When isn’t an asset purchase an asset purchase?  When the purchase of the assets are intended to run the business as a going concern.  So said the Eighth Circuit Court of Appeals on July 5, 2016, in Day v. Celadon Trucking Services, Inc.  So, what’s the big deal?  Well, on a 10,000 foot level, in a typical asset purchase (versus stock purchase), employees may or may not be hired by the new entity. In this case, the buyer, Celadon Trucking Services, Inc., decided to hire 201 of the 658 employees of the seller, Continental Express, Inc.  The rest remained employed by the seller to terminate. Unfortunately, the seller did not provide the remaining employees with the required 60 day Worker Adjustment and Retraining Notification (“WARN”) Act notice for a mass layoff. Thus, the terminated employees sued the buyer (deep pockets since the seller was broke), seeking damages under the WARN Act.

Here is where things take a detour, and to those of us on the employer side, defies logic at first blush.  
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