1 The Honorable Richard J. Sullivan, of the United States District Court for the… v. Local 553 Pension Fund UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4…

1 The Honorable Richard J. Sullivan, of the United States
District Court for the Southern District of New York, sitting by
designation.
10-3889-cv
HOP Energy, L.L.C. v. Local 553 Pension Fund
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2011 7
8
(Argued: October 21, 2011 Decided: May 3, 2012) 9
10
Docket No. 10-3889-cv 11
12
13
14
HOP E NERGY , L.L.C., 15
16
Plaintiff-Appellant, 17
18
-v.- 19
20
L OCAL 553 P ENSION F UND , 21
22
Defendant-Appellee. 23
24
25
26
Before: 27
J ACOBS , Chief Judge, W ESLEY , Circuit Judge, 28
and S ULLIVAN , District Judge.*
29
30
Appeal from a judgment of the United States District 31
Court for the Southern District of New York (Koeltl, J.), 32
which confirmed an arbitration award in favor of Local 553 33
Pension Fund. The district court held that HOP Energy was 34
not exempt from withdrawal liability under the Multi- 35
Employer Pension Plan Amendments Act (“MPPAA”) because the 36
purchaser of HOP’s New York City operating division lacked 37
an obligation to contribute “substantially the same number 38
of contribution base units” to the pension fund post-sale as 39

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2
HOP had contributed pre-sale. We agree. Here, the 1
“contribution base units” were hours of employee pay. 2
Although the purchaser of HOP’s New York City operating 3
division had an obligation to contribute to the pension fund 4
at the same contribution base unit rate, it had no 5
obligation to contribute substantially the same number of 6
hours of employee pay. Therefore, HOP is not exempt from 7
withdrawal liability. 8
9
Chief Judge Jacobs dissents by separate opinion. 10
11
AFFIRMED. 12
13
14
L INDA L. M ORKAN (Frank F. Coulom, Jr., on the brief), 15
Robinson & Cole LLP, Hartford, CT, for Plaintiff- 16
Appellant. 17
18
E UGENE S. F RIEDMAN (William K. Wolf, Anusha Rasalingam, 19
Cristina E. Gallo, on the brief), Friedman & Wolf, 20
New York, NY, for Defendant-Appellee. 21
22
E RIC F IELD , Assistant Chief Counsel (Israel Goldowitz, 23
Chief Counsel, Karen L. Morris, Deputy Chief 24
Counsel, Beth A. Bangert & Richard Luna, 25
Attorneys, on the brief), Pension Benefit Guaranty 26
Corporation, Washington, D.C., for Amicus Curiae 27
Pension Benefit Guaranty Corporation. 28
29
30
31
W ESLEY , Circuit Judge: 32
33
I. 34
Plaintiff-Appellant HOP Energy, L.L.C. (“HOP”) delivers 35
fuel oil and provides heating services to homes and 36
businesses in Massachusetts, Connecticut, Rhode Island, New 37
Jersey, Pennsylvania, and Delaware through independent 38
operating divisions. Prior to May 12, 2007, it serviced New 39

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3
York City customers through its Madison Oil (“Madison”) 1
operating division. Madison was a “union shop” and had 2
signed the Teamsters Local 553 2004-07 Master Collective 3
Bargaining Agreement (the “2004-07 Master CBA”). On May 12, 4
2007, HOP sold 100% of Madison’s operating assets to 5
Approved Oil Company (“Approved”), also a signatory to the 6
2004-07 Master CBA. 7
Teamsters Local 553 has a multi-employer pension fund 8
under the Employee Retirement Income Security Act (“ERISA”). 9
The 2004-07 Master CBA based signatory contributions on the 10
number of hours respective employees worked. 11
To effectuate Madison’s sale, HOP and Approved entered 12
into an Asset Purchase Agreement (“APA”). The APA provided: 13
[Approved] shall make contributions to the Local 14
553 Pension Fund (the “Teamsters Fund”) for 15
substantially the same number of contribution base 16
units for which [HOP] had an obligation to 17
contribute with respect to the operations covered by 18
the Teamsters Fund. Notwithstanding the previous 19
sentence and except as otherwise provided in Section 20
12.1, nothing in this Section shall impair or limit 21
the Purchaser’s right to discharge, lay off, or hire 22
employees or otherwise to manage the operations of 23
the Business, including the right to amend, revise 24
or terminate any collective bargaining agreement 25
currently in effect and, as a consequence, reduce to 26
any extent the number of contribution base units 27
with respect to which [Approved] has an obligation 28
to contribute to any plan. 29
(emphasis added). 30

