Baker et al v. AmplifyBio, LLC et al

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
In re: 	:
: 	Case No. 25-52140
AmplifyBio, LLC, et al., 	: 	Chapter 11
: 	Judge Nami Khorrami
Debtors. 	:
:
:
Tessa Baker, et al., 	:
:
Plaintiffs, 	:
:
v. 	: 	Adv. Pro No. 25-02026
:
AmplifyBio, LLC, et al., 	:
:
Defendants. 	:
OPINION AND ORDER DENYING THE DEFENDANTS’ MOTIONS FOR
JUDGMENT ON THE PLEADINGS AND THE PLAINTIFFS’ CROSS-MOTION FOR
JUDGMENT ON THE PLEADINGS (DOC. 52, 54, 59, 68)
________________________________________________________________
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: October 5, 2026
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I. 	Introduction
This case involves the application of the Worker Adjustment and Retraining Notification
Act of 1988 (the “WARN Act”), 29 U.S.C. §§ 2101.- 2109. 	On May 16, 2025 (the “Petition
Date”), AmplifyBio, LLC (“AmplifyBio”) filed its chapter 11 petition. Approximately six weeks
before the Petition Date, on April 4, 2025, AmplifyBio terminated substantially all its employees
by sending termination of employment letters to 212 employees. 	On May 22, 2025, plaintiffs,
Tessa Baker (“Ms. Baker”) and Elizabeth Perry (“Ms. Perry”) (collectively, the “Plaintiffs”), who
were both employed by AmplifyBio until April 4, 2025, commenced this adversary proceeding on
their own behalf and as a putative class action on behalf of all other employees of AmplifyBio who
were terminated at the same time.1 	The Plaintiffs assert that AmplifyBio and several of its
members violated the WARN Act by not giving them sixty days’ advance notice of their
terminations. They also assert violation of Ohio’s Prompt Pay Act, Ohio Rev. Code § 4113.15;
and violation of Ohio Rev. Code § 2307.60, which provides for civil liability for criminal acts.
Pending before the Court are three motions for judgment on the pleadings under Civil Rule
12(c), made applicable in this adversary proceeding by Bankruptcy Rule 7012(b), filed by the
Defendants.2 The Plaintiffs have filed a cross-motion for partial judgment on the pleadings, and
1 	The operative complaint is the First Amended Class Action Complaint In An Adversary Proceeding, (the
“FAC”), Dkt. No. 31. The Plaintiffs estimate that there are approximately 212 members in the class. To date, the
Plaintiffs have not filed a motion for class certification under Federal Rule of Civil Procedure (“Civil Rule”) 23, made
applicable by Federal Rule of Bankruptcy Procedure (“Bankruptcy Rule”) 7023, and no issues relating to the class
action allegations are currently before the Court. “Thus, as currently postured, this is a suit by the [two] named
Plaintiffs against” the named defendants. Milles v. Fifth Third Bank, Nat’l Ass’n, 758 F. Supp.3d 766, 773 (S.D. Ohio
2024).
2 	The defendants in this adversary proceeding were originally AmplifyBio, Battelle Memorial Institute
(“Batelle”), Viking Global Investors Limited Partnership (“Viking”), Casdin Capital Partners, LLC (“Casdin”), and
Narya Capital Management, LLC (“Narya”). The Court will refer to Viking, Casdin, and Narya collectively as the
“Investor Defendants.” 	On December 12, 2025, AmplifyBio and Jason M. Torf, not individually, but as Trustee of
the AB Liquidating Trust (the “Liquidating Trustee”) jointly filed a Notice of Substitution of Parties (the “Substitution
Notice”) (Doc. 74) indicating that the Liquidating Trustee had been substituted for all purposes for AmplifyBio. The
Liquidating Trustee stated that he “adopts in their entirety” all of AmplifyBio’s previous filings in this adversary
proceeding. Liquidating Trustee’s Reply Mem. 1 n.2, Dkt. No. 81. Therefore, the Court will refer to any filings made
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the parties have filed responsive and reply memoranda.3 On August 19, 2026, the Court held a
hearing (the “Hearing”), where the parties presented oral arguments regarding the Motions.4 At
the end of the Hearing, the Court asked whether any party wished to file any supplemental
memoranda regarding the issues discussed, but all parties elected to stand on their existing
memoranda and the arguments made at the Hearing. The Court therefore took the matter under
in this adversary proceeding by AmplifyBio as though they had been made by the Liquidating Trustee and will refer
to “AmplifyBio” only where its actions are relevant to this litigation. The Court notes that, although no party has
objected or otherwise responded to the Substitution Notice, Civil Rule 25(c) (made applicable by Bankruptcy Rule
7025) provides that in the event of a transfer of interest, the action continues “by or against the original party unless
the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion
must be served as provided in Rule 25(a)(3).” Fed. R. Civ. P. 25(c). The Liquidating Trustee is accordingly directed
to file a motion for substitution (or to submit an agreed order if all parties agree) formally substituting the Liquidating
Trustee for AmplifyBio. The term “Defendants” refers collectively to all the defendants (including the Liquidating
Trustee).
3 	There are three motions for judgment on the pleadings filed by the Defendants: Motion For Judgment On
The Pleadings filed by AmplifyBio (the “Liquidating Trustee Motion”) (Doc. 52); Defendant Battelle Memorial
Institute’s Motion for Judgment on the Pleadings (the “Battelle Motion”) (Doc. 54); Defendants Viking Global
Investors Limited Partnership, Casdin Capital Partners, LLC, and Narya Capital Management, LLC’s Joint Motion
for Judgment on the Pleadings (the “Investor Defendants’ Motion”) (Doc. 59). Where appropriate, these will be
referred to collectively as the “Defendants’ Motions.” The Plaintiffs filed a combined opposition brief responding to
all three motions, which included their own partial cross-motion for judgment on the pleadings on one of the
Defendants’ affirmative defenses. Plaintiffs Tessa Baker and Elizabeth Perry’s (1) Combined Response in Opposition
to Defendants’ Three Motions For Judgment On The Pleadings (ECF Nos. 52, 54, 59); and (2) Motion for Judgment
on the Pleadings on the Faltering Company Affirmative Defense (Doc. 68). As appropriate, this document will be
referred to as the “Plaintiffs’ Response” or the “Plaintiffs’ Cross-Motion.” For clarity of reference, all citations to this
document will be to the “Plaintiffs’ Response” regardless of which portion of the document is cited. As appropriate,
the Court will refer to the Defendants’ Motions and the Plaintiffs’ Cross-Motion collectively as the “Motions.” The
Defendants filed memoranda that were both replies in support of their motions as well as memoranda in opposition to
the Plaintiffs’ Cross-Motion: the Consolidated Reply of Jason M. Torf, Not Individually, but as Trustee of the AB
Liquidating Trust, (I) in Support of Debtor/Defendant’s Motion for Judgment on the Pleadings (Docket No. 52) and
(II) Response to Plaintiff’s Motion for Judgment on the Pleadings on the Faltering Company Affirmative Defense
(Docket No. 68) (the “Liquidating Trustee Reply”) (Doc. 81); Defendants Viking Global Investors Limited
Partnership, Casdin Capital Partners, LLC, and Narya Capital Management, LLC’s Reply in Support of Motion for
Judgment on the Pleadings [Doc. 59] and Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Judgment
on the Pleadings on the Faltering Company Defense [Doc. 68] (the “Investor Defendants’ Reply”) (Doc. 82); and
Defendant Battelle Memorial Institute’s Reply in Support of its Motion for Judgment on the Pleadings and Response
in Opposition to Plaintiffs’ Motion for Judgment on the Pleadings [Doc. Nos. 54 & 68] (the “Battelle Reply”) (Doc.
83). The Plaintiffs concluded the briefing on the Plaintiffs’ Cross-Motion with Plaintiffs Tessa Baker and Elizabeth
Perry’s Reply Brief in Support of their Motion for Judgment on the Pleadings on the Faltering Company Affirmative
Defense (ECF No. 68) (the “Plaintiffs’ Reply”) (Doc. 91).
4 	At the Hearing, Jason Starling appeared on behalf of the Plaintiffs, Gregory Abrams and Thomas Fawkes
appeared on behalf of the Liquidating Trustee, Catherine Strauss, John Cannizzaro and Daniel Swetnam appeared on
behalf of Battelle, and Marc Kessler appeared on behalf of the Investor Defendants.
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advisement.5
The Court has been tasked with determining the following overarching issues.
• 	Have the Plaintiffs sufficiently pled facts to overcome the Liquidating Trustee’s
Motion based on the affirmative defense of “liquidating fiduciary” under the
WARN Act?
• 	Have the Plaintiffs sufficiently pled facts to overcome the Liquidating Trustee’s
Motion based on the affirmative defense of “faltering company” under the WARN
Act?
• 	Have the Plaintiffs sufficiently pled facts to overcome Battelle’s and the Investor
Defendants’ Motions regarding the single employer doctrine under the WARN
Act?
• 	Have the Plaintiffs sufficiently pled facts to overcome the Defendants’ Motions
regarding the Plaintiffs’ claims under Ohio law?
• 	Have the Defendants sufficiently pled bases to overcome the Plaintiffs’ Cross-
Motion which seeks a determination that the Defendants may not rely on the
affirmative defense of “faltering company” under the WARN Act?
The determination of each of these issues involves the resolution of several procedural and
substantive secondary issues that are presented by the parties. For the reasons below, the Motions
are denied.
II. 	Procedural Matters
A. Jurisdiction and Venue
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Amended
General Order 05-02 entered by the United States District Court for the Southern District of Ohio,
referring all bankruptcy matters to this Court. The Plaintiffs assert that this adversary proceeding
is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B), and (O). 	FAC ¶ 9, Dkt. No. 31.
Alternatively, the Plaintiffs assert that it is a core proceeding against the Liquidating Trustee, and
5 	At the Court’s request, a transcript of the Hearing was prepared. Hr’g Tr., Dkt. No. 100.
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the remaining claims are non-core but related to AmplifyBio’s bankruptcy case. Id.¶ 10. And the
Plaintiffs have consented to this Court entering final judgment. Pls.’ Pretrial Statement ¶ II.E-F,
Dkt. No. 60. Each of the Defendants assert that all claims are noncore “related to” proceedings
under 28 U.S.C. § 157(c). 	Inv. Defs. Pretrial Statement ¶ II.F, Dkt. No. 58; Battelle Pretrial
Statement ¶ II.F, Dkt. No. 56; Liquidating Trustee Pretrial Statement ¶ II.F, Dkt. No. 57. 	The
Liquidating Trustee (but not the other Defendants) has consented to entry of final judgment by this
Court. 	Liquidating Trustee Pretrial Statement ¶¶ II.F, II.H, Dkt. No. 57. 	Therefore, as to the
claims against the Liquidating Trustee, this Court may enter a final judgment without the need for
the Court to determine whether those claims are core or noncore.6
The Investor Defendants assert that this adversary proceeding is not a core proceeding and
do not consent to this Court entering final judgment. 	Casdin Answer ¶ 9, Dkt. No. 48; Narya
Answer ¶ 9, Dkt. No. 49; Viking Answer ¶ 9, Dkt. No. 50; Inv. Defs.’ Pretrial Statement ¶ II.F,
Dkt. No. 58. Battelle likewise denies that this action is a core proceeding and does not consent to
entry of a final judgment by this Court. Battelle Answer ¶¶ 9-10, Dkt. No. 46; Battelle Pretrial
Statement ¶ II.F, Dkt. No. 56. The Court agrees that, as to these Defendants, that this action is not
a core proceeding. Given their lack of consent, this Court may not enter final judgment regarding
Battelle and/or the Investor Defendants. 28 U.S.C. § 157(c)(1). But “it is clear that the bankruptcy
6 	Proceedings regarding the allowance and disallowance of claims against the estate are core proceedings under
28 U.S.C. § 157(b)(2)(B), regardless of the specific procedural context in which they arise. Grady v. Quantegy, Inc.
(In re Quantegy, Inc.), 343 B.R. 689, 692 (Bankr. M.D. Ala. 2006) (holding that a WARN Act adversary proceeding
against the debtor in bankruptcy was a core proceeding). Therefore, the Court believes that, as to the Liquidating
Trustee, all the claims asserted herein are likely core proceedings. But the Court need not resolve that issue. Since
the Plaintiffs and the Liquidating Trustee have both consented to this Court entering final judgment, the Court has the
power to enter final judgment on the Plaintiffs’ claims against the Liquidating Trustee. 	28 U.S.C. § 157(c)(2);
Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665, 682-83, 135 S. Ct. 1932, 191 L. Ed. 2d 911 (2015). A noncore
proceeding with consent “functionally has the same effect as a core proceeding, permitting the bankruptcy court to
entertain jurisdiction over the matter and to enter a final judgment, order, or decree.” DuVoisin v. Foster (In re S.
