Hop Energy, L.L.C. v. Local 553 Pension Fund, No. 10-3889 (2d Cir. 2012)

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Justia Opinion Summary

HOP Energy appealed from the district court's confirmation of an arbitration award in favor of Local 553 Pension Fund. The district court held that HOP Energy was not exempt from withdrawal liability under the Multi-Employer Pension Plan Amendments Act (MPPAA), 29 U.S.C. 1381-1461, because the purchaser of HOP Energy's New York City operating division lacked an obligation to contribute "substantially the same number of contribution base units" to the pension fund post-sale by HOP Energy had contributed pre-sale. The court agreed and held that the "contribution base units" were hours of employee pay. Although the purchaser of HOP Energy's New York City operating division had an obligation to contribute to the pension fund at the same contribution base unit rate, it had no obligation to contribute substantially the same number of hours of employee pay. Therefore, HOP was not exempt from withdrawal liability.

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10-3889-cv HOP Energy, L.L.C. v. Local 553 Pension Fund 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: October 21, 2011 Decided: May 3, 2012) Docket No. 10-3889-cv HOP ENERGY, L.L.C., Plaintiff-Appellant, -v.LOCAL 553 PENSION FUND, Defendant-Appellee. Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and SULLIVAN, District Judge.* Appeal from a judgment of the United States District Court for the Southern District of New York (Koeltl, J.), which confirmed an arbitration award in favor of Local 553 Pension Fund. The district court held that HOP Energy was not exempt from withdrawal liability under the MultiEmployer Pension Plan Amendments Act ( MPPAA ) because the purchaser of HOP s New York City operating division lacked an obligation to contribute substantially the same number of contribution base units to the pension fund post-sale as 1 The Honorable Richard J. Sullivan, of the United States District Court for the Southern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 HOP had contributed pre-sale. We agree. Here, the contribution base units were hours of employee pay. Although the purchaser of HOP s New York City operating division had an obligation to contribute to the pension fund at the same contribution base unit rate, it had no obligation to contribute substantially the same number of hours of employee pay. Therefore, HOP is not exempt from withdrawal liability. Chief Judge Jacobs dissents by separate opinion. AFFIRMED. LINDA L. MORKAN (Frank F. Coulom, Jr., on the brief), Robinson & Cole LLP, Hartford, CT, for PlaintiffAppellant. EUGENE S. FRIEDMAN (William K. Wolf, Anusha Rasalingam, Cristina E. Gallo, on the brief), Friedman & Wolf, New York, NY, for Defendant-Appellee. ERIC FIELD, Assistant Chief Counsel (Israel Goldowitz, Chief Counsel, Karen L. Morris, Deputy Chief Counsel, Beth A. Bangert & Richard Luna, Attorneys, on the brief), Pension Benefit Guaranty Corporation, Washington, D.C., for Amicus Curiae Pension Benefit Guaranty Corporation. WESLEY, Circuit Judge: I. Plaintiff-Appellant HOP Energy, L.L.C. ( HOP ) delivers 36 fuel oil and provides heating services to homes and 37 businesses in Massachusetts, Connecticut, Rhode Island, New 38 Jersey, Pennsylvania, and Delaware through independent 39 operating divisions. Prior to May 12, 2007, it serviced New 2 1 York City customers through its Madison Oil ( Madison ) 2 operating division. 3 signed the Teamsters Local 553 2004-07 Master Collective 4 Bargaining Agreement (the 2004-07 Master CBA ). 5 2007, HOP sold 100% of Madison s operating assets to 6 Approved Oil Company ( Approved ), also a signatory to the 7 2004-07 Master CBA. 8 Madison was a union shop and had On May 12, Teamsters Local 553 has a multi-employer pension fund 9 under the Employee Retirement Income Security Act ( ERISA ). 10 The 2004-07 Master CBA based signatory contributions on the 11 number of hours respective employees worked. