                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                   No. 16-2203
                  _____________

      In re: AE LIQUIDATION, INC., ET AL,
                                     Debtors

ANNETTE VARELA, on behalf of herself and all others
              similarly situated;
 JOHN J. DIMURA, on behalf of himself and all others
               similarly situated,
                                        Appellants
                       v.

  AE LIQUIDATION, INC., ET AL, f/k/a ECLIPSE
         AVIATION CORPORATION
             _______________

   On Appeal from the United States District Court
           for the District of Delaware
        (District Court No. 1:14-cv-01492)
     Honorable Leonard P. Stark, District Judge
                _______________
              Argued: December 7, 2016
 Before: FISHER, KRAUSE, and GREENBERG, Circuit
                       Judges.

                (Opinion Filed: August 4, 2017)

Christopher D. Loizides
Loizides
1225 King Street
Suite 800
Wilmington, DE 19801

Jack A. Raisner   (Argued)
Rene S. Roupinian
Outten & Golden
685 Third Avenue
25th Floor
New York, NY 10017

        Counsel for Appellants

Mark E. Felger
Barry M. Klayman     (Argued)
Cozen O’Connor
1201 North Market Street
Suite 1001
Wilmington, DE 19801


    
      Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on
February 1, 2017.




                                 2
       Counsel for Appellee


                      _______________

                 OPINION OF THE COURT
                     _______________

KRAUSE, Circuit Judge.

        This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm the judgment of
the District Court, which in turn affirmed the judgment of the
Bankruptcy Court.




                               3
I.     Background

       Appellants are former employees of Appellee Eclipse
Aviation Corporation1 who were laid off when Eclipse
unexpectedly closed its doors in February 2009. This
shutdown was not expected because when Eclipse declared
bankruptcy in November 2008, it reached an agreement to
sell the company to its largest shareholder, European
Technology and Investment Research Center, (ETIRC)2—an
agreement that, if it had closed, would have allowed Eclipse
to continue its operations. The sale, however, required
significant funding from Vnesheconomban (VEB), a state-
owned Russian Bank, and this funding never materialized.
For a month, Eclipse waited for the deal to go through with
almost daily assurances that the funding was imminent and
the company could be saved, but eventually, as those
assurances failed to bear fruit, the time came when it was
forced to cease operations altogether. To explain why layoffs
were not probable before that point, however, we must review
the development of the relationship between Eclipse and
ETIRC, and their prospective financing arrangement with
VEB.


       1
        Eclipse’s interests in this litigation are represented by
Jeoffrey L. Burtch—the Trustee responsible for administering
Eclipse’s estate. For simplicity’s sake, we will refer to
Appellee solely as “Eclipse.”
       2
            ETIRC formed a separate subsidiary entity,
EclipseJet Aviation International, Inc., for purposes of this
acquisition. For ease of explanation and to accord with the
nomenclature used by the parties, we will refer to ETIRC and
all of its subsidiaries simply as “ETIRC.”




                               4
       The relationship between Eclipse and ETIRC began in
2004 when ETIRC became both a customer for and
distributor of Eclipse’s aircrafts. After three years as a
customer and distributor, ETIRC became an investor in
Eclipse in late 2007, providing Eclipse with a significant loan
in exchange for preferred stock. Around the same time,
Eclipse and ETIRC also agreed to a Memorandum of
Understanding under which ETIRC was to buy aircraft kits
from Eclipse to be assembled by a factory in Russia
(“Russian factory deal”). This arrangement was to be
financed in large part by VEB, and money generated from
this project was expected to play a large role in ensuring that
Eclipse could maintain its working capital requirements for
the upcoming year. Shortly thereafter, in early 2008, ETIRC
purchased additional preferred stock in Eclipse and, as part of
a restructuring agreement, Eclipse agreed to appoint two
representatives of ETIRC to its five-member board of
directors. Following these investments, ETIRC continued to
provide Eclipse with financial support as needed.

       In June 2008, the closing of the Russian factory deal
became delayed and Eclipse began to run out of money. As
Eclipse’s financial troubles mounted, its dependency on
ETIRC grew and, after Eclipse breached its minimum cash
covenant required to operate, ETIRC provided Eclipse with a
$25 million unsecured loan to help keep the company solvent.
Shortly thereafter, ETIRC’s Chairman, Roel Pieper, was
named acting Chief Executive Officer of Eclipse.

        Despite ETIRC’s support, Eclipse’s solvency was
short-lived. Although the Russian factory deal continued to
progress and Pieper reported to Eclipse’s board of directors
that the issues that had caused its delay had been resolved, the
timing of the closing remained uncertain, and, by November




                               5
2008, Eclipse had again fallen below its minimum cash
covenant. At that point, an ad hoc committee of Eclipse’s
noteholders froze all company accounts, and Eclipse’s board
of directors began to explore the company’s options via
bankruptcy proceedings.

       The board of directors considered pursuing three
possible courses of action in bankruptcy: (1) auctioning off
Eclipse’s assets as a whole pursuant to Section 363 of the
Bankruptcy Code, 11 U.S.C. § 363(b)(1), with ETIRC serving
as a “stalking horse” bidder; 3 (2) auctioning off the
company’s assets as a whole in a “naked” sale pursuant to
Section 363—that is, conducting an auction without a
“stalking horse” bidder, J.A. 960; and (3) liquidating the
company pursuant to Chapter 7 of the Bankruptcy Code.
ETIRC expressed a “genuine interest” in continuing Eclipse’s
business, J.A. 960, and committed an additional $1.6 million



      3
         A “stalking horse” bidder enters into an asset
purchase agreement with the debtor (in this case, Eclipse)
prior to an auction. The price agreed upon in the asset
purchase agreement must then withstand the auction,
conducted in accordance with bidding procedures approved
by the bankruptcy court. Thus, “[t]he purpose of a stalking
horse in the context of a § 363 sale is to establish a
competitive floor or minimum bid amount for the purchase of
the debtor’s business, thereby preventing lowball offers that
would fail to provide a minimum amount of value.” Rakhee
V. Patel & Vickie L. Driver, Toto, I’ve A Feeling We’re Not
in Kansas Anymore: Bankruptcy Sales Outside the Ordinary
Course of Business, Fed. Law., February 2010, at 56, 58.




                             6
to help fund Eclipse’s operations while the two sides
negotiated an agreement for ETIRC to acquire Eclipse.

       On November 25, 2008, Eclipse filed a petition for
bankruptcy under Chapter 11 of the Bankruptcy Code along
with an asset purchase agreement to sell substantially all of
the company’s assets to ETIRC pending an auction. The deal
included a provision that VEB would provide ETIRC with a
$205 million loan, and, although the asset purchase
agreement did not contain any express provisions requiring
ETIRC to take on Eclipse’s employees, it specifically
provided that Eclipse was to continue operating its business
and retain its employees through closing. The Bankruptcy
Court entered an order approving the proposed procedures
governing the auction and sale, and an auction and sale
hearing were scheduled for mid-January 2009.