Indus. Banking Corp.), 809 F.2d 329, 331 (6th Cir. 1987).
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court may handle all pretrial proceedings, including the entry of an interlocutory order dismissing
fewer than all of the claims in an adversary complaint.” CONSOL Energy Inc. v. Murray Energy
Holding Co. (In re Murray Energy Holdings Co.), Case No. 19-56885, Adv. Pro. No. 20-2036,
2020 Bankr. LEXIS 1849, at *10 (Bankr. S.D. Ohio July 14, 2020) (quoting O’Toole v. McTaggart
(In re Trinsum Grp., Inc.), 467 B.R. 734, 738-39 (Bankr. S.D.N.Y. 2012)). The Court therefore
retains authority to supervise all pretrial proceedings and enter all pretrial orders, including ruling
on potentially dispositive motions.
B. Impact of Motion to Withdraw Reference
The Investor Defendants (but not the Liquidating Trustee or Battelle) have filed a motion
to withdraw the reference (the “MWR”) of the claims against them from this Court to the District
Court. 	Inv. Defs.’ Am. Joint Mot. to Withdraw Reference, Dkt. No. 26. 	The Plaintiffs have
opposed the MWR, and it was transmitted pursuant to Local Bankruptcy Rule 5011-1 to the
District Court on September 18, 2025. Transmittal to District Ct., Dkt. No. 51.7
A motion to withdraw the reference “does not stay proceedings in a case or affect its
administration. But a bankruptcy judge may, on proper terms and conditions, stay a proceeding
until the motion is decided.” Fed. R. Bankr. P. 5011(c). No party has requested a stay, and “the
bankruptcy court has an obligation to manage its docket and generally will proceed with the case
and the litigation unless a stay is requested and granted.” 9A C OLLIER ON B ANKRUPTCY ¶ 5011.03
(Richard Levin & Henry J. Sommer eds., 16th ed.) (footnote omitted). As the Court noted at the
Hearing, distributions under the confirmed plan of liquidation in this case cannot occur until this
adversary proceeding (at least those claims asserted against the Liquidating Trustee) is resolved.
7 	At the Hearing, counsel for the Investor Defendants advised that the MWR remains under consideration
before the District Court. Hr’g Tr. 5:1 – 6:9, Dkt. No. 100.
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Therefore, this Court will proceed unless and until the reference is withdrawn. Hr’g Tr. 5:3-5:9,
Dkt. No. 100. Even if the reference is withdrawn, only the Investor Defendants have sought that
relief, so the case will proceed in this Court as to the Liquidating Trustee and Battelle.
III. 	Factual Background8
Ms. Baker and Ms. Perry are two former employees of AmplifyBio who were laid off on
April 4, 2025. FAC ¶¶ 13-14, Dkt. No. 31. AmplifyBio was a Delaware limited liability company
with its principal place of business in Franklin County, Ohio, and was owned, operated, and
controlled by Battelle and the Investor Defendants. Id. ¶ 15. Battelle is the “largest independent
non-profit applied science and technology corporation in the world.” Id. ¶ 16. Each of the Investor
Defendants is a private equity firm that invests in and controls a variety of portfolio companies.
Id. ¶¶ 17-19. Each of Battelle and the Investor Defendants “has owned and controlled AmplifyBio
since 2021.” Id. ¶¶ 16-19.
AmplifyBio was created in 2021 when it was spun off from Battelle. FAC ¶ 20, Dkt. No.
31. Battelle “retained de facto and de jure control over its spinoff by placing its key officers or
directors on the board of directors for AmplifyBio.” Id. ¶ 21. Specifically, two officers of Battelle
were named as directors of AmplifyBio. Id. Battelle also received 10,000,000 Class A “units, or
voting shares” of AmplifyBio. 	Id. 	As part of spinning off AmplifyBio, Battelle “solicited and
obtained other outside investors. 	These other outside investors included 	Defendant Viking,
Defendant Casdin, and Defendant Narya.” Id. ¶ 23. The Investor Defendants “received de facto
and de jure control over” AmplifyBio by having their principals serve on AmplifyBio’s board of
8 	The factual background at this stage is based on the allegations in the FAC and “[b]ecause this case reaches
us at the pleading stage, we must accept the allegations in [the] complaint as true. We summarize the facts relying
solely on those allegations, keeping in mind that the evidence developed in discovery may refute them down the road.”
Blackwell v. Nocerini, 123 F.4th 479, 482 (6th Cir. 2024) (citation modified).
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directors and/or receiving voting shares in AmplifyBio. Id. ¶ 24. Specifically, Viking received
6,250,000 Class A voting shares, Casdin received 2,000,000 Class A voting shares, and Narya
received 500,000 Class A voting shares. Id. ¶ 25.9 In addition, Viking and Casdin each appointed
an officer or director to AmplifyBio’s board of directors. Id.
Although it at first appeared to thrive after the spinoff, AmplifyBio had begun to struggle
by 2024. 	It had a net loss of $74,000,000 for 2024. 	FAC ¶ 27, Dkt. No. 31. 	As a result,
AmplifyBio began a “series of cost-cutting and restructuring initiatives, including workforce
reductions, operational streamlining, and decommissioning of non-core assets. This included
closing its California location and reducing its Ohio workforce by twenty-five percent.” Id. But
by February 2025, AmplifyBio only had “cash and cash equivalents of approximately $3,000,000
while its debt was over $30,000,000. It was also in default with its key secured lender, although
it obtained a forbearance.” 	Id. ¶ 28. 	This led Battelle and the Investor Defendants to hire
Accordion Partners, LLC 	to provide restructuring advisory services, and to retain Kasey Rosado
(“Ms. Rosado”), a senior managing director of Accordion, as AmplifyBio’s Chief Restructuring
Officer. Id.
Ms. Rosado’s role was to “engage in a comprehensive review of strategic alternatives for”
AmplifyBio. FAC ¶ 28, Dkt. No. 31. “This included trying to secure additional capital through
equity or debt financing, strategic partnerships, and out-licensing of proprietary technologies. It
also included helping [Battelle, the Investor Defendants and AmplifyBio] explore possible sales
of all or part of” AmplifyBio. 	Id. 	In early April 2025, the Defendants had determined that no
additional capital was forthcoming, and they ceased seeking any for AmplifyBio. 	Instead, they
9 	Each of the Investor Defendants held the membership interests in the name of a wholly owned subsidiary.
Id.
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focused solely on preserving the company’s existing cash and assets while seeking one or more
buyers. 	Id. ¶ 29. 	Battelle and the Investor Defendants “ordered” AmplifyBio to lay off
substantially all of AmplifyBio’s employees and to close the remaining facilities in Ohio. Id. ¶
30. 	Each facility employed at least fifty employees and this resulted in a total of 212 affected
employees losing their jobs. Id.
On April 4, 2025, AmplifyBio sent a WARN Act notice to the State of Ohio and the mayors
of the cities of New Albany and West Jefferson in Ohio. FAC ¶ 31 and Ex. 1, Dkt. No. 31.10 The
same day, AmplifyBio, at the order of Battelle and the Investor Defendants, sent termination letters
to each of the 212 affected employees stating that their employment was being terminated effective
immediately, and that they were not receiving either sixty days’ advance notice or pay in lieu of
notice under the WARN Act. 	Id. ¶ 32 and Ex. 2, Dkt. No. 31.11 	Battelle and the Investor
Defendants “ordered Defendant AmplifyBio” to not give sixty days’ notice or pay in lieu of notice
under the WARN Act. Id. ¶ 33. Instead, Battelle and the Investor Defendants ordered AmplifyBio
to assert the “faltering company” defense. Id. The FAC alleges that the reason for this was so that
Battelle and the Investor Defendants would “recoup more money, or more of their investment,
when selling the business. In other words, rather than pay the employees what they were entitled
to under the WARN Act and comply with the statute, Defendants Battelle, Viking, Casdin, and
Narya wanted to pocket the affected employees’ wages for themselves.” Id.
Following the layoffs, AmplifyBio retained a skeleton staff of twenty-six individuals while
it continued to try to find a buyer. FAC ¶ 34, Dkt. No. 31. The purpose of retaining this skeleton
10 	The Liquidating Trustee admits that Exhibit 1 “appears to be a true and accurate copy of the notice
AmplifyBio sent to the State of Ohio.” Liquidating Trustee Answer ¶ 31.
11 	The Liquidating Trustee admits that Exhibit 2 “appears to be true and accurate copies of the letters received
by the named Plaintiffs.” Liquidating Trustee Answer ¶ 32.
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staff was to maintain the value of AmplifyBio. 	Id. ¶ 35. 	“Stated plainly, Defendants Battelle,
Viking, Casdin, and Narya did not believe they could find a buyer for all or part of Defendant
AmplifyBio if they shut down the company completely.” In April and May 2025, Battelle and the
Investor Defendants operated AmplifyBio as a going concern while trying to find a buyer for its
assets. 	Id. ¶ 36. 	When those efforts proved unsuccessful by May 2025, “Defendants Battelle,
Viking, Casdin, and Narya decided to cease looking for buyers and instead order[ed] Defendant
AmplifyBio to file for Chapter 11 bankruptcy.” On May 16, 2025, AmplifyBio’s board of directors
signed a resolution directing it to file for bankruptcy. Id. Among the individuals who signed this
resolution were Rohan Nirody from Viking and Shaun Rodriguez from Casdin. Id.at ¶ 37.12
The Plaintiffs assert that Battelle and the Investor Defendants collectively had “ample
resources available to them throughout this time to continue the operations of Defendant
AmplifyBio without the need for additional capital from investors, outside financing, a sale of all
or part of the company, or this bankruptcy filing.” 	FAC ¶ 38, Dkt. No. 31. 	“Simply put,
Defendants Battelle, Viking, Casdin, and Narya could have used their own money to continue the
operations of Defendant AmplifyBio. Instead, however, they sought other investors or buyers to
pay for operations rather than themselves.” Id.