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4
Following the sale, HOP ceased operations in New York 1
City and also ceased contributing to the Local 553 Pension 2
Fund. The fund’s sponsor assessed HOP withdrawal liability 3
for $1,204,007. HOP asked the fund to reconsider the 4
assessment, claiming that the sale was exempt from 5
withdrawal liability because the Madison sale satisfied 29 6
U.S.C. § 1384(a)(1) as a bona fide asset sale. The fund 7
upheld its assessment, and HOP commenced an arbitration to 8
challenge its liability. 9
Prior to the arbitration, HOP and Local 553 stipulated 10
that the asset sale satisfied §§ 1384(a)(1)(B) (bond 11
requirement) and 1384(a)(1)(C) (requirement that the seller 12
remain secondarily liable for five years after the sale). 13
Therefore, the only issue for the arbitrator was whether 14
Approved had a post-sale obligation to contribute 15
“substantially the same number of contribution base units” 16
as HOP. 29 U.S.C. § 1384(a)(1)(A). The arbitrator 17
concluded that the sale did not satisfy § 1384(a)(1)(A) 18
because the APA specifically disclaimed the purported 19
contribution obligation. The district court agreed; HOP 20
timely appealed. 21
22

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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
II. 1
We have yet to decide the standard of review for an 2
arbitrator’s finding that a party does not qualify for an 3
exemption from withdrawal liability under 29 U.S.C. 4
§ 1384(a)(1). Local 553 and amicus curiae Pension Benefit 5
Guaranty Corporation 1 (“PBGC”) argue for “clear error” 6
review, while HOP argues for de novo review. The question 7
presented is inherently a question of law as it requires 8
review of contract language juxtaposed to a statutory 9
obligation. Other courts of appeals have found the proper 10
standard of review to be de novo; we agree. See Bowers v. 11
Andrew Weir Shipping, Ltd., 27 F.3d 800, 804-05 (2d Cir. 12
1994) (cataloging other cases and presuming, but not 13
deciding, that the standard of review was de novo). 14
III. 15
To qualify for the sale of assets exemption from 16
withdrawal liability, a purchaser must have substantially 17
the same post-sale “obligation to contribute” to the pension 18

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6
fund as the seller had pre-sale. 29 U.S.C. § 1384(a)(1)(A). 1
The MPPAA defines an “obligation to contribute” as one 2
arising “(1) under one or more collective bargaining (or 3
related) agreements, or (2) as a result of a duty under 4
applicable labor-management relations law.” 29 U.S.C. 5
§ 1392(a). It defines a “contribution base unit” as “a unit 6
with respect to which an employer has an obligation to 7
contribute under a multiemployer plan.” 29 U.S.C. 8
§ 1301(a)(11). 9
Before HOP sold Madison to Approved, it had a year-to- 10
year ongoing ERISA obligation to maintain a threshold level 11
of contribution base units. If HOP reduced its contribution 12
base units by 70%, or partially ceased its contributions in 13
a given year, it would have been subject to partial 14
withdrawal liability. 29 U.S.C. § 1385. If it permanently 15
went out of business or terminated Madison’s operations, it 16
would have been subject to complete withdrawal liability. 17
29 U.S.C. § 1383. The MPPAA seeks to keep this pre-sale 18
contribution obligation constant to maintain the financial 19
stability of the fund; a sale of assets is only exempt from 20
withdrawal liability if the purchaser assumes substantially 21