       Eclipse did not receive any additional qualifying bids
for the company, and, after a multiple-day sale hearing, the
Bankruptcy Court entered an order on January 23, 2009,
approving a second amended asset purchase agreement under
which Eclipse was to be sold to ETIRC. Although ETIRC’s
receiving additional financing was not a condition of the
sale’s closing, the amended agreement stated that VEB had
delivered a fully executed commitment letter confirming that
it would provide ETIRC with a $205 million loan to finance
the sale. Like the original agreement, the amended agreement
did not require ETIRC to retain Eclipse’s employees, but did
provide that Eclipse was to continue its full operations
through closing. Lastly, although the agreement did not
contain a specific closing date, it afforded both parties the
option to terminate the agreement if closing did not occur by
February 28, 2009.




                             7
       In the month that followed, VEB took ETIRC and
Eclipse on a roller coaster ride of promises and assurances
that never came to fruition. Following the Bankruptcy
Court’s approval of the agreement, closing was originally
scheduled for January 29th, but it did not move forward on
that date because VEB was unexpectedly insolvent.
Nonetheless, Pieper reported to Eclipse’s board that he had
been assured that then-Russian Prime Minister Vladimir Putin
personally would make a decision on February 2nd as to
whether the sale could still be funded. On February 3rd,
Pieper and Daniel Bolotin, another ETIRC executive who sat
on Eclipse’s board of directors, reported to the board that
VEB would be recapitalized on February 5th, that there was a
“high likelihood” the sale’s funding would be approved by
the Russian parliament that same day, and that the funding
would become available early the following week. J.A. 1001.
Eclipse’s disinterested directors,4 however, were not
comfortable with this uncertain arrangement and agreed that
while they had “no reason to disbelieve” Pieper and Bolotin’s
reports, they would “need to see specific documentation . . .
evidencing the approval of . . . the recapitalization of VEB . . .
[and] the approval of the [funding for the sale],” and, without
such documentation, they would recommend that the sale be
called off and Eclipse’s bankruptcy proceedings be converted


       4
         Although Pieper and other ETIRC executives were
members of Eclipse’s board, all decision-making regarding
the sale to ETIRC was delegated to Eclipse’s two
disinterested directors, Kent Kresa, who previously served as
chairman of General Motors Co. and chairman and CEO of
Northrup Grumman Corp., and Harold Poling, the former
chairman and CEO of Ford Motor Co.




                                8
to a liquidation under Chapter 7 of the Bankruptcy Code.
J.A. 1003-04.

       Consistent with Pieper’s report, on February 5th, the
Russian parliament approved the recapitalization of VEB and
ETIRC’s funding, and Pieper was invited to Moscow the
following week to sign documents finalizing the agreement.
With the closing seeming imminent, ETIRC also agreed to
provide additional funding of its own to cover the added costs
Eclipse had incurred as a result of this delay.

       Pieper arrived in Moscow on February 10th, and
informed Eclipse executives and the board the next day that
while, much to his surprise, VEB had not yet been
recapitalized, the final necessary meeting would take place
later that week and VEB would receive funds on either
February 13th or February 16th, with the ETIRC funds
becoming available shortly thereafter. Bolotin described
Pieper’s meeting with Prime Minister Putin’s deputy as
“positive,” and Pieper indicated that “all of the background
work in Russia has been successfully completed and all that
remains is execution and timing.” J.A. 1012-13.

        At that same board meeting, Eclipse’s CFO reported
that the company had become administratively insolvent as of
February 6th and was on pace to run out of money the week
of February 20th. In light of Eclipse’s dwindling finances, its
disinterested directors resolved that if ETIRC had not
received the funding or “satisfactory confirmation” of it by
February 16th, they would recommend either a Chapter 7
liquidation or that all but a handful of Eclipse employees be
furloughed to preserve the company’s money while it waited
for the VEB financing to arrive. J.A. 1015.




                              9
        On February 16th, a Russian Governor appeared by
phone at a meeting of Eclipse’s full board of directors and
informed them that VEB had been recapitalized, that funding
the Eclipse project was one of Prime Minister Putin’s top
priorities, and that the Governor expected to have more
information on the structure of the financing the following
day. The board minutes also reflect that the Governor
“expressed his optimism that the funding could occur
rapidly.” J.A. 1017. This was enough to assure Eclipse’s
disinterested directors that a conversion to liquidation was
unnecessary at that time, but they agreed to move forward
with the furlough if the funding did not arrive the following
day. As an alternative possibility, the disinterested directors
inquired of Pieper whether ETIRC could, at least in the short
term, fund the agreement without the loan from VEB.

        On February 17th, Pieper and Bolotin reported to the
board that VEB had allocated a budget to fund the sale and
there was a possibility that funding would arrive as early as
the next day. Pieper also disclosed that, in the event the
funding was further delayed, ETIRC did not have the capital
to fund Eclipse on its own. At a meeting of the disinterested
directors that same day, Eclipse’s CFO informed the
disinterested directors that, without further funding, the
company was set to run out of money by February 27th. In
light of this information, the disinterested directors agreed to
proceed with the furlough to ensure that the company could
continue through the anticipated closure. Accordingly, on
February 18th, Eclipse employees were informed that “the
sale of Eclipse Aviation is taking longer than expected” and
that, although “all actions to date allow us to believe that the
sale and closing of the overall process is well within reach,”
they were being furloughed indefinitely in order to “make the




                              10
company’s remaining cash last as long as possible and give
[Eclipse] the most time to complete the sale.” J.A. 1025.

       On February 19th, Pieper reported to Eclipse’s CFO
that VEB had approved all documentation, that the money
had been allocated, and all that was needed was the final
signoff from Prime Minister Putin. The next day, the ad hoc
committee of noteholders informed Pieper that, due to
ETIRC’s failure to obtain financing, they had “no alternative”
but to convert Eclipse’s bankruptcy to a Chapter 7
liquidation. J.A. 691. Pieper informed the noteholders that
there would be further meetings in Russia the following day,
and that he would have more information then.

        At the board meeting on February 21st, Pieper
similarly reported he expected the funding to be approved
later that afternoon, and Bolotin confirmed that a meeting was
occurring that afternoon at the Moscow “White House” and a
final decision would be made at that time. J.A. 1027-28.
When the board reconvened later that day, however, Bolotin
gave the board the bad news that, contrary to all prior
representations, Prime Minister Putin had not made a decision
on the funding, because he “still had to think about it.” J.A.
1028. Bolotin also reported that the Russian Governor who
had assured the board a few days earlier that the funding was
coming could not attend the meeting with Prime Minister
Putin due to a medical emergency, and that Bolotin would be
receiving a more detailed description the following day of
what had occurred during the meeting with the Prime
Minister.

