Simas v. Quaker Fabric Corp. of Fall River , 6 F.3d 849 ( 1993 )

October 14, 1993
No. 93-1098
JOHN SIMAS,
Plaintiff, Appellee,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
COMMONWEALTH OF MASSACHUSETTS,
Intervenor, Appellant.
No. 93-1103
JAMES N. GRAY,
Plaintiff, Appellee,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
COMMONWEALTH OF MASSACHUSETTS,
Intervenor, Appellant.
No. 93-1104
JAMES N. GRAY,
Plaintiff, Appellant,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
No. 93-1249
JOHN SIMAS,
Plaintiff, Appellant,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
ERRATA SHEET
The opinion of this Court issued on October 6, 1993, is amended
as follows:
On page 2 of cover sheet, under attorney listings, delete
"Thomas O. Bean for plaintiffs."
On page 11, line 11, add a parenthesis after the word
"designation."
On page 11, lines 3 and 4 of footnote 4, replace "Whittemore v.
Schlumberger Technology Corp." with Whittemore v. Schlumberger
Technology Corp."
On page 12, line 7 of footnote 5, underline "Fort Halifax."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1098
JOHN SIMAS,
Plaintiff, Appellee,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
COMMONWEALTH OF MASSACHUSETTS,
Intervenor, Appellant.
No. 93-1103
JAMES N. GRAY,
Plaintiff, Appellee,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
COMMONWEALTH OF MASSACHUSETTS,
Intervenor, Appellant.
No. 93-1104
JAMES N. GRAY,
Plaintiff, Appellant,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
No. 93-1249
JOHN SIMAS,
Plaintiff, Appellant,
v.
QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Thomas O. Bean, Assistant Attorney General, with whom Scott
Harshbarger, Attorney General, was on brief for intervenor.
Orlando F. de Abreu on joint briefs for plaintiffs.
Mary T. Sullivan, Donald J. Siegel and Segal, Roitman & Coleman
on brief for Economic Development and Industrial Corporation of
Boston, Massachusetts ALF-CIO, International Union, United Automobile,
Aerospace, and Agricultural Implement Workers Union of America, Tax
Equity Alliance of Massachusetts, Urban League of Eastern
Massachusetts Inc., Child World Employees Committee, and Jewish Labor
Committee, Amici Curiae.
Neil Jacobs with whom Daniel W. McCarthy and Hale and Dorr were
on brief for defendants.
Arthur G. Telegen, Amy B.G. Katz, Jonathan A. Keselenko and
Foley, Hoag & Eliot on brief for Freeman, Spogli & Co. and Avon
Investors Limited Partnership, Amici Curiae.
October 6, 1993
4
BOUDIN, Circuit Judge. Massachusetts has in force a
"tin parachute" statute requiring substantial severance
payments to employees who lose their jobs within specified
periods before or after a corporate takeover. Mass. Gen. L.
ch. 149, 183. The district court held this statute to be
preempted by the Employee Retirement Income Security Act
("ERISA"), which by its terms "supersede[s] any and all State
laws insofar as they may now or hereafter relate to any
employee benefit plan . . . ." 29 U.S.C. 1144(a). We
affirm.
I.
Quaker Fabric Corporation of Fall River is a
Massachusetts corporation, with some 1350 employees in six
states including Massachusetts. The company is a wholly
owned subsidiary of Quaker Fabric Corporation, a Delaware
corporation. John Simas went to work for Quaker Fabric
Corporation of Fall River in Massachusetts in 1971, and James
Gray did so in 1978. It is the discharge of Simas and Gray
following a takeover of Quaker Fabric Corporation of Fall
River that gives rise to this suit.
