October 14, 1993
                                         

No. 93-1098
                         JOHN SIMAS,

                     Plaintiff, Appellee,
                              v.

       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
                    Defendants, Appellees.

                                    
                COMMONWEALTH OF MASSACHUSETTS,

                    Intervenor, Appellant.
                                        

No. 93-1103
                        JAMES N. GRAY,

                     Plaintiff, Appellee,
                              v.

       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
                    Defendants, Appellees.

                                    
                COMMONWEALTH OF MASSACHUSETTS,

                    Intervenor, Appellant.
                                         

No. 93-1104
                        JAMES N. GRAY,

                    Plaintiff, Appellant,
                              v.

       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
                    Defendants, Appellees.

                                         

No. 93-1249
                         JOHN SIMAS,

                    Plaintiff, Appellant,
                              v.

       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
                    Defendants, Appellees.

                                         
        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. William G. Young, U.S. District Judge]
                                                    

                                         
                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

                         ERRATA SHEET

The opinion of this  Court issued on October  6, 1993, is  amended
as follows:

On  page  2  of  cover  sheet,  under  attorney  listings,  delete
"Thomas O. Bean for plaintiffs."
           

On  page   11,  line  11,  add   a  parenthesis   after  the  word
"designation."

On page 11, lines  3 and 4 of  footnote 4, replace  "Whittemore v.
                                                                  
Schlumberger  Technology  Corp."   with  Whittemore  v.   Schlumberger
                                                                  
Technology Corp."
           

On page 12, line 7 of footnote 5, underline "Fort Halifax."

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        
No. 93-1098

                         JOHN SIMAS,
                     Plaintiff, Appellee,

                              v.
       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,

                    Defendants, Appellees.
                                    

                COMMONWEALTH OF MASSACHUSETTS,
                    Intervenor, Appellant.

                                        
No. 93-1103

                        JAMES N. GRAY,
                     Plaintiff, Appellee,

                              v.
       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,

                    Defendants, Appellees.
                                    

                COMMONWEALTH OF MASSACHUSETTS,
                    Intervenor, Appellant.

                                         
No. 93-1104

                        JAMES N. GRAY,
                    Plaintiff, Appellant,

                              v.
       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,

                    Defendants, Appellees.
                                         

No. 93-1249
                         JOHN SIMAS,

                    Plaintiff, Appellant,
                              v.

       QUAKER FABRIC CORPORATION OF FALL RIVER, ET AL.,
                    Defendants, Appellees.

                                         
        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. William G. Young, U.S. District Judge]
                                                    

                                         
                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

Thomas  O.  Bean, Assistant  Attorney  General,  with  whom  Scott
                                                                  
Harshbarger, Attorney General, was on brief for intervenor.
       
Orlando F. de Abreu on joint briefs for plaintiffs.
                   
Mary T.  Sullivan, Donald J. Siegel  and Segal,  Roitman &amp; Coleman
                                                                  
on  brief  for  Economic  Development and  Industrial  Corporation  of
Boston, Massachusetts ALF-CIO, International Union, United Automobile,
Aerospace, and  Agricultural Implement  Workers Union of  America, Tax
Equity   Alliance  of   Massachusetts,   Urban   League   of   Eastern
Massachusetts Inc., Child World  Employees Committee, and Jewish Labor
Committee, Amici Curiae.
Neil Jacobs with  whom Daniel W. McCarthy  and Hale and Dorr  were
                                                            
on brief for defendants.
Arthur  G. Telegen,  Amy  B.G.  Katz, Jonathan  A.  Keselenko  and
                                                             
Foley, Hoag  &amp; Eliot  on  brief for  Freeman, Spogli  &amp;  Co. and  Avon
                
Investors Limited Partnership, Amici Curiae.

                                         

                       October 6, 1993
                                         

                              4

     BOUDIN,  Circuit Judge.   Massachusetts  has in  force a
                           

"tin  parachute"  statute  requiring   substantial  severance

payments to  employees who  lose their jobs  within specified

periods  before or after a corporate takeover.  Mass. Gen. L.

ch. 149,   183.   The district court held this statute  to be

preempted  by the  Employee  Retirement  Income Security  Act

("ERISA"), which by its terms "supersede[s] any and all State

laws  insofar  as they  may now  or  hereafter relate  to any

employee  benefit plan  . .  . ."  29 U.S.C.    1144(a).   We

affirm.