       According to the noteholders’ motion to convert,
Pieper did not show up for a scheduled meeting that day and,
on February 22nd, informed the committee that problems




                             11
appeared to have arisen with the financing in Russia. When
no further updates of progress from Pieper or Bolotin had
been received by February 23rd, the noteholders informed the
board and Pieper that they were ready to pull the plug on the
deal and to file a motion to convert Eclipse’s bankruptcy to
liquidation proceedings. Pieper asked for one more day to
make the financing come through, and Bolotin advised the
board that ETIRC’s Moscow attorney would personally call
Prime Minister Putin the following morning to advocate for
the project, expressing confidence that he could provide a
final answer to the board the next day. The noteholders and
disinterested directors agreed to wait one more day for a
definitive answer, but adopted a resolution directing
management to file a motion to convert the bankruptcy to
Chapter 7 liquidation proceedings at 2:00 p.m. on February
24th unless they received a “formal written commitment from
the Russian Government” that committed to closing by
February 26th—the day before Eclipse expected to run out of
money. J.A. 1029-30. No commitment came that afternoon,
and the motion to convert was then filed on February 24th.

       Once the motion was filed, Eclipse emailed its
employees informing them that despite its best efforts,
“closing of the sale transaction has stalled and our company is
out of time and money,” and that because of the “dire
circumstances in today’s global marketplace” and the lack of
any additional funding, the company’s noteholders and board
of directors had decided to convert Eclipse’s bankruptcy from
a reorganization under Chapter 11 to a liquidation under
Chapter 7. J.A. 1039. The email explained that this meant
the prior furlough had been converted into a layoff, effective
February 19th, and that the employees would receive




                              12
information regarding their benefits packages in the mail later
that week.

       Eclipse’s employees filed the class action complaint
that gave rise to this appeal—an adversary proceeding in the
Bankruptcy Court alleging that Eclipse’s failure to give them
sixty days’ notice prior to the layoff violated the WARN Act.
After discovery, the employees moved for partial summary
judgment, asserting that Eclipse could invoke neither the
Act’s “faltering company” exception, nor its “unforeseeable
business circumstances” exception to excuse its lack of
notice, and Eclipse filed a cross-motion for summary
judgment, contending that the “unforeseeable business
circumstances” exception barred WARN Act liability. The
Bankruptcy Court agreed with Eclipse and granted summary
judgment in its favor. In re AE Liquidation, Inc., 522 B.R. 62
(Bankr. D. Del. 2014). The District Court affirmed on appeal,
In re AE Liquidation, Inc., 556 B.R. 609 (D. Del. 2016), and
this appeal followed.

II.    Jurisdiction and Standard of Review

       The Bankruptcy Court had jurisdiction under 28
U.S.C. § 157(b), the District Court had jurisdiction under 28
U.S.C. § 158(a), and we have jurisdiction under 28 U.S.C. §
158(d). In reviewing bankruptcy court decisions on appeal,
we “stand in the shoes” of the district court and apply the
same standard of review. In re Global Indus. Techs., Inc.,
645 F.3d 201, 209 (3d Cir. 2011) (en banc). Here, we
exercise plenary review over the Bankruptcy Court’s order
granting summary judgment in favor of Eclipse. See id.

      We will affirm the District Court’s and, in turn, the
Bankruptcy Court’s grant of summary judgment only if we




                              13
conclude “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We must view the facts in the light
most favorable to the nonmoving party and give that party
“the benefit of all reasonable inferences.” Reliance Ins. Co.
v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997). We do not
weigh the evidence; rather, we assess whether the evidence is
“such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Thus, in this case, summary judgment is
only appropriate if no reasonable jury could find Eclipse
liable under the WARN Act.

III.   Analysis

       The WARN Act was enacted in response to significant
worker dislocation that occurred throughout the 1970s and
1980s when “[a]s companies were merged, acquired, or
closed, many employees lost their jobs, often without notice. .
. . [And] [i]n some circumstances, the projected closing was
concealed from the employees.” Hotel Emps. & Rest. Emps.
Int’l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175,
182 (3d Cir. 1999). To ensure that laid-off workers and their
families receive “some transition time to adjust to the
prospective loss of employment,” 20 C.F.R. § 639.1, the Act
requires employers to give sixty days’ notice to all affected
employees or their representatives prior to a mass layoff or a
plant closing. 29 U.S.C. § 2102(a). While it is undisputed
that Eclipse did not comply with this notice requirement, the
Act contains multiple exceptions, and Eclipse asserts that one
of them—the “unforeseeable business circumstances”
exception—bars liability in this case.




                              14
       That exception must be offered by the employer as an
affirmative defense and applies when “the closing or mass
layoff is caused by business circumstances that were not
reasonably foreseeable as of the time that notice would have
been required.” Id. § 2102(b)(2)(A). Specifically, the
employer must demonstrate (1) that the business
circumstances that caused the layoff were not reasonably
foreseeable and (2) that those circumstances were the cause of
the layoff. Calloway v. Caraco Pharm. Labs., Ltd., 800 F.3d
244, 251 (6th Cir. 2015); 20 C.F.R. § 639.9(b). Even if an
employer establishes that unforeseeable events prevented it
from giving notice sixty days in advance, the Act still requires
that employers “give as much notice as is practicable” under
the circumstances, 29 U.S.C. § 2102(b)(3), including, where
appropriate, “notice after the fact,” 20 C.F.R. § 639.9.

       Appellants contend that Eclipse has not met its burden
of demonstrating that the unforeseeable business
circumstances exception applies for three reasons. First, they
argue, as a threshold matter, that Eclipse is ineligible for the
exception because, even after the fact, it never provided its
employees with proper notice of their termination. Second,
they contend that Eclipse cannot show that the purported
unforeseeable business circumstance—its failure to close its
proposed sale to ETIRC—was, in fact, the cause of the mass
layoff. Third, they assert that, even if the failure to close the
sale was the cause of the layoff, the exception still would not
apply because the failure to close was not “unforeseeable” but
rather could have been anticipated at many points in the sixty-
day window prior to the layoff. We address these contentions
in order.