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 To effectuate Madison s sale, HOP and Approved entered into an Asset Purchase Agreement ( APA ). The APA provided: [Approved] shall make contributions to the Local 553 Pension Fund (the Teamsters Fund ) for substantially the same number of contribution base units for which [HOP] had an obligation to contribute with respect to the operations covered by the Teamsters Fund. Notwithstanding the previous sentence and except as otherwise provided in Section 12.1, nothing in this Section shall impair or limit the Purchaser s right to discharge, lay off, or hire employees or otherwise to manage the operations of the Business, including the right to amend, revise or terminate any collective bargaining agreement currently in effect and, as a consequence, reduce to any extent the number of contribution base units with respect to which [Approved] has an obligation to contribute to any plan. (emphasis added). 3 1 Following the sale, HOP ceased operations in New York 2 City and also ceased contributing to the Local 553 Pension 3 Fund. 4 for $1,204,007. 5 assessment, claiming that the sale was exempt from 6 withdrawal liability because the Madison sale satisfied 29 7 U.S.C. § 1384(a)(1) as a bona fide asset sale. 8 upheld its assessment, and HOP commenced an arbitration to 9 challenge its liability. 10 The fund s sponsor assessed HOP withdrawal liability HOP asked the fund to reconsider the The fund Prior to the arbitration, HOP and Local 553 stipulated 11 that the asset sale satisfied §§ 1384(a)(1)(B) (bond 12 requirement) and 1384(a)(1)(C) (requirement that the seller 13 remain secondarily liable for five years after the sale). 14 Therefore, the only issue for the arbitrator was whether 15 Approved had a post-sale obligation to contribute 16 substantially the same number of contribution base units 17 as HOP. 18 concluded that the sale did not satisfy § 1384(a)(1)(A) 19 because the APA specifically disclaimed the purported 20 contribution obligation. 21 timely appealed. 29 U.S.C. § 1384(a)(1)(A). The arbitrator The district court agreed; HOP 22 4 1 II. 2 We have yet to decide the standard of review for an 3 arbitrator s finding that a party does not qualify for an 4 exemption from withdrawal liability under 29 U.S.C. 5 § 1384(a)(1). 6 Guaranty Corporation1 ( PBGC ) argue for clear error 7 review, while HOP argues for de novo review. 8 presented is inherently a question of law as it requires 9 review of contract language juxtaposed to a statutory Local 553 and amicus curiae Pension Benefit The question 10 obligation. 11 standard of review to be de novo; we agree. 12 Andrew Weir Shipping, Ltd., 27 F.3d 800, 804-05 (2d Cir. 13 1994) (cataloging other cases and presuming, but not 14 deciding, that the standard of review was de novo). 15 Other courts of appeals have found the proper See Bowers v. III. 16 To qualify for the sale of assets exemption from 17 withdrawal liability, a purchaser must have substantially 18 the same post-sale obligation to contribute to the pension 1 PBGC is the federal government agency responsible for administering and enforcing Title IV of ERISA, including the provisions added by the Multi-Employer Pension Plan Amendments Act ( MPPAA ). It often appears as amicus curiae in cases involving MPPAA issues and its views on such issues are entitled to deference. Beck v. PACE Int l Union, 551 U.S. 96, 104 (2007). On December 15, 2011, PBGC responded to our invitation to the United States government to provide its views on certain issues. 5 1 fund as the seller had pre-sale. 29 U.S.C. § 1384(a)(1)(A). 2 The MPPAA defines an obligation to contribute as one 3 arising (1) under one or more collective bargaining (or 4 related) agreements, or (2) as a result of a duty under 5 applicable labor-management relations law. 6 § 1392(a). 7 with respect to which an employer has an obligation to 8 contribute under a multiemployer plan. 9 § 1301(a)(11). 29 U.S.C. It defines a contribution base unit as a unit 29 U.S.C. 10 Before HOP sold Madison to Approved, it had a year-to- 11 year ongoing ERISA obligation to maintain a threshold level 12 of contribution base units. 13 base units by 70%, or partially ceased its contributions in 14 a given year, it would have been subject to partial 15 withdrawal liability. 16 went out of business or terminated Madison s operations, it 17 would have been subject to complete withdrawal liability. 18 29 U.S.C. § 1383. 19 contribution obligation constant to maintain the financial 20 stability of the fund; a sale of assets is only exempt from 21 withdrawal liability if the purchaser assumes substantially If HOP reduced its contribution 29 U.S.C. § 1385. If it permanently The MPPAA seeks to keep this pre-sale 6 1 the same obligation to contribute as the seller had pre- 2 sale.2 3 Here, the contribution base unit was hours of 4 employee pay. The 2004-07 Master CBA obligated HOP to 5 contribute to the pension fund based on the hours of pay its 6 Madison employees worked. 