50584. Appeals,

United States Court

Ninth Circuit. 16,

Argued and Submitted Nov. 1995. 22, July 1996.

Submission Withdrawn 18, July 1997.

Resubmitted 19, Sept. 1997.

Decided

As Amended Nov. statutory language; possible reading but through of the the date of sale and to the seller reading rejected ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because it would day. interpretation DOL has Such an is a оn the next HAWKINS, DALY MICHAEL Judge: appeal requires us to

This plain error the error standard instructional recently Supreme of review clarified States, in Johnson v. United Court’s decision — 137 L.Ed.2d S.Ct. (1997), and this court’s en banc decision Perez, 116 F.3d 840 United States banc).1 Cir.1997) (en Benjamin Defendant twenty Klinger was convicted of counts in viola making false statements to a bank tion of three counts of 18 U.S.C. money laundering in оf 18 violation U.S.C. 1956(a)(1)(A)(i), of unlawful five counts monetary in violation of 18 transactions one count of mail U.S.C. fraud Klinger of 18 raises violаtion U.S.C. challenges to his conviction. For the several appeal, first time on he asserts certain in the indictment of the counts contained multiplicitous were and contends others duplicitous. challenges He also the district ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court’s exclusion of a defense witness’s testi mony anticipated on that witness’s as based privilege of his Fifth Amendment sertion Finally, Klinger self-incriminаtion. challenges court’s instruction to the district jury “knowingly,” as to the definition arguing general instruc definitional specific in tion cоnflicted with the court’s knowledge structions as to the elements of 18 1956(a)(1)(A)® Trevino, CA, Mary and 1957. Because Phillip Angeles, Los Gibbons, NY, Tappan, defendant-appel- Klinger preserve challenge failed to his below, lant. this instruction *7 recently of review error standard clarified Drooyan Taylor, Richard and David F. Johnson. CA, Atty., Angeles, plain- Asst. U.S. Los tiff-appellee. jurisdiction We have over this direct crimi- appeal pursuant

nal to 28' U.S.C. AND FACTUAL PROCEDURAL

BACKGROUND Beginning Benjamin Klinger was FLETCHER, president majority partner Before: CANBY and of Best HAWKINS, Protеction, sprinkler Fire a fire installation responsible appeal pending either make the seller for the acts оf from submission ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the out- or it would create a in which no en We also come banc decision in Perez. one is alternative is inconsistent with the of the notice. The former pending had withdrawn submission the outcome legal position Keys, of United States v. 95 F.3d 874 Cir. after the sale has become effective. 1996) (en banc), Supreme Court re- which The latter alternative is inconsistent with the versed on the basis of Johnson. See United States intent of the statute. 54 F.R. - Keys, 117 S.Ct. submitted, (vacating opinion L.Ed.2d 1025 Ninth Circuit appeal argued 1. After this remanding case for consideration in the full court voted to rehear en further banc on Perez Johnson). light error issue. We therefore withdrew