       A.     Sufficiency of Notice of Termination




                               15
        We turn first to Appellants’ contention that Eclipse
cannot qualify for the unforeseeable business circumstances
exception to excuse its untimely notice of termination
because, even when Eclipse did eventually inform its
employees that they were being laid off, the contents of that
notice and Eclipse’s method of delivery were statutorily
deficient under the WARN Act. See Sides v. Macon Cty.
Greyhound Park, Inc., 725 F.3d 1276, 1284 (11th Cir. 2013)
(“[I]t is manifest that a WARN Act employer attempting to
circumvent the 60–day notice requirement must still give
some notice in accord with [the other requirements of the
Act].”). Taking the requirements of the statute and the
Department of Labor’s implementing regulations together,
any notice of a mass layoff must contain “(1) [t]he name and
address of the employment site where the . . . mass layoff will
occur, and the name and telephone number of a company
official to contact for further information; (2) [a] statement as
to whether the planned action is expected to be permanent or
temporary . . .; (3) [t]he expected date of the first separation
and the anticipated schedule for making separations; (4) [t]he
job titles of positions to be affected and the names of the
workers currently holding affected jobs,” 20 C.F.R. §
639.7(c); and (5) when given less than sixty days in advance,
“a brief statement of the basis for reducing the notification
period,” 29 U.S.C. § 2102(b)(3).5 This notice must be “based

       5
          At least one district court has held that explicit
reference to the WARN Act is required in order for notice to
be proper under the statute. See Weekes-Walker v. Macon
Cty. Greyhound Park, Inc., 877 F. Supp. 2d 1192, 1208 (M.D.
Ala. 2012) (“Although by itself not sufficient, a reference to
the statute, however, is essential to proper notice because it
provides the affected employees with the framework for




                               16
on the best information available to the employer at the time
the notice is served,” 20 C.F.R. § 639.7(a)(4), and delivered
in a manner “which is designed to ensure receipt,” id. § 639.8.

       Here, all of these requirements are met. After learning
that Eclipse’s bankruptcy proceedings would be converted to
a Chapter 7 liquidation on February 24, 2009, Eclipse’s
management sent the following message, in pertinent part, to
all employees’ work email addresses:

              We are very sad to report
              unexpected news today. Despite
              the efforts of many people at
              EclipseJet Aviation and ETIRC to
              obtain necessary funding to close
              the purchase of the assets of

evaluating the validity of the defense. One cannot assess the
propriety of a legal defense without first having knowledge of
the existence of the law.”); cf. Sides, 725 F.3d at 1285
(affirming the District Court’s ruling in Weekes-Walker on
other grounds, but observing that, even had the employer
given timely notice, “[t]he alleged notice provided by [the
employer] did not reference the WARN Act”). Here,
Appellants have waived any argument Eclipse’s notice was
deficient because it failed to make such an explicit reference
by failing to raise it before the Bankruptcy Court, the District
Court, or this Court. See Gonzalez v. AMR, 549 F.3d 219,
225 (3d Cir. 2008). Accordingly, although it may be a good
practice for employers to make such a reference, we offer no
opinion as to whether it is statutorily required.




                              17
Eclipse Aviation, the closing of
the sale transaction has stalled and
our company is out of time and
money.         Given the dire
circumstances in today’s global
marketplace and the lack of
additional     debtor-in-possession
funding, the senior secured
creditors of the Company filed a
motion today in US Bankruptcy
Court in Delaware to convert the
Chapter 11 case to a Chapter 7
liquidation. This action, under the
circumstances, is being supported
by the directors of Eclipse.

What does this mean for each
employee?        The furlough
converted to a layoff effective
Thursday,      February     19,
2009. . . .You may have certain
rights to seek payment in the
bankruptcy proceeding; you may
receive additional information
about that from the bankruptcy
court.

. . . Later this week you will
receive a termination package in
the mail which will have
information     regarding   your
benefits.




                18
J.A. 1039. The following day, Eclipse mailed those same
employees termination documents containing information
about their benefits and the phone number of the vice
president of human resources who could be contacted for
further questions.

       We perceive no deficiency in Eclipse’s notice. The
February 24th email was clear that the layoff (1) applied to all
sites company-wide; (2) was permanent; (3) was effective
retroactively to the date of the furlough; (4) was applicable to
all employees; and (5) provided specific facts explaining both
the reasons for the termination and the delay in the provision
of notice—namely, the buyer’s unexpected failure to obtain
funding before Eclipse’s debtor-in-possession reserves were
depleted, the dire financial conditions in the global
marketplace, the unavailability of additional funds, and the
noteholders’ resulting decision to convert Eclipse’s case to a
Chapter 7 liquidation.6 Despite Appellants’ contentions to the

       6
           Although the email did not specifically provide the
contact information for a company representative, the benefits
letter, dated February 25, 2009, did, and Eclipse may claim
the benefit of multiple communications combined for
purposes of WARN Act notice. Kalwaytis v. Preferred Meal
Sys., Inc., 78 F.3d 117, 122 (3d Cir. 1996). While we have
held that the effective date of a multi-part notice is the date of
the final communication when the initial communication was
ambiguous on such a fundamental issue as whether the layoff
was temporary or permanent, id., we have not had occasion to
address whether an initial communication would likewise be
insufficient to stop the clock where that communication omits
the contact information for a company representative but
indicates more information is forthcoming, and that contact




                               19
contrary, this information was sufficient to “assist” the
employees in “understand[ing] the employer’s situation and
its reasons for shortening the notice period.” Alarcon v.
Keller Indus., Inc., 27 F.3d 386, 389 (9th Cir. 1994).

       Lastly, the email informing employees of the layoff
was delivered in a manner designed to ensure receipt.
Although Appellants contend that the email was sent to the
“wrong addresses” because Appellants had already been
furloughed and no longer had access to their work email
accounts, Appellants’ Br. 58, the record reflects both that
Appellants had access to their work email accounts during the
furlough, and that, when the furlough first began, members of
management were told to instruct the employees in their
respective departments to continue to monitor their work
email accounts for further updates. Accordingly, we perceive
no dispute of material fact as to whether the notice’s contents
or method of delivery violated the WARN Act, and we turn
next to the question of whether Eclipse may excuse its failure
to provide notice at an earlier date by relying on the
unforeseeable business circumstances defense—that is,
whether ETIRC’s failure to obtain the financing necessary to
finalize the sale was the cause of the mass layoff, see infra
Part B, and, if so, whether that failure was reasonably
foreseeable prior to February 24, 2009, see infra Part C.

      B.     Causation


information is promptly provided the following day. We
need not do so here, as Appellants do not challenge the date
of the notice on this ground, and any such argument is
therefore waived. See Gonzalez, 549 F.3d at 225.




                              20
       For the unforeseeable business circumstances
exception to apply, Eclipse must demonstrate that the
allegedly unforeseeable event was, in fact, the cause of the
layoff. Calloway, 800 F.3d at 251; 20 C.F.R. § 639.9(b). For
the reasons set forth below, we agree with the District and
Bankruptcy Courts that Eclipse has made this showing.

        The WARN Act provides that “[i]n the case of a sale
of part or all of an employer’s business,” the seller is
responsible for providing employees notice of any mass
layoff “up to and including the effective date of the sale,” at
which point that responsibility shifts to the buyer. 29 U.S.C.
§ 2101(b)(1). When a sale proceeds on a “going concern”7
basis, it is presumed that the sale “involves the hiring of the
seller’s employees unless something indicates otherwise,”
regardless of whether the seller has expressly contracted for
the retention of its employees. Wilson v. Airtherm Prods.,
Inc., 436 F.3d 906, 912 (8th Cir. 2006); see also Int’l All. of
Theatrical & Stage Emps. v. Compact Video Servs., Inc., 50
F.3d 1464, 1468 (9th Cir. 1995).