In September 1989 Quaker Fabric Corporation, and its
subsidiary Quaker Fabric Corporation of Fall River, passed
into the control of Union Manifatture International N.V. It
appears that Union Manifatture set up a new entity called QFC
Acquisition Corporation, merged it into Quaker Fabric
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Corporation (the surviving corporation), and ended up holding
95 percent of the shares of the latter. Presumably the
former owners of Quaker Fabric Corporation received stock,
cash or both. In any case, there is no dispute that a change
of control occurred, and that Union Manifatture emerged as
the ultimate owner of Quaker Fabric Corporation of Fall
River.1
The Massachusetts tin parachute statute was enacted in
1989 as part of a package of anti-takeover measures. Under
the statute, employees who have worked a minimum of three
years for an employer, and whose employment is terminated
within 24 months after a "transfer of control" of their
employer, are entitled to a "one time lump sum payment" of
twice their weekly compensation for each completed year of
employment. Mass. Gen. L. ch. 149, 183.2 A condition of
payment, discussed more fully below, is that the employee
meet the eligibility standards for unemployment benefits
under state law. Id. 183(a). If the employee is covered
1The mechanics of the takeover are not entirely clear
from the record; thus, the district court said that QCF
Acquisition Corporation purchased 95 percent of the shares of
Quaker Fabric Corporation of Fall River. The discrepancy
does not affect our analysis.
2Somewhat similar protection is afforded to employees
who are discharged in prescribed periods before the takeover.
Id. Certain types of corporations and certain types of
takeovers are excluded. Id. 183(a), (d).
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by a corporate severance plan with more generous benefits,
the tin parachute statute does not apply. Id. 183(d)(1).
Both Simas and Gray were discharged from employment by
Quaker Fabric Corporation of Fall River within 24 months
after the takeover. At the time of his termination, Gray was
covered by the company's existing severance plan but the
company's severance benefits were less generous than the
statute's benefits. Simas was not covered by any severance
plan. Both men ultimately qualified for unemployment
benefits under state law. The company nevertheless declined
to make payments to them under the tin parachute statute,
claiming that it was preempted by ERISA.
In late 1991, Simas and Gray filed suit in state court
against Quaker Fabric Corporation of Fall River and QCF
Acquisition Corporation seeking the statutory benefits. The
Quaker Fabric defendants asserted the preemption defense and
removed the case to district court. The district court
agreed that the tin parachute statute was preempted by ERISA
and it granted summary judgment in favor of the defendants.
Simas v. Quaker Fabric Corp. of Fall River, 809 F. Supp. 163(D. Mass. 1992). The court remanded to state court a
separate wrongful discharge claim that had been asserted by
Simas but raised no federal issues. Id. at 168. After
judgment, the Commonwealth learned of this litigation and
intervened. Simas, Gray and the Commonwealth now appeal.
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II.
ERISA, as already noted, explicitly preempts "any and
all State laws" that "relate to any employee benefit plan . .
. ." 29 U.S.C. 1144(a). As the district court observed,
809 F. Supp. at 166, the words "relate to" have been
construed "expansively"; a state law may relate to an
employee benefit plan even though it does not conflict with
ERISA's own requirements, District of Columbia v. Greater
Washington Board of Trade, 113 S. Ct. 580, 583 (1992), and
represents an otherwise legitimate state effort to impose or
broaden benefits for employees. Massachusetts v. Morash, 490
U.S. 107, 116 (1989). As we recently summarized the law,
ERISA preempts all state laws insofar as they relate to
employee benefit plans, even laws which are "a help, not a
hindrance," to such plans, and regardless of whether there is
a "comfortable fit between a state statute and ERISA's
overall aims." McCoy v. MIT, 950 F.2d 13, 18 (1st Cir.
1991), cert. denied, 112 S.Ct. 1929 (1992).
Thus, a state statute that obligates an employer to
establish an employee benefit plan is itself preempted even
though ERISA itself neither mandates nor forbids the creation
of plans. This may at first appear to be a surprising result
since ERISA is primarily concerned with disclosure, proper
management, vesting requirements and other incidental aspects
of plans established by employers. See generally Shaw v.