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2 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
the same “obligation to contribute” as the seller had pre- 1
sale. 2
2
Here, the “contribution base unit” was hours of 3
employee pay. The 2004-07 Master CBA obligated HOP to 4
contribute to the pension fund based on the hours of pay its 5
Madison employees worked. See 29 U.S.C. §§ 1301(a)(11), 6
1392(a). Thus, before the sale, HOP had a year-to-year 7
ongoing ERISA obligation to maintain a threshold level of 8
hours of employee pay. Therefore, for HOP to qualify for 9
the sale of assets exemption, Approved had to assume 10
substantially the same obligation: Approved had to have an 11
obligation to contribute substantially the same hours of 12
employee pay as HOP had contributed pre-sale. 13
HOP argues that Approved had the requisite contribution 14
obligation because Approved simply “stepped into HOP’s 15
shoes.” According to HOP, where HOP previously had 16
contributed for a Madison employee’s “hour of pay,” Approved 17
would now have an identical contribution obligation. The 18
problem with HOP’s argument, however, is that it conflates 19

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8
two distinct terms: (1) contribution base units and (2) 1
contribution base unit rates. HOP’s argument is that 2
Approved had an obligation to contribute to the fund at the 3
same rate. We agree that Approved had this obligation. But 4
Approved had no obligation to maintain substantially the 5
same number of “hours of pay.” Therefore, the sale did not 6
qualify HOP for an exemption from withdrawal liability. 7
Other sections of the statute support our view that 8
“contribution base unit” and “contribution base unit rate” 9
are distinct. For instance, when a plan assesses 10
withdrawal liability, it must calculate the annual 11
withdrawal liability payment, which, in pertinent part, is 12
the product of “the average annual number of contribution 13
base units” and the “highest contribution rate at which the 14
employer had an obligation to contribute.” 29 U.S.C. 15
§ 1399(c)(1)(C)(i) (emphases added). In another section, 16
and as mentioned earlier, the MPPAA explains that an 17
employer partially withdraws from a plan and is subject to 18
partial withdrawal liability when its contributions decline 19
by at least 70% measured by comparing the number of 20
contribution base units from year-to-year. 29 U.S.C. 21
§ 1385(b). Under each of these sections, one looks at the 22

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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
“number of hours of pay” as the “contribution base unit.” 1
“[W]e read statutes as a whole, with no section interpreted 2
in isolation from the context of the whole Act.” United 3
States v. Al Kassar, 660 F.3d 108, 124 (2d Cir. 2011) 4
(internal quotation marks omitted). 5
It is clear from the sale agreement that Approved had 6
no “obligation to contribute” substantially the same number 7
of hours of pay as HOP had contributed pre-sale. For one, 8
the APA specifically disclaimed any such obligation. In 9
addition, HOP offers no language in the 2004-07 Master CBA, 10
any other collective bargaining agreement, or any 11
applicable labor management relations law that obligated 12
Approved to contribute substantially the same number of 13
hours of pay as HOP had contributed pre-sale. 3 See 29 14
U.S.C. § 1392(a). As the arbitrator explained: 15
Nothing in the union-employer agreements in the 16
record [those between Local 553 and Approved] 17
require[d] Approved, in respect to the operations of 18
HOP, which for all practical purposes was the same 19
as Approved’s, to keep a certain number of 20
employees, whether from Approved’s ranks or HOP’s, 21
on the payroll to achieve a contribution base unit 22

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10
level that would remain substantially the same as 1
HOP’s pre-sale. 2
We agree with the district court that Approved lacked an 3
“obligation to contribute . . . substantially the same 4
number of contribution base units” to the pension fund as 5
HOP had contributed pre-sale. 6
Finally, it makes no difference that Approved might 7
actually have contributed to the plan based on 8
substantially the same number of hours of pay as HOP had 9
contributed pre-sale. Section 1384(a)(1)(A) focuses on 10
the purchaser’s obligation at the time the sale closes and 11
not what happens after the fact. Cent. States, Se. & Sw. 12
Areas Health & Welfare Fund, 973 F.2d at 1338. 13
IV. 14
HOP next argues that the arbitrator erred by excluding 15
extrinsic evidence about its intent when entering the APA. 16
New York law governs the APA. Under New York law, a court 17
must give full effect to unambiguous contract terms. See 18
Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 19
(2002). Extrinsic evidence cannot be used to vary the 20
terms of a facially unambiguous contract. See Chimart 21
Assocs. v. Paul, 66 N.Y.2d 570, 572 (1986). With 22
unambiguous contracts, a party’s subjective intent and 23