                              I.

     Quaker   Fabric   Corporation   of  Fall   River   is  a

Massachusetts corporation,  with some  1350 employees  in six

states  including Massachusetts.    The company  is a  wholly

owned  subsidiary  of Quaker  Fabric Corporation,  a Delaware

corporation.    John Simas  went  to work  for  Quaker Fabric

Corporation of Fall River in Massachusetts in 1971, and James

Gray  did so in 1978.  It is  the discharge of Simas and Gray

following  a takeover  of Quaker  Fabric Corporation  of Fall

River that gives rise to this suit.

     In  September 1989  Quaker Fabric  Corporation, and  its

subsidiary Quaker Fabric  Corporation of  Fall River,  passed

into the control of Union  Manifatture International N.V.  It

appears that Union Manifatture set up a new entity called QFC

Acquisition  Corporation,  merged   it  into  Quaker   Fabric

                             -3-

Corporation (the surviving corporation), and ended up holding

95  percent  of the  shares of  the  latter.   Presumably the

former owners  of Quaker Fabric  Corporation received  stock,

cash or both.  In any case, there is no dispute that a change

of control  occurred, and  that Union Manifatture  emerged as

the  ultimate  owner of  Quaker  Fabric  Corporation of  Fall

River.1

     The Massachusetts tin  parachute statute was enacted  in

1989 as part of  a package of anti-takeover measures.   Under

the statute, employees  who have  worked a  minimum of  three

years  for an  employer, and  whose employment  is terminated

within  24 months  after  a "transfer  of  control" of  their

employer,  are entitled to a  "one time lump  sum payment" of

twice their  weekly compensation  for each completed  year of

employment.  Mass.  Gen. L. ch. 149,   183.2   A condition of

payment,  discussed more  fully below,  is that  the employee

meet  the  eligibility  standards  for  unemployment benefits

under state law.   Id.   183(a).  If  the employee is covered
                     

                    

     1The mechanics  of the  takeover are not  entirely clear
from  the record;  thus,  the district  court  said that  QCF
Acquisition Corporation purchased 95 percent of the shares of
Quaker  Fabric Corporation  of Fall  River.   The discrepancy
                                          
does not affect our analysis.

     2Somewhat  similar protection  is afforded  to employees
who are discharged in prescribed periods before the takeover.
Id.   Certain  types of  corporations  and certain  types  of
   
takeovers are excluded.  Id.    183(a), (d).
                            

                             -4-

by a  corporate severance  plan with more  generous benefits,

the tin parachute statute does not apply.  Id.   183(d)(1).
                                             

     Both Simas  and Gray were discharged  from employment by

Quaker  Fabric Corporation  of  Fall River  within 24  months

after the takeover.  At the time of his termination, Gray was

covered  by the  company's  existing severance  plan but  the

company's  severance benefits  were  less  generous than  the

statute's benefits.  Simas was  not covered by any  severance

plan.    Both  men  ultimately  qualified   for  unemployment

benefits under state law.   The company nevertheless declined

to make  payments to  them under the  tin parachute  statute,

claiming that it was preempted by ERISA.

     In late 1991, Simas  and Gray filed suit in  state court

against  Quaker  Fabric Corporation  of  Fall  River and  QCF

Acquisition Corporation seeking the statutory  benefits.  The

Quaker Fabric defendants asserted the preemption  defense and

removed the  case  to district  court.   The  district  court

agreed that  the tin parachute statute was preempted by ERISA

and it granted summary  judgment in favor of  the defendants.

Simas v. Quaker Fabric Corp. of Fall River,  809 F. Supp. 163
                                          

(D.  Mass.  1992).   The  court  remanded  to  state court  a

separate wrongful  discharge claim that had  been asserted by

Simas  but raised  no  federal issues.   Id.  at 168.   After
                                            

judgment,  the Commonwealth  learned  of this  litigation and

intervened.  Simas, Gray and the Commonwealth now appeal.