7 1392(a). 8 ongoing ERISA obligation to maintain a threshold level of 9 hours of employee pay. See 29 U.S.C. §§ 1301(a)(11), Thus, before the sale, HOP had a year-to-year Therefore, for HOP to qualify for 10 the sale of assets exemption, Approved had to assume 11 substantially the same obligation: Approved had to have an 12 obligation to contribute substantially the same hours of 13 employee pay as HOP had contributed pre-sale. 14 HOP argues that Approved had the requisite contribution 15 obligation because Approved simply stepped into HOP s 16 shoes. 17 contributed for a Madison employee s hour of pay, Approved 18 would now have an identical contribution obligation. 19 problem with HOP s argument, however, is that it conflates According to HOP, where HOP previously had 2 The The purpose of withdrawal liability "is to relieve the funding burden on remaining employers and to eliminate the incentive to pull out of a plan which would result if liability were imposed only on a mass withdrawal by all employers." Park S. Hotel Corp. v. N.Y. Hotel Trades Council, 851 F.2d 578, 580 (2d Cir. 1988). 7 1 two distinct terms: (1) contribution base units and (2) 2 contribution base unit rates. 3 Approved had an obligation to contribute to the fund at the 4 same rate. 5 Approved had no obligation to maintain substantially the 6 same number of hours of pay. 7 qualify HOP for an exemption from withdrawal liability. 8 9 HOP s argument is that We agree that Approved had this obligation. But Therefore, the sale did not Other sections of the statute support our view that contribution base unit and contribution base unit rate 10 are distinct. For instance, when a plan assesses 11 withdrawal liability, it must calculate the annual 12 withdrawal liability payment, which, in pertinent part, is 13 the product of the average annual number of contribution 14 base units and the highest contribution rate at which the 15 employer had an obligation to contribute. 16 § 1399(c)(1)(C)(i) (emphases added). 17 and as mentioned earlier, the MPPAA explains that an 18 employer partially withdraws from a plan and is subject to 19 partial withdrawal liability when its contributions decline 20 by at least 70% measured by comparing the number of 21 contribution base units from year-to-year. 22 § 1385(b). 29 U.S.C. In another section, 29 U.S.C. Under each of these sections, one looks at the 8 1 number of hours of pay as the contribution base unit. 2 [W]e read statutes as a whole, with no section interpreted 3 in isolation from the context of the whole Act. 4 States v. Al Kassar, 660 F.3d 108, 124 (2d Cir. 2011) 5 (internal quotation marks omitted). 6 United It is clear from the sale agreement that Approved had 7 no obligation to contribute substantially the same number 8 of hours of pay as HOP had contributed pre-sale. 9 the APA specifically disclaimed any such obligation. For one, In 10 addition, HOP offers no language in the 2004-07 Master CBA, 11 any other collective bargaining agreement, or any 12 applicable labor management relations law that obligated 13 Approved to contribute substantially the same number of 14 hours of pay as HOP had contributed pre-sale.3 15 U.S.C. § 1392(a). 16 17 18 19 20 21 22 See 29 As the arbitrator explained: Nothing in the union-employer agreements in the record [those between Local 553 and Approved] require[d] Approved, in respect to the operations of HOP, which for all practical purposes was the same as Approved s, to keep a certain number of employees, whether from Approved s ranks or HOP s, on the payroll to achieve a contribution base unit 3 For instance, as part of the sale, Approved could have entered a stand alone collective bargaining agreement with Local 553 obligating it to ensure substantially the same number of hours of pay as HOP had provided pre-sale. See Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Cullum Co., Inc., 973 F.2d 1333, 1338 (7th Cir. 1992). 9 1 2 level that would remain substantially the same as HOP s pre-sale. 3 We agree with the district court that Approved lacked an 4 obligation to contribute . . . substantially the same 5 number of contribution base units to the pension fund as 6 HOP had contributed pre-sale. 7 Finally, it makes no difference that Approved might 8 actually have contributed to the plan based on 9 substantially the same number of hours of pay as HOP had 10 contributed pre-sale. 11 the purchaser s obligation at the time the sale closes and 12 not what happens after the fact. 13 Areas Health & Welfare Fund, 973 F.2d at 1338. 