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Delta Airlines, Inc., 463 U.S. 85 (1983). Yet explanation
for the broad preemption provision is clear: By preventing
states from imposing divergent obligations, ERISA allows each
employer to create its own uniform plan, complying with only
one set of rules (those of ERISA) and capable of applying
uniformly in all jurisdictions where the employer might
operate. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142
(1990).
In this case, the litigation in the district court was
concerned with the question whether the one-time payments
ordered by the tin parachute statute comprised or related to
a "plan," in light of the narrowing interpretation of that
word adopted in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1(1987). In this court, the Commonwealth has laid more stress
on a different argument, namely, its claim that the statute
does not relate to an "employee" plan because it (allegedly)
imposes the payment obligation not on an employer but instead
on the firm that takes over the employer. We consider these
two arguments in that order.
The first argument--that no "plan" is established by the
tin parachute statute--was ably answered by the district
court, 809 F. Supp. at 166-68, and we lay out the analysis
merely to make this opinion complete. In common parlance, a
directive to pay prescribed severance benefits might readily
be described as a plan. But in Fort Halifax, the Supreme
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Court, by a five-to-four vote, held that the term did not
encompass a Maine statute providing for a one-time, lump-sum
payment to employees, based on length of service, in the
event of plant closure.
The Supreme Court rejected Maine's broad argument that
there was no plan because the state imposed the obligation;
indeed, the Court held explicitly that a severance benefit
plan would be preempted if imposed by the state. 482 U.S. at
16-17. The Court said, however, that Congress' concern was
with state interference with benefits "whose provision by
nature requires an ongoing administrative program to meet the
employer's obligation." Id. at 11. Reading the term "plan"
in light of this purpose, Fort Halifax held that the term did
not include Maine's severance payment statute, which
"requires no administrative scheme whatsoever," id. at 12,
and calls on the employer "[t]o do little more than write a
check . . . ." Id.The present case may be close to Fort Halifax. The
Massachusetts statute, like the Maine statute, calls for
payments to all eligible employees based on a specific event,
here, the takeover. That similarity, however, must be set
against several differences. Each of these differences
increases the administrative burden imposed by the
Massachusetts statute, in contrast to Maine's statute; and
each makes the label "plan" better suited to the tin
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parachute statute. It is a matter of degrees but under Fort
Halifax degrees are crucial.
The Maine statute starts and ends with a single, once
and for all event, the plant closing, after which all
payments are due. The Massachusetts statute, by contrast, is
triggered separately for each three-year employee by the
individual termination of that employee within one of several
alternative time periods, either before or after the
takeover. More important, whether a payment is due depends
in Massachusetts not merely on the employee's status as a
three-year employee but on whether the employee is also
eligible for unemployment compensation under Massachusetts
law. This is effectively a cross-reference to other
requirements, most importantly that the employee not have
been discharged for cause. Mass. Gen. L. ch. 151A,
25(e)(2) ("deliberate misconduct" or "knowing violation" of
employer rule or policy).
Thus, the Maine employer on closing its plant need do
little more than write a check to each three-year employee.
The Massachusetts employer, by contrast, needs some ongoing
administrative mechanism for determining, as to each employee
discharged within two years after the takeover, whether the
employee was discharged within the several time frames fixed
by the tin parachute statute and whether the employee was
discharged for cause or is otherwise ineligible for
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unemployment compensation under Massachusetts law. The "for
cause" determination, in particular, is likely to provoke
controversy and call for judgments based on information well
beyond the employee's date of hiring and termination.3
The Commonwealth asserts that these administrative tasks
are only a small step beyond what is required under the Maine
statute. It argues that detailed employment records must be
maintained by the employer in any event, and that the
employer need only wait for the state agency to make its own
decision on employee eligibility for unemployment
compensation. To the last point the Quaker Fabric defendants
respond that, because of the timing of employer obligations
under the tin parachute statute, the employer cannot await a
state agency decision that may well occur after the employer
has to make the one-time payment, even assuming that the
employee even applies for unemployment compensation.
