     06-5249-cv
     Burke v. Hamilton



 1                            UNITED STATES COURT OF APPEALS

 2                                  FOR THE SECOND CIRCUIT

 3                                    August Term, 2007

 4   (Argued:    April 16, 2008                           Decided: June 4, 2008)

 5                Docket No. 06-5249-cv (L), 06-5425-cv (XAP)

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

 7   THOMAS BURKE, RICHARD DANITZ, ROBERT J. KULCZYK, JAMES M. KILGER,
 8   BRUCE HOFFMAN, GEORGE FERRARO, JAMES BIDDLE SR., JOHN O’HARE JR.,
 9   as Trustees on Behalf of the Buffalo Carpenters Pension Fund, and
10   BUFFALO CARPENTERS PENSION FUND,
11
12         Plaintiffs-Appellants-Cross-Appellees,
13
14               -       v.     -
15
16   HAMILTON EQUIPMENT INSTALLERS, INC.,
17
18         Defendant-Appellee-Cross-Appellant,
19
20   PROFESSIONAL FURNISHINGS & EQUIPMENT, INC., HAMILTON INSTALLERS,
21   INC., and A. JAN STALKER ASSOCIATES, INC.,
22
23         Defendants-Appellees.
24
25   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
26
27   B e f o r e:        WINTER, SACK, Circuit Judges, and MURTHA, District
28                       Judge.*

29         Appeal from a judgment after a bench trial in the United

30   States District Court for the Western District of New York

31   (Richard J. Arcara, Judge) finding Hamilton Equipment Installers


           *
          The Honorable J. Garvan Murtha, United States District
     Judge for the District of Vermont, sitting by designation.

                                              1
 1   liable as an alter ego for the ERISA liability of Hamilton

 2   Installers, but finding that Professional Furnishings & Equipment

 3   was not liable for these debts either as an alter ego or under a

 4   veil-piercing theory.   For substantially the reasons stated by

 5   the district court, we affirm.

 6
 7                        JONATHAN G. JOHNSEN, Creighton, Pearce,
 8                        Johnsen & Giroux, Buffalo, New York, for
 9                        Plaintiffs-Appellants-Cross-Appellees.
10
11                        PHILIP B. ABRAMOWITZ, Barth, Sullivan and
12                        Baer LLP, Buffalo, New York (Jason H. Sterne,
13                        Williamsville, New York, on the brief), for
14                        Defendant-Appellee-Cross-Appellant and
15                        Defendants-Appellees.
16
17   PER CURIAM:

18        Thomas Burke et al. appeal from a judgment issued after a

19   bench trial by Judge Arcara.     See Burke v. Hamilton Installers,

20   Inc., No. 02-CV-519, 2006 WL 3831380 (W.D.N.Y. Oct. 16, 2006).

21   We assume familiarity with the district court’s opinion.

22        Judge Arcara held that certain ERISA withdrawal liabilities

23   incurred by Hamilton Installers, Inc. (“Installers”) under the

24   terms of a collective bargaining agreement with the Carpenters

25   Pension Fund could be attributed to Hamilton Equipment

26   Installers, Inc. (“Equipment”). The district court found that

27   Equipment was an alter ego of Installers under a theory derived

28   from labor law.   See Lihli Fashions, Inc., v. N.L.R.B., 80 F.3d

29   743, 748 (2d Cir. 1996).   However, the court also found that

30   Professional Furnishings & Equipment (“Professional”) was not

                                        2
 1   derivatively responsible for Installers’ ERISA liability because

 2   Professional was not an alter ego of Equipment and because there

 3   were no grounds to pierce the corporate veil between Professional

 4   and Equipment.

 5        Burke argues in his appeal that Professional is responsible

 6   for Equipment’s ERISA liability under the veil-piercing theory

 7   enunciated in Lowen v. Tower Asset Management, Inc., 829 F.2d

 8   1209, 1220-21 (2d Cir. 1987).   Under this theory, liability would

 9   flow from Installers to Equipment to Professional.

10        Equipment cross-appeals, contending that it was neither an

11   alter ego nor a successor of Installers.

12        We affirm on both the appeal and the cross-appeal for

13   substantially the reasons stated by the district court.   See

14   Burke, 2006 WL 3831380.   We specifically note that the veil-

15   piercing theory enunciated in Lowen does not render Professional

16   responsible for the ERISA liability originally incurred by

17   Installers and attributed to Equipment.    See Lowen, 829 F.2d at

18   1220-21.   Other than familial relationships among the principals

19   of the firms, Professional has no connection to Installers’ ERISA

20   liability or to the circumstances surrounding the founding of

21   Equipment.   Installers’ ERISA debts were incurred and Equipment

22   was created - in part to avoid Installers’ obligations under the

23   collective bargaining agreement - long before Professional was

24   founded.   To the extent that Installers and Equipment were


                                      3
 1   deliberately undercapitalized, this also occurred well before

 2   Professional existed.    After Professional was created, it was in

 3   competition for business with Equipment’s then-parent company.

 4   Professional therefore had nothing to do with Installers’

 5   incurring ERISA liability or with Equipment’s creation as

 6   Installers’ alter ego.   Appellants also have not shown that

 7   Professional derived any substantial benefit from the creation of

 8   Equipment to avoid, inter alia, ERISA liability.    Long after the

 9   relevant events occurred, Professional did business with

10   Equipment and arguably exerted influence over it.    This later

11   relationship provides no grounds, however, for rendering

12   Professional liable for Equipment’s derivative liability for

13   Installers’ debts.

14        For the foregoing reasons, the judgment of the district

15   court is AFFIRMED.

16




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