                             -5-

                             II.

     ERISA,  as already noted,  explicitly preempts  "any and

all State laws" that "relate to any employee benefit plan . .

.  ."  29 U.S.C.   1144(a).   As the district court observed,

809  F. Supp.  at  166,  the  words  "relate  to"  have  been

construed  "expansively";  a  state  law  may  relate  to  an

employee  benefit plan even though  it does not conflict with

ERISA's  own  requirements, District  of Columbia  v. Greater
                                                             

Washington  Board of Trade, 113  S. Ct. 580,  583 (1992), and
                          

represents an otherwise legitimate  state effort to impose or

broaden benefits for employees.  Massachusetts v. Morash, 490
                                                        

U.S. 107, 116  (1989).   As we recently  summarized the  law,

ERISA  preempts  all state  laws  insofar as  they  relate to

employee  benefit plans, even laws  which are "a  help, not a

hindrance," to such plans, and regardless of whether there is

a  "comfortable  fit  between  a state  statute  and  ERISA's

overall  aims."   McCoy  v. MIT,  950 F.2d  13, 18  (1st Cir.
                               

1991), cert. denied, 112 S.Ct. 1929 (1992).
                   

     Thus,  a state  statute  that obligates  an employer  to

establish an  employee benefit plan is  itself preempted even

though ERISA itself neither mandates nor forbids the creation

of plans.  This may at first appear to be a surprising result

since  ERISA is primarily  concerned with  disclosure, proper

management, vesting requirements and other incidental aspects

of plans  established by  employers.   See generally Shaw  v.
                                                         

                             -6-

Delta Airlines, Inc.,  463 U.S. 85  (1983).  Yet  explanation
                    

for the broad  preemption provision is clear:   By preventing

states from imposing divergent obligations, ERISA allows each

employer to create its own uniform plan, complying with  only

one set of  rules (those  of ERISA) and  capable of  applying

uniformly  in  all  jurisdictions where  the  employer  might

operate.  Ingersoll-Rand  Co. v. McClendon, 498 U.S. 133, 142
                                          

(1990). 

     In this case, the  litigation in the district court  was

concerned  with the  question  whether the  one-time payments

ordered  by the tin parachute statute comprised or related to

a "plan,"  in light of  the narrowing interpretation  of that

word adopted in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1
                                                 

(1987).  In this court, the Commonwealth has laid more stress

on  a different argument, namely, its  claim that the statute

does not relate  to an "employee" plan because it (allegedly)

imposes the payment obligation not on an employer but instead

on the firm that takes over the employer.  We consider  these

two arguments in that order.

     The first argument--that no "plan" is established by the

tin  parachute statute--was  ably  answered  by the  district

court, 809  F. Supp. at 166-68,  and we lay out  the analysis

merely  to make this opinion complete.  In common parlance, a

directive to pay prescribed severance benefits might  readily

be described  as a plan.   But  in Fort Halifax,  the Supreme
                                               

                             -7-

Court, by a  five-to-four vote,  held that the  term did  not

encompass a Maine statute  providing for a one-time, lump-sum

payment  to employees,  based on  length of  service, in  the

event of plant closure.   

     The Supreme Court rejected  Maine's broad argument  that

there  was no  plan because the state imposed the obligation;

indeed, the  Court held  explicitly that a  severance benefit

plan would be preempted if imposed by the state.  482 U.S. at

16-17.  The Court  said, however, that Congress' concern  was

with  state interference  with  benefits "whose  provision by

nature requires an ongoing administrative program to meet the

employer's  obligation."  Id. at 11.  Reading the term "plan"
                             

in light of this purpose, Fort Halifax held that the term did
                                      

not   include  Maine's   severance  payment   statute,  which

"requires no administrative  scheme whatsoever,"  id. at  12,
                                                    

and calls on the employer "[t]o  do little more than write  a

check . . . ." Id. 
                 