It may be that in some instances, a determination of
eligibility would be straightforward and, in others, the
employer would have to make its own judgment and then monitor
or participate in state proceedings. But in all events for
at least two years after the takeover, and probably beyond
3In this case, it happens that Simas was discharged for
what his employer regarded as cause (the company says that he
declined to work because the low temperature aggravated his
asthma condition). The state Department of Employment and
Training first found him ineligible but then reversed its
position on later review.
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that point as to disputed terminations, the employer would
have to maintain records, apply the "for cause" criteria, and
make payments or dispute the obligation. We think it evident
that ongoing administrative obligations are imposed, of a
kind and over a time period, that go far enough beyond Fort
Halifax to call the regime a "plan" within the meaning of
ERISA.
Given the Supreme Court's reasoning in Fort Halifax,
there is no way to be certain exactly where it would draw the
line. What we do know is that our sister circuits have
generally read Fort Halifax as emphasizing the mechanical,
one-time nature of the severance payments, have applied the
decision to protect schemes akin to the Maine statute, and
have ceased to apply the decision where the state statute or
employer promise involved ongoing obligations materially
beyond those present in Fort Halifax.4 It is somewhat hard
to generalize about the cases because of the variety of
variables in the different severance schemes, but one of the
circuit decisions--Boque v. Ampex Corp., 976 F.2d 1819 (9th
Cir. 1992) (Wisdom, J., sitting by designation)--is closely
in point.
4See, e.g., James v. Fleet/Norstar Financial Group, 992
F.2d 463 (2d Cir. 1993); Fontenot v. NL Industries, 953 F.2d
960 (5th Cir. 1992); Whittemore v. Schlumberger Technology
Corp., 976 F.2d 922 (5th Cir. 1992); Bogue v. Ampex Corp.,
976 F.2d. 1319 (9th Cir. 1992), amended, 1992 U.S. App. LEXIS
31377, cert. denied, 113 S. Ct. 1847 (1993); Pane v. RCA
Corp., 868 F.2d 631, 635 (3d Cir. 1989).
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In Boque, the Ninth Circuit considered the case of the
corporation that had agreed to pay a one-time, lump-sum
severance benefit to each of a number of executives if the
company were taken over and afterwards a protected executive
did not retain "substantially equivalent employment" in the
new structure. 976 F.2d at 1321. The court agreed that the
employer's obligation was, as in Fort Halifax, a one-time,
lump-sum payment contingent on a future event. But in Bogue,
"that event would occur more than once, at a different time
for each employee," 976 F.d at 1323, and the employer had to
make a substantive, "substantially equivalent" determination
in each case. Accordingly, as Judge Wisdom said, "[t]here
was no way to carry out [the employer's] obligation with the
unthinking, one-time nondiscretionary application [involved
in] . . . Fort Halifax." Id. The Ninth Circuit therefore
found the severance regime to comprise a plan. Id.
These distinctions, which Judge Wisdom found persuasive
in Bogue, apply to our case and persuade us as well. In this
case, as in Bogue, the time period is prolonged,
individualized decisions are required, and at least one of
the criteria is far from mechanical. Admittedly, there is
not a great distance between Boque and our case, on the one
hand, and on the other hand cases like Fort Halifax or
decisions that track it. But so long as Fort Halifax
prescribes a definition based on the extent and complexity of
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administrative obligations, line drawing of this kind is
necessary and close cases will approach the line from both
sides.5
We turn now to the alternative argument against
preemption urged for the first time on appeal by the
Commonwealth. Simply put, the argument is that even if the
tin parachute statute imposes obligations amounting to a
"plan," it is not an "employee" plan because the obligations
are imposed on the "control transferee" and not the employer.
Although it is common practice not to consider arguments that
were not made to the district court, we think that this case-
-involving the constitutionality of a state statute--
justifies an exception. Indeed, the Quaker Fabric defendants
urge us to consider (and reject) this new argument on the
merits.