The FAC asserts three claims for relief. Count I asserts that the Defendants violated the
WARN Act by not giving sixty days’ advance notice of a “mass layoff” or “plant closing” or pay
in lieu of that notice. FAC ¶¶ 48-53, Dkt. No. 31. The Plaintiffs allege that each of Battelle and
the Investor Defendants was an “employer” who ordered a “mass layoff” or “plant closing” under
the WARN Act and therefore was liable for damages under the WARN Act. Id. ¶ 48. Count II
alleges that each Defendant is liable for a violation of Ohio law requiring prompt payment of
12 	The actual resolution is not before the Court.
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wages, on the theory that the sixty days’ back pay under the WARN Act constitutes wages under
Ohio Rev. Code § 4113.15. Id. ¶¶ 55-60. Count III alleges that each Defendant is liable under
Ohio Rev. Code § 2307.60, which imposes civil liability for criminal acts. 	Because violating
§ 4113.15 is a criminal misdemeanor under Ohio Rev. Code § 4113.99, the Plaintiffs assert that
§ 2307.60 imposes civil liability upon each Defendant. 	The Plaintiffs also assert that they are
entitled to punitive damages and an award of attorney’s fees under Ohio law. Id. ¶¶ 61-67.13
IV. 	Analysis
A. The Civil Rule 12(c) Standard
“A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)
generally follows the same rules as a motion to dismiss the complaint under Rule 12(b)(6).” Bates
v. Green Farms Condo. Ass'n, 958 F.3d 470, 480 (6th Cir. 2020). Therefore, when evaluating a
motion for judgment on the pleadings, the Court “thus must follow the Supreme Court's changes
to the pleading standards in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007).” 	Bates, 958 F.3d at 480; HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir.
2012). On a motion for judgment on the pleadings, “all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment as a matter of law.” Hindel v. Husted,
875 F.3d 344, 346 (6th Cir. 2017) (citation modified); see also Commercial Money Ctr., Inc. v.
Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) (“we construe the complaint in the light
13 	Along with the Defendants’ Motions, the Defendants also filed answers to the FAC. Liquidating Trustee
Answer, Dkt. No. 41; Battelle Answer, Dkt. No. 46; Casdin Answer, Dkt. No. 48; Narya Answer, Dkt. No. 49; Viking
Answer, Dkt. No. 50.
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most favorable to the nonmoving party, accept the well-pled factual allegations as true, and
determine whether the moving party is entitled to judgment as a matter of law.”).
Under the Twombly/Iqbal standard, the court must determine whether the plaintiff has
stated a plausible claim for relief. Willman v. Att'y Gen. of U.S., 972 F.3d 819, 823 (6th Cir. 2020).
And “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. The plausibility standard does not allow the Court to consider how likely it is
that the plaintiff can prove the facts alleged. Twombly, 550 U.S. at 556 (“And, of course, a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.”) (citation modified).
Courts should not give the presumption of truth to allegations that are “conclusory and
bare.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir. 2011). There
must be “factual context that would render them plausible and thus entitle them to a presumption
of truth at this stage in the litigation.” Id. At the same time, “[s]pecific facts are not necessary;
the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (quoting Erickson
v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)). 	“Rule 8 establishes
implicitly, but with unmistakable clarity, that evidence of the claim is not required.” Berk v. Choy,
607 U.S. 187, 193, 146 S. Ct. 546, 223 L. Ed. 2d 463 (2026) (citation modified). “By design, this
system of pleading makes it relatively easy for plaintiffs to subject defendants to discovery—even
for claims that are likely to fail.” Id. at 194.
Questions of credibility and the weight of the evidence are not properly before the Court
on a Civil Rule 12 motion. Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008). “This
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standard does not allow a court to weigh the parties' competing factual allegations and decide
which ones to adopt.” Miller v. Allstate Ins. Co., No. 3:23-CV-00355, 2024 WL 4762858, at *2
(S.D. Ohio Nov. 13, 2024) (citing Jones).
B. Supplementary Documents Which The Court May Consider
Before turning to the merits of the Defendants’ Motions, the Court must first address what
supplementary documents, outside the pleadings, it may consider in evaluating the Motions. 	The
Defendants ask the Court to consider facts contained in two supplementary documents, along with
the allegations in the FAC: the factual assertions made by AmplifyBio in the termination notices
sent to the Plaintiffs (Exhibit 2 to the FAC) and the Declaration of Kasey Rosado (the
“Declaration”) (Exhibit A to the Liquidating Trustee’s Answer). Exhibit 2 consists of copies of
the WARN Act notices (the “Notices” jointly and the “Notice” individually) sent by AmplifyBio
to each of the Plaintiffs on April 4, 2025, advising them that their employment was being
terminated immediately and offering AmplifyBio’s explanation for why no prior notice was
given.14 FAC Ex. 2, Dkt. No. 31; Liquidating Trustee Mot. 8-9, Dkt. No. 52. 	The Declaration
14 	Each of the Notices were signed by AmplifyBio’s Chief Executive Officer, J. Kelly Ganjei. In particular,
the Defendants rely on the following statements made in the Notice sent to the employees:
Over the past several months, AmplifyBio, LLC has been actively engaged in seeking new
capital investment and potential buyers in order to continue operations and preserve jobs. We were
in ongoing discussions with both existing investors and potential outside sources of financing. We
also explored opportunities to sell the business to a strategic buyer.
We believed, in good faith, that if we had given earlier notice of a potential shutdown, it
would have jeopardized these efforts and significantly reduced our chances of securing the necessary
funding or completing a sale. For that reason, we delayed issuing notice while we pursued these
efforts. Despite significant efforts by many individuals within AmplifyBio, LLC, we have been
unable to secure the necessary financing to continue operations. For the past several months,
AmplifyBio, LLC has been in active discussions with its investors, financial institutions, and a
potential purchaser, including, but not limited to, Elevate, to obtain the capital needed to sustain the
business and preserve jobs. Unfortunately, those efforts have not resulted in a successful transaction,
and we have exhausted our options. With no financial means to continue operations, we are left with
no alternative but to wind down the business, which we are currently doing.
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was filed in AmplifyBio’s chapter 11 bankruptcy case on May 16, 2025.15 The Plaintiffs quoted
phrases from the Declaration in two paragraphs of the FAC but did not attach the Declaration as
an exhibit. 	FAC ¶¶ 35-36, Dkt. No. 31. AmplifyBio (and by adoption the Liquidating Trustee)
attached the Declaration to its answer.16 Liquidating Trustee Answer Ex. A, Dkt. No. 41.
The Liquidating Trustee argues that the Court should consider the Declaration in its entirety
because the Plaintiffs “rely” upon the Declaration and that this reliance means that the Plaintiffs
adopted the entire Declaration. Liquidating Trustee Reply 3-4, Dkt. No. 81. And he argues that
the Court can consider the assertions contained in the Notices to establish an affirmative defense
because it was attached as an exhibit to the FAC. 	Liquidating Trustee Mot. 7-9, Dkt. No. 52;
Liquidating Trustee Reply 1, 14, Dkt. No. 81. The Plaintiffs claim that just because they attached
the Notices and referenced the Declaration in the FAC does not automatically mean that they
adopted the full contents of those documents as true. Pls.’ Resp. 37-39, Dkt. No. 68. They assert
that they dispute many of the facts that the Defendants ask the Court to draw from these documents.
Id. 37-39.
Because a motion under Civil Rule 12 tests whether the complaint states a valid claim, it
follows that the primary focus is on the complaint itself. Berk, 607 U.S. at 193 (“When evaluating
Despite our efforts to obtain additional funding, we have been unsuccessful, and the
company has made the difficult decision to file for Chapter 11 bankruptcy and liquidate AmplifyBio,
LLC’s assets. Employee separations are effective immediately.
FAC Ex. 2. The sole reference to the Notice in the FAC states: “Also on April 4, 2025, Defendants Battelle, Viking,
Casdin, and Narya ordered Defendant AmplifyBio to send termination letters to all 212 affected employees stating (a)
they were being fired effective immediately and (b) they were not receiving sixty days of advance notice or pay-in-
lieu-of-notice as required by the WARN Act. True and accurate copies of the letters received by Plaintiffs are attached
as Exhibit 2 to this Complaint.” FAC ¶ 32, Dkt. No. 31.
15 	Rosado Decl., Case No. 25-52140, Dkt. No. 16; Liquidating Trustee Answer Ex. A, Dkt. No. 41. For reasons
which are not explained, there are two identical copies of the Declaration attached to the Liquidating Trustee’s Answer,
both marked as Exhibit A. Id.
16 	As noted above, the Liquidating Trustee has adopted all prior filings by AmplifyBio. Liquidating Trustee
Reply 1 n.2, Dkt. No. 81.
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whether a plaintiff has stated a claim, the court cannot consider ‘matters outside the pleadings.’
Rule 12(d).17 The court instead asks only whether the complaint’s factual allegations, if taken as
true, ‘state a claim to relief that is plausible on its face.’”) (citation omitted). But certain classes
of documents can be considered without converting the motion to a summary judgment motion.
For example, courts may consider any exhibits attached to the complaint. Hodges v. City of Grand
Rapids, 139 F.4th 495, 510 (6th Cir. 2025) (citation omitted). And they may consider documents
that are referenced in the complaint if they are central to the plaintiff’s claims. Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 441 (6th Cir. 2012). “In this context, a document is central to the
plaintiff’s claim where the complaint’s legal sufficiency depends upon the document.” Hodges,
139 F.4th at 513.
But even when the court can consider certain materials under these rules, “‘considering’
the attachments does not necessarily mean that all statements set forth therein must be accepted as
true.” 	Core v. Champaign Cty. Bd. of Cty. Comm'rs, No. 3:11-cv-166, 2012 U.S. Dist. LEXIS
105956, at *7 (S.D. Ohio July 30, 2012) (citing Jones, 521 F.3d at 561). As the Sixth Circuit has
explained:
We have recognized, however, that it is not always appropriate to assume
everything in an exhibit is true. 	In particular, although a blanket adoption rule
makes sense in the context of an attached contract or loan agreement because the
contract represents an agreement between two or more parties to which the law
binds them, the rule makes much less sense when, as is the case here, the exhibit is
not a legally dispositive document. When an exhibit is a contract, it is reasonable
to consider the entire document because the contract has independent legal
significance. Here, however, Outokumpu is citing the EC’s findings not merely to
prove their existence but rather to prove the truth of the matters asserted within
them. To permit such a tactic would allow Outokumpu impermissibly to question
the evidentiary foundation of Carrier's complaint, thereby depriving Carrier of the
presumption of truth to which it is entitled at this stage of litigation. Indeed, Carrier
should be free to draw facts from the EC decision to provide a “starting point” and
17 	“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
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then use those facts to construct a theory that differs from or even contradicts that
of the EC.
Carrier Corp., 673 F.3d at 441-42 (citation modified). 	Thus, where a document is not legally
dispositive, the plaintiff is not bound by the entire document even where the plaintiff has “‘cut-
and-pasted’ many sections” of the document into the complaint. Id. at 441, 443; see also Brown
v. Whirlpool Corp., 996 F. Supp. 2d 623, 635 (N.D. Ohio 2014) (refusing to hold that the plaintiff
adopted environmental reports in their entirety even where they had “selectively quoted” from
them, and even though the court was “mindful of the tension between certain allegations in the
complaint, which for present purposes I accept as true, and the findings in Whirlpool’s exhibits,
which call into question a fair number of plaintiffs' allegations.”).