14 15 Section 1384(a)(1)(A) focuses on Cent. States, Se. & Sw. IV. HOP next argues that the arbitrator erred by excluding 16 extrinsic evidence about its intent when entering the APA. 17 New York law governs the APA. 18 must give full effect to unambiguous contract terms. 19 Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 20 (2002). 21 terms of a facially unambiguous contract. 22 Assocs. v. Paul, 66 N.Y.2d 570, 572 (1986). 23 unambiguous contracts, a party s subjective intent and Under New York law, a court Extrinsic evidence cannot be used to vary the 10 See Chimart With See 1 understanding of the terms is irrelevant. 2 under the MPPAA, it is the arbitrator who determines 3 whether a contract is ambiguous. 4 Co. v. Milwaukee Brewery Worker s Pension Plan, 3 F.3d 994, 5 999 (7th Cir. 1993). 6 contract unambiguous. 7 8 9 Additionally, Joseph Schlitz Brewing Here, the arbitrator found the This was not error. V. The dissent presses for reversal because, it asserts, the majority opinion views the purchaser s obligation to 10 contribute as ongoing and, apparently, perpetual. 11 Dissenting Op. at 3-4. 12 duration of the buyer s obligation to contribute was 13 neither raised by the parties nor decided by this majority 14 opinion. 15 at the time of sale, Approved had substantially the same 16 obligation to contribute as HOP. 17 Approved did not. 18 But, as the dissent recognizes, the The sole issue presented for review was whether, We think it clear Our dissenting brother fears that our decision can be 19 read to imply an obligation to maintain historical 20 contribution levels into the future. 21 We see no reason to decide an issue out of fear that some 22 will misunderstand our efforts here when the parties never 23 raised the issue. 11 Dissenting Op. at 8. 1 Simply put, 29 U.S.C. § 1384(a)(1)(A) does not address 2 the duration of the purchaser's obligation to contribute. 3 It asks only whether the purchaser had the same obligation 4 to contribute as the seller at the time of sale. 5 plain language of the statute impairs the ability of an 6 employer to sell its business (we are not sure it does), as 7 our dissenting brother fears, the problem lies with the 8 statute and not this Court. 9 Judges are not statutory fix-it-folk. If the No one, 10 including our dissenting brother, has argued that the 11 statute imposes an absurd result. 12 Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., 13 concurring). 14 raises an issue of concern, we do not feel called upon to 15 address it.4 See Green v. Bock While we do not dispute that the dissent 16 CONCLUSION 17 HOP has not demonstrated that Approved was obligated 18 to contribute substantially the same number of 19 contribution base units (hours of pay) as HOP had 20 contributed pre-sale. The arbitrator did not err by 4 It does strike us as odd that, notwithstanding the dissent s plausible concern that the statute affects the alienability of businesses that are subject to the type of retirement plans at issue here, there is a dearth of cases dealing with this issue. 12 1 excluding extrinsic evidence of the parties intent when 2 entering the transaction because the APA was unambiguous. 3 We therefore AFFIRM the district court s judgment. 4 AFFIRMED. 5 6 13 DENNIS JACOBS, Chief Judge, dissenting: 1 2 I agree with much of the majority opinion; but because 3 I part company on one decisive point, and urge an analysis 4 that was not expressly argued on appeal, I respectfully 5 dissent. 6 Under the Multiemployer Pension Plan Amendments Act of 7 1980 ( MPPAA ), an employer that withdraws from a plan-- 8 either by ending contributions or by dipping below 30% of 9 its contribution level--is liable for its proportionate 10 share of the unfunded vested benefits, with exceptions. 11 29 U.S.C. §§ 1381, 1383, 1385. 12 contributions because it has sold its assets, the MPPAA 13 provides an exemption from withdrawal liability upon three 14 conditions, including that the purchaser undertakes an 15 obligation to contribute to the plan with respect to the 16 operations for substantially the same number of contribution 17 base units for which the seller had an obligation to 18 contribute to the plan. 19 buyer undertook just such an obligation when it stepped into 20 the seller s shoes pursuant to the Asset Purchase Agreement 21 (the Purchase Agreement ). 