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The Retirement Plan of the Unite Here National Retirement Fund, and Noel v. Kombassan Holding A.S

December 21, 2010

THE RETIREMENT PLAN OF THE UNITE HERE NATIONAL RETIREMENT FUND, AND NOEL BEASLEY, HAROLD BOCK, JAMESBRUBAKER, MARKFISHMAN, MARKFLEISCHMAN, RICHARD GILBERT, JOHNGILLIS, JIMHANESCHLAGER, ADAMHARRIS, CHRISTINEKERBER, STEVEN MASKET, DESMONDMASSEY, DAVIDMELMAN, HOMIPATEL, WARREN PEPICELLI, JEANNE PRATT, BRUCE RAYNOR, HARRISRAYNOR, EDGARROMNEY, RICHARDRUMLET, AND LYNN TALBOTT, AS TRUSTEES OF THE UNITE HERE NATIONAL RETIREMENT FUND, PLAINTIFFS-APPELLEES,
v.
KOMBASSAN HOLDING A.S., DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Hall, Circuit Judge:

Argued: January 16, 2009

Be fore JACOBS, Chief Judge, KEARSE, and HALL, Circuit Judges.

Kombassan Holding A.S. ("Kombassan") appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.) holding it liable to the Retirement Plan of the UNITE HERE National Retirement Fund and its trustees (the "Plan") for withdrawal liability incurred by the entity Hit or Miss ("HOM") pursuant to sections 502(a)(3) and 4301(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), codified at, 29 U.S.C. §§ 1132(a)(3), 1451(a), in a total amount, including prejudgment interest, exceeding one million dollars. Although Kombassan assigned its HOM shares to four Turkish corporations in order to avoid a Turkish law limiting overseas investments, because it continued to exercise complete control over HOM, we hold that Kombassan was an alter ego of HOM and is, therefore, responsible for its withdrawal liability.

AFFIRMED.

Kombassan Holding A.S. ("Kombassan") appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.) holding it liable to the Retirement Plan of the UNITE HERE National Retirement Fund and its trustees (the "Plan") for withdrawal liability incurred by the entity Hit or Miss ("HOM") pursuant to sections 502(a)(3) and 4301(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), codified at, 29 U.S.C. §§ 1132(a)(3), 1451(a), in the amount of $668,929.00 plus prejudgment interest in the amount of $407,431.83, for a total of $1,076,360.83. Although Kombassan assigned its HOM shares to four Turkish corporations in order to avoid a Turkish law limiting overseas investments, because it continued to exercise complete control over HOM, we hold that Kombassan was, in the circumstances presented here, an alter ego of HOM and is, therefore, responsible for its withdrawal liability. The judgment of the district court is AFFIRMED.

I. Background

ERISA was enacted to protect the interests of employee retirement benefit plan participants and their beneficiaries. See 29 U.S.C. § 1001b. One aim is to provide for a "sound termination insurance system" that ensures participants and beneficiaries will receive their full benefits even if, for example, their employer ceases operations. Id. When an employer "permanently ceases all covered operations under the plan," i.e., a "complete withdrawal," an obligation called "withdrawal liability" may be imposed on that employer. Id. §§ 1381(a), 1383(a). In that event, the plan sponsor determines the amount of the employer's withdrawal liability, notifies that employer of the amount owed, and collects the amount of the withdrawal liability from the employer. Id. § 1382. Under the principles of the common control doctrine, "all businesses under common control are treated as a single employer for purposes of collecting withdrawal liability, and each is liable for the withdrawal liability of another." Corbett v. MacDonald Moving Srvcs., Inc., 124 F.3d 82, 86 (2d Cir. 1997) (citing 29 U.S.C. § 1301(b)(1), 26 C.F.R. §§ 1.414(c)-1 through 1.414(c)-5).