This limitation is grounded in the concerns underlying Civil Rule 12(d):
An animating concern behind Rule 12(d) is that, where the court considers
extraneous material (even public records) on a motion to dismiss, there is no way
for an opposing party, prior to the issuance of the court's decision, to register his or
her disagreement with the facts in the document of which the court was taking
notice. To put a finer point on it, there is no way for the opposing party to develop
and present evidence to support their disagreement with the facts presented in the
extra-complaint material.
Hodges, 139 F.4th at 510 (citation modified). 	Considering such material as true “flouts basic
pleading rules” because it permits the defendant to attack the plaintiff’s version of the facts at the
pleadings stage with the defendant’s own conflicting story. Id. at 511 (citing Blackwell, 123 F.4th
at 487). But the pleadings stage is not the time to resolve factual disputes – the defendants get to
present their side of the story later, at summary judgment or at trial. Hodges, 139 F.4th at 513.
Applying these principles, the Court declines to treat the contents of the Declaration and
the Notices as true. As for the Declaration, while the FAC references a handful of statements from
the Declaration, the FAC’s legal sufficiency does not depend on the Declaration. 	Hodges, 139
F.4th at 513. The references to the Declaration could be removed from the FAC without impacting
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the claims it asserts. 	This can be seen from the paragraphs of the FAC that reference the
Declaration:
35. The purpose of these twenty-six employees was to maintain the business
continuity of, and thus value of, Defendant AmplifyBio while Defendants looked
for one or more buyers. As Rosado put it in a declaration submitted to this Court,
these twenty-six employees would “ensure smooth sale processes.” Stated plainly,
Defendants Battelle, Viking, Casdin, and Narya did not believe they could find a
buyer for all or part of Defendant AmplifyBio if they shut down the company
completely.
36. For these reasons, between April of 2025 and May of 2025, Defendants
continued, as Rosado put it in a declaration to this Court, to operate Defendant
AmplifyBio as a going concern while they “explored various other potential
opportunities to sell certain of their assets.” However, “none of these opportunities
materialized.”
FAC ¶¶ 35-36, Dkt. No. 31. As can be seen, the allegations of the FAC stand on their own, and
while they reference the Declaration to illustrate the point, the Plaintiffs’ claims “exist
‘independent’ of the information in these exhibits.” Blackwell, 123 F.4th at 487. The quotations
of the language in the Declaration could be removed and the essence of the allegation – that even
after April 4, 2025, AmplifyBio continued operating with a skeleton staff – would still allege the
same point.
Only two paragraphs of the FAC even reference the Declaration, and those references to
the Declaration are prefaced with “as Rosado put it,” making clear that the quotations were
intended as examples. Such minimal references to the Declaration indicate that it is not central to
the FAC. VCST Int’l B.V. v. BorgWarner Noblesville, LLC, 142 F.4th 393, 403 (6th Cir. 2025)
(“And while the complaint made passing reference to the email, VCST's claims in no way depend
on it.”) (citation modified); see also Byers-Robson v. Med. Mktg. Sols. Grp., LLC, Case No. 1:24-
cv-496, 2025 U.S. Dist. LEXIS 182863, at *15-16 (S.D. Ohio Sept. 17, 2025) (“Here, although
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Plaintiffs make some references to the employment agreement, none of these references are central
to any of Plaintiffs’ claims.”).
Furthermore, the Declaration is not a legally dispositive document such as a contract that
defines legal rights and obligations of the parties. 	It is purely an evidentiary document. 	The
Plaintiffs therefore did not adopt the Declaration in full merely by referring to it in the FAC.
Carrier Corp., 673 F.3d at 441. 	Instead, the Plaintiffs were “free to draw facts from” the
Declaration without being bound to the entire document. Carrier Corp., 673 F.3d at 441-42; Jones,
521 F.3d at 561 (holding that references in the complaint to transcripts of interviews given by the
defendants did not permit the entire transcripts to be considered for their truth).
The Liquidating Trustee argues that it would be unfair to permit the Plaintiffs to rely on
parts of the Declaration without permitting the Defendants to rely on the rest. Hr’g Tr. 8:14-8:22.
But that is exactly what Carrier Corp. permits. The essence of Paragraphs 35-36 of FAC is that
AmplifyBio did not immediately move to full liquidation on April 4, 2025, when the Notices were
sent to the 212 employees, but rather continued to operate as a going concern to try to preserve its
value for potential buyers. This concept is contained in other paragraphs of the FAC as well. The
FAC alleges that after April 4, 2025, all the Defendants “wanted to continue the business
operations of Defendant AmplifyBio with a skeleton staff while they tried to sell all or part of the
company. As a result, while Defendant AmplifyBio laid off substantially all its employees, it
maintained the employment of twenty-six individuals.” FAC ¶ 34, Dkt. No. 31. And it alleges
that this effort continued at least until the Petition Date, six weeks after the Plaintiffs were
terminated. Id. ¶ 37. Indeed, it alleges that AmplifyBio continued to operate as a going concern
even after the Petition Date. Id. ¶ 8. None of these allegations rely on the Declaration, and there
is no unfairness to the Liquidating Trustee. Mere disagreement with the allegations of a complaint
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is no reason to allow a defendant to bring in material from outside the complaint to seek dismissal.
Blackwell, 123 F.4th at 487 (“The City Officials thus ask us to disregard the normal “presumption
of truth” that we must give to a complaint's well-pleaded facts based on their own conflicting story
about the investigation . . . . . This approach flouts basic pleading rules.”); Universal Life Church
Monastery Storehouse v. Nabors, 35 F.4th 1021, 1041 (6th Cir. 2022) (“But as we have already
explained, we cannot settle a factual dispute on a motion to dismiss, where we instead must take
the complaint's well-pleaded allegations as true.”).
The Liquidating Trustee may believe that the Plaintiffs have told an incomplete story, but
at the pleading stage, “we do not require a complete story; we require a plausible one.” Hodges,
143 F.4th at 506. The Liquidating Trustee “will have an opportunity to tell [his] side of the story
by filling in the contours of [the Plaintiffs’] allegations at summary judgment or at trial, but for
now, [the Plaintiffs] are the master of [their] complaint.” Id. at 513.
The same principles and analysis apply to the factual assertions in the Notices. The Notices
were attached as Exhibit 2 to the FAC, so the Court can consider them. But as with the Declaration,
“considering” the Notices does not mean treating everything in them as true. The Notices are not
legally dispositive. As discussed above, where a document is not legally a dispositive document,
merely attaching it as an exhibit does not adopt it in full unless the complaint makes clear that is
the plaintiff’s intention. Jones, 521 F.3d at 561 (holding that attaching transcripts of interviews
with defendant police officers to complaint did not adopt everything in those transcripts as true);
see also Miller v. Allstate Ins. Co., No. 3:23-CV-00355, 2024 WL 4762858, at *2 (S.D. Ohio Nov.
13, 2024) (declining to treat the defendant’s pre-litigation correspondence as true even though it
was extensively referenced in the complaint.); Core v. Champaign Cty. Bd. of Cty. Comm'rs, No.
3:11-cv-166, 2012 U.S. Dist. LEXIS 105956, at *8-9 (S.D. Ohio July 30, 2012) (same). Therefore,
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“we treat the exhibit as an allegation that [AmplifyBio] made the statements in the [Notices] and
we treat that allegation as true.” Jones, 521 F.3d at 561. “We do not accept as true, however, that
[AmpifyBio’s] statement is accurate or true; this is a question of credibility and weight of the
evidence that is not before a court considering a motion [for judgment on the pleadings].” Id.
Ultimately, whether the Court must regard as true the entire contents of the Declaration
and the Notices is readily resolved by Carrier Corp. Neither the Declaration nor the Notices are
legally dispositive and therefore the Plaintiffs were free to use portions of them without being
bound to adopt the entire document in full. Carrier Corp., 673 F.3d at 442. Considering those
documents as true in their entirety would allow the Defendants “impermissibly to question the
evidentiary foundation of [the Plaintiffs’] complaint, thereby depriving [the Plaintiffs] of the
presumption of truth to which [they are] entitled at this stage of litigation.” Id.
Accordingly, to the extent that the Defendants ask the Court to consider the truth of the
contents of the Declaration and the Notice, the Court excludes them from its consideration. To the
extent relevant, the Court will consider the existence of the Declaration and the Notice and that
these documents say what they say. But it cannot treat the contents of these documents as true.
Jones, 521 F.3d at 562; Carrier Corp., 673 F.3d at 442. The Court now turns to the merits of the
Defendants’ Motions.
C. The WARN Act
The WARN Act was “adopted in response to the extensive worker dislocation that occurred
in the 1970s and 1980s.” Hotel Emps. & Rest. Emps. Int'l Union Local 54 v. Elsinore Shore
Assocs., 173 F.3d 175, 182 (3d Cir. 1999). 	“In many cases, businesses shut down or laid off
workers after giving them little or no notice, a practice that the WARN Act was designed to
eliminate.” Pennington v. Fluor Corp., 19 F.4th 589, 594 (4th Cir. 2021) (citation omitted).
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The WARN Act ordinarily requires sixty days’ advance notice of plant
closings or mass layoffs. See 29 U.S.C. § 2102(a). The purpose of the Act is to
extend “protection to workers, their families and communities by requiring
employers to provide notification 60 calendar days in advance of plant closings and
mass layoffs. Advance notice provides workers and their families some transition
time to adjust to the prospective loss of employment, to seek and obtain alternative
jobs and, if necessary, to enter skill training or retraining that will allow these
workers to successfully compete in the job market. WARN also provides for notice
to State dislocated worker units so that dislocated worker assistance can be
promptly provided.”
Watson v. Michigan Indus. Holdings, Inc., 311 F.3d 760, 763 (6th Cir. 2002) (quoting 20 C.F.R.
§ 639.1(a)). When an employer does not give the required sixty-day notice of a plant closing or
mass layoff, an aggrieved employee may sue the employer for back pay and attorney’s fees. 29
U.S.C. § 2104(a).
The Department of Labor has issued implementing regulations (the “Regulations”). 	20
C.F.R. §§ 639.1-639.10.18 	Those regulations were accompanied by commentary from the
Secretary of Labor explaining the Regulations and detailing how they were modified during the
notice-and-comment period after the Regulations were initially proposed. 	Final Rule, Worker
Adjustment and Retraining Notification, 54 Fed. Reg. 16042 (1989) (the “Commentary”). 	The
parties each rely on the Regulations and/or the Commentary to support their arguments. See, e.g.,
Liquidating Trustee Mot. 4, 7-8, Dkt. No. 52; Battelle Mot. 6-7, Dkt. No. 54; Investor Defs.’ Mot.
7-8, Dkt. No. 59; Pls.’ Resp. 12, 21, 27-29, 34, 35, Dkt. No. 68. And at the Hearing, all parties
agreed that the Regulations and Commentary are valid and applicable here. Hr’g Tr. 22:12 – 23:3,
Dkt. No. 100. 	Since no party has presented any dispute over the principles set forth in the
Regulations and Commentary, the Court will consider the Regulations and the Commentary as
part of the governing law.
18 	The WARN Act specifically authorized these regulations. 29 U.S.C. § 2107.
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Familiar principles of interpretation govern consideration of the WARN Act, the
Regulations and the Commentary. “A fundamental canon of statutory construction is that ‘when
interpreting statutes, the language of the statute is the starting point for interpretation, and it should
also be the ending point if the plain meaning of that language is clear.’” Saginaw Chippewa Indian
Tribe v. Blue Cross Blue Shield, 32 F.4th 548, 557 (6th Cir. 2022) (quoting Thompson v.
