United States v. 2010-12-22 | 09-17047 | Resilient Floor Covering Pensi V. M&minstallation, Inc. |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RESILIENT FLOOR COVERING PENSION
FUND; BOARD OF TRUSTEES OF THE
RESILIENT FLOOR COVERING PENSION
PLAN,
Plaintiffs-counter-defendants-
Appellees, No. 09-17047
v.  D.C. No.
M&M INSTALLATION, INC., a 3:08-cv-05561-BZ
California corporation,
Defendant-Appellant,
SIMAS FLOOR CO., INC., a
California corporation,
Defendant-counter-claimant-
Appellant. 
20553

-- 1 of 15 --

 RESILIENT FLOOR COVERING PENSION
FUND; BOARD OF TRUSTEES OF THE
RESILIENT FLOOR COVERING PENSION
PLAN,
Plaintiffs-counter-defendants-
Appellants, No. 09-17064
v. D.C. No.
 3:08-cv-05561-BZ M&M INSTALLATION, INC., a
California corporation, OPINION
Defendant-Appellee,
SIMAS FLOOR CO., INC., a
California corporation,
Defendant-counter-claimant-
Appellee. 
Appeal from the United States District Court
for the Northern District of California
Bernard Zimmerman, Magistrate Judge, Presiding
Argued and Submitted
November 5, 2010—San Francisco, California
Filed December 22, 2010
Before: Arthur L. Alarcón and Pamela Ann Rymer,
Circuit Judges, and Matthew F. Kennelly, District Judge.*
Opinion by Judge Rymer
*The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
20554 RESILIENT FLOOR v. M&M INSTALLATION

-- 2 of 15 --

COUNSEL
Stephen T. Davenport, Davenport Gerstner & McClure, Wal-
nut Creek, California, for the defendants-appellants/appellees.
Katherine A. McDonough, Kraw and Kraw, Mountain View,
California, for the plaintiffs-appellees/appellants.
OPINION
RYMER, Circuit Judge:
This appeal involves a “double-breasted” operation where
a non-union employer, Simas Floor Co., Inc., set up a union
employer, M&M Installation, Inc. to handle union flooring
work. The question is whether the non-union company, Simas
Floor, is liable for withdrawal liability incurred by the union
company, M&M Installation, pursuant to the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
et seq., as amended by the Multiemployer Pension Plan
Amendments Act of 1980 (MPPAA), 29 U.S.C. §§ 1381-
1453. We conclude that assuming it is possible to be responsi-
20557 RESILIENT FLOOR v. M&M INSTALLATION

-- 3 of 15 --

ble on an alter ego theory, the non-union company may be lia-
ble when there is commonality between the union and non-
union firms and an abuse of the double-breasted structure to
avoid payment of withdrawal liability. As the district court
applied a different standard that focused on whether Simas
Floor’s actions undermined the purposes of ERISA and
MPPAA, Resilient Floor Covering Pension Fund v. M & M
Installation, Inc., 651 F. Supp. 2d 1057 (N.D. Cal. 2009), we
reverse and remand. The district court also rejected the Pen-
sion Fund’s claim that it could accelerate the withdrawal pay-
ments. The Fund cross-appeals, and we affirm.
I
Simas Floor is a non-union residential and commercial
flooring contractor with offices in Sacramento, Stockton, and
Visalia. It is owned in equal shares by three cousins, Mark
Simas, Michelle Simas Carli, and Craig Simas. Mark Simas
is the president; the other two are vice-presidents. The cousins
are directors along with their fathers, Ken, Jack, and Dave
Simas.
M&M was formed June 1, 1994 by Mark Simas as a resi-
dential flooring and tile contractor. It was created to serve as
a union signatory flooring contractor to allow non-union
Simas Floor to bid on union jobs by subcontracting the work
to M&M. Mark Simas is M&M’s controlling shareholder and
president, and a director along with Jack, Ken, and Dave
Simas who each own 15% of the shares. Megan Hui was
Simas Floor’s chief financial officer and performed similar
functions for M&M, as did Michele Carli in human resources.
M&M operated out of Simas Floor’s Sacramento facility, and
entered into collective bargaining agreements for its flooring
installers with Carpet, Resilient Flooring and Sign Workers
Local Union No. 1237. These agreements required M&M to
make contributions to the Resilient Floor Covering Pension
Fund on behalf of M&M’s flooring installers. By the time its
collective bargaining agreement came up for renewal in mid-
20558 RESILIENT FLOOR v. M&M INSTALLATION

