dissenting:
I dissent for the reason that the majority opinion is mistaken in its major premise. The majority rely exclusively on the premise that this is a case in which there was a sale of a business. The undisputed fact that the majority completely ignore is that this case is not about a sale of the business, but merely a sale of assets of the business. That fact is conclusively established by the record. What is unknown is whether the sale was of all the assets or just a part of them. The district court refused to order the agreement to be produced. The majority, like the district court, err in the conclusion that Compact Video Services’ (“Compact’s”) employees were merely “transferred from the payroll of one company to another as the result of a sale” because their major premise, that the sale was a sale of the business, is wrong.
On July 30, 1993 Compact notified all 314 of its employees by letter that Compact was selling its assets to ATS Acquisition Corporation (“ATS”) during the week of August 2, 1993. Compact’s notice explained the impending termination of the current employer/employee relationship and imputed that future ATS hiring decisions were beyond the power or authority of Compact’s management. The letter, from Compact CEO John Donlon, read:
After the sale closes, you will no longer be employed by the Compact Companies ...
I encourage each of you to apply for employment, as I have, with ATS Acquisition Corp. ATS Acquisition Corp. is actively considering its staffing needs and will be sending out offers of employment shortly.
29 U.S.C. § 2101(b)(1) allocates the burden of notifying employees faced with a potential employment loss to the party which has made the decision that creates an “employment loss”. 20 C.F.R. § 639.4. In assuming that Compact’s employees were transferred, the majority ignore the plain language of Donlon’s letter and the plain meaning of an asset sale. An asset sale involves only a company’s assets; the seller retains corporate liabilities such as the Worker Adjustment and Retraining Notification Act (‘WARN”) notification requirement. 29 U.S.C. § 2102(a).
Additional evidence of the fact that Compact’s sale of assets did not include the transfer of any employer liabilities is ATS’ letter to Compact’s employees on July 30, 1993. ATS’ letter notified Compact’s employees that ATS was acquiring the assets of Compact, but made no offers of employment. ATS encouraged Compact employees to apply with ATS since it was currently reviewing its staffing needs. An August 2nd application deadline was announced:
Many of you may have seen our recent “Help Wanted” notices in trade publications. However, we have not made any final decisions as to personnel and staffing. I am hopeful that you will apply for employment with our new company and I encourage you to submit an application no later than Monday, August 2, 1993, which is the application deadline. If you do not *1470apply, we will assume that you do not want to be considered for employment ... After we determine our personnel needs, we will issue written offers to individuals selected for employment at ATS.
Neither ATS nor Compact ever suggested to Compact’s employees that the impending sale would involve the transfer of Compact employees to ATS employment. While both letters encouraged Compact employees to apply for jobs with ATS, both also implied that ATS hiring decisions were to be made on an ad hoc basis in response to ATS’ perceived staffing needs for its new company and that no agreement had been reached between Compact and ATS providing for the automatic “transfer” of employees. No indication was given as to whether or not ATS would hire any of Compact’s employees. ATS acted no differently than any other company seeking employees on the open market.
On August 3, ATS extended offers of employment to selected members of its applicant pool. In its offers, ATS made no mention of assuming Compact’s responsibilities either as a business or as an employer. Applicants were given until the next day, the 4th, to respond; all offers were void after August 4. The sale of assets closed on August 5. Because of the constricted time frame of the ATS application process for former Compact employees, the majority is correct in noting that Compact employees who were accepted by ATS did not miss a day of work. Finding a new job on the day after your prior employment ends, however, is not synonymous with being “retained” in your employment.
Viewing the facts in the light most favorable to the Union, as summary judgment requires, Compact employees lost their jobs. In addition, the record raises a genuine issue of material fact which makes summary judgment inappropriate. Did the sale of assets encompass more than a traditional sale of assets and provide for the transfer of workers and corporate liability? The district court erroneously weighed the evidence before it when it concluded that the sale of assets agreement involved the sale of the business and so, only technical job losses. Absent the discovery of the sale of assets agreement between Compact and ATS, a genuine issue of material fact remains and it cannot be known whether the sale was a traditional sale of assets leaving Compact responsible for its corporate liabilities or a sale of the business as contemplated by WARN, 29 U.S.C. § 2101(b)(1).
WARN was enacted in order to ensure that employees faced with an impending employment loss have some time in which to pursue additional training for a new career or alternative employment opportunities. 20 C.F.R. § 639.1(a). WARN, therefore, requires an employer to provide 60 days notification prior to a mass layoff or closing which results in an “employment loss” for fifty or more employees. 29 U.S.C. §§ 2101(a)(3), 2102(a). WARN exempts the sale of a company from this notification requirement if the sale results in only “technical” job losses since such technical job losses do not pose any real threat to employees’ livelihoods.