Greenwood, 507 F.3d 416, 419 (6th Cir. 2007)). “The same logic applies to the interpretation of
regulatory language.” Saginaw Chippewa Indian Tribe, 32 F.4th at 557. “Because the WARN
Act is remedial legislation, its exceptions are to be construed narrowly.” 	Pearce v. Faurecia
Exhaust Sys., Inc., 529 F. App'x 454, 457 (6th Cir. 2013)) (quoting Local Union 7107 v. Clinchfield
Coal Co., 124 F.3d 639, 640-41 (4th Cir. 1997)); Bledsoe v. Emery Worldwide Airlines, Inc., No.
3:02cv069, 2008 U.S. Dist. LEXIS 118616, at *50-51 (S.D. Ohio Mar. 24, 2008) (applying “the
canon of statutory interpretation that ‘remedial statutes should be construed broadly to extend
coverage and their exclusions or exceptions should be construed narrowly.’”) (quoting Cobb v.
Contract Transp., Inc., 452 F.3d 543, 559 (6th Cir. 2006)). This principle is also reflected in the
Regulations. See 20 C.F.R. § 639.9(a) (“The exception under section 3(b)(1) of WARN, termed
‘faltering company,’ applies to plant closings but not to mass layoffs and should be narrowly
construed.”).
1. 	Prima Facie Case Under the WARN Act
The WARN Act’s operative provision is simple. 	“An employer shall not order a plant
closing or mass layoff until the end of a 60-day period after the employer serves written notice of
such an order . . . to each affected employee.” 29 U.S.C. § 2102(a)(1).19 	“Any employer who
orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each
19 	29 U.S.C. § 2102(a)(2) also requires 60 days’ notice to state and local government officials.
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aggrieved employee who suffers an employment loss as a result of such closing or layoff for” back
pay and benefits. 29 U.S.C. § 2104; McKinney v. Carlton Manor Nursing & Rebab. Ctr., Inc., 868
F.3d 461, 464 (6th Cir. 2017). There are certain statutory exceptions to the notice requirement.
An “employer” is any “business enterprise” that employs 100 or more full-time employees.
29 U.S.C. § 2101(a)(1)(A). A “plant closing” is “the permanent or temporary shutdown of a single
site of employment, or one or more facilities or operating units within a single site of employment,
if the shutdown results in an employment loss at the single site of employment during any 30-day
period for 50 or more employees excluding any part-time employees.” 29 U.S.C. § 2101(a)(2). A
“mass layoff” means a reduction in force which (A) is not the result of a plant closing and (B)
results in employment loss at the single site of employment during any 30-day period for (i) at
least 33 percent of the employees and 50 total employees or (ii) at least 500 employees. 29 U.S.C.
§ 2101(a)(3). 	“Affected employees” means “employees who may reasonably be expected to
experience an employment loss as a consequence of a proposed plant closing or mass layoff by
their employer.” 29 U.S.C. § 2101(a)(5). An “employment loss” means (subject to exclusions not
applicable here) “(A) an employment termination, other than a discharge for cause, voluntary
departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of
more than 50 percent during each month of any 6-month period.” 29 U.S.C. § 2101(a)(6).
In his memoranda, the Liquidating Trustee did not dispute whether the FAC asserts a prima
facie case against him. Rather, the Liquidating Trustee seeks judgment on the pleadings based on
two affirmative defenses, the “liquidating fiduciary” and the “faltering company” exceptions to
the WARN Act. In their briefs, the parties agreed that these are affirmative defenses. Pls.’ Resp.
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21, 27-28, Dkt. No. 68; Liquidating Trustee’s Reply 1, 3, 5-7, 11-13, Dkt. No. 81 (referring to
these exceptions as “defenses.”).20
A defendant seeking dismissal at the pleading stage based on an affirmative defense faces
a particularly high burden, because a plaintiff generally is not required to plead the lack of
affirmative defenses to state a valid claim. VCST Int’l B.V. v. BorgWarner Noblesville, LLC, 142
F.4th 393, 399 (6th Cir. 2025). For this reason, a motion for judgment on the pleadings, “which
considers only the allegations in the complaint, is generally an inappropriate vehicle for dismissing
a claim based upon the statute of limitations.” Cataldo v. United States Steel Corp., 676 F.3d 542,
547 (6th Cir. 2012). Nonetheless, a court may still grant judgment on the pleading based on an
affirmative defense if the complaint’s allegations establish the affirmative defense as a matter of
law. VCST Int’l, 142 F.4th at 399; see also Barney v. PNC Bank (In re Estate of Barney), 714 F.3d
920, 926 (6th Cir. 2013) (“if the plaintiffs’ complaint contains facts which satisfy the elements of
the defendant's affirmative defense, the district court may apply the affirmative defense.”).
Dismissal based on an affirmative defense is only warranted “when the facts establishing the
defense are definitively ascertainable from the pleadings and conclusively establish the affirmative
20 	At the Hearing, the Liquidating Trustee changed position and asserted for the first time that the liquidating
fiduciary exception is not an affirmative defense but rather part of the Plaintiffs’ prima facie case. Hr’g Tr. 8:4 - 8:9,
15:9 – 15:18. The Court declines to consider this argument. Earlier this year, this Court held that it will not consider
arguments made for the first time at closing argument in an evidentiary hearing. In re Paige, 678 B.R. 588, 601 (Bankr.
S.D. Ohio 2026). The same principle applies to oral arguments on a Civil Rule 12 motion. Probst v. Cent. Ohio Youth
Ctr., 511 F. Supp. 2d 862, 871 (S.D. Ohio 2007) (“It is well established that a moving party may not raise a new issue
for the first time in its reply brief or at oral argument.”); In re Cent. Processing Servs., LLC, 611 B.R. 563, 569 (Bankr.
E.D. Mich. 2019) (“The Court understands that lawyers sometimes think of new arguments shortly before a hearing.
But there are ways to handle it. Parties can always alert an opponent that they wish to make new arguments and ask a
court for the opportunity to supplement their papers . . . . This practice deprives the other parties to the case of basic
due process. It is not permitted by the rules, and is a waste of time for the Court and the parties.”). Accordingly, the
Court will hold the Liquidating Trustee to the position taken in his briefs and will therefore treat the liquidating
fiduciary exception as an affirmative defense.
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defense.” Walburn v. Lockheed Martin Util. Servs., 443 F. App’x 43, 47 (6th Cir. 2011) (emphasis
added) (citing Hensley Mfg. v. ProPride, Inc., 579 F. 3d 603, 613 (6th Cir. 2009)).
2. 	Liquidating Fiduciary Defense
The liquidating fiduciary defense is not explicitly set forth in the text of the WARN Act or
in the Regulations. Rather, it is based upon a passage in the Commentary. Newman v. Crane, 435
F. Supp. 3d 834, 839 (N.D. Ill. 2020) (“This exception does not derive from the statute itself, but
rather comes from the Department of Labor's response to public comments suggesting that
fiduciaries in bankruptcy proceedings should be excluded as employers under the Act.”) (citing
the Commentary, 54 Fed. Reg. at 16,045). In the Commentary, the Department of Labor stated:
DOL Agrees that a fiduciary whose sole function in the bankruptcy process is to
liquidate a failed business for the benefit of creditors does not succeed to the notice
obligations of the former employer because the fiduciary is not operating a
“business enterprise” in the normal commercial sense. In other situations, where
the fiduciary may continue to operate the business for the benefit of creditors, the
fiduciary would succeed to the WARN obligations of the employer precisely
because the fiduciary continues the business in operation.
Commentary, 54 Fed. Reg. at 16,045.
Although the parties do not dispute the existence of the liquidating fiduciary defense, they
dispute its scope. The Plaintiffs, relying on the plain language of the Commentary, assert that it
should be limited to those situations it addressed – where the plant closing or mass layoff occurs
after the bankruptcy filing by an entity that is subject to fiduciary duties imposed by bankruptcy
law. 	Pls.’ Response 20-22, Dkt. No. 68. 	The Plaintiffs also argue that even under the broader
version of the defense relied upon by the Liquidating Trustee, they have not alleged facts that
conclusively establish the defense. Id. The Liquidating Trustee insists that the liquidating fiduciary
defense is not limited to situations where the mass layoff or plant closing occurs after a bankruptcy
case has been filed. Rather, he asserts that the liquidating fiduciary defense applies whenever the
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employer has ceased normal operations prior to terminating its employees. Liquidating Trustee
Reply 5-7, Dkt. No. 81.
The plain language of the Commentary requires a bankruptcy case, a fiduciary in the
bankruptcy case that has assumed responsibility for the debtor’s operations, and that the fiduciary’s
sole role in the bankruptcy case is to liquidate the debtor’s assets. Commentary, 54 Fed. Reg. at
16,045. Here, AmplifyBio terminated its employees on April 4, 2025, but did not file chapter 11
until about six weeks later, on May 16, 2025. 	Thus, at the time of the Plaintiffs’ termination,
AmplifyBio did not satisfy the test for the liquidating fiduciary defense under the Commentary.
The Liquidating Trustee argues that this Court should follow caselaw applying a broader version
of the defense that focuses solely upon whether the debtor had ceased its income-producing
operations prior to terminating its employees. Liquidating Trustee Mot. 4-5, Dkt. No. 52 (citing
Conn v. Dewey & LeBoeuf LLP (In re Dewey & LeBoeuf LLP), 487 B.R. 169, 175 (Bankr.
S.D.N.Y. 2013) (“But not all cases applying the principle involve post-petition terminations, and
the petition date is not determinative of the outcome in all cases.”)).
The Liquidating Trustee relies upon Thielmann v. MF Glob. Holdings Ltd. (In re MF Glob.
Holdings Ltd.), 481 B.R. 268 (Bankr. S.D.N.Y. 2012). The court in MF Glob. Holdings Ltd. held
that the primary inquiry for the defense is whether the company has ceased operating as a going
concern such that it was no longer engaging in its ordinary revenue-generating activities at the
time it terminated its employees. 481 B.R. at 280; see also Stewart v. Giuliano (In re Start Man
Furniture, LLC), 647 B.R. 116 (D. Del. 2022) (same).
Other courts have expressed skepticism about applying the defense beyond that provided
in the Commentary. 	As stated above, regulatory language is to be given its plain meaning.
Saginaw Chippewa Indian Tribe, 32 F.4th at 557. That plain meaning requires a bankruptcy case
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and a layoff ordered by a bankruptcy fiduciary. In re World Mtkg. Chi., LLC, 564 B.R. 587, 601
(Bankr. N.D. Ill. 2017) (“It is just those plain words [of the Commentary] that should control. After
all, without them, no exception would exist. To go beyond the plain words here would be to
legislate from the bench.”). 	The broad conception of the liquidating fiduciary defense asserted
here by the Liquidating Trustee “runs the risk of allowing circumstances well beyond those
intended by the Department of Labor to vitiate the protections afforded employees by the WARN
Act.” Id. at 603; see also Int'l Bhd. of Teamsters v. Yellow Corp. (In re Yellow Corp.), No. 25-
307-JLH, 2026 U.S. Dist. LEXIS 143306, at *16 n.7 (D. Del. June 29, 2026) (“This Court is
skeptical of the proposition that a company can rely on the liquidating fiduciary exception when it
lays off its employees before entering bankruptcy proceedings.”); Law v. Am. Cap. Strategies, Ltd.,
Civ. No. 3:05-0836, 2007 U.S. Dist. LEXIS 5936, at *49 (M.D. Tenn. Jan. 26, 2007) (“To accept
American Capital's assertion that it was a liquidating fiduciary under the facts of this case would
be to allow the liquidating fiduciary exception to swallow the rule . . . . Such an interpretation
would eviscerate the WARN Act and be an expansion of an exception which is to be construed
narrowly.”). The Court shares these reservations.
