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The Retirement Plan of the Unite Here National Retirement Fund, and Noel v. Kombassan Holding A.S

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Argued: January 16, 2009

Be fore JACOBS, Chief Judge, KEARSE, and HALL, Circuit Judges.

Kombassan Holding A.S. (“Kombassan”) appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.) holding it liable to the Retirement Plan of the UNITE HERE National Retirement Fund and its trustees (the “Plan”) for withdrawal liability incurred by the entity Hit or Miss (“HOM”) pursuant to sections 502(a)(3) and 4301(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), codified at, 29 U.S.C. §§ 1132(a)(3), 1451(a), in a total amount, including prejudgment interest, exceeding one million dollars. Although Kombassan assigned its HOM shares to four Turkish corporations in order to avoid a Turkish law limiting overseas investments, because it continued to exercise complete control over HOM, we hold that Kombassan was an alter ego of HOM and is, therefore, responsible for its withdrawal liability.

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