-- 4 of 15 --

2004, Painters District Council No. 16 had assumed control of
Local 1237. The District Council insisted that the new agree-
ment also cover Simas Floor’s Sacramento flooring installers,
which was not acceptable to M&M. An impasse and strike
ensued, followed by a letter to Local 1237 dated July 8, 2004
from Mark Simas that repudiated the agreement for flooring
installers. (This did not affect M&M’s tile work or tile install-
ers who were covered by a different collective bargaining
agreement.) M&M then stopped making contributions to the
Pension Fund, which prompted the Pension Fund to assess a
$2,414,228.00 withdrawal liability, with quarterly payments
of $43,945.20 due every March, June, September, and
December for twenty years. M&M made quarterly payments
from December 2004 through April 30, 2008, when it shut
down operations and went out of business.
In a letter of August 19, 2008 the Pension Fund notified
M&M that its June 2008 payment was delinquent and
demanded payment. It explained that in its view, M&M was
“still doing business under the name of either M&M Installa-
tions or Simas Floor Company” and continued to be liable for
withdrawal liability. Ultimately, Simas Floor made the pay-
ments under protest. This suit, in which the Pension Fund
seeks to collect the withdrawal liability from M&M and
Simas Floor, and to accelerate payment, followed.
The parties filed cross-motions for summary judgment. The
Pension Fund moved for judgment on the grounds that Simas
Floor and M&M were alter ego employers; that M&M wound
up its business with a principal purpose of avoiding its with-
drawal liability in violation of § 1392(c); and that Simas Floor
is the successor employer to M&M. Simas Floor sought judg-
ment on the footing that it was not an “employer” within the
meaning of MPPAA as it is not the alter ego or successor of
M&M. In a published decision, the district court granted sum-
mary judgment to the Pension Fund, holding that Simas Floor
was M&M’s alter ego because the two companies admittedly
had sufficient commonality and because recognizing the sepa-
20559 RESILIENT FLOOR v. M&M INSTALLATION

-- 5 of 15 --

rateness of the two would undermine the purposes of ERISA
and MPPAA to protect employee rights. Resilient Floor Cov-
ering Pension Fund v. M & M Installation, Inc., 651 F. Supp.
2d 1057 (N.D. Cal. 2009). The court did not reach the remain-
ing grounds. It also granted judgment in Simas Floor’s favor
that a default had not occurred under 29 U.S.C.
§ 1399(c)(5)(A)-(B) such that the Fund was entitled to accel-
erate the debt.
Simas Floor appealed the judgment adverse to it, and the
Pension Fund cross-appealed.
II
We have previously explained how and why MPPAA
imposes withdrawal liability on union employers when they
withdraw from a multiemployer pension fund. See H.C.
Elliott, Inc. v. Carpenters Pension Trust Fund for N. Cal., 859
F.2d 808, 809-12 (9th Cir. 1988); see also Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 607-611 (1993). In a nutshell, ERISA,
which was enacted in 1974, was intended to protect employ-
ees covered by pension plans from being deprived of antici-
pated benefits because of employer underfunding. When it
turned out to do so inadequately, MPPAA was enacted in
1980 to reduce an employer’s incentive to terminate its affili-
ation with a multiemployer pension plan by requiring employ-
ers who do withdraw to pay the unfunded vested benefits
attributable to the withdrawing employers’ participation.1
[1] MPPAA imposes withdrawal liability on an “employ-
er” that withdraws from a multiemployer pension plan. 29
1Employers in the construction industry are liable only if they continue
to perform work within the jurisdiction of the collective bargaining agree-
ment and cease to have an obligation to contribute. H.C. Elliot, 859 F.3d
at 811-12; 29 U.S.C. § 1383(b)(2). Simas Floor does not contest that it
continued to perform flooring work.
20560 RESILIENT FLOOR v. M&M INSTALLATION