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11
understanding of the terms is irrelevant. Additionally, 1
under the MPPAA, it is the arbitrator who determines 2
whether a contract is ambiguous. Joseph Schlitz Brewing 3
Co. v. Milwaukee Brewery Worker’s Pension Plan, 3 F.3d 994, 4
999 (7th Cir. 1993). Here, the arbitrator found the 5
contract unambiguous. This was not error. 6
V. 7
The dissent presses for reversal because, it asserts, 8
the majority opinion views the purchaser’s obligation to 9
contribute as ongoing and, apparently, perpetual. 10
Dissenting Op. at 3-4. But, as the dissent recognizes, the 11
duration of the buyer’s obligation to contribute was 12
neither raised by the parties nor decided by this majority 13
opinion. The sole issue presented for review was whether, 14
at the time of sale, Approved had substantially the same 15
obligation to contribute as HOP. We think it clear 16
Approved did not. 17
Our dissenting brother fears that our decision can be 18
read to imply an “obligation to maintain historical 19
contribution levels into the future.” Dissenting Op. at 8. 20
We see no reason to decide an issue out of fear that some 21
will misunderstand our efforts here when the parties never 22
raised the issue. 23

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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
Simply put, 29 U.S.C. § 1384(a)(1)(A) does not address 1
the duration of the purchaser's obligation to contribute. 2
It asks only whether the purchaser had the same obligation 3
to contribute as the seller at the time of sale. If the 4
plain language of the statute impairs the ability of an 5
employer to sell its business (we are not sure it does), as 6
our dissenting brother fears, the problem lies with the 7
statute and not this Court. 8
Judges are not statutory fix-it-folk. No one, 9
including our dissenting brother, has argued that the 10
statute imposes an absurd result. See Green v. Bock 11
Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., 12
concurring). While we do not dispute that the dissent 13
raises an issue of concern, we do not feel called upon to 14
address it. 4
15
CONCLUSION 16
HOP has not demonstrated that Approved was obligated 17
to contribute substantially the same number of 18
“contribution base units” (hours of pay) as HOP had 19
contributed pre-sale. The arbitrator did not err by 20

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13
excluding extrinsic evidence of the parties’ intent when 1
entering the transaction because the APA was unambiguous. 2
We therefore AFFIRM the district court’s judgment. 3
AFFIRMED. 4
5
6

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DENNIS JACOBS, Chief Judge, dissenting:
1
I agree with much of the majority opinion; but because 2
I part company on one decisive point, and urge an analysis 3
that was not expressly argued on appeal, I respectfully 4
dissent. 5
Under the Multiemployer Pension Plan Amendments Act of 6
1980 (“MPPAA”), an employer that withdraws from a plan-- 7
either by ending contributions or by dipping below 30% of 8
its contribution level--is liable for its proportionate 9
share of the unfunded vested benefits, with exceptions. See 10
29 U.S.C. §§ 1381, 1383, 1385. If a company ceases making 11
contributions because it has sold its assets, the MPPAA 12
provides an exemption from withdrawal liability upon three 13
conditions, including that the purchaser undertakes “an 14
obligation to contribute to the plan with respect to the 15
operations for substantially the same number of contribution 16
base units for which the seller had an obligation to 17
contribute to the plan.” Id. § 1384(a)(1)(A). Here, the 18
buyer undertook just such an obligation when it stepped into 19
the seller’s shoes pursuant to the Asset Purchase Agreement 20
(the “Purchase Agreement”). Because the buyer’s post-sale 21
obligations were identical to the seller’s obligations pre- 22
sale, the transaction complied with the sale-of-assets 23
exemption. 24