     The  present case  may be  close to  Fort Halifax.   The
                                                      

Massachusetts  statute,  like  the Maine  statute,  calls for

payments to all eligible employees based on a specific event,

here, the  takeover.  That  similarity, however, must  be set

against  several  differences.    Each of  these  differences

increases   the   administrative   burden   imposed   by  the

Massachusetts statute,  in contrast to  Maine's statute;  and

each  makes  the  label  "plan"  better  suited  to  the  tin

                             -8-

parachute statute.  It is a matter of degrees  but under Fort
                                                             

Halifax degrees are crucial.
       

     The Maine  statute starts and  ends with a  single, once

and  for  all  event,  the  plant  closing,  after  which all

payments are due.  The Massachusetts statute, by contrast, is

triggered  separately for  each  three-year  employee by  the

individual termination of that employee within one of several

alternative  time  periods,   either  before  or  after   the

takeover.  More important,  whether a payment is due  depends

in Massachusetts not  merely on  the employee's  status as  a

three-year  employee  but on  whether  the  employee is  also

eligible  for  unemployment compensation  under Massachusetts

law.    This  is   effectively  a  cross-reference  to  other

requirements,  most importantly  that the  employee not  have

been  discharged  for  cause.   Mass.  Gen.  L.  ch. 151A,   

25(e)(2) ("deliberate misconduct"  or "knowing violation"  of

employer rule or policy).  

     Thus, the  Maine employer on  closing its plant  need do

little more than write  a check to each  three-year employee.

The Massachusetts  employer, by contrast, needs  some ongoing

administrative mechanism for determining, as to each employee

discharged within  two years after the  takeover, whether the

employee was discharged within  the several time frames fixed

by the  tin parachute statute  and whether  the employee  was

discharged   for  cause   or  is  otherwise   ineligible  for

                             -9-

unemployment compensation under Massachusetts law.   The "for

cause" determination,  in  particular, is  likely to  provoke

controversy and call for  judgments based on information well

beyond the employee's date of hiring and termination.3

     The Commonwealth asserts that these administrative tasks

are only a small step beyond what is required under the Maine

statute.  It  argues that detailed employment records must be

maintained  by  the  employer  in  any  event, and  that  the

employer need only wait for the state agency  to make its own

decision   on   employee    eligibility   for    unemployment

compensation.  To the last point the Quaker Fabric defendants

respond that,  because of the timing  of employer obligations

under the tin parachute statute, the employer cannot await  a

state agency decision that may  well occur after the employer

has  to make  the  one-time payment,  even assuming  that the

employee even applies for unemployment compensation.

     It  may be that  in some  instances, a  determination of

eligibility  would  be straightforward  and,  in others,  the

employer would have to make its own judgment and then monitor

or participate in state  proceedings.  But in all  events for

at least  two years after  the takeover, and  probably beyond

                    

     3In this  case, it happens that Simas was discharged for
what his employer regarded as cause (the company says that he
declined to  work because the low  temperature aggravated his
asthma condition).   The  state Department of  Employment and
Training  first found  him ineligible  but then  reversed its
position on later review.

                             -10-

that point  as to  disputed terminations, the  employer would

have to maintain records, apply the "for cause" criteria, and

make payments or dispute the obligation.  We think it evident

that ongoing  administrative obligations  are  imposed, of  a

kind and over a time period,  that go far enough beyond  Fort
                                                             

Halifax to call  the regime  a "plan" within  the meaning  of
       

ERISA.

     Given  the  Supreme Court's  reasoning in  Fort Halifax,
                                                            

there is no way to be certain exactly where it would draw the

line.   What we  do know  is  that our  sister circuits  have

generally  read Fort  Halifax as emphasizing  the mechanical,
                             

one-time nature  of the severance payments,  have applied the

decision to protect  schemes akin to  the Maine statute,  and

have  ceased to apply the decision where the state statute or

employer  promise  involved  ongoing  obligations  materially

beyond those present in  Fort Halifax.4  It is  somewhat hard
                                     

to generalize  about  the cases  because  of the  variety  of

variables in  the different severance schemes, but one of the

circuit decisions--Boque  v. Ampex Corp., 976  F.2d 1819 (9th
                                       

Cir. 1992)  (Wisdom, J., sitting by  designation)--is closely

in point.