22 obligations were identical to the seller s obligations pre- 23 sale, the transaction complied with the sale-of-assets 24 exemption. See If a company ceases making Id. § 1384(a)(1)(A). Here, the Because the buyer s post-sale 1 I 2 Under the sale-of-assets exemption from withdrawal 3 liability, a seller is deemed to have withdrawn from a 4 multi-employer pension plan following a bona fide arm s- 5 length asset sale unless three conditions are satisfied. 6 is stipulated that two of these conditions have been 7 satisfied here, in the sale of Madison Oil by HOP Energy, 8 LLC, to Approved Oil Company. 9 bond (for the greater of the three-year average of HOP s 10 contributions or its contribution in the year before the 11 sale), payable if Approved withdraws from the plan or 12 defaults within five years of the sale. 13 § 1384(a)(1)(B). 14 that, if Approved withdraws from the plan within five years 15 after the sale, HOP as seller is secondarily liable for any 16 withdrawal liability. 17 It First, Approved has posted a Id. Second, the Purchase Agreement provides Id. § 1384(a)(1)(C). Given compliance with these two conditions, payment of 18 withdrawal liability is secured even if the successor 19 employer withdraws. 20 statute--the assured funding of multi-employer plans--is 21 achieved. 22 Council, 851 F.2d 578, 580 (2d Cir. 1988); see also 29 23 U.S.C. § 1369(a) (imposing liability where a principal In this way, the purpose of the See Park S. Hotel Corp. v. N.Y. Hotel Trades 2 1 purpose of any person in entering into any transaction is to 2 evade liability to which such person would be subject under 3 the MPPAA). 4 conditions secures withdrawal liability only if the buyer 5 uses the assets to continue the business: 6 event--the buyer s withdrawal--can occur only if the buyer 7 first assumes the obligation to contribute. Even so, however, compliance with those two The triggering 8 The buyer s obligation to contribute is assured by the 9 third condition, the one at issue on this appeal: that the 10 purchaser [have] an obligation to contribute to the plan 11 with respect to the operations for substantially the same 12 number of contribution base units for which the seller had 13 an obligation to contribute to the plan. 14 § 1384(a)(1)(A). 15 as here, under a collective bargaining agreement ( CBA ). 16 Id. § 1392(a)(1). Id. An obligation to contribute may arise, 17 II 18 19 As the majority opinion reads the third condition, the 20 buyer s ongoing obligation is to contribute in the future at 21 substantially the same level as the seller s contributions 22 as of the transaction date. 23 reading is that it has no end-point. One remarkable feature of that 3 The majority opinion 1 does not reach that issue, and the parties do not argue it. 2 But it seems to me decisive that the obligation recognized 3 in the majority opinion runs to an unspecified future, or in 4 perpetuity. 5 statute that elsewhere (as set out above) fixes exact time 6 parameters for the obligations it creates: the period of the 7 bond (five years), the contribution periods for calculating 8 the bond amount (three years or one, depending), the period 9 of the seller s indemnity for the buyer s obligation (five 10 11 That would be an unaccountable omission in a years). I do not believe that the third condition requires the 12 buyer to commit to maintain a historical level of 13 contributions for an unknown time in the future. 14 view, the purchaser s obligation is a test, applied at the 15 time of the sale transaction, and does not outlive the 16 transition from one employer to the other. 17 States, Se. & Sw. Areas Health & Welfare Fund v. Cullum, 973 18 F.2d 1333, 1338 (7th Cir. 1992) ( The time for determining 19 whether the requirement in section 1384(a)(1)(A) has been 20 met is at the time of the sale, not afterwards. ); Jaspan v. 21 Certified Indus., Inc., 645 F. Supp. 998, 1005 (E.D.N.Y. 22 1985) (same). 4 In my See Cent. 1 The evident purpose of the condition is to establish 2 continuity between the obligations of the seller immediately 3 prior to the sale and the obligations of the buyer 4 immediately thereafter. 5 assets subject to the collective bargaining agreement of the 6 seller (or enter into one of its own), and thus prevents the 7 buyer from severing the physical assets of the business from 8 the human capital that worked them. 9 to resell the assets or move the business elsewhere, and 10 thereby avoid assuming the seller s obligations under the 11 plan, then the seller will be assessed withdrawal liability; 12 the seller can avoid liability only if the buyer inherits 13 the seller s contribution obligations going forward. 