For now, however, the Court need not definitively rule on the scope of the defense. Under
the Liquidating Trustee’s version of the defense, he is entitled to judgment on the pleadings, if the
FAC establishes, as a matter of law, that AmplifyBio had terminated its revenue-producing
activities before it terminated its employees on April 4, 2025. But FAC alleges that AmplifyBio
continued operating as a going concern after April 4, 2025, utilizing a skeleton staff, until the
bankruptcy filing six weeks later and for some time after the Petition Date. FAC ¶¶ 8, 36, Dkt.
No. 31.21 While the FAC alleges that AmplifyBio’s operations changed on April 4, 2025, the FAC
21 	At the Hearing, counsel for Plaintiffs tried to bolster this allegation by stating that after April 4, 2025,
AmplifyBio’s remaining workforce continued to monitor animals which they had been testing for research purposes.
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does not conclusively establish that AmplifyBio had entered a liquidation mode to the exclusion
of revenue-generating activity.
The Liquidating Trustee asserts that the skeleton staff retained after April 4, 2025, was
engaged in “classic liquidation activities.” But there is nothing in the FAC that definitively alleges
exactly what the skeleton staff was doing. And the question is not whether AmplifyBio had taken
a significant step towards liquidation, but rather the nature of its ongoing activities. For example,
in Stewart v. Giuliano (In re Start Man Furniture, LLC), 647 B.R. 116 (D. Del. 2022), the court
held that the debtor had not become a liquidating fiduciary even where it had filed chapter 11 and
commenced going out of business sales at some of its locations. The court reasoned that although
those sales were a “big step” towards liquidation, the debtor “continued conducting retail sales
which had been, and remain, precisely the commercial business they had always engaged in—and
for the same purpose—to generate cash revenue.” 	Smart Man, 647 B.R. at 130. 	The fact that
those sales could be characterized in a broad sense as part of a liquidation did not change that
conclusion. Id. at 131. “[T]he relevant inquiry is not whether a fiduciary has a plan to liquidate.
The question is whether the act of liquidation included the running of operations.” Id. It thus does
not matter that AmplifyBio took a large step towards liquidation when it laid off most of its
employees on April 4, 2025. 	What matters is whether AmplifyBio had ceased all business
operations and revenue-producing activity. 	Since the FAC does not provide any allegation
regarding the business operation of Amplify after the termination of its employees, judgment on
the pleadings based on the affirmative defense of liquidating fiduciary is not appropriate.
Hr’g Tr. 58:19 – 58:23. But these allegations were not referenced in the FAC or any of the Plaintiffs’ briefing, and as
noted in the previous footnote, the Court will not consider matters raised for the first time at a hearing. The Court has
not considered the statements made at the Hearing by counsel for Plaintiffs in reaching this decision.
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3. 	Faltering Company Defense
In contrast to the liquidating trustee defense, the faltering company defense is explicitly set
forth in the text of the WARN Act.
(b)Reduction of notification period
(1) An employer may order the shutdown of a single site of employment before
the conclusion of the 60-day period if as of the time that notice would have been
required the employer was actively seeking capital or business which, if
obtained, would have enabled the employer to avoid or postpone the shutdown
and the employer reasonably and in good faith believed that giving the notice
required would have precluded the employer from obtaining the needed capital
or business.
. . .
(3) An employer relying on this subsection shall give as much notice as is
practicable and at that time shall give a brief statement of the basis for reducing
the notification period.
29 U.S.C. § 2012(b).
The Regulations, 20 C.F.R. § 639.9, set forth four substantive elements of the faltering
company defense: (1) An employer must have been actively seeking capital or business at the time
that 60-day notice would have been required, by identifying specific actions taken to obtain capital
or business; (2) there must have been a realistic opportunity to obtain the financing or business
sought; (3) the financing or business sought must have been sufficient, if obtained, to have enabled
the employer to avoid or postpone the shutdown; and (4) the employer reasonably and in good
faith believed that giving the required notice would have precluded the employer from obtaining
the needed capital or business. Law, 2007 U.S. Dist. LEXIS 5936, at *26-27 (citing 20 C.F.R. §
639.9). Nothing in the FAC conclusively establishes any of these elements.22
22 As discussed above, the Court cannot regard AmplifyBio’s statements in the Notices as true.
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First, to terminate employees on April 4, 2025, AmplifyBio had to give notice no later than
sixty days prior, or February 3, 2025. 20 C.F.R. § 639.9(a)(1). There is nothing in the FAC that
definitively establishes that AmplifyBio was actively seeking capital or business on February 3,
2025. At the Hearing, the Liquidating Trustee pointed to Paragraph 28 of the FAC as support of
his position. Hr’g Tr. 29:22 – 31:14. Paragraph 28 alleges that AmplifyBio retained Accordion
Partners, LLC and Ms. Rosado, to attempt to “secure additional capital through equity or debt
financing, strategic partnerships, and out-licensing of proprietary technologies.” FAC ¶ 28, Dkt.
No. 31. 	But the FAC does not allege, either explicitly or by implication, the specific elements
required by 20 C.F.R. § 639.9. The FAC does not conclusively establish that AmplifyBio was
actively seeking new capital or business on February 3, 2025, as required by 20 C.F.R.
§ 639.9(a)(1).23 	Second, nothing in the FAC conclusively establishes that there was a realistic
opportunity to obtain the financing or business sought, as required by 20 C.F.R. § 639.9(a)(2). Nor
does anything in the FAC address whether any such financing or new business would have been
sufficient to avoid or postpone the shutdown for a reasonable period of time, as required by 20
C.F.R. § 639.9(a)(3).
Finally, nothing in the FAC conclusively establishes that AmplifyBio reasonably and in
good faith believed that giving a timely notice would have precluded it from obtaining the new
capital or business. “This condition may be satisfied if the employer can show that the financing
or business source would not choose to do business with a troubled company or with a company
whose workforce would be looking for other jobs.” 20 C.F.R. § 639.9(a)(4). It is not enough to
rely upon a generic concern that giving notice could throw the workforce into disarray and
23 	“The employer must be able to identify specific actions taken to obtain capital or business.” 20 C.F.R.
§ 639.9(a)(1).
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discourage any potential source of capital or business. Rather, the reasonable belief must be based
on some definitive indication from the potential source of financing or business. Id.; Childress v.
Darby Lumber Co., 126 F. Supp. 2d 1310, 1317 (D. Mont. 2001). Nothing in the FAC establishes
that this was the case. 	More generally, nothing in the FAC establishes that AmplifyBio in fact
believed that giving timely notice would have precluded it from obtaining new business or
financing, much less that this belief was both reasonable and held in good faith.
Thus, the FAC does not allege sufficient facts that conclusively establish any of the
substantive elements of the faltering company defense. Therefore, as to the Liquidating Trustee’s
Motion on the faltering company defense, the Court need not reach the sufficiency of the Notices
themselves. 	The Liquidating Trustee’s Motion must be denied because nothing in the FAC
establishes any of the elements of the defense.
D. The Plaintiffs’ Cross-Motion
Considering a plaintiff’s motion for judgment on the pleadings effectively requires that the
defendant’s answer admit some fact that concedes a claim or negates an affirmative defense.
United Food & Commercial Workers, Local 1995 v. Kroger Co., 51 F.4th 197, 202 (6th Cir. 2022)
(“When the plaintiff, as opposed to the defendant, moves for judgment on the pleadings . . . we
ask whether the plaintiff's petition, stripped of those allegations which are denied by the
defendant's answer, would leave the petition stating a cause of action against the defendant.”). In
the Plaintiffs’ Cross-Motion, they reason that the Notices needed to comply with various
procedural requirements, and that since there is no dispute as to the Notices’ authenticity, the Court
can find as a matter of law that the Liquidating Trustee is not entitled to assert the faltering
company defense because the Notices were deficient as a matter of law. 	There is authority for
this, as some courts have held that a defective notice forecloses reliance on the faltering company
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defense. 	Carroll v. World Mktg. Holdings, LLC, 418 F. Supp. 3d 299, 313 (E.D. Wis. 2019)
(“[T]he defendants’ failure to give proper shortened notice precludes them from relying on the
statutory exceptions at all”). 	The Plaintiffs’ arguments might in fact prove to be true, but the
requirements for shortened notice are fact-specific and therefore the Court cannot determine the
Notices’ sufficiency simply by considering the Notices themselves without the benefit of the
evidence.
When a party relies on the faltering company defense, the WARN Act requires that it still
must have given “as much notice as is practicable.” 29 U.S.C. § 2102(b)(3). And it must provide
a brief statement explaining the reason for the shortened notice period. Id. Though it is a “brief
statement,” the notice must be specific. 20 C.F.R. § 639.7(a)(1). This means that the notice must
provide the factual circumstances that led to the reduced notification period. D'Amico v. Tweeter
Opco, LLC (In re Tweeter Opco, LLC), 453 B.R. 534, 547 (Bankr. D. Del. 2011) (“An employer
who wants to reduce the notification period must comply with the clear statutory requirement that
the termination notice contain an explanation for the shortened time.”) (quoting Organogenesis,
Inc. v. Andrews, 331 B.R. 500, 502 (D. Mass. 2005)).
The “brief statement” required by WARN Act must “set forth the underlying factual events
which led to the shortened period.” Alarcon v. Keller, 27 F.3d 386, 389-90 (9th Cir. 1994). The
court reasoned that the notice should provide employees with information that helps them evaluate
whether the notice period was properly shortened. Id. Furthermore, “[i]f an employer must set
forth specific facts in its notice in order to rely on a statutory exception, it is more difficult for one
who does not truly qualify for the exception to invoke it. It is therefore more likely that employees
will receive the full sixty-day notice period in the majority of cases in which the statutory
exceptions do not apply.” Grimmer v. Lord Day & Lord, 937 F. Supp. 255, 257 (S.D.N.Y. 1996);
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see also Czyzewksi v. Jevic Transp. Inc. (In re Jevic Holding Corp.), 496 B.R. 151, 158 (Bankr.
D. Del. 2013) (“Congress intended that the ‘brief statement’ describing the basis for the shortened
notice be ‘something more than a citation to the statute or a conclusory statement summarizing the
statutory provision.’”) (quoting D’Amico v. Tweeter Opco, LLC (In re Tweeter Opco, LLC), 453
B.R. 534, 547 (Bankr. D. Del. 2011)).
The parties dispute whether the Notices complied with the requirements for what a notice
must contain. 	The 	parties focus their debate upon the fact that the Notices largely parrot the
language of the WARN Act and/or the Regulations but provide little in the way of specific facts
relevant to AmplifyBio’s circumstances. 	At the Hearing, the Liquidating Trustee emphasized
Yellow Corp., ___ B.R. at ___, 2026 U.S. Dist. LEXIS 143306, at *21-24, where the district court
upheld a notice that gave less detail than the Notices did here. Hr’g Tr. 62:10-16. And it is true
that the notices in Yellow Corp. largely parroted the statutory language. The Plaintiffs on the other
hand rely on other cases that require greater specificity. Pls.’ Resp. 31-32, Dkt. No. 68 (collecting
cases).