       Relying on this presumption, Eclipse urges that
because ETIRC had agreed to purchase Eclipse as a going
concern and nothing indicates otherwise, the District Court
was correct to find that the employees would have been
retained (i.e., the layoff would not have occurred but for

      7
        Black’s Law Dictionary defines “going concern” as
“[a] commercial enterprise actively engaging in business with
the expectation of indefinite continuance.” Going Concern,
Black’s Law Dictionary (10th ed. 2014); see also Day v.
Celadon Trucking Servs., Inc., 827 F.3d 817, 828 (8th Cir.
2016) (adopting same definition).




                              21
ETIRC’s failure to obtain the financing necessary to finalize
the sale). In particular, Eclipse points out that Section 6.7 of
the second amended asset purchase agreement, entitled
“Conduct of Business Prior to the Closing Date,” expressly
required Eclipse to “use commercially reasonable efforts
to . . . continue operating the Business as a going concern,” to
“maintain the business organization of the Business intact,
including its agents, employees, consultants and independent
contractors,” and to “preserve the goodwill of the
manufacturers, suppliers, contractors, licensors, employees,
customers, distributors and others having business relations
with the Business,” while prohibiting Eclipse from “offer[ing]
employment for any period on or after the Closing Date to
any employee or agent of the Business unless [ETIRC] has
determined not to make an offer of employment” or
“otherwise attempt[ing] to persuade any such employee or
agent to terminate his or her relationship with the Business.”
J.A. 551-52. These terms, which expressly contemplate a
going concern transaction and prevent Eclipse from
disturbing any aspect of its operations or employment
relationships strongly indicate that, had the sale been
consummated, ETIRC intended to continue Eclipse’s
operations largely as is.

       In addition, circumstantial evidence from the
discussions leading up to Eclipse’s bankruptcy and the
subsequent formation of the asset purchase agreement support
the same conclusion. The minutes of Eclipse’s board
meetings prior to its declaration of bankruptcy reflect that part
of the reason it chose to pursue an auction of the company
with ETIRC as a stalking horse bidder rather than a “naked”
auction with no such bidder was to avoid “deep cuts in the
Company’s operations,” J.A. 956, as the “naked” auction




                               22
would have required Eclipse to lay off 75% of its employees,
J.A. 958. Moreover, when discussing the “employment base
of [Eclipse]” as part of the sale, ETIRC “indicated [its]
preference that the Company remain at its current
employment size,” J.A. 964, and, at the sale hearing before
the Bankruptcy Court, Eclipse’s counsel represented that the
sale “would maintain the going concern” of the company and
“preserve[] employment for hundreds of employees,” J.A.
673. ETIRC’s counsel likewise stated at the sale hearing that
there was a significant benefit to this “going concern” sale as
it would “continue to provide jobs and the ability for
customers who already purchased planes to service them.”
J.A. 674. Lastly, as the Bankruptcy Court observed, ETIRC
had set aside a sizable operating budget for the post-sale
entity, and two high-ranking Eclipse executives testified that
they believed—albeit based on their subjective impressions—
that ETIRC did not intend to lay off Eclipse’s workforce.

       For their part, Appellants do not dispute that Eclipse
was to be sold on a going concern basis and that such sales
are presumed to transfer all employees, but argue that there is
something that indicates otherwise: two express provisions of
the asset purchase agreement, that, in their view, rebut any
presumption because “there is no evidence that a single
employee would have been spared termination” had the sale
been finalized.8 Appellants’ Br. 32. Specifically, Section 7.2


       8
         Appellants also assert that the failure to finalize the
sale could not have caused the layoff as a matter of simple
“cause-and-effect logic” because the layoff was made
retroactive to February 19th, and the sale did not fall apart
until February 24th. Appellants’ Br. 26. This argument is
easily rejected. Eclipse’s final decision to lay off its




                              23
of the agreement provides, “[u]nder no circumstances shall
[ETIRC] assume or be obligated to pay . . . any claims of or
liabilities of [Eclipse’s] Employees, including but not limited
to, any claims or liabilities related to . . . liability under the
WARN Act, salaries, vacations, . . . [and] severance pay . . . ,
which Employee Claims shall be and remain the liability,
responsibility and obligation of the Sellers.” J.A. 556. And
Section 7.3 entitled “Employment,” provides:

              [ETIRC] may (but shall not be
              required to), in its sole and
              absolute        discretion,    offer
              employment to any and all
              individuals employed by [Eclipse]
              in connection with the Business as
              of the Closing Date . . . .
              [ETIRC’s] employment of any
              individuals previously employed
              by [Eclipse] shall be on an “at
              will” basis and on such other
              terms      and      conditions    of
              employment as [ETIRC] shall
              offer in its sole discretion. Except
              as otherwise agreed to in writing,
              [ETIRC] shall be under no
              obligation to employ or continue


employees post-dated the noteholders’ February 24th motion
to convert Eclipse’s bankruptcy to a Chapter 7 liquidation—
the motion which, for all intents and purposes, marked the
failure of the sale. Eclipse’s decision to make this February
24th layoff retroactive to an earlier date has no bearing on our
causation analysis.




                               24
             to employ any individual for any
             period.     The employees who
             accept [ETIRC’s] offer of
             employment and who commence
             employment with [ETIRC] from
             and after the Closing Date shall be
             referred to herein as the “Hired
             Employees.”         Under        no
             circumstance shall any individual
             employed or formerly employed
             by [Eclipse] become an employee
             of [ETIRC] unless such individual
             becomes a Hired Employee.

J.A. 556. Appellants assert that these provisions reflect that
ETIRC “renounced any intent or obligation to hire [Eclipse’s]
employees en masse at the closing.” Appellants’ Br. 27.

        We conclude Eclipse has the better of the argument.
Although these terms freed ETIRC from any binding
obligation to retain Eclipse’s employees and prevented it
from incurring liabilities were it not to retain them, we agree
with the District and Bankruptcy Courts that these terms are
mere “boilerplate language address[ing] a buyer’s typical
litigation concerns over successor liability and third-party
beneficiary claims.” In re AE Liquidation, Inc., 556 B.R. at
623; see In re AE Liquidation, Inc., 522 B.R. at 69
(Bankruptcy Court observing that “such terms are boilerplate
in going-concern sales and merely allow the buyer to pick
which employees to retain”).          While such boilerplate
language perhaps signifies that the sustained employment of
Eclipse’s workforce was not a foregone conclusion, it does
not rebut the presumption in favor of continued employment




                              25
in a going concern sale—especially in light of the significant
evidence that ETIRC intended to carry on Eclipse’s
operations had the sale been finalized.9

        In sum, the record supports—and at the very least
does not rebut—the presumption that Eclipse’s employees
would have retained their jobs had the sale been finalized, and
the District Court thus did not err in concluding as a matter of
law that the failure to obtain financing for that sale was the
cause of the layoff.