-- 6 of 15 --

U.S.C. § 1381.2 The statute does not define “employer.”
While Title I of ERISA does have a definition, 29 U.S.C.
§ 1002(5),3 it does not directly apply to Title IV, which con-
tains MPPAA. Drawing on Title I’s definition, however,
many courts have held that the term “employer” means “a
person who is obligated to contribute to a plan either as a
direct employer or in the interest of an employer of the plan’s
participants.” See Korea Shipping Corp. v. N.Y. Shipping
Ass’n-Int’l Longshoremen’s Ass’n Pension Trust Fund, 880
F.2d 1531, 1537 (2d Cir. 1989); Carriers Container Council,
Inc. v. Mobile S.S. Ass’n Inc.-Int’l Longshoreman’s Ass’n,
AFL-CIO Pension Plan and Trust, 896 F.2d 1330, 1343 (11th
Cir. 1990); Seaway Port Auth. of Duluth v. Duluth-Superior
ILA Marine Ass’n Restated Pension Plan, 920 F.2d 503, 507
(8th Cir. 1990); Cent. States, Se. and Sw. Areas Pension Fund
v. Cent. Transp., Inc., 85 F.3d 1282, 1287 (7th Cir. 1996);
Cent. States, Se. and Sw. Areas Pension Fund v. Int’l Comfort
Prods., LLC, 585 F.3d 281, 284-85 (6th Cir. 2009).4
[2] There is no question that M&M was the signatory
entity and Simas Floor was not. This means that M&M was
the “employer” for purposes of § 1381. But both parties agree
that if Simas Floor is the alter ego of M&M, then it, too, is
2Section 1381(a) provides: “If an employer withdraws from a multiem-
ployer plan in a complete withdrawal or a partial withdrawal, then the
employer is liable to the plan in the amount determined under this part to
be the withdrawal liability.” 29 U.S.C. § 1381(a).
3Section 1002(5) provides: “The term ‘employer’ means any person act-
ing directly as an employer, or indirectly in the interest of an employer,
in relation to an employee benefit plan; and includes a group or associa-
tion of employers acting for an employer in such capacity.” 29 U.S.C.
§ 1002(5).
4We have described an employer as “one who was a signatory employer
with respect to the plan,” H.C. Elliott, 859 F.2d at 813, but in the different
context of whether a company remained an employer after it stopped
employing people.
20561 RESILIENT FLOOR v. M&M INSTALLATION

-- 7 of 15 --

an “employer” and is responsible for M&M’s withdrawal liabil-
ity.5
[3] We assume, for purposes of resolving this appeal, that
this is so, that is, that the alter ego doctrine is available under
MPPAA to hold a non-union entity liable for the withdrawal
liability of a union employer. Neither the parties nor the dis-
trict court raised any question about whether alter ego liability
or veil piercing is consistent with the statute when withdrawal
liability is at issue. However, we note that § 1392(c) provides
that “[i]f a principal purpose of any transaction is to evade or
avoid liability under this part, this part shall be applied (and
liability shall be determined and collected) without regard to
such transaction.” While we will decide the issue that has
been presented, we expect on remand that the court will con-
sider whether § 1392(c) is intended to be the sole route of
redress for evading or avoiding withdrawal liability.
[4] The dispute actually raised in this case centers on what
is the correct test for determining whether Simas Floor is
M&M’s alter ego and how the Pension Fund, which bears the
burden of proof, may satisfy the test. The district court
acknowledged the two-part alter ego test from UA Local 343
v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1470 (9th Cir.
1994), but changed it. The Nor-Cal alter ego test requires
proof (1) that the two firms have “common ownership, man-
agement, operations, and labor relations,” and (2) that the
non-union firm is used “in a sham effort to avoid collective
bargaining obligations.” Id. (quotations omitted). The district
court replaced the second element with one focusing on
“whether recognizing the separateness of the two employers
undermines the purposes of ERISA and the MPPAA.” M &
M Installation, 651 F. Supp. 2d at 1062.
5The Pension Fund did not argue in district court that Simas Floor and
M&M are a “single employer” operating under “common control” for pur-
poses of § 1301(b)(1). Nor is any issue raised regarding whether ERISA
“common control” or § 1392(c) are the only ways for a company to be
responsible for another entity’s withdrawal liability.
20562 RESILIENT FLOOR v. M&M INSTALLATION