It is true that the tin parachute statute does in terms
make the "control transferee" (and no one else) liable for
the severance payment dictated by the statute, Mass. Gen. L.
ch.
5E.g., James, 992 F.2d 463, applying Fort Halifax to
prevent preemption of an employer's promise to pay 60 days'
salary as severance to each employee who remained until the
facility was closed. The court said that while employees
might have different termination dates, the time frame was a
short one and the payments involved no more than "simple
arithmetical calculations" upon such termination, just as in
Fort Halifax. Id. at 466-67.
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149, 183(b), and it defines "control transferee" as the
person or persons who have beneficial ownership of 50 percent
or more of the voting securities of the employer after the
transfer. Id. 183(a). This might lead one to believe that
Quaker Fabric Corporation (the employer's immediate parent)
and its own owner, Union Manifatture, are actually liable for
the payment (even though neither was actually sued).6
The Quaker Fabric defendants contend that the tin
parachute statute imposes liability directly upon the front-
line employer. They point out that the statute by cross
reference, Mass. Gen. L. ch. 149, 183(f), provides for
enforcement of its provisions through other statutes,
directed at "employers," which are designed to secure
employees the wages due to them. Mass. Gen. L. chs. 148-50.
There is also some evidence that the state's Department of
Labor and Industries seeks to enforce the tin parachute
statute directly against immediate employers, just as Simas
and Gray did in this case by suing their employer, Quaker
Fabric Corporation of Fall River.
Nevertheless, it is unnecessary to decide whether the
immediate employer is liable in addition to, or instead of,
the control transferee--issues on which there appear to be no
6Simas and Gray sued their employer, Quaker Fabric
Corporation of Fall River, and QFC Acquisition Corp. The
former obviously did not take control of itself and, as the
Commonwealth describes the transaction, the latter was merged
out of existence in the course of the merger.
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Massachusetts judicial precedents. For we agree with the
Quaker Fabric defendants that the "control transferee" is an
employer for ERISA purposes to the extent that the control
transferee is obligated to make payments to the employees of
its subsidiary pursuant to the tin parachute statute. This
is so, in our view, by reason of the joint force of statutory
language, precedent, and practical sense.
ERISA itself provides that the term employer includes
"any person acting directly as an employer, or indirectly in
the interest of an employer, in relation to an employee
benefit plan." 29 U.S.C. 1002(5). We take this language
to mean that, if the plan provides ERISA-type benefits to the
employees, the paymaster is classified as an "employer" so
long as it is connected to the employer and is acting in the
employer's interest. In our view, any payments made by the
control transferee are "in the interest of" the employer. 29
U.S.C. 1002(5). This is patently so if the control
transferee assumes a liability that would otherwise be borne
by the employer; but we think it is no less so even if the
employer is not contingently liable under the tin parachute
statute. Where employees are laid off after a control
transfer, this is normally done because the employer or those
who control the employer regard the down-sizing as good
business. Whether or not they are right, and whatever the
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cause for the reduction (e.g., new debt), the fact remains
that the employer has lightened its payroll.
Accordingly, if Quaker Fabric Corporation or Union
Manifatture is intended to be held liable as a control
transferee under the tin parachute statute, it would then be
an employer under ERISA and, simultaneously, its liability
would be preempted. This view is supported by cases holding
that a parent company making benefit payments to employees of
a subsidiary company is their "employer" under ERISA. E.g.,
Reichelt v. Emhart Corp., 921 F.2d 425, 427-28 (2d Cir.
1990), cert. denied, 111 S. Ct. 2854 (1991). The control
transferee, in our situation, is very much like the parent
company in a case like Reichelt.