       C.     Foreseeability

       We turn next to whether the failure of the sale was
reasonably foreseeable before February 24, 2009—the date
Eclipse notified its employees of the layoff.            The
implementing regulations provide that an “unforeseeable
business circumstance” is one that was “not reasonably
foreseeable at the time that 60–day notice would have been
required,” 20 C.F.R. § 639.9(b), but they do not define what
makes a business circumstance “not reasonably foreseeable.”

       9
         In support of their argument that the sale’s failure did
not cause the layoff, Appellants also cite to Pieper’s
testimony at the sale hearing that he had not made any
promises of employment to any Eclipse employee and had
made “[z]ero” decisions as to what Eclipse employment
contracts ETIRC would assume if the deal were approved.
J.A. 662-63. When considered alongside the other evidence
in the record, Pieper’s testimony, which, in context simply
preserved ETIRC’s ability to choose at a later date the
specific employees it would retain, also does not rebut the
presumption of continued employment resulting from the
going concern sale.




                               26
Instead, the regulations counsel that courts are to undertake a
fact-specific inquiry to assess on a case-by-case basis
whether, in failing to anticipate the circumstances that caused
the closing, the employer “exercise[d] such commercially
reasonable business judgment as would a similarly situated
employer in predicting the demands of its particular market.”
Id. § 639.9(b)(2); see also Loehrer v. McDonnell Douglas
Corp., 98 F.3d 1056, 1060 (8th Cir. 1996). Likewise, under
our case law, we consider “the facts and circumstances that
led to the closing in light of the history of the business and of
the industry in which that business operated.” Elsinore, 173
F.3d at 186.

       Seeking additional guidance on how to assess such
facts and circumstances, the District and Bankruptcy Courts
have invoked the test adopted by the Fifth Circuit in Halkias
v. General Dynamics Corp., 137 F.3d 333, 336 (5th Cir.
1998), requiring that in order to be “reasonably foreseeable”
an event must be “probable.” In re AE Liquidation, Inc., 556
B.R. at 619; In re AE Liquidation, Inc., 522 B.R. at 69.
Eclipse urges that this is the correct standard, and that we join
the four Courts of Appeals, in addition to the Fifth Circuit,
that have adopted it. See United Steel Workers of Am. Local
2660 v. U.S. Steel Corp., 683 F.3d 882, 887 (8th Cir. 2012);
Gross v. Hale-Halsell Co., 554 F.3d 870, 876 (10th Cir.
2009); Roquet v. Arthur Andersen LLP, 398 F.3d 585, 589
(7th Cir. 2005); Watson v. Mich. Indus. Holdings, Inc., 311
F.3d 760, 765 (6th Cir. 2002). Appellants, on the other hand,
contend the Act does not set so high a threshold for notice
and that reasonably possible outcomes, although perhaps not
more likely than other outcomes, should be deemed
sufficiently foreseeable to trigger the notice requirement. At
the very least, Appellants urge that where two outcomes are




                               27
equally possible—in a game of roulette, for example, where
the ball will land on either black or red—both must be
considered “reasonably foreseeable” even though neither
crosses the more-likely-than-not threshold. Appellants’ Br.
38.

       Below, we will first address what standard should be
applied when assessing “reasonable foreseeability” and then
assess how that standard applies under the facts of this case.

          1. Determining the Appropriate Foreseeability
             Test

        In Halkias, the Fifth Circuit was presented with a
defense contractor that was forced to lay off its employees
after the United States Navy canceled a significant contract
due to the contractor’s cost overruns. 137 F.3d at 334. When
assessing the appropriate test for reasonable foreseeability,
the court held that anything less than a probability would be
“impracticable” because cost overruns are a frequent
occurrence that only rarely result in cancellation, although
cancellation is a “possibility” each time an overrun occurs.
Id. at 336. Thus, the court reasoned, if the mere possibility of
a layoff were enough to trigger the WARN Act, contractors
“would be put to the needless task of notifying employees of
possible contract cancellation and concomitant lay-offs”
every time such an overrun occurred, even though such a
layoff was still not likely. Id. at 336.

       In the nineteen years since Halkias was decided, every
Circuit to have considered this probability standard for
WARN Act notice has adopted it. See United Steel Workers
of Am. Local 2660, 683 F.3d at 887 (employer’s knowledge
that economic downtown would hurt demand for its product




                              28
did not bar unforeseeable business circumstances exception
because “[n]othing in the record suggests that the extent of
the economic downturn and its effects on the steel industry
were probable any time before [the time notice was given]”);
Gross, 554 F.3d at 876 (“[W]e do not rely on the mere
possibility that layoffs will occur, but rather look for their
probability.”); Roquet, 398 F.3d at 589 (holding that while it
was “[c]ertainly . . . possib[le]” that accounting firm itself
rather than its individual officers would be indicted, that
possibility never rose to the level of “probable” and thus
unforeseeable business circumstances exception applied);
Watson, 311 F.3d at 765 (adopting probability standard and
observing that “WARN was not intended to force financially
fragile, yet economically viable, employers to provide
WARN notice . . . when there is a possibility that the business
may fail at some undetermined time in the future.”).10

       Our Circuit has never directly spoken on this
probability standard, but our adoption of it is supported by the
discussion and analysis in our only precedential opinion to
date addressing the unforeseeable business circumstances
exception to the WARN Act. In Hotel Employees &
Restaurant Employees International Union Local 54 v.
Elsinore Shore Associates, 173 F.3d 175 (3d Cir. 1999), we
held that a casino’s closure was not reasonably foreseeable
and that the unforeseeable business circumstances defense

       10
          Multiple district and bankruptcy courts have also
adopted the Halkias probability standard. See, e.g., In re
Jevic Holding Corp., 496 B.R. 151, 160-61 (Bankr. D. Del.
2013); Law v. Am. Capital Strategies, Ltd., No. 3:05-0836,
2007 WL 221671, at *13 (M.D. Tenn. Jan. 26, 2007).




                              29
therefore applied to excuse that casino’s failure to notify its
employees prior to its being shut down by the New Jersey
Casino Control Commission. Id. at 187. While we did not
explicitly address whether we found that the closure was not
“probable,” not “possible,” or something in between, the facts
that we recounted—including that the Control Commission
refused to renew the casino’s license due to its financial
struggles a month prior to the closure and that a Commission-
appointed conservator struggled for an extended time to find a
buyer for the casino—indicated that we were applying a
higher standard more akin to a probability test. Id. at 178.