-- 8 of 15 --

Simas Floor concedes for present purposes that the com-
monality element of the Nor-Cal test is met. Instead, it main-
tains that the district court incorrectly ignored Ninth Circuit
precedent, beginning with Carpenters’ Local Union No. 1478
v. Stevens, 743 F.2d 1271 (9th Cir. 1984), regarding the sec-
ond element. That element has been variously phrased as
“whether [the non-union employer] was created in an attempt
to avoid the obligations of a [the union employer’s] collective
bargaining agreement through a sham transaction or a techni-
cal change in operations”; whether the non-union employer
was used in a sham effort to avoid collective bargaining obli-
gations; and whether some measure of fraud or misrepresenta-
tion exists. Nor-Cal, 48 F.3d at 1470, 1472 (quotations
omitted). See also A. Dariano & Sons, Inc. v. Dist. Council
of Painters No. 33, 869 F.2d 514, 519 (9th Cir. 1989) (indicat-
ing that in all alter ego determinations an element of fraud or
misrepresentation also exists); CMSH Co. v. Carpenters Trust
Fund for N. Cal., 963 F.2d 238, 241-42 (9th Cir. 1992) (indi-
cating that the alter ego doctrine only applies when the alter
ego is formed to avoid a preexisting duty). On this point,
Simas Floor maintains that it had no collective bargaining
obligation and was not a signatory to a union contract in 1994
when M&M was formed, therefore M&M was not created to
avoid a pre-existing collective bargaining obligation. See S.
Cal. Painters & Allied Trades Dist. Council No. 36 v. Rodin
& Co., 558 F.3d 1028, 1032-33 (9th Cir. 2009) (rejecting a
“reverse alter ago” doctrine where a non-union employer cre-
ated a union-signatory employer). Nor in its view was Simas
Floor used to avoid M&M’s collective bargaining obligations
because there is no evidence that M&M transferred tile work
to Simas Floor when it closed at the end of April 2008. And
Simas Floor dismisses the possibility of deception because the
Pension Fund knew that it functioned through a double-
breasted operation.
The Pension Fund, on the other hand, treats the issue as if
it turns almost entirely on the first prong, arguing that Simas
Floor exercised such dominion and control over M&M and
20563 RESILIENT FLOOR v. M&M INSTALLATION

-- 9 of 15 --

M&M’s installers as to be their employer. It did, in the Fund’s
view, because there was no written agreement between Simas
Floor and M&M; M&M was not an arm’s length subcontrac-
tor; Simas Floor controlled M&M’s work assignments; Simas
Floor hired, fired, and disciplined M&M’s installers; Simas
Floor supervised M&M installers on site; income received by
Simas Floor was used to pay M&M’s pension contributions
and later its withdrawal liability; and Simas Floor controlled
the cash that flowed through M&M so that M&M would
never have sufficient funds to meet its withdrawal liability
obligations unless those funds were supplied by Simas Floor.
The Pension Fund submits that the line of authority upon
which Simas relies is distinguishable because it consists of
collective bargaining cases where a union or pension fund
sought to extend a collective bargaining agreement to cover
the employees of a related non-signatory, which the Fund is
not trying to do here. Nevertheless, the Pension Fund con-
tends that even under the standard advocated by Simas Floor,
the undisputed evidence establishes that M&M and Simas
Floor intended to evade M&M’s withdrawal liability. It points
to evidence that Mark Simas, Michelle Simas, and Megan Hui
discussed shutting down M&M or reassigning it work to
avoid withdrawal liability; sued their lawyer for malpractice
for failing to provide an “exit strategy”; and when they lost
that action, reassigned M&M’s tile installation work and noti-
fied the Pension Fund it would no longer make withdrawal
payments because operations had ceased. The Pension Fund
posits that what really happened was that the carpet installa-
tion work in Sacramento that had been performed jointly by
M&M and Simas Floor was then being performed solely by
Simas Floor, but the pension contributions that were once
paid on a portion of Simas Floor’s carpet installation work
were no longer being made.
The Pension Fund offers no authority for the proposition
that it can prevail by merely showing that the non-union
employer (Simas) exerted such control and dominion over the
20564 RESILIENT FLOOR v. M&M INSTALLATION