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2
I 1
Under the sale-of-assets exemption from withdrawal 2
liability, a seller is deemed to have withdrawn from a 3
multi-employer pension plan following a bona fide arm’s- 4
length asset sale unless three conditions are satisfied. It 5
is stipulated that two of these conditions have been 6
satisfied here, in the sale of Madison Oil by HOP Energy, 7
LLC, to Approved Oil Company. First, Approved has posted a 8
bond (for the greater of the three-year average of HOP’s 9
contributions or its contribution in the year before the 10
sale), payable if Approved withdraws from the plan or 11
defaults within five years of the sale. Id. 12
§ 1384(a)(1)(B). Second, the Purchase Agreement provides 13
that, if Approved withdraws from the plan within five years 14
after the sale, HOP as seller is secondarily liable for any 15
withdrawal liability. Id. § 1384(a)(1)(C). 16
Given compliance with these two conditions, payment of 17
withdrawal liability is secured even if the successor 18
employer withdraws. In this way, the purpose of the 19
statute--the assured funding of multi-employer plans--is 20
achieved. See Park S. Hotel Corp. v. N.Y. Hotel Trades 21
Council, 851 F.2d 578, 580 (2d Cir. 1988); see also 29 22
U.S.C. § 1369(a) (imposing liability where “a principal 23

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3
purpose of any person in entering into any transaction is to 1
evade liability to which such person would be subject” under 2
the MPPAA). Even so, however, compliance with those two 3
conditions secures withdrawal liability only if the buyer 4
uses the assets to continue the business: The triggering 5
event--the buyer’s withdrawal--can occur only if the buyer 6
first assumes the obligation to contribute. 7
The buyer’s obligation to contribute is assured by the 8
third condition, the one at issue on this appeal: that “the 9
purchaser [have] an obligation to contribute to the plan 10
with respect to the operations for substantially the same 11
number of contribution base units for which the seller had 12
an obligation to contribute to the plan.” Id. 13
§ 1384(a)(1)(A). An “obligation to contribute” may arise, 14
as here, under a collective bargaining agreement (“CBA”). 15
Id. § 1392(a)(1). 16
17
II 18
As the majority opinion reads the third condition, the 19
buyer’s ongoing obligation is to contribute in the future at 20
substantially the same level as the seller’s contributions 21
as of the transaction date. One remarkable feature of that 22
reading is that it has no end-point. The majority opinion 23

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4
does not reach that issue, and the parties do not argue it. 1
But it seems to me decisive that the obligation recognized 2
in the majority opinion runs to an unspecified future, or in 3
perpetuity. That would be an unaccountable omission in a 4
statute that elsewhere (as set out above) fixes exact time 5
parameters for the obligations it creates: the period of the 6
bond (five years), the contribution periods for calculating 7
the bond amount (three years or one, depending), the period 8
of the seller’s indemnity for the buyer’s obligation (five 9
years). 10
I do not believe that the third condition requires the 11
buyer to commit to maintain a historical level of 12
contributions for an unknown time in the future. In my 13
view, the purchaser’s obligation is a test, applied at the 14
time of the sale transaction, and does not outlive the 15
transition from one employer to the other. See Cent. 16
States, Se. & Sw. Areas Health & Welfare Fund v. Cullum, 973 17
F.2d 1333, 1338 (7th Cir. 1992) (“The time for determining 18
whether the requirement in section 1384(a)(1)(A) has been 19
met is at the time of the sale, not afterwards.”); Jaspan v. 20
Certified Indus., Inc., 645 F. Supp. 998, 1005 (E.D.N.Y. 21
1985) (same). 22

