Redefining Liability: How the Fleming v. Bayou Steel Case Impacts Private Equity Sponsor Responsibilities Under the WARN Act

In the recent legal case Fleming v. Bayou Steel BD Holdings II L.L.C., the United States Court of Appeals for the Fifth Circuit made a pivotal decision regarding the liability of private equity sponsors under the Worker Adjustment and Retraining Notification Act (WARN Act) for actions taken by a portfolio company. This decision underscores the potential risks for private equity firms when they exercise significant control over the operations of their portfolio companies, particularly in situations of financial distress.


The case involves BD LaPlace, LLC, operating as Bayou Steel, a small steel producer in Louisiana. In 2016, the company was acquired by Black Diamond Opportunity Fund IV, LP (the Fund), managed by Black Diamond Capital Management (BDCM). Post-acquisition, BDCM installed a new management team and established a board of directors for Bayou Steel, comprising both BDCM and independent non-BDCM members.

Bayou Steel faced severe financial challenges towards the end of 2017 due to market fluctuations, requiring significant capital infusions and substantial third-party debt. By August 2019, the company defaulted on its loan covenants. The following month, the Fund decided against further capital support, leading Bayou Steel to notify employees of immediate termination and plant closure, followed by a bankruptcy filing.


The WARN Act requires employers with 100 or more full-time employees to provide 60 days’ notice before a plant closing or mass layoff. Bayou Steel's failure to provide this notice led to the legal action by the affected employees. They initially filed a class action in Delaware bankruptcy court, which was later moved to a Louisiana federal court against BDCM and BD Holdings II, the holding company within the Fund that owned Bayou Steel.


The central question was whether BDCM, as a private equity sponsor, could be held liable for Bayou Steel’s WARN Act violations. The court considered five factors to determine if BDCM and Bayou Steel were a "single employer": common ownership, common directors/officers, de facto control, unity of personnel policies, and dependency of operations.

Common Ownership: The Court found no common ownership between Bayou Steel and BDCM, noting that BDCM only held a 2.5% investment stake in the Fund.

Common Directors/Officers: Despite some shared directors between BDCM and Bayou Steel, the court concluded this was insufficient for liability, as they were never the majority and there were no common officers.

De Facto Control: This factor was pivotal. Evidence suggested BDCM’s significant involvement in Bayou Steel’s decisions, leading the court to infer that BDCM could have directed the plant closure.

Unity of Personnel Policies: The Court found no unity of personnel policies between the two entities.

Dependency of Operations: There was no financial commingling between Bayou Steel and BDCM, negating this factor.

Despite only one factor (de facto control) supporting the single employer status, the Fifth Circuit deemed it crucial enough to potentially warrant BDCM’s liability for Bayou Steel’s WARN Act violation, leaving the final decision to the district court.


This decision is significant for private equity firms. It highlights the risks associated with exerting substantial control over the employment-related decisions of portfolio companies. For private equity sponsors, it’s crucial to ensure compliance with employment laws and maintain clear, well-documented decision-making processes. This is especially important for companies in financial distress, as potential plaintiffs might seek alternate sources to satisfy legal liabilities. The ruling suggests that private equity firms should be cautious about their level of involvement in portfolio companies to avoid similar legal liabilities under the WARN Act.

In summary, the Fleming v. Bayou Steel decision by the Fifth Circuit has set a precedent where private equity firms could be held liable for their portfolio companies’ non-compliance with the WARN Act based on their level of control over the company’s decision-making. This ruling calls for careful consideration and diligence by private equity firms in their governance and oversight roles.