-- 10 of 15 --

signatory employer (M&M) and its employees as to be the
employer of those employees. This is just another way of say-
ing that the first element is met because of common owner-
ship, common management, interrelation of operations, and
common control of labor relations.
Likewise, neither the Fund nor the district court points to
authority for a second element that would focus on “whether
recognizing the separateness of the two employers under-
mines the purposes of ERISA and the MPPAA,” as the dis-
trict court held. M & M Installation, 651 F. Supp. 2d at 1062-
63. We are not persuaded that this is a meaningful test. It basi-
cally converts a canon of statutory construction — that
ERISA and MPPAA should be “liberally construed in favor
of protecting participants in employee benefit plans,” Smith v.
CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984)
— into a standard for non-statutory alter ego status. Whether
recognizing the separateness of a double-breasted operation
would, or would not, undermine the purposes of ERISA and
MPPAA is a policy consideration that informs how we con-
strue the statutes and apply the alter ego doctrine in any par-
ticular case; it is not part of the alter ego test itself.
The Nor-Cal test upon which Simas Floor relies is not
entirely apposite, either. It has mainly been applied in labor
cases where union employers try to evade their on-going col-
lective bargaining obligations by shifting business to a non-
union employer. A successful application of the doctrine in
the Nor-Cal model binds the non-union employer to the sig-
natory employer’s continuing collective bargaining agree-
ment, see Stevens, 743 F.2d at 1276, whereas a successful
application of the doctrine in this case would oblige the non-
union employer to pay the signatory employer’s debt.
Simas Floor also contends that we have made clear that an
element of fraud or misrepresentation involving a pre-existing
duty exists in all alter ego determinations. For this it points in
particular to CMSH, where we focused on whether the alter
20565 RESILIENT FLOOR v. M&M INSTALLATION

-- 11 of 15 --

ego was formed to avoid a preexisting duty to make benefit
fund payments. 963 F.2d at 241-42. CMSH, however,
involves a different fact pattern and different legal issue from
that presented here. There, the employer (CMSH) withdrew
from a pension plan before MPPAA was passed; another
company (Framing) was formed after this and assumed
CMSH’s obligations under the collective bargaining agree-
ment, including the obligation to pay pension contributions
into the pension fund, but then itself withdrew. Framing con-
ceded withdrawal liability, but the fund sought to hold its pre-
decessor, CMSH, responsible as well. Id. at 239. We held that
CMSH was not liable because Framing replaced it as the
employer and because CMSH ceased all operations prior to
the effective date of MPPAA. Id. at 240-42. Neither situation
exists in this case, and in addition, CMSH is distinguishable
because there was no evidence of commonality or that Fram-
ing depended on CMSH for business and income. Id. at 239.
It is not, therefore, compelling authority.
[5] Notwithstanding the differences, however, the rationale
of our alter ego cases shows that the Nor-Cal standard,
adapted to the circumstances of withdrawal liability, remains
applicable. It is natural for a case involving the on-going obli-
gations of a union employer to focus on whether the non-
union employer should be bound by those obligations because
the non-union employer was created with the purpose of
avoiding those obligations. But the concern that animated
development of the doctrine in Stevens and Nor-Cal exists
here as well: the double-breasted operation, while not inher-
ently illegal, can be used to avoid payment of withdrawal lia-
bility. See, e.g., Stevens, 743 F.2d at 1275-77; Nor-Cal, 48
F.3d at 1469-70. If this concern exists, then the non-union
company may be responsible as an alter ego employer for the
union company’s withdrawal liability.
Nevertheless, Simas Floor maintains that it cannot be
responsible for M&M’s debt because we rejected a “reverse
alter ego” theory in Rodin. We agree that the facts here resem-
20566 RESILIENT FLOOR v. M&M INSTALLATION