The parties also debate whether the Notices needed to specifically refer to the WARN Act
and to the faltering company exception. The Plaintiffs cite cases holding that a shortened notice
under the WARN Act must, at a minimum, reference the WARN Act and the defense relied on to
shorten the notice period. Weekes-Walker v. Macon Cnty. Greyhound Park, Inc., 877 F. Supp. 2d
1192, 1208 (M.D. Ala. 2012), rev’d in part on other grounds, 725 F.3d 1276 (11th Cir. 2013);
Newman v. Crane, 435 F. Supp. 3d 834, 842-43 (N.D. Ill. 2020). The Liquidating Trustee could
not cite any cases specifically holding that a shortened notice was adequate where it did not
specifically mention the WARN Act or the faltering company defense. Even in Yellow Corp., the
termination notices mentioned the WARN Act and the faltering company defense. Yellow Corp.,
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___ B.R. at ___, 2026 U.S. Dist. LEXIS 143306, at *10-11 ((finding that the notice specifically
referenced the “WARN Act” and the “faltering company” exception, among other defenses). The
court therefore held that the notice was sufficient. 	Id. at *22 (“The notice makes clear which
statutory exception is being relied upon—the ‘faltering company’ exception—and it explains that
Yellow had hoped to complete one or more transactions and secure funds and business to prevent
the closing of its locations but was unable to do so.”).
The Plaintiffs assert that the Court can determine, solely from the face of the Notices, that
they were inadequate. And the Plaintiffs assert that, as a matter of law, a notice that does not even
mention the WARN Act or the faltering company exception cannot ever be an adequate basis for
shortening the notice period. Pls.’ Resp. 31, Dkt. No. 68. But as with the other issues, the Court
is not convinced that it is appropriate to decide these issues on the limited record available. The
WARN Act requires as much notice as is practicable, and that issue is difficult to ascertain at the
pleadings stage. The Court can speculate about why the Notices are worded as they are, and it can
speculate about what the Plaintiffs would have understood from the Notices, but determining
whether the Notices were adequate is a context-specific inquiry that would benefit from a fully
developed record.
Accordingly, although the Plaintiffs’ arguments have some force, the Court declines to
reach a definitive determination at this point and therefore denies the Plaintiffs’ Cross-Motion.
E. WARN Act Claim Against Battelle and the Investor Defendants Under the “Single
Employer Doctrine”
The Court now turns to whether the FAC sufficiently alleges that Battelle and/or the
Investor Defendants were so intertwined with AmplifyBio that they formed a “single employer”
for purposes of the WARN Act and the Regulations and are therefore potentially liable if
AmplifyBio is ultimately found to have violated the WARN Act.
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The Regulations establish what is known as the “single employer” doctrine, under which
the test for when a shareholder in a business may be liable is expanded beyond what might apply
under traditional principles of piercing the corporate veil under state corporate law.
Under existing legal rules, independent contractors and subsidiaries which
are wholly or partially owned by a parent company are treated as separate
employers or as a part of the parent or contracting company depending upon the
degree of their independence from the parent. Some of the factors to be considered
in making this determination are (i) common ownership, (ii) common directors
and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies
emanating from a common source, and (v) the dependency of operations.
20 C.F.R. § 639.3(a)(2). The list of factors is not exclusive, and not all factors need to be satisfied,
and they need not be equally weighted. McKinney v. Carlton Manor Nursing & Rehab. Ctr., Inc.,
868 F.3d 461, 463-64 (6th Cir. 2017).
The Investor Defendants first stress that none of them (nor all of them collectively) owned
the majority interest in AmplifyBio and therefore they cannot be considered parents. 	But the
Regulations, as set forth above, contemplate that the single employer doctrine can turn on whether
the debtor is “wholly or partially owned by a parent company.” 20 C.F.R. § 639.3(a)(2) (emphasis
added); McKinney, 868 F.3d at 463-64.
The FAC alleges factor one and factor two, except for Narya. Each of Battelle and the
Investor Defendants owned (either directly or through a wholly-owned subsidiary) an interest in
AmplifyBio, and each, except for Narya, had at least one representative on the AmplifyBio board
of directors. FAC ¶¶ 22, 25, Dkt. No. 31. Although two of the five factors under § 639.3(a)(2) are
alleged in the FAC, these are the two least significant factors. The “mere ownership of a subsidiary
does not justify the imposition of liability on the parent, nor will liability be imposed on the parent
corporation merely because directors of the parent corporation also serve as directors of the
subsidiary.” Bledsoe, 258 F. Supp. 2d at 786 (citation modified).
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As to the third factor, the de facto control, the “core of this factor is whether one company
‘was the decisionmaker responsible for the employment practice giving rise to the litigation.’” In
re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 245 (3d Cir. 2008) (quoting Pearson v.
Component Tech. Corp., 247 F.3d 471, 503-504 (3d Cir. 2001)). Critically, unlike the first two
factors, where this factor is satisfied, it can result in a finding of liability even if the other factors
are not present. Pearson, 247 F.3d at 504. But there must be more than the “exercise of control
pursuant to the ordinary incidents of stock ownership.” Id. at 503. The FAC alleges that Battelle
and the Investor Defendants each had “de facto and de jure” control over AmplifyBio by having
board representation and receiving voting shares. 	FAC ¶¶ 22, 24, Dkt. No. 31. 	But these
allegations are entirely conclusory in terms of the exercise of control. If that were all the complaint
said, the Court would have to conclude that the FAC is too conclusory to survive. But the FAC
contains additional allegations. 	It alleges that Battelle and the Investor Defendants exercised
control by requiring AmplifyBio to retain Accordion Partners and appoint Ms. Rosado as chief
restructuring officer. Id. ¶ 28. Further, the FAC alleges that Battelle and the Investor Defendants
directed AmplifyBio to terminate the Plaintiffs on April 4, 2025, and not to give the sixty days’
notice (or pay in lieu of that notice) required by the WARN Act. Id. ¶¶ 30-33. Further, Viking
and Casdin are alleged to have signed the corporate resolution directing AmplifyBio to file chapter
11. Id. ¶ 37. Finally, Battelle held a majority of the ownership interest in AmplifyBio and was
also a secured creditor. Id. ¶¶ 21, 38.
These allegations, over and above the conclusory allegation of de facto control, are the type
of allegations that courts have found to lift claims from the conceivable to the plausible. Austen
v. Catterton Partners V, LP, 709 F. Supp. 2d 168, 177 (D. Conn. 2010); Smith v. Ajax
Magnathermic Corp., 144 F. App’x 482, 485-86 (6th Cir. 2005) (holding that the complaint
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adequately stated a claim where it alleged that the lenders had “inserted” a consulting firm to
“manage” the employer). In this regard, the issue is not whether the parent companies exercised
de facto control in a broad sense, but rather whether they are the ones that ordered the mass layoff
without complying with the WARN Act. 	Austen, 709 F. Supp. 2d at 177 (“Most importantly,
Plaintiffs allege that Defendants made the decision to file for bankruptcy, shut down the Archway
Entities' facilities, and terminate their employees -- the precise decisions with which the WARN
Act is concerned.”). And the FAC alleges that it was Battelle and the Investor Defendants who
made those decisions. FAC ¶¶ 32-33, Dkt. No. 68.
Ultimately, the Defendants’ arguments that the Plaintiffs have not alleged such relationship
between AmplifyBio and the Defendants to meet the “single employer” test under the WARN’s
Act boil down to the assertion that AmplifyBio made the layoff decisions itself. Inv. Defs.’ Reply
7, Dkt. No. 82 (“there is no factual dispute about who made the layoff decisions.”). 	But this
statement directly conflicts with the Plaintiffs’ allegations, which allege that Battelle and the
Investor Defendants directed that the layoff occur and that the employees be given neither sixty
days’ notice nor pay in lieu of that notice. FAC ¶¶ 32-33, Dkt. No. 31. At the pleadings stage,
such disputes must be resolved in favor of the Plaintiffs. 	Universal Life Church Monastery
Storehouse v. Nabors, 35 F.4th 1021, 1041 (6th Cir. 2022) (“we cannot settle a factual dispute on
a motion to dismiss, where we instead must take the complaint's well-pleaded allegations as true.”).
The Court recognizes that some of these allegations are stated in general terms, but “[s]pecific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct.
2197, 167 L. Ed. 2d 1081 (2007) (quoting Twombly, 550 U.S. at 555). 	As the Supreme Court
recently reiterated, Civil Rule 8(a) does not require the pleading of evidence. Berk v. Choy, 607
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U.S. 187, 193, 146 S. Ct. 546, 553, 223 L.Ed.2d 463, 471 (2026) (“By requiring no more than a
statement of the claim, Rule 8 establishes implicitly, but with unmistakable clarity, that evidence
of the claim is not required.”) (citation modified).
This so-called “single employer” principle is a test that applies across much of federal labor
law. Bledsoe v. Emery Worldwide Airlines, 258 F. Supp. 2d 780, 786 n.2 (S.D. Ohio 2003). As
the court in Bledsoe ruled, the allegations of exercise of control over employment decisions and
approval of the layoffs are sufficient at the pleading stage to proceed on a theory that the
Defendants were considered an “employer” under the WARN Act. The question of whether the
Defendants’ involvement rose to the level necessary to impose WARN liability is a factual
question not appropriate for resolution on a motion under Civil Rule 12. 	Bledsoe, 258 F. Supp.
2d at 787; see also Hiles v. Inoveris, LLC, Case No. 2:09-cv-53, 2009 U.S. Dist. LEXIS 102430,
at *8 (S.D. Ohio Nov. 4, 2009) (“While Bledsoe was decided before Twombly and Iqbal, the Court
finds that its guidance is still relevant.”); SASC, LLC v. Sch. Supply Conn., Inc., No. 3:23-cv-083,
2024 U.S. Dist. LEXIS 44296, at *9 (S.D. Ohio Mar. 13, 2024) (noting that courts in this district
apply a “lenient” standard when evaluating whether a complaint has alleged that a shareholder has
exercised sufficient control to warrant holding that shareholder liable); Mike Albert, Ltd. v. 540
Auto Repair, Inc., No. 1:21-cv-286, 2022 U.S. Dist. LEXIS 28934, at *29 (S.D. Ohio Feb. 17,
2022) (same; collecting cases).24 	The Plaintiffs have thus alleged sufficient facts on the single
employer issue to survive judgment on the pleadings. The Battelle Motion and the Investor
Defendants’ Motions on that issue must be denied.
24 	As Battelle points out, a Delaware bankruptcy court has suggested that Hiles is inconsistent with Twombly
and Iqbal’s pleading standard to the extent that it approved conclusory allegations of control. Battelle Reply 6-7, Dkt.
No. 83 (citing Azzata v. Am. Bedding Indus., Inc. (In re Consol. Bedding, Inc.), 432 B.R. 115, 127 (Bankr. D. Del.
2010)). Here, however, the allegations of control are not conclusory, but instead are supported by additional facts
suggesting control. And in any event, decisions such as SASC and Mike Albert indicate that this District follows a
lenient pleading standard for allegations of shareholder control.