        In dicta, moreover, we endorsed the logic of that
standard, observing that the WARN Act was not intended to
“require an economically viable employer to provide notice
of a possible—but unlikely—closing” and that requiring such
premature notice could have the perverse effects of causing
creditors to refuse to provide the struggling company with
further credit or prompting employees to unnecessarily leave
their jobs—potentially forfeiting valuable future assets such
as unvested benefits. Id. at 185 n.7. And we also noted that
these unintended consequences not only would not serve the
purposes of the WARN Act but “would increase the chance
that an employer will be forced to close and lay off its
employees, harming precisely those persons WARN attempts
to protect.” Id.

       Here, we have occasion to go a step further than we
did in Elsinore and to join our Sister Circuits in holding that
the WARN Act is triggered when a mass layoff becomes
probable—that is, when the objective facts reflect that the




                              30
layoff was more likely than not.11 This standard strikes an
appropriate balance in ensuring employees receive the
protections the WARN Act was intended to provide without
imposing an “impracticable” burden on employers that could
put both them and their employees in harm’s way.12 Halkias,
137 F.3d at 336.




       11
           We emphasize that this probability test will always
be an objective one, Watson, 311 F.3d at 764, and WARN
Act liability may not be avoided by an employer clinging to a
glimmer of hope that it will remain open against improbable
odds. Even the most well-intentioned subjective beliefs will
not excuse failure to comply with the WARN Act’s notice
requirement if they are not “commercially reasonable” in
light of the facts that were available to the company in the
sixty-day period prior to the layoff. 20 C.F.R. § 639.9(b)(2).
        12
           Of course, “reasonable foreseeability” may have a
different meaning in different contexts and sometimes has
been interpreted to mean less than a probability. See,
e.g., CSX Transp., Inc. v. McBride, 564 U.S. 685, 703 (2011)
(holding that, in the context of the Federal Employers’
Liability Act, a harm is reasonably foreseeable unless “a
person has no reasonable ground to anticipate that a particular
condition . . . would or might result in a mishap and injury”
(alterations in original) (citation omitted)); Indian Brand
Farms, Inc. v. Novartis Crop Protection Inc., 617 F.3d 207,
226 (3d Cir. 2010) (noting, in the products liability context,
than an occurrence is reasonably foreseeable if “in light of the
general experience within the industry when the product was
manufactured, [the occurrence] objectively and reasonably
could have been anticipated” (citation omitted)). In the




                              31
        Companies in financial distress will frequently be
forced to make difficult choices on how best to proceed, and
those decisions will almost always involve the possibility of
layoffs if they do not pan out exactly as planned. If
reasonable foreseeability meant something less than a
probability, nearly every company in bankruptcy, or even
considering bankruptcy, would be well advised to send a
WARN notice, in view of the potential for liquidation of any
insolvent entity. And, as we explained in Elsinore, there are
significant costs and consequences to requiring these
struggling companies to send notice to their employees
informing them of every possible “what if” scenario and
raising the specter that one such scenario is a doomsday. 173
F.3d at 185 n.7. When the possibility of a layoff—while
present—is not the more likely outcome, such premature
warning has the potential to accelerate a company’s demise
and necessitate layoffs that otherwise may have been avoided.
See Roquet, 398 F.3d at 589 (“[T]he WARN Act is not
intended to deter companies from fighting to stay afloat . . .
.”); Elsinore, 173 F.3d at 185 n.7. Thus, we join the many
courts that have held this is not the burden the WARN Act
was meant to impose and that a layoff becomes reasonably
foreseeable only when it becomes more likely than not that it
will occur.13



WARN Act context, however, that lower standard is not
appropriate for the reasons we have explained.
        13
            Appellants assert that the Halkias test unfairly
“transfers the defendant’s burden to the plaintiff” by requiring
plaintiffs to prove that a layoff was not “probable.” Reply Br.
24. Appellants offer no support for this contention, and we
reiterate that the burden of proof remains on the employer to




                              32
            2. Application of the Reasonable Foreseeability
               Test

        Applying this foreseeability analysis to the facts of this
case, we conclude that Eclipse has met its burden of
demonstrating that ETIRC’s failure to obtain the financing
necessary to close the sale was not probable prior to Eclipse’s
decision to lay off its employees on February 24, 2009. The
first relevant date we must consider for WARN Act purposes
is December 26, 2008, the sixty-day mark at which WARN
Act notice would have been due. At that point in time,
Eclipse was preparing to be sold on a going concern basis via
auction procedures approved by the Bankruptcy Court, with
ETIRC serving as a stalking horse bidder. When no
additional bidders materialized, the Bankruptcy Court held a
sale hearing at which it heard multiple days of testimony
before ultimately approving Eclipse’s sale to ETIRC under
the terms of the amended asset purchase agreement on
January 23, 2009. As it could hardly be said that the failure
of the sale appeared probable to Eclipse on the very day the
Bankruptcy Court approved it, Eclipse cannot be held liable
for its failure to provide WARN Act notice to its employees
prior to January 23, 2009.14


demonstrate that the layoff in question was not probable at
the time that WARN Act notice became due. See Gross, 554
F.3d at 877 (holding employer “met its summary judgment
burden of establishing that [the unforeseeable circumstance] .
. . while always a possibility, was unforeseeable”).
       14
         Although Appellants make much of Eclipse’s CFO’s
deposition testimony that even prior to the sale’s approval
Eclipse had “a fair bit of concern over the ability [of ETIRC]




                               33
       Whether a reasonable jury could find that the exercise
of commercially reasonable business judgment required
WARN Act notice to be given at some point in the month
between the approval of the sale and its ultimate demise is a
more difficult question. As Appellants point out, Eclipse’s
disinterested directors were demanding a more “concrete
funding commitment” from VEB as early as February 2nd,
J.A. 998-1000, and were considering converting Eclipse’s
bankruptcy to a Chapter 7 liquidation on February 4th if such
a commitment did not materialize. Although no direct
“concrete” commitment from VEB ever came, Eclipse’s
executives and its board received constant assurances from
Pieper and Bolotin that funding was forthcoming in a matter
of weeks and, as Eclipse began to run out of money, in a
matter of days. While Eclipse’s disinterested directors were
clearly perturbed by VEB’s delays15 and continued to discuss


to provide financing to close the deal,” the CFO also testified
that those concerns were resolved by Eclipse’s “removing
financing as a contingency to closing and requesting to see
commitment letters from the financers.” J.A. 904. While
VEB’s commitment letters to ETIRC were not as “solid” as
he would have liked, J.A. 904, he explained, he ultimately felt
“comfortable enough that [the] money [wa]s going to
materialize,” J.A. 906, and the Bankruptcy Court clearly
agreed when it approved the sale on those terms. This slight
discomfort with ETIRC’s financing arrangement does not
create a factual dispute as to whether it was probable that the
sale was going to fail on or before its final approval in late
January 2009.
      15
        We note that while these constant delays were no
doubt frustrating to Eclipse, they were not entirely




                              34
the possibility of liquidating the company without more
definite financial commitments, they ultimately deemed the
continual oral assurances they received from Pieper and
Bolotin to be compelling enough to continue on a path
towards closing.