14 analogous provision is § 1398(1), which states that no 15 withdrawal liability is incurred following certain changes 16 in ownership structure, such as mergers and consolidations, 17 so long as the change causes no interruption in employer 18 contributions or obligations to contribute under the plan. 19 29 U.S.C. § 1398(1). It requires the buyer to take the So if the buyer intends An 20 Once the third condition is satisfied, that is, once 21 the seller s contribution obligation passes to the buyer, 22 the plan suffers no harm on account of the transaction 5 1 alone. The purchaser may later increase or reduce the 2 aggregate number of hours worked by its employees (with such 3 consequences as the CBA and the statute may provide); but 4 these are operational decisions that the seller was free to 5 make if there had been no sale. 6 buyer is in the shoes of the seller, is that the buyer may 7 go wherever the seller could have gone. What comes after, once the 8 9 III 10 The transaction at issue complied with the sale-of- 11 assets exemption from withdrawal liability. Under the CBA 12 to which HOP and Approved were both signatories, employers 13 are required to make contributions to the Local 553 Pension 14 Fund (the Fund ) for all hours of which pay is drawn by an 15 employer for each of his employees covered by the collective 16 bargaining agreement at a specified hourly rate which 17 increases annually (subject to a 1700 hour cap per employee 18 per year). 19 relevant contribution base unit is therefore each hour 20 worked by covered employees. 21 Purchase Agreement duly provides (adapting the wording of 22 the statute) that Approved shall make contributions to the As the majority opinion demonstrates, the See id. § 1301(a)(11). 6 The 1 Local 553 Pension Fund . . . for substantially the same 2 number of contribution base units for which [HOP] had an 3 obligation to contribute with respect to the operations 4 covered by the Teamster s Fund. 5 as well as Approved s express assumption of HOP s CBA and 6 Approved s own CBA with Teamster s Local 553, Approved 7 undertook substantially the same contribution obligation 8 that HOP had prior to the sale: to contribute a particular 9 amount for each hour worked by its covered employees. 10 sale, HOP had no obligation to maintain any particular 11 absolute contribution level from month to month or year to 12 year; the statute demands no more from Approved. 13 By virtue of this wording, Pre- The buyer s necessary obligation is in no way 14 undermined by the proviso in the Purchase Agreement that it 15 does not limit [Approved s] right to discharge, lay off or 16 hire employees or otherwise to manage the operations of the 17 Business, including the right to amend, revise or terminate 18 any collective bargaining agreement currently in effect and, 19 as a consequence, reduce to any extent the number of 20 contribution base units with respect to which [Approved] has 21 an obligation to contribute to any plan. 22 an admirable summary of the right that HOP enjoyed prior to 7 This proviso is 1 the transaction, and that Approved enjoys under substantive 2 labor law and the CBA. 3 enjoys that same right. Every other contributor to the Fund 4 5 6 IV The majority opinion matters because it can be read to 7 say (though it does not hold) that a purchaser of assets 8 must agree not to reduce its plan contributions (i.e., not 9 to reduce the number of hours worked by its employees) 10 forever, come hell or high water. Of course, this would 11 render many businesses unsalable. Any obligation to 12 maintain historical contribution levels into the future, 13 perpetual or not, raises radical and expensive 14 uncertainties. 15 of the $3.6 million purchase price, is imposed because the 16 statutory undertaking recited in the Purchase Agreement was 17 qualified by a proviso that affirms the right of Approved to 18 control the business going forward. 19 punishing liability may compel sellers to insist on an 20 undertaking by the purchaser that omits the proviso and that 21 therefore might be read to guarantee the seller s historical 22 contribution levels ad infinitum. HOP s withdrawal liability, fully one-third 8 The prospect of such a But what rational buyer 1 would be willing to acquire a business if it had to make 2 such a commitment, and assume unknown risks for an unknown 3 period? 4 I would reverse. 9