ATS’ purchase of Compact’s assets was not exempted by 29 U.S.C. § 2101(b)(1) because it resulted in substantial job losses. See Carpenters Dist. Council v. Dillard Dep’t Stores, Inc., 778 F.Supp. 297, 314 (E.D.La.1991), aff'd in part and rev’d in part, 15 F.3d 1275 (5th Cir.1994) (affirming the employer’s violation of WARN, but reversing the calculation of damages). Compact’s own Chief Financial Officer, John Sabin, admitted that Compact’s sale to ATS was only a sale of assets. Nevertheless, the majority mischar-acterizes ATS’ hiring of Compact’s employees as a “transfer”. A sale of assets, however, involves only assets, not employees. Unlike the sale of a business itself, a sale of assets transfers a seller’s liability only if one of the following four exceptions apply:
(1) The purchasing corporation expressly or impliedly agrees to assume the liability;
(2) The transaction amounts to a “de fac-to” consolidation or merger;
(3) The purchasing corporation is merely a continuation of the selling corporation;
(4) The transaction was fraudulently entered into in order to escape liability.
Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1263 (9th Cir.1990). The record is *1471completely silent in establishing any of the four exemptions.
The majority sets a dangerous precedent by upholding the grant of summary judgment in this case. According to the reasoning of the majority, a manufacturing plant can conclude an agreement to sell only its fleet of trucks. The sale can result in an employment loss for all 100 employees previously employed in the loading and driving of the trucks. Nevertheless, the seller, under the reasoning of the majority, will be exempted from WARN’s notification requirement because the manufacturer who sold the trucks qualifies for WARN’s sales exemption, 29 U.S.C. § 2101(b)(1). The majority fail to understand WARN’s sale of a business exemption.
WARN defines “employment loss” as:
(A) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period ...
29 U.S.C. § 2101(a)(6). All 314 of Compact’s employees suffered an employment loss when they were specifically terminated by Compact on August 4, 1993. As both Compact’s and ATS’ letters demonstrate, ATS’ decisions to hire Compact employees were made on an ad hoc basis after the employees had been notified of their impending termination from Compact and had applied, as individuals, to ATS. Those Compact employees subsequently hired by ATS were not “retained”, but were hired, just as they might have been hired by any company then accepting applications for employment.
As a result of Compact’s unannounced asset sale to ATS, Compact’s employees were faced with the very situation that WARN was enacted to prevent. On only a few days notice, they learned that their employment was ended. The new jobs offered by ATS had very different wage and benefit compensation and were structured not as salaried, but as at-will employment. The way the majority read WARN, Congress intended only to protect those employees who are unable to find any alternative employment. WARN is not triggered by a specified length of employment loss, but by any employment loss. The sale of a business is exempt, but the sale of assets is not legally equivalent to the sale of a business. Holding, as the majority does, that post-termination employment such as that offered by ATS relieves the seller of WARN liability eviscerates the protections against unprecipitated termination which WARN was enacted to guarantee.
Compact and the majority rely on Headrick v. Rockwell Int’l Corp., 24 F.3d 1272 (10th Cir.1994), to support the conclusion that WARN obligations were not triggered by the asset sale. Headrick, however, is distinguishable. In Headrick, while the transaction involved a transfer of assets, the transferee explicitly agreed to assume the transferor’s liabilities relative to the plant’s operation, all employer’s responsibilities, and did so with the expectation that the facility would be operated with the transferor’s former employees. The transaction was similar to the sale of a business except for the fact that the transferor did not own the business. All the transferee had was a plant management contract with the government. It should be noted that the transaction in Head-rick meets the first exception in Louisiana-Pacific, “the purchasing corporation expressly or impliedly agree[d] to assume the liability.” Louisiana-Pacific, 909 F.2d at 1263. Here, there was no assumption by ATS of any employer responsibilities or any other obligations.
The district court erred by granting Compact’s motion for summary judgment. In granting a motion for summary judgment a court is required to review the evidence in the light most favorable to the nonmoving party and determine that there exist no genuine issues of material fact. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The undisputed facts of this case show that the sale at issue is a sale of assets. A sale of assets is presumed not to involve a transfer of employees; therefore, a genuine issue of material fact exists as to whether or not Compact’s sales agreement made provisions for a transfer of Compact’s employees. Reviewing the evidence in the light most favorable to the Union, Compact *1472terminated the employment of all of its employees on the date that it sold its assets to ATS. The sales exemption of WARN is not applicable to this case and a grant of summary judgment is in error.