       While these assurances may look like empty promises
in hindsight, we must consider the decisions Eclipse made
based on the information available to it at the time and “in
light of the history of the business and of the industry in
which that business operated,” Elsinore, 173 F.3d at 186.
This history included Eclipse and ETIRC’s business
relationship for years prior to the sale, with ETIRC taking on
an even more active role in Eclipse’s affairs in the months
leading up to the bankruptcy. Moreover, Pieper and Bolotin,
while acting as representatives of ETIRC through much of the
sale process, were both members of Eclipse’s board of
directors, with Pieper serving as Eclipse’s CEO. Thus, by the
time the companies began to negotiate the sale, ETIRC and its
representatives had repeatedly expressed their desire to keep
Eclipse operational, and had proven their willingness to act in
furtherance of that goal—filling board seats and providing
financial assistance on multiple occasions to help keep
Eclipse afloat. This longstanding relationship bears heavily


unexpected and do not in and of themselves indicate it was
likely the deal would fail. As the District Court observed, the
asset purchase agreement expressly anticipated a prolonged
closing period by providing a month-long “cushion” for the
deal to close—until February 28, 2009—before either party
was given the option to terminate the contract. In re AE
Liquidation, Inc., 556 B.R. at 620.




                              35
on our assessment of Eclipse’s expectations in the face of
ETIRC’s continual reports that funding was on the way, for
these were not grandiose promises from a stranger, but
assurances from a credible business partner with a
demonstrated commitment to Eclipse’s survival.16 With this
history in mind, we review the specific assurances Eclipse
received regarding ETIRC’s funding to assess whether the
sale’s failure ever crossed the line from possible to probable
before February 24, 2009.

        Considering first the assurances Eclipse received prior
to Prime Minister Putin’s February 21st decision not to act on
the funding of the sale, we conclude that before that point
Eclipse had little reason to believe the sale would not close.
While it was forced to encounter numerous frustrating delays
as it had with the Russian factory deal previously, Eclipse had


       16
           Appellants contend that the history of the parties’
business dealings cut in their favor, as the record reflects that
VEB had been stringing Pieper along with unfulfilled
promises of funding for the Russian factory deal since
January 2008. Thus, Appellants contend that this “checkered
history” of ETIRC and Eclipse’s business dealings with VEB
“made the sale’s failure at least reasonably foreseeable, if not
the likely outcome.” Appellants’ Br. 40. Although VEB’s
prior failure to timely fund the factory deal is relevant to our
assessment of whether a similarly situated employer would
have recognized at an earlier date that VEB’s funding was
unlikely to materialize, it does not by itself create a dispute of
material fact when considered in light of the history and
context of Eclipse’s relationship with ETIRC. See Elsinore,
173 F.3d at 186.




                               36
received consistent positive reports from Pieper, who had just
returned from Moscow where he met with one of the Prime
Minister’s deputies, Bolotin, and a Russian Governor directly.
These credible parties reported that VEB had been
recapitalized, that funds had been allocated to the sale, and
that the funding would be forthcoming in a matter of days.
Although it was of course possible the funding could fall
through, Eclipse had a reliable basis to believe it was more
likely than not the funding would receive Prime Minister
Putin’s final approval on February 21st and be dispersed
shortly thereafter.17 Before February 21st, in other words, it
appeared probable the sale would close, and no WARN Act
notice was required.

       The last three days between February 21st and 24th
present a closer question, as much of the optimism
surrounding the sale appeared to have dissipated. Still, no
reasonable jury could conclude that the sale’s failure became
probable in that time frame. Eclipse had received every
indication that the sale was about to close up until that point,
and Bolotin’s preliminary report from the February 21st
meeting—with more information supposedly forthcoming—
indicated only that the Prime Minister simply “still had to
think about” the sale further after one of his colleagues who


       17
          In addition to the reasons given above, Eclipse had
even less reason to believe the sale would not close prior to
February 17th, when ETIRC disclosed it did not have the
capital to fund Eclipse without the VEB loan, even on an
interim basis. As ETIRC had not made its proposed loan
from VEB a condition of closing the deal, there was potential
up until this disclosure that the deal could close even if the
VEB funding was significantly delayed or did not materialize.




                              37
was heavily involved with the sale had missed the meeting
due to a medical emergency. J.A. 1028. Although Pieper
informed the noteholders on the 22nd that it appeared
problems had arisen with the financing, it was not apparent
what those problems were, and, on the 23rd both Pieper and
Bolotin expressed their beliefs that any issues could be
resolved promptly, with Bolotin promising a definitive
answer by February 24th. As soon as the February 24th
deadline passed with no positive report, Eclipse filed the
motion to convert, and notified its employees accordingly.

        Although the chances of the sale falling apart may
have reached fifty-fifty while the company waited to hear if
and when Prime Minister Putin planned to next consider
releasing the already-allocated funds for the closing, Pieper
and Bolotin continued to reassure the board and the
noteholders that any issues with the financing could be
resolved and promised there would be an answer within days.
Under these circumstances, and taking account of the
historical relationship between the companies, it was
commercially reasonable for Eclipse to believe that the sale
was still at least as likely to close as to fall through before
February 24th, so that no WARN Act notice was required
prior to that time.18 See Roquet, 398 F.3d at 589 (holding that


       18
         Appellants insist that, at the very least, Eclipse ought
to have provided its employees with conditional notice under
20 C.F.R. § 639.7(a)(3). This regulation however, contains
only permissive language, providing that “[n]otice may be
given conditional upon the occurrence or nonoccurrence of an
event.” Id. (emphasis added). While conditional notice may
be a useful tool to help employers ensure that they have
complied with the WARN Act in close cases, such notice is




                               38
in-person meeting and subsequent ongoing investigation by
Department of Justice regarding company’s criminal liability
did not make company’s indictment “probable”); Burnsides v.
MJ Optical, Inc., 128 F.3d 700, 703 (8th Cir. 1997) (holding
seller was not liable under the WARN Act for “believing the
sale would go through according to the . . . letter of intent”
when buyer changed the previously agreed upon terms at the
last minute).

IV.   Conclusion

       For the foregoing reasons, Eclipse has met its burden
of demonstrating that its eventual shutdown and layoff of its
employees was not probable prior to February 24, 2009, and
it is entitled to invoke the WARN Act’s unforeseeable
business circumstances exception as a matter of law.
Accordingly, we will affirm the order and judgment of the
District Court, and by extension the Bankruptcy Court.




not mandatory, and Eclipse cannot be held liable for its
failure to provide it. See Loehrer, 98 F.3d at 1063 n.9.




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