                    

     4See,  e.g., James v. Fleet/Norstar Financial Group, 992
                                                        
F.2d  463 (2d Cir. 1993); Fontenot v. NL Industries, 953 F.2d
                                                   
960 (5th  Cir. 1992);  Whittemore v. Schlumberger  Technology
                                                             
Corp.,  976 F.2d 922 (5th  Cir. 1992); Bogue  v. Ampex Corp.,
                                                           
976 F.2d. 1319 (9th Cir. 1992), amended, 1992 U.S. App. LEXIS
                                       
31377, cert.  denied, 113 S.  Ct. 1847 (1993);   Pane v.  RCA
                                                             
Corp., 868 F.2d 631, 635 (3d Cir. 1989). 
    

                             -11-

     In Boque, the Ninth  Circuit considered the case  of the
             

corporation  that  had agreed  to  pay  a one-time,  lump-sum

severance  benefit to each of  a number of  executives if the

company were taken over  and afterwards a protected executive

did not retain "substantially  equivalent employment" in  the

new structure.  976 F.2d at  1321.  The court agreed that the

employer's obligation  was, as  in Fort Halifax,  a one-time,
                                               

lump-sum payment contingent on a future event.  But in Bogue,
                                                            

"that event would occur  more than once, at a  different time

for  each employee," 976 F.d at 1323, and the employer had to

make a substantive, "substantially  equivalent" determination

in each  case.  Accordingly,  as Judge Wisdom  said, "[t]here

was  no way to carry out [the employer's] obligation with the

unthinking,  one-time nondiscretionary  application [involved

in] .  . . Fort Halifax."   Id.  The  Ninth Circuit therefore
                              

found the severance regime to comprise a plan.  Id.  
                                                   

     These distinctions, which Judge Wisdom  found persuasive

in Bogue, apply to our case and persuade us as well.  In this
        

case,   as  in   Bogue,   the  time   period  is   prolonged,
                      

individualized decisions  are required,  and at least  one of

the criteria  is far from  mechanical.  Admittedly,  there is

not a great  distance between Boque and our case,  on the one
                                   

hand,  and on  the  other hand  cases  like Fort  Halifax  or
                                                         

decisions  that  track  it.   But  so  long  as Fort  Halifax
                                                             

prescribes a definition based on the extent and complexity of

                             -12-

administrative  obligations,  line drawing  of  this  kind is

necessary  and close cases  will approach the  line from both

sides.5

     We  turn  now   to  the  alternative   argument  against

preemption  urged  for  the  first  time  on  appeal  by  the

Commonwealth.  Simply put,  the argument is that even  if the

tin  parachute statute  imposes  obligations  amounting to  a

"plan," it is not an "employee" plan  because the obligations

are imposed on the "control transferee" and not the employer.

Although it is common practice not to consider arguments that

were not made to the district court, we think that this case-

-involving  the   constitutionality  of  a   state  statute--

justifies an exception.  Indeed, the Quaker Fabric defendants

urge us to  consider (and  reject) this new  argument on  the

merits.

     It  is true that the tin parachute statute does in terms

make  the "control transferee"  (and no one  else) liable for

the severance  payment dictated by the statute, Mass. Gen. L.

ch.

                    

     5E.g.,  James, 992  F.2d 463,  applying Fort  Halifax to
                                                          
prevent preemption  of an employer's promise to  pay 60 days'
salary as severance to  each employee who remained until  the
facility was  closed.   The court  said that  while employees
might have different termination dates, the  time frame was a
short  one and  the  payments involved  no more  than "simple
arithmetical calculations" upon such termination, just as  in
Fort Halifax.  Id. at 466-67.
                  