Looking to realities, our case is even easier than cases
involving parents who administer plans for their
subsidiaries. There is little doubt that, if the tin
parachute statute were not preempted, the severance payments
would be made based upon records kept by Quaker Fabric
Corporation of Fall River, pursuant to judgments implemented
by its management, and almost certainly with funds from its
corporate account. If the control transferee is liable under
the statute, it is almost certainly a nominal liability in
the ordinary case; the effective burden is on the front-line
employer, here Quaker Fabric Corporation of Fall River.
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It is thus hard to credit the Commonwealth's claim that
the tin parachute statute has no adverse effect on one of the
admitted objects of the ERISA preemption provision: to
protect employers from having to comply with different
directives as to benefit plans for employees depending solely
on the employees' location and the desires of different state
legislators. The Commonwealth's premise is that Quaker
Fabric Corporation of Fall River bears no legal obligation to
make the payments. But legal obligation or not, that company
will almost certainly pay the bill and administer the
payments, absent preemption.
In all events, we think that the statutory definition of
employer in ERISA resolves the matter, even if we ignore
realities and assume that the control transferee exclusively
shoulders liability under the tin parachute statute. This is
not a matter of "piercing the corporate veil" because another
person actively dominates the corporation. Without any such
dominance, payments made by a control transferee under the
tin parachute statute are "in the interest of" the employer;
the control transferee is to that extent also an employer
under ERISA; and preemption occurs automatically.7
7We have considered the Commonwealth's argument based on
its own implicit premise that a plan is not an "employee"
plan unless the paymaster is the "employer," or at least one
of them. This premise is far from secure. See, e.g.,
Trustees of Electrical Workers Health and Welfare Trust v.
Marjo Corp., 988 F.2d 865 (9th Cir. 1992) (preempting state
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III.
We have been earnestly asked by the Commonwealth, and
even more earnestly by an impressive set of amici supporting
its position, to give weight to the benign purposes of the
tin parachute statute to lessen the impact of job losses that
attend corporate takeovers. Two other amici, equity
investors in Massachusetts companies, urge to the contrary
that the statute is unconstitutionally vague if read to place
the burden of liability on control transferees who (the two
amici say) may be a large and shifting group of investors.
The asserted benefits and faults of the tin parachute
statute are not for us to weigh. Congress has written a
manifestly broad preemption statute, the courts with few
exceptions have interpreted it broadly, and our job is to
carry out that mandate. It is an odd irony that, having
avoided condemnation under the Commerce Clause, see CTS Corp.
v. Dynamics Corporation of America, 481 U.S. 69, 87-94
(1987), a portion of anti-takeover legislation should perish
under an ERISA preemption clause whose full ramifications may
not have been absorbed by Congress. But the ramifications
are inherent in the statute, and are not for us to curtail.
It may also seem ironic that a federal statute enacted
in large part to protect workers should invalidate a state
law imposing liability on general contractors for benefits
owed by subcontractors).
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measure that has worker protection as one of its primary
objectives. But ERISA, like many a reform statute, has more
than one purpose and more than one beneficiary. The
uniformity of regulation gained by employers under ERISA was
assuredly part of the legislative balancing of interests and
trade-offs. See Ingersoll-Rand, 498 U.S. at 142 ("the goal
was to minimize the administrative and financial burden of
complying with conflicting directives among States or between
States and the Federal Government"). Courts, who are the
least representative branch of government, are the wrong
place to restrike the balance.
In the end, the claim of statutory benefits is answered
definitively by Fort Halifax itself. Although the Supreme
Court saved the Maine statute by the narrowing interpretation
of "plan," the Court there rejected Maine's broader argument
that its statute avoided preemption because it was an
independent directive that "reflects the state's substantial
interest in protecting Maine citizens from . . . economic
dislocation . . . ." 482 U.S. at 6 (quoting the Maine
Supreme Judicial Court). Fort Halifax holds that a state
statute cannot mandate benefits if they comprise an "employee
benefit plan," no matter how virtuous the statute. Because
the tin parachute statute imposes such a plan, it is
preempted.
Affirmed.
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