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F. 	Count II – Violation of the Ohio Prompt Payment Act, Ohio Rev. Code § 4113.15
Count II of the FAC alleges that the pay in lieu of notice provided by 29 U.S.C. § 2104
constitutes “wages” under Ohio law. 	The statute, Ohio Rev. Code § 4113.15(A) provides as
follows:
(A) Every employer doing business in this state shall, on or before the first day of
each month, pay all its employees the wages earned by them during the first half of
the preceding month ending with the fifteenth day thereof, and shall, on or before
the fifteenth day of each month, pay such employees the wages earned by them
during the last half of the preceding calendar month. If at any time of payment an
employee is absent from the employee's regular place of labor and does not receive
payment of wages through an authorized representative, such person shall be
entitled to said payment at any time thereafter upon demand upon the proper
paymaster at the place where such wages are usually paid and where such pay is
due. This section does not prohibit the daily or weekly payment of wages. The use
of a longer time lapse that is customary to a given trade, profession or occupation,
or establishment of a different time lapse by written contract or by operation of law.
Ohio Rev. Code § 4113.15(A).25 The first question is whether the WARN Act’s remedy of back
pay constitutes “wages” under § 4113.15(A), such that the failure to pay it in a timely fashion
violates § 4113.15(A) and triggers the remedies in § 4113.15(B).
Section 4113.15 defines “wage.”
“Wage” means the net amount of money payable to an employee, including
any guaranteed pay or reimbursement for expenses, less any federal, state, or local
taxes withheld; any deductions made pursuant to a written agreement for the
25 	Both Counts II and III arise under provisions of the Ohio Revised Code. In evaluating both of these claims,
the Court will be called upon to construe Ohio statutes and interpret Ohio law. The Supreme Court of Ohio, of course,
is the ultimate arbiter of Ohio law, and its decisions on questions of Ohio law are binding upon the federal courts.
Perry v. Allstate Indem. Co., 953 F.3d 417, 427 (6th Cir. 2020). When there is no decision on point, a court must
make its “best estimate of how the Ohio Supreme Court would answer today’s question, if it chose to do so.” Id. “In
making that assessment, we cast a wide net, employing ‘all relevant data’ as our guide.” Id. (quoting Saab Auto. AB
v. Gen. Motors Co., 770 F.3d 436, 440 (6th Cir 2014)). “Courts may use the decisional law of the state's lower courts,
other federal courts construing state law, restatements of law, law review commentaries, and other jurisdictions on the
‘majority’ rule in making its Erie determination.” Generation Changers Church v. Church Mut. Ins. Co., 168 F.4th
354, 365 (6th Cir. 2026) (citation modified). And if the Supreme Court of Ohio has not addressed an issue, decisions
from the Ohio Courts of Appeals represent “a datum for ascertaining state law which is not to be disregarded by a
federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.”
Generation Changers Church, 168 F.4th at 366-67 (quoting Hicks v. Feiock, 485 U.S. 624, 629 n.3, 108 S. Ct. 1423,
99 L.Ed.2d 721 (1988)).
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purpose of providing the employee with any fringe benefits; and any employee
authorized deduction.
Ohio Rev. Code § 4113.15(D)(1). 	This definition appears to be unambiguous: “wages”
means all amounts due to an employee, net of taxes and any authorized deductions. 	The plain
language of the definition does not limit the basis for which money is owed to the employee. If
money is payable to an employee, then it is wages. So defined, it is hard to see any basis to exclude
back pay awarded under the WARN Act. 	“Where a statute defines terms used therein, such
definition controls in the application of the statute, even though such definition may vary from that
employed as to similar words in other statutes.” McKinney v. Omni Die Casting, Inc., 2017-Ohio-
2949, ¶ 26, 91 N.E.3d 124, 129 (Ohio Ct. App. 2017) (quoting Good Samaritan Hosp. v.
Porterfield, 29 Ohio St. 2d 25, 30, 278 N.E.2d 26, 29 (1972)).
There does not appear to be any on-point Ohio caselaw. One case, Fegatelli v. Ohio Bur.
of Emp. Servs., 765 N.E.2d 961 (Ohio Ct. App. 2001), addresses the treatment of WARN Act
payments for purposes of Ohio’s unemployment compensation laws. 	The issue in Fegatelli,
however, was whether WARN Act back pay counted as “remuneration” that had to be deducted
from unemployment compensation. Fegatelli, 765 N.E.2d at 965. So, it has limited value here
because it involves different questions, different statutes, and different definitions. But the case is
notable because it reflects the Ohio courts’ view of the WARN Act damages: “Regardless whether
the payments are a penalty to the employer, the practical effect of the payments to the employee
are that the employee is placed in the position the employee would have been in had the job not
been terminated without proper notice. It is pay for work that should have been performed.”
Fegatelli, 765 N.E.2d at 965. This logic suggests that WARN Act payments should be treated as
wages under § 4113.15.
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In addition, there is one federal case, Smith v. Zulily, LLC, No. C24-1480-KKE, 2025 U.S.
Dist. LEXIS 91075 (W.D. Wash. May 13, 2025), that squarely considered the issues presented
here in the context of a Civil Rule 12 motion. The Smith court, albeit in a relatively brief order
without extended discussion, concluded that the defendants in that case had not shown that WARN
Act back pay could not constitute “wages” under § 4113.15(A) as a matter of law. Smith, 2025
U.S. Dist. LEXIS 91075, at *14.
Neither Smith nor Zagatelli provide particularly compelling authority. 	But they are
essentially all that is available. And the Court’s mandate when deciding a question of state law is
to consider “all relevant data” including Ohio and all federal courts. Generation Changers Church,
168 F.4th at 365. Without any other authority on point and given that the plain language of the
definition of “wage” in § 4113.15(D)(1) does not appear to exclude WARN Act back pay, the
Court must reject the Liquidating Trustee’s argument.
The second issue asserted here is whether Battelle and the Investor Defendants could be
regarded as the “employers” under § 4113.15. The difficulty is that the definition of “employer”
is singularly unhelpful:
“Employer” means an individual, firm, partnership, association, or corporation, but
does not include a franchisor with respect to the franchisor's relationship with a
franchisee or an employee of a franchisee, unless either of the following applies:
(a) The franchisor agrees to assume that role in writing.
(b) A court of competent jurisdiction determines that the franchisor exercises a type
or degree of control over the franchisee or the franchisee's employees that is not
customarily exercised by a franchisor for the purpose of protecting the
franchisor's trademark, brand, or both.
Ohio Rev. Code § 4113.15(D)(4). Except with reference to a “franchisor,” the definition simply
states that an employer is an “individual, firm, partnership, association, or corporation” but
provides no guidance on how employer status is to be determined.
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The Investor Defendants argue that the Court should view the exception for franchisors as
a general indication that the Ohio General Assembly “rejects expensive, derivative employer-
liability theories.” Inv. Defs.’ Reply 12, Dkt. No. 82. That may be true for franchisors, for whom
the General Assembly provided a specific exclusion. 	But that exclusion does not apply to the
Investor Defendants, who do not assert that they are franchisors. 	And the fact that the General
Assembly provided a limited exclusion does not demonstrate its intent to provide a much broader
exclusion. Under Ohio law, “if a statute specifies one exception to a general rule or assumes to
specify the effects of a certain provision, other exceptions or effects are excluded.” State ex rel.
Fair Hous. Opportunities of Nw. Ohio v. Ohio Fair Plan, 222 N.E.3d 611, 617 (Ohio 2023)
(citation modified). 	Thus, the fact that the General Assembly specifically excluded franchisors
from the definition of employer does not help the Investor Defendants in the way that they assert.
Without any authority specifically excluding the WARN Act’s definition of employer, the Court
cannot conclude as a matter of law that Battelle or the Investor Defendants have shown that they
are entitled to judgment on the pleadings on this issue. At this point for pleading purposes, if the
Investor Defendants are subject to WARN Act liability, they are potentially subject to liability
under § 4113.15(A).
G. Count III – Liability Under Ohio Rev. Code § 2307.60
This claim turns on the interplay between two Ohio statutes. 	First, Ohio Rev. Code
§ 4113.99(A) provides that “[w]hoever violates section 4113.15 of the Revised Code is guilty of a
misdemeanor of the first degree.” Second, Ohio Rev. Code § 2307.60(A)(1) states:
(A)(1) Anyone injured in person or property by a criminal act has, and may recover
full damages in, a civil action unless specifically excepted by law, may recover the
costs of maintaining the civil action and attorney's fees if authorized by any
provision of the Rules of Civil Procedure or another section of the Revised Code
or under the common law of this state, and may recover punitive or exemplary
damages if authorized by section 2315.21 or another section of the Revised Code.
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The Plaintiffs assert that, to the extent that § 4113.15 was violated by the failure to provide
sixty days’ back pay in lieu of notice, the Defendants collectively committed a misdemeanor under
§ 4113.99(A) and are therefore liable under § 2307.60(A)(1). Jacobson v. Kaforey, 149 Ohio St.3d
398, 75 N.E.3d 203 (2016). No underlying criminal conviction is required. Buddenberg v.
Weisdack, 161 Ohio St.3d 160, 161 N.E.3d 603, 605-08 (2020).
The Defendants here largely assert that this claim is derivative, and should therefore be
dismissed, but since the Court is denying the Defendants’ Motions regarding Counts I and II, it
cannot dismiss Count III. The Court also notes that the parties’ arguments on Count III are almost
entirely undeveloped. The Liquidating Trustee asserts that AmplifyBio’s conduct of terminating
its employees and filing chapter 11 cannot be regarded as criminal, but if § 4113.15(A) was
violated, then § 4113.99 appears to make that violation a misdemeanor.26 It therefore appears that
§ 2307.60 would plausibly apply here and therefore Count III states a claim at least at the pleading
stage.
V. 	Conclusion
For the reasons stated above, the Defendants’ Motions and the Plaintiffs’ Cross-Motion are
hereby DENIED. As noted above, the Liquidating Trustee shall file a motion (or submit an agreed
order if all parties agree) to approve his substitution in place of AmplifyBio. 	The Court is
concerned that this case has been pending for over sixteen months, but it is still at the pleadings
stage. Shortly, the Court will set a pretrial conference by separate notice to establish a schedule for
discovery, dispositive motions, and any related matters in this adversary proceeding. Given the
time that has elapsed since the parties filed their Preliminary Pretrial Statements in November
26 	The Court notes that the parties have not addressed whether § 4113.99 is a strict liability offense or
alternatively whether it may require a particular mental state, and therefore the Court does not address that issue.
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2025, the parties are directed to review those statements and to meet and confer regarding a
compact yet realistic discovery and case schedule. Any revisions or supplements to the parties’
previously-filed Preliminary Pretrial Statements shall be filed at least seven days in advance of the
pretrial conference.
Accordingly, it is therefore ORDERED that:
1. 	the Motions are DENIED; and it is further
2. 	ORDERED that the Liquidating Trustee shall file a motion (or submit an agreed
order if all parties agree) to approve his substitution in place of AmplifyBio.
IT IS SO ORDERED.
Copies to:
Counsel for the Liquidating Trustee:
Thomas Fawkes (via ECF)
Melissa Kelly (via ECF)
Gregory Abrams
Tucker Ellis
233 South Wacker Drive
Suite 6950
Chicago, IL 60606-6395
Counsel to AmplifyBio:
Maria Carr (via ECF)
Scott Opincar (via ECF)
Ryan Neumeyer (via ECF)
Counsel to Battelle:
John Cannizzaro (via ECF)
Catherine Strauss (via ECF)
Sara Sams (via ECF)
Counsel to the Investor Defendants:
Marc Kessler (via ECF)
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Janica Tucker (via ECF)
Counsel for Plaintiffs:
Jason Starling (via ECF)
Counsel for Interested Party Willis Spangler Associates LTD
Michael R. Reed (via ECF)
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