                             -13-

149,   183(b),  and it  defines "control  transferee" as  the

person or persons who have beneficial ownership of 50 percent

or  more of the voting  securities of the  employer after the

transfer.  Id.   183(a).  This might lead one to believe that
             

Quaker  Fabric Corporation (the  employer's immediate parent)

and its own owner, Union Manifatture, are actually liable for

the payment (even though neither was actually sued).6

     The  Quaker  Fabric  defendants  contend  that  the  tin

parachute statute imposes liability directly upon  the front-

line  employer.   They point  out that  the statute  by cross

reference, Mass. Gen.  L. ch.   149,    183(f), provides  for

enforcement  of   its  provisions  through   other  statutes,

directed  at  "employers,"  which   are  designed  to  secure

employees the wages due to them.   Mass. Gen. L. chs. 148-50.

There is  also some evidence  that the state's  Department of

Labor  and  Industries seeks  to  enforce  the tin  parachute

statute directly  against immediate employers,  just as Simas

and Gray did  in this  case by suing  their employer,  Quaker

Fabric Corporation of Fall River.

     Nevertheless, it  is unnecessary  to decide  whether the

immediate employer is  liable in addition to,  or instead of,

the control transferee--issues on which there appear to be no

                    

     6Simas  and Gray  sued  their  employer,  Quaker  Fabric
Corporation of Fall  River, and  QFC Acquisition  Corp.   The
former obviously did not  take control of itself and,  as the
Commonwealth describes the transaction, the latter was merged
out of existence in the course of the merger.

                             -14-

Massachusetts  judicial precedents.   For  we agree  with the

Quaker Fabric defendants that  the "control transferee" is an

employer for  ERISA purposes to  the extent that  the control

transferee is obligated to make payments to the employees  of

its subsidiary pursuant  to the tin parachute  statute.  This

is so, in our view, by reason of the joint force of statutory

language, precedent, and practical sense.  

     ERISA itself provides  that the  term employer  includes

"any person  acting directly as an employer, or indirectly in

the  interest  of an  employer,  in relation  to  an employee

benefit plan."   29 U.S.C.   1002(5).  We  take this language

to mean that, if the plan provides ERISA-type benefits to the

employees, the  paymaster is  classified as an  "employer" so

long as  it is connected to the employer and is acting in the

employer's interest.  In  our view, any payments made  by the

control transferee are "in the interest of" the employer.  29

U.S.C.     1002(5).   This  is  patently  so  if the  control

transferee assumes a liability  that would otherwise be borne

by the employer; but  we think it is  no less so even  if the

employer is  not contingently liable under  the tin parachute

statute.    Where employees  are  laid  off after  a  control

transfer, this is normally done because the employer or those

who  control  the employer  regard  the  down-sizing as  good

business.   Whether or not  they are right,  and whatever the

                             -15-

cause for the  reduction (e.g., new  debt), the fact  remains
                              

that the employer has lightened its payroll.

     Accordingly,  if  Quaker  Fabric  Corporation  or  Union
                     

Manifatture  is intended  to  be  held  liable as  a  control

transferee under the tin parachute  statute, it would then be

an employer  under ERISA  and, simultaneously,  its liability

would  be preempted.  This view is supported by cases holding

that a parent company making benefit payments to employees of

a subsidiary  company is their "employer" under ERISA.  E.g.,
                                                            

Reichelt  v.  Emhart Corp.,  921  F.2d 425,  427-28  (2d Cir.
                         

1990), cert. denied,  111 S.  Ct. 2854 (1991).   The  control
                   

transferee, in  our situation, is  very much like  the parent

company in a case like Reichelt.
                               

     Looking to realities, our case is even easier than cases

involving   parents   who    administer   plans   for   their

subsidiaries.    There is  little  doubt  that,  if  the  tin

parachute statute were not preempted, the severance  payments

would  be  made  based upon  records  kept  by  Quaker Fabric

Corporation of  Fall River, pursuant to judgments implemented

by its management,  and almost certainly with funds  from its

corporate account.  If the control transferee is liable under

the statute, it  is almost certainly  a nominal liability  in

the ordinary case; the effective  burden is on the front-line

employer, here Quaker Fabric Corporation of Fall River.  