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5
The evident purpose of the condition is to establish 1
continuity between the obligations of the seller immediately 2
prior to the sale and the obligations of the buyer 3
immediately thereafter. It requires the buyer to take the 4
assets subject to the collective bargaining agreement of the 5
seller (or enter into one of its own), and thus prevents the 6
buyer from severing the physical assets of the business from 7
the human capital that worked them. So if the buyer intends 8
to resell the assets or move the business elsewhere, and 9
thereby avoid assuming the seller’s obligations under the 10
plan, then the seller will be assessed withdrawal liability; 11
the seller can avoid liability only if the buyer inherits 12
the seller’s contribution obligations going forward. An 13
analogous provision is § 1398(1), which states that no 14
withdrawal liability is incurred following certain changes 15
in ownership structure, such as mergers and consolidations, 16
so long as “the change causes no interruption in employer 17
contributions or obligations to contribute under the plan.” 18
29 U.S.C. § 1398(1). 19
Once the third condition is satisfied, that is, once 20
the seller’s contribution obligation passes to the buyer, 21
the plan suffers no harm on account of the transaction 22

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6
alone. The purchaser may later increase or reduce the 1
aggregate number of hours worked by its employees (with such 2
consequences as the CBA and the statute may provide); but 3
these are operational decisions that the seller was free to 4
make if there had been no sale. What comes after, once the 5
buyer is in the shoes of the seller, is that the buyer may 6
go wherever the seller could have gone. 7
8
III 9
The transaction at issue complied with the sale-of- 10
assets exemption from withdrawal liability. Under the CBA 11
to which HOP and Approved were both signatories, employers 12
are required to make contributions to the Local 553 Pension 13
Fund (the “Fund”) for “all hours of which pay is drawn by an 14
employer for each of his employees covered by the collective 15
bargaining agreement” at a specified hourly rate which 16
increases annually (subject to a 1700 hour cap per employee 17
per year). As the majority opinion demonstrates, the 18
relevant “contribution base unit” is therefore each hour 19
worked by covered employees. See id. § 1301(a)(11). The 20
Purchase Agreement duly provides (adapting the wording of 21
the statute) that Approved “shall make contributions to the 22

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7
Local 553 Pension Fund . . . for substantially the same 1
number of contribution base units for which [HOP] had an 2
obligation to contribute with respect to the operations 3
covered by the Teamster’s Fund.” By virtue of this wording, 4
as well as Approved’s express assumption of HOP’s CBA and 5
Approved’s own CBA with Teamster’s Local 553, Approved 6
undertook substantially the same contribution obligation 7
that HOP had prior to the sale: to contribute a particular 8
amount for each hour worked by its covered employees. Pre- 9
sale, HOP had no obligation to maintain any particular 10
absolute contribution level from month to month or year to 11
year; the statute demands no more from Approved. 12
The buyer’s necessary obligation is in no way 13
undermined by the proviso in the Purchase Agreement that it 14
does not “limit [Approved’s] right to discharge, lay off or 15
hire employees or otherwise to manage the operations of the 16
Business, including the right to amend, revise or terminate 17
any collective bargaining agreement currently in effect and, 18
as a consequence, reduce to any extent the number of 19
contribution base units with respect to which [Approved] has 20
an obligation to contribute to any plan.” This proviso is 21
an admirable summary of the right that HOP enjoyed prior to 22

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8
the transaction, and that Approved enjoys under substantive 1
labor law and the CBA. Every other contributor to the Fund 2
enjoys that same right. 3
4
IV 5
The majority opinion matters because it can be read to 6
say (though it does not hold) that a purchaser of assets 7
must agree not to reduce its plan contributions (i.e., not 8
to reduce the number of hours worked by its employees) 9
forever, come hell or high water. Of course, this would 10
render many businesses unsalable. Any obligation to 11
maintain historical contribution levels into the future, 12
perpetual or not, raises radical and expensive 13
uncertainties. HOP’s withdrawal liability, fully one-third 14
of the $3.6 million purchase price, is imposed because the 15
statutory undertaking recited in the Purchase Agreement was 16
qualified by a proviso that affirms the right of Approved to 17
control the business going forward. The prospect of such a 18
punishing liability may compel sellers to insist on an 19
undertaking by the purchaser that omits the proviso and that 20
therefore might be read to guarantee the seller’s historical 21
contribution levels ad infinitum. But what rational buyer 22

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9
would be willing to acquire a business if it had to make 1
such a commitment, and assume unknown risks for an unknown 2
period? 3
I would reverse. 4

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