In November 1998, Kombassan, a Turkish corporation, entered into a stock purchase agreement with HOM, a women's clothing retailer based in Massachusetts, to acquire 100% of HOM. Article 6.6 of the stock purchase agreement provided that Kombassan "may assign all or part of this Agreement to one or more of its affiliates or subsidiaries, including Acar Hydraulic Machines Ind. Inc., Kongaz Petroleum Ind. Inc., Koveka Textile Ind. Inc. and Makas Marble & Mining Ind. Inc., without [prior written] consent; provided however that such assignment shall not relieve [Kombassan] of any obligation or liability hereunder." At the time of closing, Kombassan assigned the stock purchase agreement to the four Turkish corporations (the "assignees") listed in Article 6.6 as follows: 10% to Acar Hydraulic Machines Ind. Inc., 40% to Kongaz Petroleum Ind. Inc., 40% to Koveka Textile Ind. Inc., and 10% to Makas Marble & Mining Ind. Inc. Hasim Bayram, the chairman of Kombassan, signed the assignment agreement five times, once on behalf of Kombassan and four times as chairman of each of the four assignees. The purpose of the stock assignment was to circumvent Turkish law, which prohibited Turkish companies from investing more than $5 million outside Turkey without the permission of the Turkish government. The four original assignees were all pre-existing companies involved in industries separate from retail fashion. Although Bayram served as chairman of all these assignees, each corporation had separate offices, separate employees, and separate bank accounts. Kombassan was not a majority shareholder in most of the companies that were assignees during the relevant period.

Early in 2000, Bayram hired Donna Moore as HOM's president. Moore testified that during her tenure as president of HOM she communicated with and reported to Bayram on a weekly basis. Moore testified that she reported solely to Bayram and believed that Kombassan owned HOM because that is what Bayram led her to believe. According to Moore, Bayram made all the decisions for HOM in the name of Kombassan only. To the extent that she knew HOM had additional equity interest holders, Moore believed those companies were simply part of the Kombassan conglomerate. When HOM faced increasing financial difficulties during the spring of 2000, Moore turned to Bayram for assistance.

In June 2000, Moore wrote Bayram several letters, informing him that HOM needed cash infusions to pay its creditors, back rents, and expenses; she continued to seek such funds from Bayram in subsequent months. That fall, Moore called Bayram to inform him that HOM did not have sufficient funds to make payroll and that, absent a cash infusion, HOM would likely have to seek bankruptcy protection. Shortly thereafter, in November 2000, HOM filed a voluntary Chapter 11 petition thereby commencing bankruptcy proceedings. The disclosure statement filed in connection with the HOM bankruptcy proceedings identified ten HOM equity interest holders, including Kombassan and the four initial assignees.

In January 2001, Kombassan agreed to provide $3 million in operating costs to HOM, which Kombassan identified as its "wholly owned indirect subsidiary." Approximately two months later, however, HOM ceased its operations, thereby ending its ERISA obligation to continue making contributions to the Plan. In filings made with the bankruptcy court during the course of the HOM bankruptcy proceeding, Kombassan made the following representations about its relationship to HOM: (1) that it "controlled the board of directors of [HOM]," J.A. 504; (2) that "Kombassan holds directly or indirectly one hundred percent (100%) of the shares of the common stock of [HOM]," J.A. 508; and (3) that "Kombassan is a Turkish conglomerate engaged in the retail of, inter alia, women's clothing and holds directly or indirectly all of the issued and outstanding stock of [HOM]," J.A. 597. In addition, at trial, Kombassan's general counsel testified that he agreed that HOM was wholly owned by Kombassan and a Kombassan sister company and agreed that Kombassan controlled the board of directors. Finally, Kombassan held itself out to the public as the purchaser of HOM, stating on its website that the purchase of HOM "marked an important step in Kombassan Holding's international strategy." J.A. 266.

After the Plan was notified that HOM had ceased operations and had "completely withdr[a]w[n]" from the Plan, the Plan informed Kombassan that it considered Kombassan to be responsible for HOM's withdrawal liability under ERISA's common control doctrine. The Plan determined that Kombassan owed $668,929 in withdrawal liability, all of which remains outstanding and is the subject of the instant suit.

After a three-day bench trial, the district court found that Kombassan was liable for the full $668,929 of withdrawal liability as the alter ego of the HOM equity interest holders and on the basis of judicial estoppel. The district court also ordered Kombassan to pay prejudgment interest in the amount of $407,431.83 and attorneys' fees, to be calculated following appeal.

Addressing the issue of judicial estoppel first, the district court held that Kombassan's myriad representations made to the bankruptcy court that HOM was its wholly owned indirect subsidiary were "binding on Kombassan Holding, because . . . the representations were in some manner relied upon or adopted by, in this case, the bankruptcy court." J.A. 270-71. Accordingly, applying those representations to the present case, the district court held that Kombassan was "directly liable" for HOM's withdrawal liability under ERISA's "single employer ...


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