                             -16-

     It is thus hard to credit  the Commonwealth's claim that

the tin parachute statute has no adverse effect on one of the

admitted  objects  of  the  ERISA  preemption  provision:  to

protect  employers  from  having  to  comply  with  different

directives as to benefit plans for employees depending solely

on the employees' location and the desires of different state

legislators.    The  Commonwealth's premise  is  that  Quaker

Fabric Corporation of Fall River bears no legal obligation to

make the payments.  But legal obligation or not, that company

will  almost  certainly  pay  the  bill  and  administer  the

payments, absent preemption.

     In all events, we think that the statutory definition of

employer in  ERISA resolves  the  matter, even  if we  ignore

realities and assume that  the control transferee exclusively

shoulders liability under the tin parachute statute.  This is

not a matter of "piercing the corporate veil" because another

person actively dominates the  corporation.  Without any such

dominance, payments  made by  a control transferee  under the

tin parachute statute are "in the  interest of" the employer;

the control  transferee is  to that extent  also an  employer

under ERISA; and preemption occurs automatically.7    

                    

     7We have considered the Commonwealth's argument based on
its own implicit  premise that  a plan is  not an  "employee"
plan  unless the paymaster is the "employer," or at least one
of  them.   This  premise  is far  from  secure.   See, e.g.,
                                                            
Trustees of  Electrical Workers  Health and Welfare  Trust v.
                                                          
Marjo  Corp., 988 F.2d 865  (9th Cir. 1992) (preempting state
            

                             -17-

                             III.

     We have  been earnestly  asked by the  Commonwealth, and

even more earnestly by an  impressive set of amici supporting

its  position, to give weight  to the benign  purposes of the

tin parachute statute to lessen the impact of job losses that

attend  corporate   takeovers.    Two  other   amici,  equity

investors in  Massachusetts companies,  urge to  the contrary

that the statute is unconstitutionally vague if read to place

the burden of liability  on control transferees who (the  two

amici say) may be a large and shifting group of investors.

     The asserted  benefits and  faults of the  tin parachute

statute are  not for us  to weigh.   Congress  has written  a

manifestly  broad preemption  statute,  the  courts with  few

exceptions have  interpreted it  broadly, and  our job  is to

carry  out that  mandate.  It  is an  odd irony  that, having

avoided condemnation under the Commerce Clause, see CTS Corp.
                                                             

v.  Dynamics  Corporation  of  America, 481  U.S.  69,  87-94
                                      

(1987),  a portion of anti-takeover legislation should perish

under an ERISA preemption clause whose full ramifications may

not  have been absorbed  by Congress.   But the ramifications

are inherent in the statute, and are not for us to curtail.

     It may  also seem ironic that a  federal statute enacted

in large  part to protect  workers should invalidate  a state

                    

law imposing  liability on general  contractors for  benefits
owed by subcontractors).

                             -18-

measure  that  has worker  protection as  one of  its primary

objectives.   But ERISA, like many a reform statute, has more

than  one  purpose  and  more  than  one  beneficiary.    The

uniformity of regulation gained  by employers under ERISA was

assuredly part of the  legislative balancing of interests and

trade-offs.   See Ingersoll-Rand, 498 U.S.  at 142 ("the goal
                                

was to  minimize the  administrative and financial  burden of

complying with conflicting directives among States or between

States  and the  Federal Government").   Courts, who  are the

least  representative branch  of  government, are  the  wrong

place to restrike the balance.

     In the end, the claim  of statutory benefits is answered

definitively by  Fort Halifax  itself.  Although  the Supreme
                             

Court saved the Maine statute by the narrowing interpretation

of "plan," the Court  there rejected Maine's broader argument

that  its  statute  avoided  preemption  because  it  was  an

independent directive that "reflects the  state's substantial

interest  in protecting  Maine citizens  from . .  . economic

dislocation .  . .  ."   482  U.S. at  6  (quoting the  Maine

Supreme Judicial  Court).   Fort Halifax holds  that a  state
                                        

statute cannot mandate benefits if they comprise an "employee

benefit plan,"  no matter how virtuous the  statute.  Because

the  tin  parachute  statute  imposes  such  a  plan,  it  is

preempted.

     Affirmed.
             

                             -19-