-- 12 of 15 --

ble the scenario that we considered in Rodin in that in each
case, the non-union employer established a union employer.
Beyond that, the cases are dissimilar. The union in Rodin
claimed that Rodin (a non-union company) and Southern Cal-
ifornia Painting (a closely related union company Rodin was
instrumental in establishing) were alter egos and that Rodin
was therefore bound by the master labor agreement signed by
Southern California Painting. We observed that in a tradi-
tional, Nor-Cal type alter ego claim, the union employer
opens a non-union company to avoid existing collective bar-
gaining obligations, whereas in Rodin, the non-union
employer opened a union company allegedly to avoid future
collective bargaining obligations. 558 F.3d at 1032. In that
circumstance, it seemed nonsensical to us to hold that the
non-union employer attempted to avoid union obligations by
creating a union firm; there simply were no collective bar-
gaining obligations to avoid by doing so. However, we recog-
nized that it might be different if the union firm were to use
the non-union firm to avoid the union firm’s obligations, or
if the union firm were subsequently to shift work to the non-
union firm. Id. at 1033-34.
[6] We believe this case is different in the ways Rodin rec-
ognized. There is an indication that M&M and Simas Floor
used Simas Floor to avoid M&M’s withdrawal liability.
Among other things, M&M received all of its contracts and
income from Simas Floor, and passed profits through to
Simas Floor rather than itself making a profit. One of the rea-
sons for the failure of M&M to make withdrawal liability pay-
ments may be that it lacked either the income or capital to do
so. See Labor Clean-up Contract Admin. Trust Fund v.
Uriarte Clean-up Serv., Inc., 736 F.2d 516, 524-25 (9th Cir.
1984) (inferring fraudulent intent by incorporators due to the
lack of capitalization for purposes of piercing the corporate
veil to recover unpaid trust fund benefits). Of course another
reason may be that M&M ran out of business in a down-
economy, as Simas Floor argues. But there is evidence that,
20567 RESILIENT FLOOR v. M&M INSTALLATION

-- 13 of 15 --

if accepted, would make this case an exception to the Rodin
rule.
[7] Because the district court applied a different standard,
we believe that, if it concludes alter ego liability is available,
it should consider the evidence in light of the appropriate
standard in the first instance. In that event, given the different
standard, the court will need to revisit whether a triable issue
of fact exists on the second element. We decline to reach
Simas Floor’s liability under § 1392(c) because the district
court did not reach it; but we encourage consideration of this
claim on remand, as well as whether §§ 1301(b)(1) and
1392(c) are the sole means for recovery of withdrawal liabil-
ity from companies related to the union signatory.6
III
The Pension Fund contends that it is entitled to accelerate
the withdrawal liability because Simas Floor failed to make a
payment upon demand and created a substantial likelihood
that it would not pay when it repudiated the obligation. Under
MPPAA, withdrawal liability may be accelerated if “the fail-
ure [to pay] is not cured within 60 days after the employer
receives written notification from the plan sponsor of such
failure.” 29 U.S.C. § 1399(c)(5)(A). The Fund sent Simas
Floor a late notice dated August 19, 2008 for the June 2008
payment, which Simas Floor received on September 8. It
cured the default within 60 days by paying on November 6,
2008.
6The district court denied as moot Simas Floor’s request for a summary
declaration that M&M and it were not under “common control” for pur-
poses of § 1301(b)(1). Given our disposition, the issue will not be moot
on remand. However, we understand that the Pension Fund did not contest
this ground of Simas Floor’s motion for summary judgment in the district
court and makes no argument with respect to it on appeal. That being the
case, declaratory relief would be appropriate on remand.
20568 RESILIENT FLOOR v. M&M INSTALLATION

-- 14 of 15 --

The Pension Fund maintains that its August 19 letter was
also a demand for the September 2008 payment because it
addressed repudiation of M&M’s obligation to make future
payments. However, this position is foreclosed by the plain
language of the statute, which provides that “the failure of an
employer to make, when due, any payment . . . if the failure
is not cured within 60 days after the employer receives written
notification from the plan sponsor of such failure.” 29 U.S.C.
§ 1399(c)(5)(A) (emphasis added).
[8] We decline to reach the Fund’s anticipatory repudiation
argument, as it was not raised in district court.
IV
[9] We affirm the summary judgment in Simas Floor’s
favor that the Pension Fund was not entitled to accelerate the
debt for withdrawal liability under § 1399(c)(5). We reverse
the summary judgment in the Pension Fund’s favor that Simas
Floor is liable for M&M’s withdrawal liability on the ground
they were alter ego employers, and remand for the parties and
court to revisit the issue under the appropriate standard. We
decline to reach remaining issues before they are addressed in
the first instance by the district court.
AFFIRMED IN PART; REVERSED AND REMANDED
IN PART.7
7The parties are to bear their own costs.
20569 RESILIENT FLOOR v. M&M INSTALLATION

-- 15 of 15 --